Fortnight Publications Ltd.

The N.I. 1972 ActAuthor(s): Kevin BoyleSource: Fortnight, No. 35 (Mar. 8, 1972), p. 4Published by: Fortnight Publications Ltd.Stable URL: http://www.jstor.org/stable/25543972 .

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4 WEDNESDAY, MARCH 8th. 1972

THE JSJJ.

1972

The Northern Ireland Act 1972, which was rushed through the Westminster Parliament last week, may open up a new

sore with the Rebublic of Ireland. For the

Act seems to be in breach of an

international treaty with the Republic. If it is the Republic might resort either to

diplomatic protest or to international

judicial proceedings. The Northern Ireland Act 1972 allows

the Northern Ireland Parliament to confer

'powers, authorities, privileges or

immunities' on the armed forces of the United Kingdom. Prior to this Act any legislation with respect to the army was

outside the competence of the Northern Ireland Parliament and reserved by the constitution 1 of Northern Ireland, the

Government of Ireland Act 1920 to Westminster. The Northern Ireland Act

was passed following the decision of the

High Court in the Hume case last month, in which the judges declared that the use

by the army of powers conferred on them

by the Special Powers Act was unlawful.

By passing this legislation enhancing the

power of the N.I.Government the U.K.

Government is in clear breach of the Articles of Agreement between Great

Britain and Ireland of December 6, 1921, as amended by Agreements in 1925 and 1938.

The 1921 Treaty followed on a period of armed conflivt in southern Ireland when Sinn Fein rejected the settlement for Ireland proposed in the Government of Ireland Act 1920. This conflict was resolved by a truce followed by the famous negotiations conducted for the

British by Lloyd George and for the Irish

by Arthur Griffith and Michael Colllins. The negotiations led to the Articles.of

Agreement signed by both sides and

embodied in the Irish Free State

(Agreement) Act 1922 of the British Parliament.

Under the Treaty the Irish Free Sate was constituted a s a dominion and by Article 12 Northern Ireland which by then had been functioning under its own

Parliament for some months was given a

choice in relation to the new entity. It

might either join the Free State or opt out of any relation with it. If it chose the latter

course, as it was to do in the event, then Article l? provided among other things that 'the provisions of the Government of Ireland Act 1920 (including those relating to the Council of Ireland) shall so far as

they relate to Northern Ireland continue to be of full force and effect."

The crucial importance of Article 12 at the time was explained in a Cabinet

memorandum of March 1922: 'It was

clearly agreed with Mr Griffith that if Northern Ireland declined to enter the Irish Free State her position was to remainas created by the Government of Ireland Act 1920 without alteration. Her

powers, privileges and revenues were to

be no greater and no less than they would have been under that Act. The

understanding was explicit, for the Government of Northern Ireland had

formally demanded in their letter of November 11 an equality of status with the Irish Free State, and the transfer of reserved services There was no secrecy in the understanding which was notified to the Government of Northern Ireland in the letter of December 5 under cover of which the Treaty was conveyed to Sir James Craig. 'You will observe', wrote

the Prime Minister in that letter, that there are two alternatives between which the Government of Northern Ireland is invited to choose. Under the first,

retaining all her existing powers, she will enter the Irish Free State with such additional guarantees as may be arranged in conference. Under the second

alternative she will still retain her present powers, but in respect of all matters not

already delegated to her lwill share the

rights and obligations of Great Britain/

The reserved powers a re thus to be

administered by the British Government in the Parliament of which Northern

Ireland continues to be represented. Of those reserved powers the most important are imperial and foreign relations and

military control.

THa memora ndum was prepared for

the Cabinet by its two most important advisers on Irish affairs, Lionel Curtis and Thomas Jones. Both were concerned

at the constitutional confusion in Ulster as

to who was to carry out military functions,

Northern Ireland Government through its B Specials or the Broitish Government

through the army. In advising Lloyd George of the memorandum Jones said 'It was of the essence of the bargain you made with the South that Northern

Ireland was to remain part of the United

Kingdom with a provisional government but with powers no greater and no less than under the 1920 Act.'

The Treaty was amended in 1925 when

by agreement the British Government and the Free State transferred certain

powers connected with the defunct Council of Ireland to the Government and Parliament of Northern Ireland. The

agreement of 1921,including Article 12,

remains in force and is included in the Index to British Treaties, But has the

Agreement the status of an international

treaty? This question has caused

controversy before. In 1924 the Irish Government registered the Treaty of 1921 with the League of Nations. The UK at once protested, arguing that the Agreement was not registrable as an international

treaty. The Irish Government mainaintained it was and in the o-pinion of some international lawyers the International Court would have preferred the Irish case. But despite its initial

protests the British Government's view of the treaty had clearly changed by the

following decade. During debates on moves by the Irish Free State on the oath of allegiance contained in the Treaty, the binding and international character of the 1921 agreement was emphasizedln

May 1933 in the House of Lords Viscount Hailshamlescribed the Treaty as

'a bargain between this county and the Irish Free Starte. Neither country party to the bargain can by unilateral action alter the terms of the bargain and it therefore follows that even if one party or the other partypurports to alter the

bargain that attempt has no legal, no international effect at all." The clearest

recognition that the Treaty had

internatigl effelct is contained in Viscount Hailsham's answer to his own query: But what is the effect in international law on the Treaty which is the arrangement, the

bargain made between the Irish Free State and this country? I have no hesitation in

saying that a treaty between the two nations

- I do not care what exact

descriptions you give them, whether

dominions foreign nations subordinate states or whatever they may be

- an

agreement between two different entities

of that character cannot be altered

without the consent of both and any attempt by one to make an alteration is

inoperative unless agreed by the other."

What steps might the Irish Government now take, 40 years later, in the light of the breach of the treaty by the UK in

conferring powers of a military character on the Northern Ireland Parliament?

Clearly they have cause for protest. At a time when the Stormont Parliament is

boycotted by the representatives of the

minority communiuty, who are calling for its suspension, the UK Government has chosen to strengthen that Parliament

without consultation or agreement with the

Irish Government. For the Northern Ireland Act 1972 gives to Stormont

powers which the original British

participants in the Treaty flatly refused to the Ulster Unionists as the most fundamental reserved matters.

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