The Gazette 1972

Britain "in breach of Anglo-Irish Treaty of 1921"

Government of Ireland Act 1920 not to be altered "Under the Treaty, the Irish Free State was consti- tuted as a Dominion, and by Article 12, Northern Ireland, which by then had been functioning under its own Parliament for some months was given a choice in relation to the new entity. It might either join the Free State or opt out of any relation with it. "If it chose the latter course (as it was to do), then Article 12 provided, inter alia, that 'the provisions of the Government of Ireland Act, 1920 (including those relating to the Council of Ireland), shall, so far as they relate to Northern Ireland, continue to be of full force and effect.' "The crucial importance of Article 12 at the time was explained in a Cabinet memorandum of March 1922. 'It was clearly agreed with Mr. Griffith that, if Northern Ireland declined to enter the Irish Free State, her position must remain as created by the Government of Ireland Act, 1920, without alterations. " 'Her powers, privileges and revenues, were to be no greater and no less than they would have been under that Act.' The understanding was explicit, for the Government of Northern Ireland had formally deman- ded in their letter of November 11th an equality of status with the Irish Free State and 'the transfer or reserved services.' "There was no secrecy in the understanding, which was notified to the Government of Northern Ireland in the letter of December 5th, under cover of which the Treaty was conveyed to Sir James Craig. 'You will observe,' wrote the Prime Minister in that letter, 'that there are two alternatives between which the Govern- ment of Northern Ireland is invited to choose. " 'Under the first, retaining all her existing powers, she will enter the Irish Free State with such additional guarantees as may be arranged in conference. Under the second alternative, she will still retain her present powers, but in respect of all matters not already dele- gated to her will share the rights and obligations of Great Britain.' "The reserve powers are thus to be administered by the British Government, in the Parliament of which Northern Ireland continues to be represented. Of these reserve powers, the most important are imperial and foreign relations and military control." That was Mr. Boyle's argument. Memorandum prepared by Jones and Curtis The memorandum referred to above was prepared for the British Cabinet by its two most important ad- visers on Irish affairs, Lionel Curtis and Thomas Jones. Both were concerned at the constitutional confusion in Ulster as to who was carrying out military functions, either the Northern Ireland Government, through its B Specials, or the British Government, through the Army. In advising Lloyd George of the memorandum, Jones said "It was of the essence of the bargain you made with the South that Northern Ireland was to remain part of the United Kingdom with a provisional govern- ment, but with powers no greater and no less than un^er the 1920 Act." The Treaty was amended in 1925, when, by agree- 79

The Northern Ireland Act, 1972, recently passed at Westminster, is a breach of the Anglo-Irish Treaty, 1921, and on the basis of this, the Irish Government can bring the British Government before the World Court for an infringement of international law. This view was expressed last night by Mr. Kevin Boyle, lecturer in law, at Queens University, and an executive member of the Northern Ireland Civil Rights Association. Mr. Boyle said that the traditional Unionist conten- tion that the South had no right to interfere in the internal affairs of Northern Ireland was invalid, as the 1921 Treaty explicitly gave it this right and he said that legally the Dublin Government must be consulted now, if any interference with the powers of Stormont is contemplated by Westminster. This analysis of the constitutional position has been confirmed in the last few days by international law experts at Queen's, Cambridge and Oxford Universities. The Northern Ireland Act 1972 Mr. Boyle, outlining his argument, told us in an exclusive interview : "The Northern Ireland Act, 1972, which last week was rushed through the Westminster Parliament, may open up a new sore with the Republic of Ireland. It is my contention that the Act is in breach of an inter- national treaty with the Republic, whose remedy now lies in diplomatic protest or in international judicial proceedings. "The Northern Ireland Act, 1972, allows the North- ern Ireland Parliament to confer 'powers, authorities, privileges or immunities' on the armed forces of the United Kingdom. "Prior to this Act, any legislation with respect to the Army was outside the competence of the Northern Ireland Parliament and reserved by the Constitution of Northern Ireland—the Government of Ireland Act, 1920—to Westminster. "The Northern Ireland Act was passed following the decision of the High Court of Northern Ireland in the case of Queen and Hume, declaring that the use by the Army of powers under the Northern Ireland legislation, the Secial Powers Act, was illegal. "By passing this new Act, enhancing the powers of the Northern Ireland Government and Parliament, the United Kingdom Government is in clear breach of the Articles of Agreement between Great Britain and Ire- land, dated 6th December 1921, as amended by Agree- ments in 1925 and 1938. "The 1921 Treaty followed on a period of armed conflict in Southern Ireland, when Sinn Fein rejected the settlement for Ireland proposed in the Government of Ireland Act, 1920. This conflict was resolved by a truce followed by the famous negotiations conducted for the British by Lloyd George and for the Irish by Arthur Griffith and Michael Collins. "The negotiations led to the Articles of Agreement signed by both sides on 6th December 1921 and em- bodied in the Irish Free State (Agreement) Act, 1922. bv the British Parliament. This was the British point of view.