The Gazette 1972

Wide Implications of Northern Ireland Act 1972

by PROFESSOR CLAIRE PALLEY, Dean of the Faculty of Law, Queen's University, Belfast

With the implications of the emergency legislation passed by the Westminster Commons and Lords yester- day likely to be wide-ranging in relation to the beha- viour of British troops in the North, legal experts in Northern Ireland are already expressing concern about the powers now given to the Stormont Government to legislate with respect ot the British armed forces. Up to now such powers, under the Government of Ireland Act—which set up the State and Parliaments of the Free State and of Northern Ireland—have been the strict preserve of British Parliaments. In the follow- J ng interview with our Northern editor, Henry Kelly, Dr. Claire Palley, Professor of Public Law and Dean of the Faculty of Law at Queen's University, Belfast, answers some important questions and discusses the implications. Dr. Palley, what precisely has been done by the new Northern Ireland Act, 1972? Basically the British Army operating in Northern Ireland has been given full powers which it was thought to have under regulations of the Special Powers Act. That is, powers to deal with disorder and so on. But the Act goes much further than that, and in my opinion niuch further than it needed to. It doesn't merely give the necessary powers to the Army, it is in fact a major amendment to the Government of Ireland Act, 1920, m a very definite and important way. What do you mean exactly? What has happened is that the Westminster Parlia- ment has passed a law empowering the Government of Northern Ireland at Stormont to pass laws conferring powers, authorities, privileges and indemnity on the armed forces. This is not what was originally intended or indeed legislated for in the 1920 Act. It should be made clear that Stormont will have no authority to order or control the Army but it does mean that Stor- mont is now allowed to give the Army additional powers w hich they don't have at common law. Not only that, but it can now pass laws at Stormont to protect the British Army from litigation in the courts as a conse- quence of their activity. The Government of Northern Ireland can now also pass laws, if it so desires, to allow the Army to use interrogation techniques for which the Westminster Parliament would never legislate. Are there other implications? The Northern Ireland Act now permits the Parlia- ment of Northern Ireland and the Northern Ireland Minister of Home Affairs to pass such measures in a far less public forum, without an effective opposition, and without involving Parliament at Westminster in the odium attaching to the passage of such measures. In effect the Northern Ireland Act means that every- thing the Army did under the regulations of the Special Powers Act which the Courts here found wanting has now been granted retrospective validity. It has not of course altered the position of what troops may have done outside the regulations. But it does mean that Parliament at Stormont can now protect the Army here

against the consequences of any illegalities it has com- mitted in Northern Ireland. How can this be done? Simply by passing an Indemnity Act indemnifying anything or everything that has been done by soldiers and effectively stopping any action against them in the Courts. Such an Act would mean that a soldier could simply say that such and such an action of his was taken in good faith or for the public safety or in the public interest, depending on the terms of the Indem- nity Act, and this would be virtually impossible to use as a basis for action in the courts. Do you accept that some legislation was necessary to clear up the loophole found in the Special Powers Act by the Lord Chief Justice and his colleagues and if this is so then could Westminster have done anything else? Of course I accept the first point. As to the second, it raises the whole fundamental question of who legislates for the armed forces. Now the Government of Ireland Act quite clearly makes legislation for the armed forces forbidden ground to Stormont and so the legislation should have been Westminster legislation, giving the Special Powers Act regulations retrospective validity, giving them current validity and providing that they Vvould be valid in the future. Such legislation could have been subject to yearly or half-yearly review at Westminster. But as it is, as I have pointed out, this has been done in part but much more has been added : and what has been added is to give Stormont powers to legislate for the armed forces and that this is a major departure from the Government of Ireland Act, 1920. Are you in effect saying that the High Court of Northern Ireland upheld and, as it were, defended the constitution of Northern Ireland—the 1920 Act and that this was altered by Westminster? That is -he position. There was a strong and, as it proved, successful challenge to the British Government to exercise the powers it has under the Government of Ireland Act, 1920. When the challenge was upheld by our highest legal authority it was simply reversed by the Westminster Parliament. Apart from the frightening possibilities of abuse of this new power by Stormont, are there deeper legal implications in your opinion for the law in Northern Ireland? Even for the wider community as a whole ? Well it really demonstrates that the British Govern- ment has no real respect for the High Court of Northern Ireland. It is not just a simple question that they have protected the Army no more than the original case was brought on appeal simply to attack the Army. It means that a British Parliament has altered the decision of the High Court on a point of interpretation of a West- minister Act. It is a tremendous reflection on the Courts here who, in my opinion, were absolutely correct and quite proper in their judgment. Any other implications? Say with respect to recent decisions which have clearly gone against the military and indicted their actions? 77