HC Deb 14 March 1990 vol 169 cc641-8

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Goodlad.]

12.52 am
Mr. Ken Maginnis (Fermanagh and South Tyrone)

I am grateful to have been allowed this early opportunity to bring to the attention of the House the Supreme Court case of McGimpsey and McGimpsey v. Ireland in which judgment was obtained on 1 March, but I am disappointed that the Government have not seen fit to require a Law Officer to respond to the debate. That is not to impugn the ability of the Parliamentary Under-Secretary of State for Northern Ireland, and I acknowledge that the Attorney-General is on the Treasury Bench, but a legal matter which impinges on the very right of the people of Northern Ireland to exist should be of such concern to our Government that they should wish to give a legal response.

The outcome of the case to which I refer is that the Irish Republic is now deemed to have a de jure claim—an unequivocal legal claim—to Northern Ireland. It does not matter what our Government believe to be the position—and for the past four years they have encouraged us to understand that our rights as British citizens are most firmly enshrined in the Anglo-Irish Agreement—the ruling of the Irish Supreme Court is that nothing in any legislation can overrule the constitutional imperative to achieve a united Ireland.

I wish now to outline the background to the case. When the Anglo-Irish Agreement was signed on 15 November 1985 it provoked from Michael and Christopher McGimpsey exactly the same traumatic reaction as it engendered throughout the entire Unionist community. But while they identified with and joined in Unionists' protests against the unjust imposition of the diktat, they were soon convinced that only through legal action could there be any hope of proving just how dangerous and deceitful the agreement was. Being historians who had taken a special interest in Irish affairs, they came to the conclusion that the best chance of success would be through the Irish Republic's courts.

While a similar action against the agreement to be taken by Enoch Powell in the High Court in London would soon run into the sand because the United Kingdom does not have a written constitution, the McGimpseys' initiative was based on the fact that the Irish Republic certainly does have one. Moreover, the Irish constitution had previously been the basis of legal challenges in respect of other international agreements entered into by the Government of the day. Boland v. An Taoiseach 1974, concerning the constitutionality of the Sunningdale agreement, provided some basis for argument but it was eventually the case of Crotty v. An Taoiseach 1987 which provided the real impetus for the McGimpseys. In it, the Supreme Court had ruled that the Government of the Republic did not have the competence to implement the Single European Act without the approval of the Irish people through a referendum.

The crux of the Crotty argument was that no aspect of foreign policy could be ceded by the Government of the Republic to another Government—or, in this case, to the European Community. Articles 28 and 29 of the Irish constitution precluded any fettering of the power of the Government to conduct external affairs of state.

Article 2 of the Irish constitution reads: The national territory consists of the whole island of Ireland, its islands and the territorial seas. To mount a successful challenge the McGimpseys therefore had to prove that article 2 of the Irish constitution was intended to be a legal claim and not merely a political aspiration and, if that was so, that the Anglo-Irish Agreement restrained the Republic's Government from pursuing that legal claim in so far as it recognised the de jure right of the United Kingdom Government to govern Northern Ireland, and hence to dictate the foreign policy for that part of the island.

The right hon. Member for Bridgwater (Mr. King), when Secretary of State for Northern Ireland, appeared to believe that article 1 of the Anglo-Irish Agreement was a de jure acknowledgement of the United Kingdom's right when he spoke about it "copper-fastening the union." But the testy reaction of the Irish Foreign Minister, Peter Barry, showed that this was not the Republic's perception. Whatever the real truth, the McGimpseys were increasingly convinced that it could be proved only by obtaining a judgment in the Supreme Court of the Irish Republic.

Thus it was in 1987 that the two brothers put their theory to me and I agreed to help them to co-ordinate the necessary action to finance and promote their case. As the case progressed through the legal system, more and more people, including many politicians from the Republic, suggested that the premise that article 2 of the constitution was "a legal claim" would be disproved. These opinions were based on a judgment given at a time when the Criminal Law (Jurisdiction) Bill 1977 was passing through the Irish Parliament and the Irish Government had sought a Supreme Court ruling on its constitutionality.

Then, Justice O'Higgins had been understood to say: This national claim to unity exists not in the legal but in the political order". Perhaps that was the perception in the mind of our Government when they signed the 1985 diktat, but, as I said earlier, they should have been alerted when Barry squealed at Secretary of State King's "copper-fastening" comment. This apart, we all felt a definitive judgment was necessary and we presumed that the outcome would prove our case.

If the McGimpseys were correct in their "legal claim" thesis, Unionist fears of being subsumed within a politically united Ireland would be justified, but at least the hated agreement which was inevitably going to trundle us there more quickly should be deemed unconstitutional and would, we reasoned, have to be abandoned.

On the other hand, we accepted that if the "political aspiration" argument was correct there would be an end of Unionist fears, the Northern Ireland Office would be proved right and Unionists would have to come to terms with that. The atmosphere of suspicion and distrust—the Unionist siege mentality—which has pervaded our community since the Irish Republic's constitution was adopted in 1937 would change and the basis for new relationships would be created. The Unionist community approved that strategy and provided the funds necessary to mount the challenge.

The essential features of the Dublin Supreme Court's judgment are that articles 2 and 3 of the Irish constitution constitute a legal claim of right over the jurisdiction of Northern Ireland; that the Republic can give only de facto recognition of British sovereignty over Northern Ireland and is constitutionally prohibited from acknowledging this de jure. I trust that the Minister can assure me that he will place a copy of the judgment in the Libary so that right hon. and hon. Members can read it and judge its implications for themselves.

On the legal claim, it is significant that the Supreme Court saw fit to overrule specifically its earlier decision in the Criminal Law (Jurisdiction) Bill judgment. It is generally felt among lawyers in the Irish Republic that that is quite a remarkable step for the court to have taken given the sensitivity of the matter. This is only the sixth occasion the Supreme Court has ever expressly departed from its earlier ruling.

It is also interesting that, although article 3 is now taken to preclude the Republic from legislating with respect to Northern Ireland pending the reintegration of the national territory", the court states that that restriction in no way derogates from the claim as a legal right to the entire national territory. Furthermore, the express language of articles 2 and 3 constitute an express denial and disclaimer to the Community of Nations"— that the present border— is or can be accepted as conclusive of the matter so as to prevent any question of estoppel arising in international law. In turn, that reinforces the "legal claim of right" interpretation of articles 2 and 3.

The court then concluded that the recognition of Northern Ireland accorded by the Anglo-Irish Agreement was de facto only. Chief Justice Finlay states: There can be no doubt but that the only reasonable interpretation of article 1 taken in conjunction with the denial of derogation from sovereignty contained in article 2(b) of the Anglo-Irish Agreement is that it constitutes a recognition of the de facto situation in Northern Ireland, but does so without abandoning the claim to the reintegration of the national territory. The House should note the next sentence well: These are essential ingredients of the constitutional provisions in articles 2 and 3. They are the essential ingredients enshrined in the Anglo-Irish Agreement—that should be clear to everyone. Obviously it will be clear to the Attorney-General.

Here is a clear and unequivocal statement that the Anglo-Irish Agreement enhances the Republic's "legal claim" by virtue of the "essential ingredients" and the "constitutional imperative" of achieving unity. It follows that no Irish Government can ever de jure recognise the existing status of Northern Ireland as part of the United Kingdom as that would be manifestly unconstitutional. So the McGimpseys won the argument that the Irish had abandoned their hard-line nationalist claim to Northern Ireland contained in articles 2 and 3, but who could have guessed that the Supreme Court would have been able, in those circumstances, to endorse the Anglo-Irish Agreement as being complementary to that point of view? The answer to that is, most of the Unionist leadership. From comments that I have heard from the Minister's colleagues, however, it appears that they wish to ignore reality.

Let Unionists not appear to be the only people who appreciate the full significance of the judgment. Hon. Members can refer to The Times article by Dr. Conor 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 hake 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 debacle, 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 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 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.

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 I 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 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. Arid 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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