Stormont the puppet – a brief study in legal codology (1965)   

by “Derrynane” (C.D. Greaves), Irish Democrat, February 1965 

Two measures designed to alleviate the now notorious mis-use of governmental powers in the Six Counties of Northern Ireland are at present being urged upon the British Labour Government.

These are:

1. That the promised Bill to penalise discrimination on the ground of race or religion should apply to North-Eastern Ireland;
2. That a Royal Commission shall be appointed by H.M. Government to inquire into the working of the Government of Ireland Act 1920, with special reference to allegations of undemocratic practises, and with a view to ascertaining if and when further legislation is desirable.

There is ample reason to believe that powerful forces are engaged in bringing pressure to prevent or delay action, and a danger that the Government may be tempted to take the easy course.

First, it should be noted that the official Labour policy, whatever about the policies favoured by individual Members of Parliament, or Labour or trade union organisations, is still what it was in 1949, namely the maintenance of partition. Second, while Mr. Wilson promised an MCF deputation in February 1964 that if a Labour Government were returned he would introduce Mr Fenner Brockway’s Bill, which was stated in Parliament to cover religious discrimination in Northern Ireland, there are reasons to believe that he may have had second thoughts even before the election. When challenged by Mrs McCluskey of the “Campaign for Social Justice”, he promised no definite legislation, but merely to “do all in his power” to end the scandalous situation that prevails. Although some 60 MP’s and many trade union organisations have urged an enquiry, there has never been any firm undertaking given by the leadership.

At the same time, it would be wrong to treat the Labour Party in the same way as the Conservative Party. First, The Conservative party does not contain any body of anti-partitioners or campaigners for democracy in the Six Counties worth mentioning. Second, the maintenance of partition is contrary to the interests of the vast majority of Labour members and supporters, whereas it corresponds exactly to the interests of the Imperialist circles whose party is the Tory party. To strengthen the substantial enlightened minority, to win increasing support among the rank-and-file and to change the actions of the leaders, even if their minds are still set, is the tactic best adopted.

But to do this it is necessary to cut through a specially constructed tangle of legal codology that has little parallel in the world.

The crux of the matter lies in Harold Wilson’s words “all in my power”. What is his power? And is he fully conscious of it?

Quite a few years ago the Connolly Association took counsel’s opinion on certain clauses in the Government of Ireland Act 1920, with a view to answering the pretence that Britain was not responsible for the mis-government of the Six Counties. It was then widely believed that Northern Ireland was virtually independent and could even secede from the United Kingdom whenever she wished and join the Republic. This is of course not so at all. The Six Counties are under British sovereignty and cannot secede without permission from Westminster, which still has power over “every person, matter and thing in Northern Ireland and every part thereof”.

The Ireland Act 1949 is sometimes quoted against this opinion, but this Act merely provides that the Six Counties shall not cease to be a part of Her Majesty’s dominions without the consent of the Stormont Government. It does not say they can pull out any time they like. The British Government has to give its consent to that. And the Ireland Act says nothing whatsoever about the internal administration of the area. So we must return to the 1920 Act.

What then does the 1920 Act say in relation first to the applicability of the anti-discrimination Bill to Northern Ireland, and second in relation to a Commission of Enquiry? It is important to get these things straight as resolutions passed without reference to the legal position can be self-defeating.

The Connolly Association is claiming that the Westminster Parliament may legislate for the Six Counties on any matter whatsoever and that such legislation is totally binding on it. It bases this opinion on Article Six of the Government of Ireland Act, which reads.:

“6/1. Neither the Parliament of Southern Ireland nor the Parliament of Northern Ireland shall have power to repeal or alter any provision of this Act (except as is specially provided by this Act), or of any Act passed by the Parliament of the United Kingdom after the appointed day and extending to the part of Ireland within their jurisdiction, although that provision deals with a matter with respect to which the Parliament has power to make laws.

6/2. Where any Act of the Parliament of Southern Ireland or the Parliament of Northern Ireland deals with any matter with respect to which that Parliament has power to make laws which is dealt with by any Act of the Parliament of the United Kingdom passed after the appointed day and extending to the part of Ireland within its jurisdiction, the Act of the Parliament of Southern Ireland or the Parliament of Northern Ireland shall be read subject to the Act of the Parliament of the United Kingdom, and so far as it is repugnant to that Act, but no further, shall be void.”

The appointed day is defined in Article 73. Suffice it to say that it could not be later than fifteen months after the passing of the Act, and that the Act was passed in 1920. Any legislation of the Westminster Parliament that is passed now must of necessity be “after the appointed day”.  

The references to Southern Ireland can be forgotten about. Under the Free State Constitution Act, Southern Ireland was taken out of the scope of the Government of Ireland Act and became the Irish Free State, which of course unilaterally changed its constitution in 1937, and in 1948 when it consequently ceased to be a part of Her Majesty’s dominions under British law. Incidentally, the purpose of the Ireland Act was simply to penalise the 26-Counties for leaving the Commonwealth, for the return of the 26-Counties to the Commonwealth would immediately restore to the British Parliament the power to unite Ireland, since the whole would again be part of Her Majesty’s dominions. But even this would involve another Act superseding the Government of Ireland Act. We are back where we started, at the main Constituent Act. 

In any case there would have to be the desire to do it, the main thing conspicuously absent through the years. To return to the Brockway Bill, let us imagine it was to be passed by the Westminster Parliament and the resultant Act applied to the whole of the United Kingdom, of which Northern Ireland is an integral part. It would be passed “after the appointed day”. It would extend to the part of Ireland within the jurisdiction of the Parliament of Northern Ireland. So, as the 1920 Act says, it could not be altered or repealed by Stormont, although it dealt with a matter with respect to which the (Northern Ireland) Parliament had power to make laws.

It should be noted here that it is taken for granted that after the appointed day (i.e. the day when Northern Ireland came into existence), the Westminster Parliament would continue to pass laws for the whole United Kingdom which would deal with matters the Six County Parliament could legislate upon. It is widely held that the powers of the Westminster Parliament were “transferred” to Stormont. That would mean that Westminster gave them up and Stormont possessed them exclusively. But that is not the case. The word “transfer” is not used in this part of the Act. It is merely said that the Parliament of Northern Ireland has power to legislate “for the peace, order and good government” of the area and NOT on such subjects as the Crown, Peace or War, armed forces, foreign affairs, treason, trade and a few minor things.

Let us be clear on this. The Parliament of Northern Ireland was given power to legislate within a certain area. This power was delegated by Westminster. But it was clearly indicated that the Westminster Parliament would still be legislating about the things Stormont was legislating about. So the question was likely to arise as to which legislation took precedence. Section Six makes it crystal clear that Westminster legislation took precedence.

Therefore there is no legal or constitutional obstacle to Mr Wilson’s introducing legislation on the subject of discrimination that will apply to the whole United Kingdom, even though it does relate to the good government of Northern Ireland. And such legislation cannot be repealed or altered by Stormont. It must be administered by the Six County Government, and if they refuse it is only necessary to ask who holds the purse strings and all the other powers.

If Mr.Wilson does not draft the anti-discrimination Act in such a way that it applies to religious discrimination in the Six Counties, it is not a matter of law but a matter of policy. It is because he does not choose to do so, for example because of the strength of Unionist clamour.

This means that the need of the hour is to make it absolutely clear to the Government that the country wants this legislation to include religious discrimination and to be applied to Northern Ireland. It should be noted that the easiest way to satisfy the Unionists would be to leave religious discrimination out altogether. That danger should be watched. But in the last analysis what happens depends on the amount of feeling the Irish and their friends can stir up

Now let us turn to the subject of the enquiry. The simplest way to pose the demand is to ask for an enquiry into the working of the Government of Ireland Act, 1920, with special reference to allegations of gerrymandering, discrimination, excessive police repression, and so on, for the purpose of ascertaining what further legislation, if any, is required.

Nobody can deny that Parliament has the right to inquire into the working of its own Acts. A law is passed. Somebody says that it has led to abuses. What will the average man think of a Parliament which said, “abuses or no abuses; let it stand”?  Not that this is not the reply that has been given through the ages to men and women who have demanded progress. But the necessity of examining the effects of legislation from time to time must be self-evident to every reasonable person. As for the fresh legislation needed, it might be found that the only effective legislation would be to repeal the Ireland Act of 1949 and end the partition of Ireland. But that would be a matter to argue out in the Commission and discuss in this report. 

Sometimes people do not draft their resolutions in this unanswerable form – a form which makes the issue one of policy and keeps law out of it. For example a recent resolution from a Labour Party branch called for an inquiry into Northern Ireland, with a view to bringing the state of democracy there into line with that in the rest of the United Kingdom.

They received the reply that the Prime Minister had no power to institute such an inquiry.

This reply came despite the fact that the writer had included the text of the famous general saving clause, Section 75, which runs: “Notwithstanding the establishment of the Parliaments of Southern Ireland and Northern Ireland, or the Parliament of Ireland, or anything contained in this Act, the supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters or things in Ireland and every part thereof.”

How in the face of this could the Prime Minister claim he has no power? The answer is perfectly clear. If you read the section carefully it will be plain that Parliament has the power; the Prime Minister or, nearer the mark, the Home Secretary, has no power to order an inquiry or interfere by administrative action with any of the powers possessed by the Six County Parliament. But Parliament has the power to order such an inquiry by a simple motion. It will be seen, by the way, that the Government of Ireland Act provides for a sharing of executive powers and a separation of executive powers. Is it cynical to believe that this is because the Government which passed the Act and wanted to preserve control had not accepted responsibility before the world for the appalling pogroms and repression its passage was a signal for? The salient fact is that the over-riding powers of the Westminster Parliament are reserved in toto and unconditionally. The delegated authority given to Stormont can be withdrawn by Parliament at any time either in whole or in part, subject to the proviso of the 1949 Act that the Six Counties shall not cease to be part of H.M. Dominions without the consent of the Stormont Government. 

It is therefore desirable to ask that the Prime Minister or Home Secretary should “act through Parliament in accordance with Section 75 of the Government of Ireland Act”.

This makes the matter one of policy. Unfortunately, we can anticipate the reply the civil servants at the Home Office will get ready and push into Mr Wilson’s hand. The Connolly Association must have seen or heard of the terms of hundreds of resolutions calling for the use of Parliament’s powers to secure the release of Republican prisoners interned without charge or trial, or to intervene to correct other abuses. The last two Home Secretaries at first denied that they could do anything at all. Confronted with Section 75 they first tried to pooh-pooh it as a “general saving clause” that didn’t mean anything. This is the usual dodge of Unionist lawyers – the few who ever studied their own constituent Act – who say, “sure it was never applied; it’s in abeyance.” It is a strange doctrine that when a man has a loaded gun beside him but has never had occasion to use it, he can be regarded as unarmed. 

The sole reason it has not been used is that Stormont has never refused the British Government anything it really wanted. If Stormont decided in a fit of aberration to join in with the Republic, Article 75 is British Imperialism’s “sheet anchor” to hold the Six Counties in the United Kingdom. In abeyance my elbow! And when this point is made, the Home Secretary falls back on another form of words: “It would not be proper to intervene.” We have dozens of letters showing this transition. It is simply saying, “I won’t interfere because I don’t want to.” It is a matter of policy again. It is the polite English way of saying what a Belfast legal gentleman said to the writer at the end of a similar chain of argument. “Christ, man,” he exploded, “you don’t want to put us under the Pope”!

One English MP – who was a lawyer himself and a decent enough man – argued that whereas it was true that the Government of Ireland Act remained on the statute book, and contained the Section 75 which meant what we thought it meant, still it is only like the British North America Act, which reserved all manners of rights over Canada which could just not be enforced.

The answer to this is simple. The Government of Ireland Act is not only enforced but is the basis of the daily administration of the Six Counties. It is published by Stormont in bright red covers under the title of the “Constitution of Northern Ireland”. And in footnotes there are listed literally hundreds of amendments which have been made through the years. These references are for the greatest part to Acts of the British Parliament which have necessitated minor changes in the original Government of Ireland Act. What a free constitution it is that is being constantly amended by acts of another Parliament! Of course the whole pretence of independence is a farce. It is as if the Yorkshire County Council described the Local Government Act as its “constitution” and printed it between handsome covers bearing the coat of arms of ancient Eberac and the totems of the Brigantes – plus a few thousand amendments necessitated by the various Acts of Parliament and Orders in Council which had been passed in the meantime. The title could be changed and made “what Westminster has done to us”. In any case, as any Republican knows full well without any legal proof, the real power in Northern Ireland is in the hands of Britain because British troops occupy it, whereas they do not occupy Canada.

There can thus be no doubt about the responsibility of the British Parliament for the mis-government of Northern Ireland. This complex legal structure that has been described had one purpose that is not often appreciated. It was to throw dust in the eyes of the British people, to lead them to believe that Britain had given the Irish what they wanted and had divided the cake between the quarrelling children in as fair a way as was feasible, and was now responsible no more. Thus the millions of British workers of Irish birth, descent or sympathy could safely forget about politics so far as Ireland was concerned, and vote Tory as far as Britain was concerned. 

The Connolly Association some years back determined to bring the Irish question back into British politics. We have succeeded in doing it, with the help of our friends in the Labour, Nationalist and Republican movements. And we are going to keep it there.

From the foregoing it will be clear that there should be no illusions of a royal road to easy victory. We are not near the last round yet. Labour has a great opportunity to move towards the final settlement of the Irish question. If the men who are leading the party are not big enough, far-seeing enough, clear-sighted enough or brave enough to grasp that opportunity, there must be no hysterical retiring into the political sulking-room. The real gain is the mobilising of the opinion of the people. Men had to agitate for years to get a workman’s compensation for industrial accidents. Women had to agitate for years to get a vote. But these things were got. The truth and the right prevail in the end. Democracy can never be permanently defeated.

For the moment, however, we ask all members and friends of the Connolly Association, readers of the “Democrat” and well-wishers of Ireland and democracy to make it clear to Mr. Wilson and the Home Secretary that we want the anti-discrimination Bill to apply to religious discrimination in Northern Ireland. There is no need to send them a poem or an illuminated address. A postcard or a telegram will do, saying “Please apply Brockway Bill to religious discrimination in Northern Ireland.”

Write to your own MP in the same sense and get your organisation to pass a resolution. We guarantee to you none of this activity will in the long run be wasted.

(Irish Democrat, February 1965)