The Gazette 1972

Wide Implications of Northern Ireland

Act 1972

by PROFESSOR CLAIRE PALLEY, Dean of the Faculty of Law, Queen's University, Belfast

With the implications of the emergency legislation

passed by the Westminster Commons and Lords yester-

day likely to be wide-ranging in relation to the beha-

viour of British troops in the North, legal experts in

Northern Ireland are already expressing concern about

the powers now given to the Stormont Government to

legislate with respect ot the British armed forces.

Up to now such powers, under the Government of

Ireland Act—which set up the State and Parliaments

of the Free State and of Northern Ireland—have been

the strict preserve of British Parliaments. In the follow-

ng interview with our Northern editor, Henry Kelly,

Dr. Claire Palley, Professor of Public Law and Dean of

the Faculty of Law at Queen's University, Belfast,

answers some important questions and discusses the

implications.

Dr. Palley, what precisely has been done by the new

Northern Ireland Act, 1972?

Basically the British Army operating in Northern

Ireland has been given full powers which it was thought

to have under regulations of the Special Powers Act.

That is, powers to deal with disorder and so on. But the

Act goes much further than that, and in my opinion

niuch further than it needed to. It doesn't merely give

the necessary powers to the Army, it is in fact a major

amendment to the Government of Ireland Act, 1920,

m a very definite and important way.

What do you mean exactly?

What has happened is that the Westminster Parlia-

ment has passed a law empowering the Government of

Northern Ireland at Stormont to pass laws conferring

powers, authorities, privileges and indemnity on the

armed forces. This is not what was originally intended

or indeed legislated for in the 1920 Act. It should be

made clear that Stormont will have no authority to

order

control

the Army but it does mean that Stor-

mont is now allowed to give the Army additional powers

hich they don't have at common law. Not only that,

but it can now pass laws at Stormont to protect the

British Army from litigation in the courts as a conse-

quence of their activity. The Government of Northern

Ireland can now also pass laws, if it so desires, to allow

the Army to use interrogation techniques for which the

Westminster Parliament would never legislate.

Are there other implications?

The Northern Ireland Act now permits the Parlia-

ment of Northern Ireland and the Northern Ireland

Minister of Home Affairs to pass such measures in a

far less public forum, without an effective opposition,

and without involving Parliament at Westminster in

the odium attaching to the passage of such measures.

In effect the Northern Ireland Act means that every-

thing the Army did under the regulations of the Special

Powers Act which the Courts here found wanting has

now been granted retrospective validity. It has not of

course altered the position of what troops may have

done outside the regulations. But it does mean that

Parliament at Stormont can now protect the Army here

against the consequences of any illegalities it has com-

mitted in Northern Ireland.

How can this be done?

Simply by passing an Indemnity Act indemnifying

anything or everything that has been done by soldiers

and effectively stopping any action against them in the

Courts. Such an Act would mean that a soldier could

simply say that such and such an action of his was

taken in good faith or for the public safety or in the

public interest, depending on the terms of the Indem-

nity Act, and this would be virtually impossible to use

as a basis for action in the courts.

Do you accept that some legislation was necessary to

clear up the loophole found in the Special Powers Act

by the Lord Chief Justice and his colleagues and if this

is so then could Westminster have done anything else?

Of course I accept the first point. As to the second, it

raises the whole fundamental question of who legislates

for the armed forces. Now the Government of Ireland

Act quite clearly makes legislation for the armed forces

forbidden ground to Stormont and so the legislation

should have been Westminster legislation, giving the

Special Powers Act regulations retrospective validity,

giving them current validity and providing that they

Vvould be valid in the future. Such legislation could

have been subject to yearly or half-yearly review at

Westminster. But as it is, as I have pointed out, this has

been done in part but much more has been added : and

what has been added is to give Stormont powers to

legislate for the armed forces and that this is a major

departure from the Government of Ireland Act, 1920.

Are you in effect saying that the High Court of

Northern Ireland upheld and, as it were, defended the

constitution of Northern Ireland—the 1920 Act and

that this was altered by Westminster?

That is -he position. There was a strong and, as it

proved, successful challenge to the British Government

to exercise the powers it has under the Government of

Ireland Act, 1920. When the challenge was upheld by

our highest legal authority it was simply reversed by

the Westminster Parliament.

Apart from the frightening possibilities of abuse of

this new power by Stormont, are there deeper legal

implications in your opinion for the law in Northern

Ireland? Even for the wider community as a whole

Well it really demonstrates that the British Govern-

ment has no real respect for the High Court of Northern

Ireland. It is not just a simple question that they have

protected the Army no more than the original case was

brought on appeal simply to attack the Army. It means

that a British Parliament has altered the decision of the

High Court on a point of interpretation of a West-

minister Act. It is a tremendous reflection on the Courts

here who, in my opinion, were absolutely correct and

quite proper in their judgment.

Any other implications? Say with respect to recent

decisions which have clearly gone against the military

and indicted their actions?