The Gazette 1971

The Status of Stormont ARTICLES K. Asmal Lecturer in Law, Trinity College, Dublin

Ireland (which, it will be recalled was presented to tele- vision viewer§ by Mr. O'Neill, as he then was in 1969, in a specially bound edition). Dr. Hillery pointed out that the "Northern Ireland Constitution" is nothing more than the Government of Ireland Act of 1920, with subsequent amendments. This is a British Act which has been amended on a considerable number of occasions by Westminster. It was and still is, an interesting example of devolution of power by a central legislature to a subordinate legis- lature. The 1920 Act with its amendments, does not form a basic law with certain fundamental rules as does the 1937 Irish Constitution. The right of the Westminster Parliament to legislate on all matters (even those expressly transferred to Stormont) affecting Northern Ireland is expressly preserved under Section 75 and many organisations in Britain have been insisting recently that Westminster should act under this Section to enact a Bill of Rights for the North. Westminster's Right Various attempts have been made in the past to increase the stature of the Government of Ireland so as to tie the hands of Westminster in so far as discussion in Westminster of Northern Ireland affairs is concerned. This had taken the form of counterposing the existence of a number of conventions which precluded the right of Westminster parliamentarians to ask questions or raise topics during debates on matters within Stormont's competence. Whatever doubts may have existed about the legality or wisdom of these conventions, Mr. Fitt and his allies, and events since October 1968, have totally destroyed this self-denying practice in the British House of Commons. A far more serious attempt to restrict Westminster's freedom of action in legislating for the North was Mr. Herbert Morrison's famous Section 1 of the Ireland Act of 1949 which "affirmed" that "in no event will Northern Ireland or any part thereof cease to be part of His Majesty's dominions and of the United Kingdom with- out consent of the Parliament of Northern Ireland". Some constitutional lawyers have argued that this Sec- tion effectively curtails the sovereignty of the British Parliament in that, without the consent of Stormont, the former Parliament may not pass an Act reuniting the Six Counties to the Republic. This provision was very strongly opposed by nearly one hundred Labour members of the British Parliament as an unnecessary political concession to the then re- doubtable Unionist majority. From the strictly legal aspect, there is considerable controversy as to whether this Section does in fact restrict the freedom of action of the British Parliament, whatever those who speak of the Northern Ireland Constitution may have to say. The orthodox (and largely accepted) British consti- tutional lawyers' position on attempted procedure checks of this kind is best expressed by the words of A. V. Dicey when he wrote that "The principle of

What existence has Stormont in international law? Can it really be "recognised" by a sovereign state? Leader writers and commentators have largely, if not entirely, Concentrated on one aspect of the Minister for Foreign Affairs' speech when he wound up last week's debate, initiated by Fine Gael in Dáil Eireann, on the rejection of force as an instrument for securing the unity of Ireland. Dr. Hillery's contribution to the cur- rent important argument on the place of the prescrip- tions of private morality in our Constitution and Statute Law (laws should not "express confessional or even paternalistic attitudes") has evoked considerable atten- tion. But there was another important strand to his speech. In recent weeks, a number of politicians from the Opposition parties in the South have called for the recognition of Stormont or for the recognition of the Ulster Constitution. In the eyes of many people this topic is also tied up with provisions of the 1937 Consti- tution which describe the national territory and the claims to exercise jurisdiction over the whole thirty-two counties by the Parliament and the Government in Leinster House. Claims over territory, the right to exercise jurisdiction over persons and things and the power to confer nation- ality are topics which have always raised the temperature of international relations. They are important because they are the indicia of sovereignty. A State which possesses these rights attempts to obtain confirmation or legitimation from other sovereign States and this is done by a process in international law known as recognition. A State which does not actively operate these rights may claim them either through diplomatic notes, con- stitutional documents or through keeping alive the notion of a single nation by conferring its nationality on the inhabitants of the separated or partitioned terri- tory, as in the Basic Law of the German Federal Republic : a principle expressly reserved by the Federal Republic when the E.E.C. treaty was signed. Recognition Unionist politicians have since the setting up of the Irish Free State, sought the "recognition of Stormont from the South and the 'Constitution' from the mino- rity". They would prefer what lawyers call de jure recognition of Stormont but, failing that, de facto recognition would suffice. This demand has not been limited to extremist elements in the Unionist Party: we have had the recent example of Lord O'Neill expressing considerable satisfaction at the fact that when Mr. Lemass drove past the gates of Stormont Castle in 1965, hf was. as the leader of the Government of the Republic of Ireland, "recognising Stormont". Dr. Hillerv. in the Government's reply to last week's debate, provided the short answer to the nonsense about recognising the so-called Constitution of Northern

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