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