House of Commons Hansard Debates for 14 Mar 1990

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Cruise O'Brien on 10 March in which he suggested to Her Majesty's Government that they suspend the agreement. He went on to remind readers :

"As a general principle, it may be affirmed that no government should conclude an agreement concerning a part of its territory with another government that is laying claim to that territory. A government which breaches that principle inescapably gives the impression that it is on the way towards accepting the other government's claim."

The Irish Times on 5 March carried an article by Dr. David Gwynn Morgan, a legal expert. He made the startling but logical assertion that the consequence of the court's decision was that

"an Irish government is simply not legally competent to reach certain kinds of compromise with the Unionist majority."

Hence, one must ask if it is competent to make arrangements on an ongoing basis with this Government, except for the purpose of implementing the "constitutional imperative" spelt out by the Supreme Court to unify the island.

Virtually every informed scholar and journalist who has written on the issue is agreed that our Government's credibility and integrity will be called into question if they do nothing about the fraud that has been perpetrated against them. Even The Irish News, a respectable if strictly anti-Unionist daily paper in Northern Ireland, concluded in its 12 March edition that the McGimpseys may have lost the battle but should win the war. John Hume's biographer, writing in The Belfast Telegraph on 9 March, acknowledged the injustice of the situation.

There is one way forward. It is for the Government of the Irish Republic to volunteer, or to allow themselves to be persuaded, to amend or revoke articles 2 and 3 of their constitution by putting the matter to a referendum. The McGimpseys and I suggested that we would be willing to go to meet the opinion-formers in the south, including political leaders, to put the case. Unfortunately, Mr. Haughey, who has consistently boasted about how generous he would be if Unionists would only come to talk with him, has responded by slamming the door in our faces. He would, he said on Tuesday, consider meeting us, but then he firmly precluded discussion about the one topic on which we need to talk.

This House was persuaded to accept in the debate on 26 and 27 November 1985 that the Anglo-Irish Agreement would bring peace, stability and reconciliation. Who other than those of us who are close to the reality of the situation could possibly have voted against that? In less heady moments, the Government assured the House that the three tangible benefits would be the recognition, for the first time, of the de jure status of Northern Ireland within the United Kingdom until such time as the majority voted otherwise ; the extradition of terrorists ; and an end to megaphone diplomacy. The court case has made it clear that the first is not on offer. Will the Minister explain that to Unionists? Extradition is, most of us believe after Tuesday's de ba cle, firmly on the back burner. Let him explain that to the widow of a murdered prison officer and to the families of all the other victims. And when we hear the raucous, yet self-righteous, tones first of Peter Barry and now of Gerry Collins before every meeting of the conference threatening what will be demanded and insisted upon, how does this Government live with that indignity?

If some in this House cannot or will not believe that the agreement is dead because it is being propped up for appearance's sake, perhaps they can at least accept that it

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is meaningless. When I was first sent to this House in 1983, the honest to God decent people who sent me here thought that this was a place where they would get justice. Enoch Powell always insisted that this Parliament was the final arbiter, but Harold McCusker died believing otherwise. On behalf of the people of Northern Ireland, I ask the Minister to tell us who is right. Are we to continue to be sold out for political expediency or will the Government now recognise, in the light of the McGimpsey judgment, their obligation to justice and the people I represent?

1.10 am

Mr. Ivor Stanbrook (Orpington) : With the leave of my hon. Friends the Member for Fermanagh and South Tyrone (Mr. Maginnis) and the Minister, I wish to say a few words about the subject of this debate.

The constitution of the Irish Republic suffers from all the defects of written constitutions in that it embodies national ideals, vague aspirations and noble objectives, but has to respect certain major legislation which it inherited from this country. It also comes within the common law tradition. As a result, when its Supreme Court interprets the constitution, it provides many opportunities for obscurity and tendentious interpretation to cover almost any decision that the court may see fit to take, even those which are purely politically motivated. That is the crux of the problem that we have faced in recent years in relation to the actions of the courts in the Republic.

The McGimpsey case illustrates the ambiguity. The court treated the Single European Act as law within the terms of article 40 of the constitution. It was treated as law because the court accepted that a derogation of the sovereignty of the Irish Republic was all right because it was properly done and was, after all, a treaty. However, the Anglo-Irish Agreement, which is also supposed to be an internationally binding treaty and must be respected by all sovereign states party to it, is not law for this purpose. Why? After studying the constitution, the court concluded that provision for the Anglo-Irish Agreement came out of the section of the constitution that allowed for the mere ordering of peaceful international relations. That was the basis of authority for the Irish Government to conclude that that agreement with the United Kingdom was an international treaty, but it did not reach the status of law for the purpose of the constitution. That ambiguity is reflected in the constitution in articles 2 and 3. It is difficult to construe the meanings of those two articles, but the message is repeated in article 1 of the Anglo-Irish Agreement, which states that there will be

"no change in the status of Northern Ireland."

My right hon. and hon. Friends, the leaders of the Government, assigned that agreement with those very words and have paraded it as if, at last, the Irish Republic has accepted that Northern Ireland is a part of the United Kingdom. It has done nothing of the sort. The phrase that there will be

"no change in the status of Northern Ireland"

makes one ask, what is its status? Under Irish law, the status of Northern Ireland is that it is a part of Ireland, not the United Kingdom. Under British law its status is that it is a part of the United Kingdom. That ambiguity has never been resolved and, politically, the British Government have asked us to accept that the meaning should be that

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attributed to it by British courts, whereas we all know that the meaning attributed to it by Irish courts, such as in this case, is quite different.

Due to that ambiguity and the many times that we have allowed Irish courts to get away with--and forgiven them for--the errors which, according to our jurisprudence, they continually make, we have enabled them to block off all possibility in law of the extradition of terrorists from the Irish Republic. Under the most recent judgment, a finding of fact was made which will be instanced in future to show the impossibility of extraditing people to the United Kingdom because they may be beaten up when they arrive in United Kingdom jurisdiction.

Previously there was a finding, allowed and confirmed by the courts, by the Attorney-General that in the case of Father Ryan no extradition could take place because there was no chance of his getting a fair trial. That ambiguity is at the heart of the Anglo-Irish Agreement. It is a tragic mistake that has been confirmed by the recent experience that we have had to endure.

1.15 am

The Parliamentary Under-Secretary of State for Northern Ireland (Dr. Brian Mawhinney) : I do not have too much time to respond to this interesting debate. I congratulate the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis) on obtaining such an early Adjournment debate on this important subject. I also congratulate him on his speech. He asked me to place a copy of the Supreme Court judgment in the Library, and I shall see that this is done. The hon. Gentleman indicated his belief that the recent judgment of the Irish Supreme Court in some sense substantially changed Northern Ireland's position and that, perhaps, Unionists had never before understood article 2 of the Irish constitution to be a legal claim on the north.

I cannot accept that argument. I fully understand the sense of dismay felt by many, including Unionists, at the clear affirmation in the judgment that articles 2 and 3 constitute a legal claim to Northern Ireland. But Unionists have always known that the claim was legal and territorial. They did not need the Irish Supreme Court to spell it out. When the hon. Gentleman and I were growing up in the Province, Unionists were not referring to article 2 as some sort of political aspiration. If they had believed that, they would have been much less agitated. It was precisely because they believed that the article did lay legal claim to the Province that Unionists were so upset and offended--as, indeed, were others in the United Kingdom. In fact, the hon. Gentleman may remember the report from an all-party committee of the Dail, chaired by George Colley, a Fianna Fail deputy if I remember correctly, which reported in 1967 and which proposed a number of Irish constitutional amendments, including the desirability of converting articles 2 and 3 into a political aspiration using the words :

"The Irish nation hereby proclaims its firm will"

--and so on.

After all, a constitutional document, almost by definition, has to be seen and understood in a legal sense. Most people accepted this. While it may come as a shock to many that this understanding should have been confirmed in such stark terms in 1990, it cannot be said to be a surprise.

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The hon. Gentleman postulated that the judgment changed something fundamental in our relationship with the Irish Republic in general and rendered meaningless article 1 of the Anglo-Irish Agreement in particular. I shall deal with each claim in turn.

It is not my responsibility to defend the Irish constitution. It is for Irish Ministers to consider and, if they feel it necessary, to explain this territorial claim in light of that country's signing of the Helsinki Final Act. Our two countries have differing historical perceptions and constitutional frameworks, and as we are entitled to ours, so they are to theirs. It is also for Irish Ministers to relate article 2 of their constitution to their signing of the Anglo-Irish Agreement.

Rev. Ian Paisley (Antrim, North) rose --

Dr. Mawhinney : I cannot give way, as I have little time left. That notwithstanding, both Governments value the Anglo-Irish Agreement, its aims and its modus operandi. Whatever the constitutional facts, in practice it has proved to be an important treaty.

I cannot accept that the hon. Gentleman is seriously asking the House to believe that the Supreme Court judgment actually makes any difference in reality to the United Kingdom's unwritten constitution or Northern Ireland's safe inclusion within it. As far as we are concerned, Northern Ireland is part of the United Kingdom and is clearly so in international law. He said that it does not matter what the Government believe, but in the United Kingdom--that includes Northern Ireland--what Parliament and the Government believe is all important.

Article 1 of the Anglo-Irish Agreement, which is an internationally binding treaty, is not and cannot be affected by a judgment of the Irish court. In signing the Agreement, the Irish and British Governments recognised the reality of Northern Ireland's position within the United Kingdom, whatever the different de jure positions. I say that because the nub of article 1 is not a definition of the status of Northern Ireland but says that that status cannot be changed save by the freely given consent of the people of the Province. Willingness to contemplate change carries with it de facto recognition of the position from

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which change might occur. I hasten to add that the British Government's view is that there will be no majority for change in the foreseeable future. In other words, the declaration on status in the Anglo-Irish Agreement is simply aligned with reality. The reality is that the status of Northern Ireland is British.

Lest the hon. Member thinks that I theorise, let me point out to him that we are having this debate in the House of Commons, not the Dail. It is in this forum that decisions affecting Northern Ireland are taken--as is affirmed by article 2b of the Anglo-Irish Agreement. And the court judgment makes no difference to that reality either. I accept that the Irish Government have not abandoned any aspiration to unity. They have accepted, however, that this aspiration can be realised only on the basis of the consent of the people of Northern Ireland. This position holds, irrespective of the Irish constitution and the Supreme Court's interpretation of it.

Let me summarise. The people of Northern Ireland and the United Kingdom have lived with this territorial claim for over 50 years. The United Kingdom Government have never accepted it, do not accept it and have said so, as I do again tonight. We regard it as having no validity in international law. It has never had any practical effect on Northern Ireland's position as part of the United Kingdom. Nor do I lend credence to the view that the court judgment will serve to sustain the Provisional IRA in its campaign of violence. PIRA does not recognise the legitimacy of the Government, institutions or constitution of the Republic. It cannot therefore be argued that it will be influenced by some legal interpretation of a part of that constitution.

I wish to make one final point. In light of what I have said, the Government believe that it would be wrong to suggest that this judgment should in any way affect prospects for political progress in Northern Ireland. As the talks offered are without precondition, Unionists may legitimately--

The motion having been made after Ten o'clock and the debate having continued for half an hour, Madam Deputy Speaker-- adjourned the House without Question put, pursuant to the Standing Order. Adjourned at twenty- two minutes past One o'clock.

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