EFFECT OF GOVERNMENT OF IRELAND ACT 1920 s.4(1) PARA. (3) (Hansard, 23 February 1972)

§ Mr. McNamara
Had it been in order I should have sought to move an Amendment to the Clause. My Amendment may have been ruled out of order because this is a declaratory Bill seeking to declare what the law was, is, and shall be. Because of that, it has not proved possible to move an Amendment to it. Yet, as the debate on Second Reading showed, there is a considerable amount of fear, suspicion and downright dissatisfaction at the way in which the Bill has been framed. I felt that, under the terms of the Statute and of Clause 1, more power was being given to the Stormont Parliament. Therefore, my hon. Friend the Member for Salford, West (Mr. Orme) and I thought it right to try to table an Amendment which would have given this House and the other place the right to examine the regulations which we were retrospectively making legal.
It is a matter of considerable regret that the Government have chosen this form of legislation, effectively ruling out constructive Amendments which would have given further power to this House to examine and question Ministers about the rôle and the orders which the British Army was carrying out and acting under so that we could ensure that the Army was being used as a peace-keeping instrument, not as a political tool of the Stormont Government. That would have been the purpose of my Amendment. It is a matter of regret that we have not been able to examine a situation whereby the House of Commons could have gained more power over a subordinate legislature.

§ Miss Devlin
I oppose this Clause on two grounds. The first sentence reads: The limitations imposed by paragraph (3) of section 4 (1) of the Government of Ireland Act 1920 on the powers of the Parliament of Northern Ireland to make laws shall not have effect … etcetera. That simply means that, whereas the Government of Ireland Act, 1430 such as it was, imposed certain limitations on the powers of Stormont to enact and enforce laws in respect of Her Majesty's Forces, this Clause changes that and allows the Stormont Administration to pass laws in respect of Her Majesty's Forces. That raised the question, who is to be ultimately responsible for Her Majesty's Forces and for the laws which Her Majesty's Forces are expected to obey?
In the first instance Westminster passes a law or gives orders and in the second Stormont makes laws or gives orders. This Bill gives both assemblies, this Parliament and the Northern Ireland Parliament, legal right to enforce legislation in respect of the troops, and when that legislation or those orders come into effect one may be left with the situation in which the British Army does not go in the direction or fire in the direction or do the work which the one, or the other, intended.
The Clause seeks to make retrospective legislation. Perhaps other hon. Members, perhaps the Minister himself, may be able to give us more information on this point, but in my limited understanding of international law, the passing of retrospective legislation is against international law and against the European convention, to which this country is a signatory, when it does not take time off to enact Special Powers Acts. Passing this law is dishonest. It changes the existing law while it declares itself merely to be a declaration of existing law. In passing retrospective law we in this House are in breach of our international obligations. We are in breach of international law if we allow this Bill to pass. International law constitutes this an illegal act, and this an illegal assembly.

§ Mr. Alexander W. Lyon
I would ask a question, shortly, in relation to a matter which was aired a number of times during the debate on Second Reading—that we are giving more power to the Stormont Parliament as a result of this Bill. Although I am quite certain that the practical affect of what we are doing is what the Home Secretary suggested, is it not correct that, if this Bill is passed into law, the Northern Irish Government could pass legislation through Stormont taking to themselves the rôle and powers of the Ulster Defence Regiment?
1431 According to Section 4(1)(3) of the Government of Ireland Act, the exclusion relates to matters concerning the defence of the Realm. We are saying in this Bill that the exclusion shall not preclude the inclusion in laws made by that Parliament"— that is, of Northern Ireland— for the peace, order or good government of Northern Ireland of all provision relating to members of Her Majesty's forces …". In these circumstances it could certainly be argued that the Ulster Defence Regiment is maintained for the peace, order and good government of Northern Ireland. Therefore, Stormont might very well say that it is they and not us who are responsible for the Ulster Defence Regiment and they could, within the constitution, make laws about that which are not the province of that Parliament.
I recognise that this is a legal point rather than a practical point, because we always have the reserve power of abrogating the constitution if the Northern Irish Parliament took a line which this Government did not like, but it is, surely, the legal position that they will be entitled to legislate in respect of the Ulster Defence Regiment.

§ Mr. George Cunningham
I have been out of the Chamber for a moment and I am not sure what ruling has been given on the Amendment, but I will try to make my remarks fit this part of the proceedings.
I do not want to delay the passage of a suitable Measure tonight, but we have a choice between passing a provision like that which the Government are proposing, which puts at their highest the possibie powers we may permit Stormont to have or to keep and, alternatively—a more normal way of dealing with the situation—validating those Acts and regulations made under Acts which Stormont and Stormont Ministers have put into force until now but not giving Stormont power to make any more such provisions. The responsibility for conferring powers upon the British Armed Forces in Northern Ireland would rest where the court in Belfast said it now rests, with this Parliament.
I can see no objection to that situation. Many of us on this side of the House 1432 in recent months have said repeatedly that responsibility for security in Northern Ireland should rest here in London with this House. The opportunity is now given to us, by accident, by a court in Belfast, to attain part of that objective. I do not object to the provisions already passed by Stormont and Ministers in Northern Ireland being retained upon the Statute Book, but that should be the end of the matter for Stormont. From now on, this House alone should be responsible for conferring powers upon the Armed Forces of this country operating in Northern Ireland.
We have not had an explanation from the Government why they have chosen this way rather than the way I am suggesting. If it were in order at a later stage, I should like to move an Amendment to achieve that objective. Failing that, I hope the Government will explain why they are doing it this way. In the absence of that explanation I would certainly oppose the Clause.

§ The Attorney-General
The debate is on the Question, "That the Clause stand part of the Bill." The Bill consists of this Clause and Clause 2, which describes what the Act may be called.
I think on the Motion we canvassed most of the points which have been raised. I can only repeat what I said on introducing the Bill. I say as emphatically as I can that we are not giving more power to Stormont. The purpose of the Bill is to declare what the law is and what the law was yesterday. I assure the hon. and learned Member for York (Mr. Alexander W. Lyon) that the purpose of the Bill is not to give more power to Stormont, and I advise the House that it does not have that effect.
The Ulster Defence Regiment is an integral part of the British Army and is under the command of the British Army. It is part of the British Forces and as such is completely integrated into the British Army.
All that the Clause does is to declare what the law is in relation to the powers which can be given to the Forces in operation in Northern Ireland. As was said previously this is what the law was thought to be yesterday and in 1433 1969, and it was how the law was interpreted by an English judge. What the Clause does is to declare that the law is as it has been interpreted and understood in the past.
It is for this reason that this form of legislation has been chosen in these particular circumstances. It is designed to be declaratory; to declare the law to be what it has been interpreted to be in the past, and in so doing it does not give to Stormont more power than it had yesterday.

§ Mr. George Cunningham
If the Bill is designed only to declare the law and not to change it, may I ask the right hon. and learned Gentleman to explain the purpose of the Bill? It must change the law from what it is now. In other words, the law as it stands at the moment is not what the right hon. and learned Gentleman is seeking to make it by this Measure. He is, therefore, changing the law. Will he please explain why he is changing it in this way, rather than in the way I suggested earlier?

§ The Attorney-General
As the hon. Gentleman appreciates, the decision of the court in Northern Ireland says that the law is such that these special powers may not be given to the British Forces. The Bill declares the law—in a sense, of course, contrary to what the Northern Ireland court said—to be, in effect, what it has been believed to have been and what an English judge has described. That is the purpose of the Bill. It declares the law as to the legislative powers of Northern Ireland.

§ The Chairman
Tellers for the Ayes. Mr. Fortescue and Mr. Speed. Teller for the Noes, Miss Devlin.
There being only one Teller for the Noes, I declare that the Ayes have it.