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Home , 1936 in Northern Ireland, 1945 in Northern Ireland, 1951 in Northern Ireland, Acts of Union 1800, Act of Parliament (UK), Baby of the House

BRIEFING PAPER Number CBP-8884, 21 December 2020

Parliament and Northern By David Torrance

Ireland, 1921-2021

Contents: 1. Introduction 2. Historical background 3. of Northern 4. , 1921-39 5. “Matters arising from a of war”, 1939-45 6. Post-war Northern Ireland, 1945-50 7. Northern Ireland, 1950-66 8. The 1920 Act under pressure, 1966-72 9. , 1972-79 10. Northern Ireland, 1979-99 11. Northern Ireland, 1999-2021 Appendix 1: of Ireland Act 1920 timeline Appendix 2: Political leaders in Northern Ireland Appendix 3: Selected bibliography

www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 Parliament and Northern Ireland, 1921-2021

Contents

1. Introduction 6 2. Historical background 8 2.1 Third 8 2.2 Origins of 9 2.3 Act 1914 11 2.4 New proposals 12 2.5 Government of Ireland Bill 14 2.6 An Act to “provide for the better Government of Ireland” 16 Powers 17 Restrictions 19 Financial provisions 19 Refusal to work the Act 20 Sovereignty 20 2.7 The 1920 Act as a “constitution” 21 2.8 Creating the new “state” 21 2.9 Elections to the Northern Parliament 23 2.10 First meetings of Parliament 24 State opening 25 2.11 Parliament of Southern Ireland 26 2.12 Negotiations 27 2.13 Anglo-Irish Treaty 29 2.14 The Irish and “ Month” 31 3. Parliament of Northern Ireland 34 3.1 House of Commons 34 3.2 of Northern Ireland 36 3.3 of Northern Ireland 37 3.4 and Great Seal of Northern Ireland 40 3.5 Stormont 41 3.6 Royal Courts of Justice 43 3.7 Northern Ireland Civil Service 44 3.8 Representation at 46 3.9 Northern Ireland MPs at Westminster 46 3.10 Irish Boundary Commission, 1924-25 47 3.11 Changes to Royal Titles 50 4. Northern Ireland, 1921-39 52 4.1 Financial relations 52 Grant-in-aid from Westminster 53 Imperial Contribution 54 Colwyn Committee 55 Transferred revenue 57 4.2 Law and order 58 Special Powers Act 59 4.3 Case law 60 Corporation 60 v Lynn 61 Ulster Transport Authority v James Brown 61 4.4 61 Unemployment Agreements 62 1938 financial agreement 63 3 Commons Library Briefing, 21 December 2020

4.5 Intergovernmental relations 64 4.6 1923 Speaker’s Ruling 66 4.7 Cross-border issues 67 4.8 Miscellaneous Provisions 69 4.9 Free State becomes Éire 71 4.10 Northern Ireland in the 72 5. “Matters arising from a state of war”, 1939-45 75 5.1 Defence Regulations 75 5.2 Intergovernmental relations 77 5.3 Scrutiny at Stormont 77 5.4 Reunification? 78 5.5 79 5.6 80 5.7 Imperial Contribution 80 5.8 Travel restrictions 81 5.9 Prolongation 82 5.10 Northern Ireland (Miscellaneous Provisions) Act 1945 83 5.11 The “Ulster bridgehead” 83 6. Post-war Northern Ireland, 1945-50 85 6.1 Intergovernmental tensions 85 6.2 Financial relations 86 6.3 Social security 87 Interim agreement of 1946 88 Further Agreement, 1948 88 Health Services 89 6.4 1947 90 6.5 Anti-Partition League 92 6.6 94 6.7 Constitutional implications of the 1949 Act 96 7. Northern Ireland, 1950-66 98 7.1 Reopening the 1920 Act 98 7.2 Intergovernmental relations 99 7.3 Northern Ireland (Foyle Fisheries) Act 1952 100 7.4 Parity and Leeway 102 7.5 status 103 7.6 Northern Ireland Act 1955 104 7.7 The border 105 7.8 Disqualification from parliament(s) 105 7.9 Northern Irish peers 106 7.10 Northern Ireland Act 1962 107 7.11 “Treasury control” 108 7.12 Economic development 110 7.13 Northern Ireland at Westminster 111 7.14 Northern Ireland in the mid-1960s 112 8. The 1920 Act under pressure, 1966-72 114 8.1 and Northern Ireland 114 8.2 Financial relations 116 8.3 Northern Ireland in 1966-68 116 8.4 Civil rights demonstrations 119 8.5 “Ulster at the crossroads” 121 8.6 UK government intervention 122 8.7 Ulster Defence Regiment 124 8.8 Discrimination 125 4 Parliament and Northern Ireland, 1921-2021

8.9 A new Prime 127 8.10 50th anniversary of Northern Ireland 129 8.11 Northern Ireland in 1971 130 8.12 Financial relations 131 8.13 “” 132 8.14 Special Powers Act 134 8.15 “Turning point” 135 8.16 Direct rule is announced 137 9. Direct Rule, 1972-79 139 9.1 Direct Rule Phase I: 1972-73 139 9.2 Border Poll 140 Debate in Parliament 140 The Order 141 The referendum 141 9.3 Constitutional proposals 142 Northern Ireland Constitution Act 1973 143 Sunningdale Agreement 143 is formed 144 9.4 Direct Rule Phase II: 1974-79 145 Orders in Council 146 Policy making under Direct Rule 147 The 148 Northern Ireland Civil Service 148 Westminster committees and Direct Rule 149 Fiscal matters and funding 149 Local government 150 9.5 Northern Ireland Constitutional Convention 151 9.6 Representation at Westminster 152 10. Northern Ireland, 1979-99 153 10.1 Party talks 153 10.2 Direct Rule 154 10.3 “Rolling ” 155 Northern Ireland Assembly, 1982-86 155 10.4 British-Irish relations 157 10.5 Anglo-Irish Agreement 157 Reactions to the Agreement 158 10.6 Declaration 159 10.7 Framework Agreement 160 161 10.8 Belfast/ Agreement 162 10.9 Northern Ireland Act 1998 163 11. Northern Ireland, 1999-2021 165 11.1 The 1920, 1973 and 1998 Acts compared 165 Division of powers 166 Assembly procedure 167 Executive Committee 168 Financial arrangements 168 Sovereignty and legislative consent 169 Devolution in Northern Ireland, 2000-07 170 Devolution in Northern Ireland, 2017-20 170 The Sewel Convention 171 Speaker’s ruling 171 11.2 Intergovernmental relations 171 North-South Ministerial Council 172 5 Commons Library Briefing, 21 December 2020

British-Irish Council 172 British-Irish Intergovernmental Conference 172 Joint Ministerial Committee 172 Supreme Court 172 11.3 Northern Ireland and 173 11.4 Centenary of Northern Ireland 174 Appendix 1: Government of Ireland Act 1920 timeline 175 Appendix 2: Political leaders in Northern Ireland 176 11.5 Lords Lieutenant of Ireland 176 11.6 Chief Secretaries for Ireland 176 11.7 of Northern Ireland 176 11.8 Prime Ministers of Northern Ireland 176 11.9 Chief Executive of Northern Ireland 176 11.10 Secretaries of State for Northern Ireland 176 11.11 First Ministers of Northern Ireland 177 11.12 Deputy First Ministers of Northern Ireland 177 11.13 Speakers of the House of Commons of Northern Ireland 177 11.14 Speakers of the Senate of Northern Ireland 178 11.15 Speakers of the Northern Ireland Assembly 178 Appendix 3: Selected bibliography 179

6 Parliament and Northern Ireland, 1921-2021

1. Introduction

It is one hundred years since the Government of Ireland Act 1920 (“the 1920 Act”) received . This partitioned the island of Ireland – part of the United Kingdom since 1801 – and created what is still known as “Northern Ireland”. As the historian Ivan Gibbons has written, the 1920 Act was “the single most important piece of British of the twentieth century relating to Ireland in that it established a new constitutional and political arrangement (devolved government and partition) which exists to this day”. The focus of this paper are the constitutional aspects of the 1920 Act and the role of UK Parliament. It is not intended as a general history of Northern Ireland. The passage of the 1920 Act marked the beginning of a process rather than a single event. From 1921 until the introduction of Direct Rule in 1972, what many considered the “constitution of Northern Ireland” underwent significant changes. It was also contested, for the 1920 Act never achieved cross- consent. Yet a lot of Northern Ireland’s early history has slipped from public consciousness. Events since the onset of the “Troubles” in 1969 have been extensively documented by historians, journalists and political scientists, the period prior to that less so. As another historian, Graham Walker, has observed, Northern Ireland “serves as a reminder that devolution and constitutional change has a long, complex, and fascinating history, and did not just appear magically at the end of the twentieth century”. Some features of the 1920 Act survive: the Royal Courts of Justice in Belfast; separate Consolidated and National Insurance Funds; a distinct Northern Ireland Civil Service; and a distinctive division of excepted/reserved/transferred powers. Others do not, chiefly the bicameral Parliament of Northern Ireland, its single-party Government and vice-regal Governor. The Northern Ireland Assembly and Executive established by the Belfast/ and the Northern Ireland Act 1998 represented a deliberate break with the institutions envisaged in 1920. This paper is also the story of the United Kingdom as it is currently constituted, for the Northern Ireland border created by the 1920 Act has been central to constitutional debate from the Anglo-Irish Treaty of 1921 to the Brexit controversies of 2016-21. It too evolved. Originally intended as a boundary between two devolved parts of the UK, by the end of 1922 it instead separated two parts of the . Only in 1949, when the of Ireland left the British Commonwealth, did it become an international boundary.

Cover page image: William Conor’s painting of opening the Parliament of Northern Ireland on 22 (reproduced with the permission of the Northern Ireland Assembly Commission)

7 Commons Library Briefing, 21 December 2020

Northern Ireland will mark its centenary during 2021. It is hoped this paper will help inform the debates arising from that significant anniversary. Dr David Torrance House of Commons Library December 2020

Acknowledgments The author is indebted to John Coakley, Graham Walker, Conor McCormick, Jonathan Tonge, Matt Keep, Richard Kelly, Edward Hicks, Colin Faulkner and Neill Jackson for their comments on the text.

8 Parliament and Northern Ireland, 1921-2021

2. Historical background

Sovereignty over the island of Ireland was claimed by in the 12th century. Dermot MacMurrough, the deposed king of , solicited the help of the English to recover his lands. English rule, however, was not complete until several centuries later. During the 17th century, the Province of Ulster was also settled by Protestants from and England. From the late 13th century there existed a , although this was generally subordinate to that in England and, after 1707, .1 The Union with Ireland Act 1800 and Act of Union (Ireland) 1800 (the latter of which passed by the Irish Parliament) abolished the Irish and declared that “for ever after” the Kingdoms of Great Britain and Ireland shall “be united into one Kingdom, by the name of the United and Ireland”.2 Union meant Ireland sent a disproportionately large number of MPs and peers to , 100 and 32 respectively, “while at the same time its native government remained largely colonial in character”.3 A Lord Lieutenant and Governor-General, sometimes known as a viceroy, ruled through the Chief Secretary for Ireland, who presided over an array of boards and departments based in . By 1914 there were 40 government bodies operating in Ireland, of which 11 were branches of UK departments. “The system was not severely logical,” judged the historian R. B. McDowell, “as is strikingly illustrated by the survival of the historic office of lord lieutenant, an anomaly, it could be argued, in a United Kingdom.”4 The Irish administration could also defend itself with a paramilitary force known as the Royal Irish Constabulary. A campaign for some degree of Home Rule for Ireland, essentially devolution within the UK, grew during the 19th century and won Liberal government support in 1886. Attempts to legislate for a devolved parliament in Dublin that year and again in 1893, however, failed.5

2.1 Third Home Rule Bill The Third Home Rule Bill was introduced to Parliament in 1912. Unlike its predecessors, this was likely to pass given the passage of the

1 Most significant in this respect were the 1494 Poynings Law, which gave the British Privy Council a veto, and the 1720 , which declared that the British Parliament could legislate for Ireland. Both were repealed in 1782. 2 The Union with Ireland Act 1800 (as amended in 1922 and 1927) remains on the UK statute book. In the , the Statute Law Revision (Pre-Union Irish Statutes) Act, 1962 repealed the Act of Union (Ireland) 1800, while the , 1983 repealed the Union with Ireland Act 1800. 3 Robert Lynch, The 1918-1925, : Cambridge University Press, 2019, p30. 4 See R. B. McDowell, The Irish Administration 1801-1914, London: Routledge & Kegan Paul, 1964, for a comprehensive account of post-union and pre-partition Irish administration. 5 The first Home Rule Bill was defeated in the Commons, the second in the Lords. 9 Commons Library Briefing, 21 December 2020

Parliament Act 1911. This had removed the ’ veto, although the was still able to delay Commons legislation for up to two years. On this occasion, the idea of treating parts of Ireland differently first arose. This reflected the strength of feeling among Ulster Unionists, who had first mobilised in to the First Home Rule Bill of 1886. In 1912 the Liberal Unionists (who had split with W. E. Gladstone in 1886) merged with the Conservatives to form the “Conservative & Unionist Party”, often called simply “the Unionists”. Like the Ulster Unionist Party, whose MPs took the Conservative at Westminster, Great Britain’s then opposition party was pledged to resist Irish Home Rule. Andrew , the Ulster-Scots-Canadian leader of the Unionist Party, even said in a speech that he could “imagine no length of resistance to which Ulster can go in which I should not be prepared to support them”. Bonar Law, like the Irish Unionist leader , believed “the threat of Home Rule would lead to the destruction of the United Kingdom and ultimately the entire British Empire”.6 The Third Home Rule Bill was introduced in the House of Commons by the then Liberal Prime Minister, H. H. Asquith, in April 1912. This led to the signing of the Ulster Covenant (which pledged Unionists to resist the Bill) in September 1912 and the establishment of two rival paramilitary forces in Ireland, one unionist (the ) and the other nationalist (the ).7 In September 1913, the Ulster Unionist Council even announced plans to form a “ of Ulster”.8

2.2 Origins of partition , a Liberal Unionist, was the first major figure to suggest what became known as “partition” in 1886. He argued that Ireland was “not a homogenous community […] it is a nation that comprises two nations and two religions”. Therefore he suggested “separate assemblies for Dublin and Belfast”.9 When the Government of Ireland Bill was considered by the House of Commons in June 1912, the Liberal MP Thomas Agar-Robartes moved an amendment excluding the counties of Antrim, , Down and

6 Ivan Gibbons, Partition: How and Why Ireland Was Divided, London: Haus, 2020, p31. Bonar Law’s father was a Presbyterian minister who was born and died in Ulster. Sir Hamar Greenwood, Chief Secretary for Ireland at this time, had also been born and raised in . 7 See A. T. Q. Stewart, The Ulster Crisis, London: Faber & Faber, 1967. 8 Michael Laffan, The Partition of Ireland 1911-25, : Dundalgan Press, 1983, p34. The Ulster Unionist Council was formed in 1905, bringing together a number of different Unionist organisations. 9 Quoted in Ronan Fanning, Fatal Path: British Government and Irish Revolution 1910- 1922, London: Faber & Faber, p13. 10 Parliament and Northern Ireland, 1921-2021

Londonderry from its provisions, thus partitioning Ulster as well as Ireland.10 He said it was: an honest attempt to solve one of the most complex questions in connection with the government of Ireland [...] I think this Bill makes the mistake of treating Ireland not as two nations, but as one nation. I think everyone will admit that Ireland consists of two nations different in sentiment, character, history, and religion. I maintain it is absolutely impossible to fuse these two incongruous elements together.11 Asquith, who opposed the amendment, disagreed: You can no more split Ireland into parts than you can split England or Scotland […] I say that you have in Ireland […] an essential of race and temperament, although I agree that unhappily dissensions have been rank, partially by religion, and partially […] by the organisation of partisanship. These dissensions have spread, and have had a most noxious influence, both on the social and on the religious life of Ireland; but they are dissensions I believe which do not go down to the foundation of the national life. The more Irishmen are encouraged and empowered to cooperate in the great works of governing their own country, the more convinced am I that these differences will disappear. It will not be by the waving of a magician’s wand, but they will be reconciled, and in the course of time completely disappear in that common sense of fundamental and overpowering unity which I believe to be the centre of Irish nationality.12 Agar-Robartes’ amendment was defeated by 61 votes, though the senior Liberal ministers and abstained, having made a similar proposal to a few months earlier. As the historian Robert Lynch has written: “As derided as the idea was in 1912, five years later it had become the centrepiece of British policy and swept all other solutions from the board.”13 This proposal to “exclude” certain counties from any system of Home Rule intended that they would remain under direct administration by the UK Parliament and government, something the then Sir Edward Grey called “Home Rule within Home Rule”.14 At this stage, Ulster Unionists opposed partition, but in 1913 Asquith was informed they might waive their “objection to Home Rule for the rest of Ireland if Ulster were treated separately”.15 King George V also urged the Prime Minister to exclude Ulster. It now seemed clear that the Third Home Rule Bill would only be enacted if special provision was made for Ulster. “What was now alone at issue”, observed the historian Ronan Fanning, “was how much of Ulster and for how long.”16

10 A point made by Ivan Gibbons, p33. Agar-Robartes was killed in action a few years later during the First World War. 11 HC Deb 11 June 1912 vol 39 c771 12 HC Deb 11 June 1912 vol 39 c787 13 Robert Lynch, p61. 14 HC Debs 9 March 1914 Vol 59 cc909-10 15 See Nicholas Mansergh, “The Government of Ireland Act 1920: Its Origins and Purposes – The Working of the ‘Official’ Mind”, in D. Mansergh (ed), Nationalism and Independence: Selected Irish Papers, : Cork University Press, 1997, p99. 16 Ronan Fanning, p104. 11 Commons Library Briefing, 21 December 2020

John Redmond, the Irish Nationalist leader, also accepted the temporary exclusion of six Ulster counties.17 This was to be for a limited period (initially three years) and on the basis of “county option” or referendum. On 9 March 1914, Asquith said the government had: come to the conclusion that the best, and, indeed, the only practical, way […] is to allow the Ulster countries themselves to determine, in the first instance, whether or not they desire to be excluded. Asquith added that this would now be for a period of six years. In response, Bonar Law said a Conservative government would make the exclusion permanent.18 The government submitted a Government of Ireland (Amendment) Bill to the House of Lords in June 1914, although the Upper House later amended this so that all nine Ulster counties would be permanently excluded from Home Rule.19 Negotiations continued. At a meeting of British and Irish party leaders at during , Sir Edward Carson proposed that any excluded area should have administrative autonomy from the rest of the UK, the first time Unionists “had suggested that Ulster should be run in any way differently to the rest of the United Kingdom”.20 Maps were also circulated showing possible boundaries.21

2.3 Government of Ireland Act 1914 All this, however, was overtaken by events. Bonar Law and Asquith agreed to pause “the ” as storm clouds gathered in Europe. The Government of Ireland Bill was finally granted Royal Assent on 18 September 1914 (without the Lords’ consent), providing for a bicameral Irish Parliament subject to Westminster sovereignty. There was no special provision for Ulster, the amending Bill having been abandoned. A simultaneous Suspensory Act was passed suspending the operation of the Government of Ireland Act 1914 for the duration of the First World War.22 Following the of 1916, Irish public opinion hardened in favour of complete independence from the UK rather than devolution within it.23 Unionists in Ulster also became more determined to fight for partition.24 The that same year was a key event in the development of Ulster Unionist identity given the involvement of the 36th (Ulster) Division. That summer, proposals were presented to both Houses of Parliament, this time providing for six-county exclusion. The “excluded area” was to

17 Ivan Gibbons, p38. 18 HC Debs 9 March 1914 Vol 59 c913 19 Michael Laffan, pp43-44. 20 Ivan Gibbons, p38. 21 Ivan Gibbons., p46. 22 The Suspensory Act 1914 also suspended an Act disestablishing the in . 23 See Thomas Hennessey, Dividing Ireland: and Partition, London: Routledge, 1998. 24 Ivan Gibbons, p40. 12 Parliament and Northern Ireland, 1921-2021

be administered by “a through such officers and departments as may be directed by Order of His Majesty in Council”. This proposal reappeared during the proceedings of the unsuccessful 1917-18 , an initiative by David Lloyd George, Asquith’s successor as Prime Minister,25 to resolve the Irish question.26 The 1918 general election created a new balance of political forces in the House of Commons. The Liberal-Conservative coalition won a large majority but in Ireland, the republican Sinn Féin (“Ourselves”) party displaced the pro-Home Rule Irish Parliamentary Party in all but a handful of seats. Sinn Féin MPs abstained from taking their seats at Westminster, so the predominant Irish voice in the House of Commons was that of the Ulster Unionists. The legal termination of the First World War following the Paris Peace Conference of 1919 would have ended the suspensory period applying to the Government of Ireland Act 1914. The UK government either had to allow it to come into operation or introduce new legislation. It chose the latter. As Winston Churchill wearily observed, after a delay of five years the “dreary steeples of and Tyrone [were] emerging once again”.27

2.4 New proposals Lloyd George established a Cabinet committee chaired by Walter Long, a former Chief Secretary for Ireland. Initially, Long worked on a federal scheme encompassing Ireland, Scotland, Wales and England, but by October 1919 he had settled on two devolved in Ireland alone, linked by a common council comprising representatives of both. Federalist thinking, therefore, underpinned what eventually became the 1920 Act.28 Long’s committee marked the first time a parliament for the nine counties of Ulster – rather than direct administration from Westminster – had been contemplated by the UK government. The idea may have come from , which on 24 July 1919 advocated a two- parliament option for Ireland.29 Long, however, ruled out the idea of local plebiscites or “county option”.30 The UK Cabinet discussed Long’s proposals during November and December 1919. Charles Craig, an Ulster Unionist MP (and brother of the future Prime Minister of Northern Ireland, Sir James), reluctantly

25 In 1918 the Liberal Party split into two rival factions led by Asquith and Lloyd George. The former (a majority) went into opposition; the latter (a minority) supported the Conservative-dominated coalition government. 26 See Sir Arthur Quekett, The Constitution of Northern Ireland Part 1, Belfast: HMSO, 1928, pp11-14. 27 Michael Laffan, p60. 28 Ivan Gibbons, p51. A Speaker’s Conference on Devolution had been set up in but did not examine Ireland given the UK government’s then forthcoming proposals. It reported in . 29 Cormac Moore, Birth of the Border: The Impact of Partition in Ireland, Dublin: Merrion Press, 2019, p19. 30 For a comprehensive account of the Long committee see Richard Murphy, “Walter Long and the Making of the Government of Ireland Act, 1919-20”, Irish Historical Studies 25:97, May 1986, pp82-96. 13 Commons Library Briefing, 21 December 2020

conceded Home Rule for Ulster but argued that a nine-county Ulster would be politically too unstable to function: No sane man would undertake to carry on a Parliament with such a small majority. A couple of members sick, or two or three Members absent for some accidental reason, might in one evening hand over the entire Ulster parliament and the entire Ulster position.31 Craig suggested reducing nine counties to six: Antrim, Down, Londonderry, Armagh, Fermanagh and Tyrone, only two of which had Catholic majorities. Six counties, observed the historian Michael Laffan, “comprised the maximum area which unionists felt that they could dominate without fear of being ‘outbred’”.32 , one of the few remaining Irish Parliamentary Party MPs in Joseph Devlin the Commons, believed this would result in the “worst form of partition (1871-1934) and, of course, permanent partition. Once they have their own Joseph Devlin was a parliament with all the machinery of government and administration, I Member of am afraid anything like subsequent union will be impossible.”33 Parliament for the Irish Parliamentary Gradually, Ulster Unionists coalesced around the six-county option, Party (IPP) at while the UK Cabinet continued to insist on nine. The historian Nicholas Westminster and Mansergh later observed that all of this: then a Nationalist carried the unmistakable marks of a successful committee Party MP in the searching for a compromise. It was also and more importantly the Parliament of outcome of the continually narrowing range of choice, which had Northern Ireland. confronted each successive British government since the outbreak He led the former in 34 of war. 1918-21 and the The proposals also bore the imprint of the recently signed Treaty of latter from 1921 Versailles, principally its concern with “self-determination”, although as until his death in Michael Laffan has observed, the UK government’s rejection of local 1934.

plebiscites (which were being used elsewhere in Europe) reflected “the British belief that terms imposed on vanquished enemies were inappropriate to the victors”.35 The UK government was also keen to pacify Irish-American opinion in the United States.36 Lloyd George informed the Commons of his proposed solution to what he called an “old family quarrel” on 22 December 1919,37 three days after the attempted assassination of Lord French, the Lord Lieutenant, in Dublin. Echoing but contradicting Asquith’s view as expressed in 1912, the Prime Minister said that:

31 Patrick Buckland, “Carson, Craig and the Partition of Ireland, 1919-1921”, in Peter Collins (ed), Nationalism and Unionism: Conflict in Ireland, 1885-1921, Liverpool: Institute of Irish Studies, 1994, p85. 32 Michael Laffan, p66. 33 Éamon Phoenix, Northern Nationalism: Nationalist , Partition and the Catholic Minority in Northern Ireland, 1890-1940, Belfast: Ulster Historical Foundation, 1994, p76. 34 Nicholas Mansergh, “The Government of Ireland Act 1920: Its Origins and Purposes – The Working of the ‘Official’ Mind”, in D. Mansergh (ed), Nationalism and Independence: Selected Irish Papers, Cork: Cork University Press, 1997, p91. 35 , a former Conservative Prime Minister and Chief Secretary for Ireland, argued that “Ireland is not like a conquered state, which we can carve up as in Central Europe” (Michael Laffan, p64). 36 Ronan Fanning, pp154-87. 37 HC Deb 22 December 1919 vol 123 c1168 14 Parliament and Northern Ireland, 1921-2021

In the North-East of Ireland we have a population —a fairly solid population, a homogeneous population—alien in race, alien in sympathy, alien in religion, alien in tradition, alien in outlook from the rest of the population of Ireland, and it would be an outrage on the principle of self-government to place them under the rule of the remainder of the population.38 Lloyd George went on to say that there was “a path of fatality” which pursued relations between “the two countries” (Great Britain and Ireland), making them “eternally at cross purposes”: Sometimes Ireland demands too much; sometimes when Ireland is reasonable England offers too little; sometimes when Ireland is friendly England is sulky; sometimes when England has been friendly, Ireland had been angry; and sometimes when both Britain and Ireland seem to be approximating toward friendship, some untoward incident sweeps them apart, and the quarrel begins again. So, the fitting time has never been, and never will be. But it is always the right time to do the right thing; and Britain can afford now more than ever, and better than ever, to take the initiative. The Prime Minister concluded with the hint of a threat: This is not the time when anyone can suspect Britain of conceding from fear. No one can taunt the land that by its power destroyed the greatest military Empire in the world—largely through its own power—that it has simply quailed before a hind of wretched assassins. The world will know, if we pursue this course, that we are entering upon it prompted by that deep sense of justice and right that has sustained this land during these years of suffering.39

2.5 Government of Ireland Bill The fourth Government of Ireland Bill was introduced to Parliament on 25 February 1920 in the midst of the war of independence (1919-21), a guerrilla conflict fought between the (IRA) and British forces. The IRA explicitly rejected any form of government imposed by the UK. The first Dáil Éireann had convened in January 1919, comprising Sinn Féin MPs elected to Westminster in 1918 but who had refused to take their seats. This unicameral body was not recognised by the UK. As a result, Sir Arthur Quekett later observed that debates on the Bill were “conducted in an atmosphere of unreality, because the measure failed to correspond with the aspirations of any Irish political party”.40 Only a day before the Bill’s first the UK Cabinet had capitulated to Ulster Unionist demands and redefined “Northern Ireland” as comprising six counties rather than nine. Although the Ulster Unionists had accepted the principle of partition in 1916, only on 10 did its MPs endorse the Bill, much to the dismay of Southern

38 HC Deb 22 December 1919 vol 123 c1171 39 HC Deb 22 December 1919 vol 123 cc1187-87 40 Sir Arthur Quekett, The Constitution of Northern Ireland I: The Origin and Development of the Constitution, Belfast: HMSO, 1928, p16. Quekett was Parliamentary Counsel to the Government of Northern Ireland between 1921 and 1945. 15 Commons Library Briefing, 21 December 2020

Unionists.41 The Belfast MP Tom Moles defended this on the grounds that “in a sinking ship, with lifeboats sufficient for only two-thirds of the ship’s company, were all to condemn themselves to death because all could not be saved?”42 At the Bill’s second reading Charles Craig, the Ulster Unionist MP, said that while Unionists “would much prefer to remain part and parcel of the United Kingdom”, they had: many enemies in this country, and we feel that an Ulster without a Parliament of its own would not be in nearly as strong a position as one in which a Parliament had been set up where the Executive had been appointed and where above all the paraphernalia of Government was already in existence.43 The Bill took a year to go through all its stages – six months longer than the Government of Act 1919. It met with relatively little challenge from opposition MPs, for instead of 80 Nationalist MPs (as before 1918), there were just six from Ireland in the Commons, as well as T. P. O’Connor, who represented the Scotland Division of Liverpool.44 The urged the remaining Nationalist MPs not to participate in the Bill’s committee stages or to propose amendments. It did not want to appear to endorse partition. Even had Sinn Féin MPs been present, the coalition government had a sizeable majority. Fifty- seven Labour MPs and Asquith’s rump Liberal Party opposed the Bill to little effect. Ulster Unionist MPs abstained. The Nationalist MP Joseph Devlin said the Bill had been “conceived in Bedlam”, calling it “ridiculous” and “fantastic”.45 Several historians have also been critical of Sinn Féin’s lack of policy on Ulster or partition, choosing instead to “ignore it”.46 On 8 November 1920, the House of Lords added new clauses providing for each parliament, although these were to be constituted in different ways. While Southern Unionists were to be over-represented in the Senate of Southern Ireland, its Northern Ireland equivalent was to reflect the party balance in its House of Commons. Devlin described the plan as “one of the most disgraceful things [he had] ever known”.47 Widespread civil unrest in both parts of Ireland, meanwhile, reached a peak. Between June 1920 and June 1922 428 people were killed and 1,766 wounded. In Northern Ireland, meanwhile, the IRA sought to undermine the nascent state (see Section 2.8). This was the backdrop to Royal Assent for the Government of Ireland Act 1920 on 23 . In his prorogation address to Parliament, George V expressed his hope that “this Act, the fruit of

41 Patrick Buckland, Irish Unionism I: The Anglo Irish And The New Ireland 1885-1922, Dublin: Gill and Macmillan, 1972, p198. 42 Quoted in Ronan Fanning, p219. 43 HC Debs 29 March 1920 Vol 127 cc989-90 44 T. P. O’Connor, a prolific journalist and author, held the seat as an Irish Nationalist until his death in 1929. 45 Cormac Moore, p24. 46 Cormac Moore, p24. 47 HC Debs 16 December 1920 Vol 136 cc783-85 16 Parliament and Northern Ireland, 1921-2021

more than thirty years of ceaseless controversy, will finally bring about unity and friendship between all the peoples of my Kingdom”. A Times editorial was more sanguine, and also prescient. Few, it observed, “believed or believe that this Bill will prove in itself a final settlement of the Irish question”: But while the new Act fails to satisfy the legitimate demands of Southern Irishmen and may be amended and enlarged before the machinery which it establishes can be set in full motion, it does, even in its present form, radically and irrevocably affect the constitution of these islands. For one thing, it partitions Ireland definitely, though not, we hope, definitively. Sinn Fein opposition may prevent a Southern Irish Parliament from coming into being; but no action on the part of Sinn Feiners is likely to deter Ulster from setting up her own government. Once she has done so, Ireland will be launched on a new political course. The Act of Union is gone.48 In his memoirs, Asquith remarked that the Bill was “passed for the purpose of giving to a section of Ulster a Parliament which it did not want, and to the remaining three-quarters of Ireland a Parliament which it would not have”.49

2.6 An Act to “provide for the better Government of Ireland” The Government of Ireland Act 1920 (“the Act”) was described as “an Act to provide for the better Government of Ireland”. A summary of its provisions said the Act contemplated and: affords every facility for union between North and South, and empowers the two by mutual agreement and joint action to terminate partition and to set up one Parliament and one Government for the whole of Ireland. With a view to the eventual establishment of a single Parliament, and to bringing about harmonious action between the two Parliaments and , there is created a bond of union in the meantime by means of a .50 Kenneth Bloomfield, a future head of the Northern Ireland Civil Service, later described the 1920 Act as both “pragmatically partitionist” and “aspirationally unitary”.51 To the historian A. J. P. Taylor it was “an arrangement of fantastic complexity”, the “United Kingdom, , a separate Ulster, all mixed together”.52 The Government of Ireland Act 1920 was, therefore, a compromise, an attempt to reconcile Irish Nationalist demands for Home Rule and Ulster Unionist resistance to that same goal. Section 1(2) stated that:

48 The Times, 24 December 1920. 49 Earl of Oxford and Asquith, Memories and Reflections, 1852-1927, Vol 2, London: Cassell, 1928, p190. 50 Government of Ireland Act, “What the Act does”, 1920, p2. 51 Kenneth Bloomfield, A Tragedy of Errors: The Government and Misgovernment of Northern Ireland, Liverpool: Liverpool University Press, 2007, p6. 52 A. J. P. Taylor, English History 1914-45, Oxford: , 1965, p156. 17 Commons Library Briefing, 21 December 2020

For the purposes of this Act, Northern Ireland shall consist of the parliamentary counties of Antrim, Armagh, Down, Fermanagh, Londonderry and Tyrone, and the parliamentary of Belfast and Londonderry, and Southern Ireland shall consist of as much of Ireland as is not comprised within the said parliamentary counties and boroughs. As Northern Ireland was defined by certain parliamentary counties and boroughs, its boundaries were “thus defined by reference to other Acts”, most recently the Redistribution of Seats (Ireland) Act 1918. As the constitutional lawyer Harry Calvert later observed: “It is not at all clear that Northern Ireland was not, initially, given elastic boundaries susceptible to variation according as constituency boundaries were altered.”53 This definition also meant that even a century later, there were “no defined political borders in either Lough Foyle or Carlingford Lough”, two bodies of water which straddled both parts of Ireland.54 Both the Northern and Southern Irish parliaments, meanwhile, were based on the Westminster model of King, Commons and Upper House. The Act made provision for a single Lord Lieutenant for the whole of Ireland, who would also nominate a “president” of the planned Council of Ireland.55 Powers The two parliaments were to “have power to make laws for the peace, order, and good government” of Southern and Northern Ireland, language identical to that in UK Acts which had granted autonomy to , Canada and .56 The 1920 Act was based upon the reserved powers model, in that it listed which matters were to remain the responsibility of Westminster (excepted or reserved) with everything else transferred (or devolved) to the Parliament and Government of Northern Ireland.57 The Act’s Explanatory Notes divided excepted matters into those “of Imperial concern” and “matters affecting external trade and commerce, as regards which it is important to maintain a uniform system throughout the United Kingdom”.58 Reserved matters fell into three categories: those reserved outright, i.e. most taxes; those held in suspense pending an all-Ireland parliament, i.e. the post office and supreme courts; and others – such as land

53 Harry Calvert, Constitutional Law in Northern Ireland. A study in regional government, Belfast & London: Stevens & Sons, 1968, p211. Calvert believed any “doubt” was later removed by the 1925 agreement (see Section 3.10). 54 Ivan Gibbons, p95. 55 Arthur Balfour dismissed the Council of Ireland as a “national debating society” or “green umbrella” (Michael Laffan, p68). 56 See Brigid Hadfield, The Constitution of Northern Ireland, SLS Legal Publications, 1989. 57 The 1920 Act does not actually use the word “excepted”. Section 4(1) states that the Parliaments of Northern and Southern Ireland “shall not have power to make laws except in respect of matters exclusively relating to the portion of Ireland within their jurisdiction”, and “that they shall not have power to make laws in respect of the following matters”, , defence, etc (italics added). 58 Government of Ireland Act, “Matters excluded from the jurisdiction of the Parliaments and Governments”, 1920, p6. 18 Parliament and Northern Ireland, 1921-2021

purchase, elections and policing – which were to be reserved for a specified number of years. Everything not listed as excepted or reserved was deemed to have been transferred to the Northern and Southern Irish Parliaments. As the F. H. Newark observed, “when legislative functions are distributed between two Parliaments as in the present case, there is bound to be a certain haziness on the boundary line, however well the statute dividing the functions is drafted”.59 For example, the Parliament of Northern Ireland was to have control of administering harbours but not merchant shipping. The adjustment of this “boundary line” would become a major theme of devolution in Northern Ireland over the next few decades. As for the devolution of executive powers, s8(1) of the 1920 Act provided that these would rest with the King, who would discharge the prerogative or any other executive powers through the Lord Lieutenant. Section 8(3) provided that powers delegated to the Lord Lieutenant would then be exercised through the Northern (and Southern) Ireland departments headed by ministers drawn from their respective Commons or Senates.

Excepted Reserved Transferred

Services Services Tax Services Tax

• The Crown • Postal • Customs & • All powers • Death duties • Making war & services Excise duties not excepted • Stamp duties peace • Post Office • Excess or reserved • Motor vehicle • Defence Savings Bank profits duty duties • Foreign relations and Trustee • Corporation • Entertainment & treaties Savings Bank profits tax duties • Foreign trade • Registration • • Non-tax: Land • Communications of deeds (including annuities • Coinage and • Public super-tax) legal tender Record Office • Any tax on • Intellectual property of Ireland profits or • Land general tax purchase on capital • Supreme Court

Source: David Jordan, The Economics of Devolution Evidence from Northern Ireland 1920-1972, Queen’s University Belfast PhD, 2020.

59 F. H. Newark, “The Constitution of Northern Ireland” in D. G. Neill (ed), Devolution of Government: The Experiment in Northern Ireland, London: George Allen & Unwin, 1953, p29. 19 Commons Library Briefing, 21 December 2020

Restrictions The 1920 Act also stipulated other restrictions on the legislative and executive autonomy of the two parliaments. Section 5 prohibited them from making laws which interfered with religious equality by establishing or prohibiting the exercise of any particular religion, granting state aid to schools of one denomination but not others, and taking property without compensation. Harry Calvert argued that this “religious discrimination clause” bore a “family likeness” to the First Amendment to the United States constitution and a parallel provision in the 1900 Australian constitution.60 Other restrictions were that: • Westminster was to remain (see below); • The Northern and Southern parliaments could not or alter the parent Act or any UK statutes passed after 3 which extended to Northern or Southern Ireland; • Any devolved statutes passed after 3 May 1921 were to be void if “repugnant” (i.e. in conflict with) to post-1921 UK legislation;61 • Neither parliament could create a general tax on capital; nor • Make laws except in respect of matters exclusively relating to the territories defined as Northern or Southern Ireland. Section 64 of the 1920 Act also protected the constitution and property of Queen’s University Belfast, while the Grand Lodge of Freemasons in Ireland was similarly protected by s65.62 Financial provisions As noted in the table above, some fiscal powers were to be transferred to the two parliaments. Apart from certain exceptions, “each Parliament will have power to impose whatever taxes it thinks proper, to be collected by it and paid into its own Exchequer. It will also have power to grant relief in reduction of the rate of income tax or super tax.”63 In reality, the power to impose taxes was severely restricted, while the granting of relief was never used. The 1920 Act envisaged a shared surplus of £7.5 million, which reflected its drafting in the middle of a post-First World War trading boom. This had benefitted Ulster’s heavy industries, although it later gave way to a slump.64 An Imperial Contribution for Ireland’s share of excepted and reserved services was to be fixed at £18m for the first two

60 Harry Calvert, p255. 61 R. J. Lawrence, The Government of Northern Ireland: Public Finance and Public Services 1921-1964, Oxford: Clarendon Press, p28. This was similar to Section 2 of the Colonial Laws Validity Act 1865. 62 The remained an all-Ireland body following partition in 1921. 63 Government of Ireland Act, “Finance”, 1920, p4. 64 Graham Walker, “Northern Ireland: devolution pioneers” in P. J. Roche & B. Barton (eds), The Northern Ireland Question: Perspectives on Nationalism and Unionism, Wordzworth, 2020, p72. 20 Parliament and Northern Ireland, 1921-2021

years, 56% to be borne by Southern Ireland and the remainder by Northern Ireland. After two years, a Joint Exchequer Board (JEB) was to revise these contributions “according to the relative taxable capacities” of both parts of the Ireland and the UK.65 The JEB was also to consider the future transfer of responsibility for customs and excise duties and “report thereon to the Parliament of the United Kingdom and the Parliament of Ireland”.66 Refusal to work the Act The 1920 Act anticipated the prospect of Southern Ireland refusing to “work the Act”. Therefore it stated that if a majority of members of either parliament failed to take their oaths 14 days after the date fixed for their first meetings, then either body could be dissolved and replaced with a Legislative Assembly appointed by the King (or either government) and administered by the Lord Lieutenant. The Explanatory Notes stated that: The failure of one part of Ireland will not affect the operation of the Act in the other part of Ireland except in so far as it will postpone the possibility of the establishment of a united Parliament and Government for the whole of Ireland. It will therefore be for Irishmen themselves to decide in the near future whether they will themselves take up the reins of Government in their own country or be ruled by the Government of the United Kingdom under a system analogous to Crown Colony Government.67 The last section of 1920 Act, 76(2), repealed the Government of Ireland Act 1914. Sovereignty Both legislatures were devolved from and thus subordinate to the UK Parliament, something made clear by Section 75.68 Nevertheless, there were competing views regarding sovereignty. In 1953, the constitutional academic F. H. Newark argued that: apart from the excluded and reserved matters, the Northern Ireland Parliament is a sovereign parliament. I always tell students that the proper way to use the Government of Ireland Act, 1920, is not to read it to see what the Stormont Parliament can do, but to assume it can do everything and then read the Act to see what it cannot do.69 Nicholas Mansergh, on the other hand, stated that the Parliament of Northern Ireland was “not a legislature enjoying sovereign power”.70

65 Government of Ireland Act, “Finance”, 1920, p5. 66 Government of Ireland Act, “Finance”, 1920, p6. This transfer never took place. 67 Government of Ireland Act, “Refusal to ‘work the Act.’”, 1920, p8. 68 This could have been said to be the second act of “devolution”, the first having taken place a year earlier with the creation of the General Synod of the Church of England. 69 F. H. Newark, p11 (italics added). 70 Nicholas Mansergh, p108. 21 Commons Library Briefing, 21 December 2020

Harry Calvert agreed that there was “no sovereignty in the Parliament of Northern Ireland, even where local matters are concerned”.71

2.7 The 1920 Act as a “constitution” There was general agreement, however, that the 1920 Act had created a “constitution” for Northern Ireland. Sir Arthur Quekett viewed the Act as the means “by which a constitution within the United Kingdom has been bestowed upon Northern Ireland”, Ulster Unionists having “accepted a local constitution as the only means whereby the close connection of Ulster with Great Britain under the Act of Union could at that time be preserved”.72 In the view of R. J. Lawrence, Northern Ireland was neither “a dominion nor a colony […] yet it possesses a written constitution and a separate legislature and executive”.73 D. Lindsay Keir also drew a distinction between the autonomy possessed by Northern Ireland and “every other British territory on which self- governing powers have been conferred”, for the former could: point to no constituent Act or other instrument enacted for that sole and specific purpose, framed at its own request, related to itself alone, and fashioned in detail to meet its own interests and needs.74 F. H. Newark also referred to the 1920 Act as the “foundation document of the Constitution of Northern Ireland”.75 Others considered this constitution to be federal in nature. Lord Londonderry talked of “a measure of Federation within the United Kingdom”,76 while the Ulster Year Book 1947 referred to the “constitution of Northern Ireland” as being “federal in type”.77 To the historian Ivan Gibbons, the 1920 Act contained the “vestiges of the British federal idea” which once envisaged Ireland as the “first step” towards a United Kingdom federation.78

2.8 Creating the new “state” As the historian Bryan Follis has written of the period following Royal Assent: Northern Ireland existed not as an entity but only in name and on paper. Not only had Northern Ireland no parliament and no government: it had no civil service to support and serve it, no police or defence force to enforce whatever laws it might make, protect its people, or defend its territory from possible (and

71 Harry Calvert, p170. 72 Sir Arthur Quekett, p10. 73 R. J. Lawrence, pvii. 74 D. Lindsay Keir, The Constitutional History of Modern Britain, London: Adam & Charles Black, 1947, px. 75 F. H. Newark, “The Law and the Constitution” in T. Wilson (ed), Ulster Under Home Rule: A Study of the Political and Economic Problems of Northern Ireland, London: Oxford University Press, 1955, p23. 76 Quoted in Graham Walker, p70. 77 Ulster Year Book 1947, Belfast: HMSO, p13. 78 Ivan Gibbons, p6. 22 Parliament and Northern Ireland, 1921-2021

indeed likely) attack, nor had it a judiciary to uphold its laws and administer justice.79 Several months before Royal Assent, the apparatus of what many 80 Sir James Craig regarded as a new “state” began to take shape. Sir James Craig, who (1871-1940) was due to assume leadership of the Ulster Unionists from Sir Edward James Craig was an Carson in early 1921, asked Westminster for a reserve police force Ulster Unionist independent of (the seat of British power in Ireland) and politician and the headed by a commissioner who would have exclusive command in what first Prime Minister was to be Northern Ireland.81 of Northern Ireland. The son of a Sir James also requested an administrative authority based in Belfast whiskey distiller, he which, by reporting directly to the Chief Secretary and bypassing Dublin was a UK Castle civil servants, would act as the foundation of the new government government of Northern Ireland. On 2 September 1920, Craig attended minister before a conference of ministers in London and argued his case. The UK becoming Ulster government agreed. Unionist leader and Prime Minister in That same month, Sir , an English Revenue Board official, 1921. Created was appointed an additional assistant under-secretary at the Irish Office, Craigavon with particular responsibility for what would become Northern Ireland.82 in 1927, he He headed up the Chief Secretary’s Office at the Scottish Provident remained Buildings in Belfast. until his death in 1940. He is buried By the time of Royal Assent in December 1920, “the administration of near the Parliament Ireland was already partitioned at its centre bureaucratically and even Buildings on the ideologically”.83 Sir Ernest later recalled forming a new administration . “armed only with a table, a chair and an ”.84 In consultation with Sir James Craig, now regarded as the “prospective Head of the Government of Northern Ireland” or prime minister- designate,85 Clark proposed five departments, later increased to seven: Finance, Home Affairs, Employment, Agriculture, Labour, Commerce and a Department of the Prime Minister. Each was to have its own , as in Whitehall. Sir Ernest was to head up the Ministry of Finance and thus take control of the Northern Ireland Civil Service (NICS) as a whole. Only one Catholic, Andrew Bonaparte-Wyse, was appointed a permanent secretary, at the Ministry of Education.86

79 Bryan A. Follis, A State Under Seige: The Establishment of Northern Ireland 1920- 1925, Oxford: Clarendon Press, 1995, p6. 80 As Brendan O’Leary makes clear, Northern Ireland “was not, and never has been, a state” and was not styled as such, “unlike its southern neighbour” (Brendan O’Leary, A Treatise on Northern Ireland Volume 2: Control, Oxford: Oxford University Press, 2019, p29). 81 The Ulster Volunteers had been reconstituted in and established close links with British armed forces (Michael Laffan, p70). 82 Ernest Clark had worked for the government in 1904-05. He left the Northern Ireland Civil Service in 1925 and later served as Governor of Tasmania (1933-45). 83 Cormac Moore, p32. 84 Cormac Moore, p35. 85 Bryan A. Follis, p25. 86 See Bryan A. Follis, pp36-37, for a discussion of religious discrimination in the NICS. Bonaparte-Wyse was in no sense an outsider: an English public school-educated Southern Unionist, he had served in a senior role at the Board of Education in Dublin. 23 Commons Library Briefing, 21 December 2020

The 1920 Act laid down that Irish civil servants concerned solely with work in what was to become Northern Ireland were to be allocated to the new Government of Northern Ireland. It also made provision for another all-Ireland body, the Civil Service Committee, to which – as with the Joint Exchequer Board – both parliaments would nominate representatives. Sir James Craig resigned as to the Admiralty (a UK government position) and returned to Belfast on 5 April 1921 to prepare for the formal establishment of the government. Sir Wilfred Spender, a figure closely associated with the Unionist resistance Viscount FitzAlan campaign, became the first secretary to the Cabinet.87 of Derwent (1855- 1947) The 1920 Act was to come into force on 2 , although there Lord Edmund was provision for His Majesty in Council to declare a series of appointed Talbot was a days, something Sir Arthur Quekett viewed as “of some historical Conservative MP importance, because it left open a fairly wide interval of time for the and the last Lord consummation of the Act”.88 Enactment was to be complete, however, Lieutenant of no later than 2 March 1922, provided that the two parliaments had Ireland, and the first been summoned to meet on or before 2 . Catholic appointed since the late 17th century. The 2.9 Elections to the Northern Parliament Government of The Parliament of Northern Ireland was established on 3 May 1921. The Ireland Act 1920 Irish border also became a reality, ironically separating “a Home Rule made his Northern Ireland from the bulk of the island that was still run directly appointment from Westminster”.89 possible in providing that no On 4 May 1921, the new Lord Lieutenant of Ireland, Viscount FitzAlan could of Derwent (a Catholic), declared 24 May to be election day,90 with the be disqualified from new parliament to meet for the first time on 7 June. holding the position on account of The 1921 election to the House of Commons of Northern Ireland was religious belief. He the first for a UK parliament conducted under a system of proportional was created 91 representation. All 40 Ulster Unionist candidates were elected, while Viscount FitzAlan of Sinn Féin and the northern rump of the (led by Derwent the day Joseph Devlin, generally known as the Nationalist Party) each won six after his seats.92 These included Éamon de Valera, Michael Collins and Arthur appointment on 27 Griffith, all prominent Republicans in Southern Ireland. Both nationalist April 1921.

87 Spender later coined the phrase “factory of grievances” to describe Northern Ireland’s devolved parliament (Paul Bew et al, Northern Ireland 1921/2001: Political Forces and Social Classes, London: Serif, 2002, p264). 88 Sir Arthur Quekett, p18. 89 Ivan Gibbons, p56. For a full account of its origins and development, see Commons Library Briefing Paper CBP9105, The Northern Ireland border, 3 May 2021. 90 24 May was also Empire Day. 91 Local government elections across Ireland in 1920 had also used STV, which the UK government viewed “as a means of protecting both minorities, protestants in the south and catholics in the north” (Michael Laffan, p69). 92 As Michael Laffan has observed, that election’s constituency boundaries “did nothing to help” Catholic voters. Until 1918, Belfast had elected 4 MPs, one of whom was a nationalist; in 1921 this was raised to 16, “one of whom was a nationalist” (Michael Laffan, p69). 24 Parliament and Northern Ireland, 1921-2021

parties had, however, agreed to fight the election but boycott the new legislature.93 His party having won the election, Sir James Craig was invited by Viscount FitzAlan to form the first Government of Northern Ireland on 7 June 1921. The Lord Lieutenant also established the seven new government departments and appointed ministers to head each. Those who were not already members of the Irish Privy Council were duly sworn. Section 15(2) of the 1920 Act had been vague as to the Senate, but the Election of Senators (Northern Ireland) Order 1921 allowed for Senators to be elected by the House of Commons under regulations made by the Speaker of that House. The Parliament of Northern Ireland, however, had no building, staff or procedures under which to operate. It had been agreed on 6 April 1921 to use for its initial meetings and then the Union Theological College, also in Belfast, as a temporary home until a permanent one could be constructed.94 Officials were obtained from Westminster on a “loan basis”, although some were expected to stay on. Arthur Irwin Dasent, for example, moved from the UK House of Commons to become the first Clerk of the Northern Ireland House of Commons.95 A new Belfast Gazette was created for the publication of government notices, with its first edition appearing on 7 June 1921.

2.10 First meetings of Parliament The first meeting of the new parliament took place on 7 June 1921. This was attended by all Ulster Unionist Members of Parliament (MPs) but not the Sinn Féin and Nationalist representatives. This followed the traditional Westminster ceremonial, although The Times considered the proceedings at Belfast City Hall less: austere and not quite so rigidly dignified […] creditable efforts had been made to reconstruct in miniature the Imperial House of Commons and to superimpose on this the Throne of the House of Lords.96 Shortly before 11.30am the Serjeant-at-Arms entered the chamber carrying the mace and placed it below the table. Then Dr D’Arcy, Primate of All Ireland, acted as Chaplain of the House. Arthur Dasent, the new Commons Clerk, appeared on the right of the Speaker, and prayers were recited. Viscount FitzAlan was then ceremoniously escorted from the Lord ’s parlour into the chamber and the royal proclamation calling the Parliament read.

93 De Valera was a member of the Northern Ireland House of Commons for Down (and later Down South) from 1921 until 1938 but never took his seat. 94 The Commons met in the College’s Gamble Library and the Senate in its chapel. 95 Dasent was Clerk of the Journals in the UK House of Commons as well as a prolific author. Among his publications was The speakers of the House of Commons from the earliest times to the present day (1911). 96 The Times’ report also noted a “breach with tradition” in that a considerable number of “strangers”, i.e. non-members, were present on the floor of the house. 25 Commons Library Briefing, 21 December 2020

Hugh O’Neill, who was elected Commons Speaker, was escorted to the steps of the Speaker’s chair, where he expressed his thanks and submitted himself to the Lord Lieutenant. The Speaker then retired to change into his robes and wig and returned to take the oath of allegiance, followed by other MPs. The business of the House could then begin. On the motion of the Prime Minister, the Commons decided to adopt, with certain written modifications, “the Standing Orders of the Imperial House of Commons and also the rules of Parliamentary procedure as laid down by Erskine May”. Then, in what The Times called another “striking breach with Westminster precedent”, the House of Commons was “solemnly photographed in Session, first by time exposure and then by flashlight”.97 Finally, Viscount FitzAlan opened nominations for the election of 24 Senators. These were to be made by 11 June and, if a poll was necessary, elected by post between 13 and 14 June 1921. The Ulster Unionist submitted 18 names and, in the absence of any nominations from the nationalist parties, a further six. The Speaker thus declared all 24 returned for the Senate. The Unionist Lord Mayor of Belfast was the only Senator in prior attendance, as one of two ex- officio members of the Upper House.98 The Lord Lieutenant then read a telegram from the King announcing that he would be present formally to open the “Northern Parliament” on 22 June 1921. At a luncheon following the adjournment, Viscount FitzAlan said he would not “pretend” that the Government of Ireland Act 1920 was “perfect”: He believed it wanted amending already, and would not be surprised if it were amended in the not far distant future. He knew they [Ulster Unionists] did not want it, and only accepted it on the advice of their great leader, Lord Carson, and their present Prime Minister, but they had done well to accept it.99 The Cabinet met for the first time on 15 June 1921 and selected Northern Ireland’s 20 representatives on the Council of Ireland, 13 from the Commons and 7 from the Senate.100 State opening George V and Queen Mary travelled to Belfast for the state opening on 22 June. Several historians have noted that their parade route was decorated with banners declaring that “we will not have Home Rule”.101 At Belfast City Hall, the Primate of All Ireland, the Moderator of the General Assembly of the Presbyterian Church and a senior Methodist minister all said prayers (the Catholic Primate, Cardinal ,

97 The Times, 8 June 1921. 98 The Senate met for the first time on 20 June 1921 and elected a Speaker, the Marquess of Dufferin and Ava. 99 The Times, 8 June 1921. 100 Cormac Moore, p47. 101 Robert Lynch, p76. Some urged the monarch not to travel to Northern Ireland due to the security situation. 26 Parliament and Northern Ireland, 1921-2021

pleaded a previous engagement). then summoned the Commons to attend the King in the Senate, where His Majesty delivered his address to both Houses.102 Referring in his 15-minute speech to “a profoundly moving occasion in Irish history”, the King stressed that he had “come in person, as Head of the Empire, to inaugurate this Parliament on Irish soil”. He continued: I am confident that the important matters entrusted to the control and guidance of the Northern Parliament will be managed with wisdom and moderation; with fairness and due regard to every faith and interest, and with no abatement of that patriotic devotion to the Empire which you proved so gallantly in the Great War […] I speak from a full heart when I pray that my coming to Ireland to- day may prove to be the first step towards the end of strife amongst her people, whatever their race or creed. In that hope I appeal to all Irishmen to pause, to stretch out the hand of forbearance and conciliation, to forgive and forget, and to join in making for the land they love a new era of peace, contentment and goodwill […] For this the Parliament of the United Kingdom has in the fullest measure provided the powers. For this the Parliament of Ulster is pointing the way. The future lies in the hands of my themselves. May this historic gathering be the prelude of the day in which the Irish people, north and south, under one Parliament or two, as those Parliaments may themselves decide, shall work together in common love for Ireland upon the sure foundation of mutual justice and respect.103 On 23 June, the Senate met once again, with MPs at the bar to hear the Lord Lieutenant read the King’s Speech. The Commons, on returning to its own chamber, followed Westminster precedent by asserting their right to deal with matters other than those referred to in the King’s Speech, by reading for the first time a Bill “for the more effectually preventing clandestine outlawries”.104 Members then debated an address and, having elected representatives to serve on the Council of Ireland, both Houses adjourned until 20 .105

2.11 Parliament of Southern Ireland In his speech, the King had stated his “earnest desire” that in Southern Ireland there would “take place a parallel to what is now passing in this hall; that there a similar occasion may present itself, and a similar ceremony be performed”. This was a reference to the other subordinate legislature envisaged by the 1920 Act. Its House of Commons and Senate were to be constituted

102 The throne used by the King remains at Belfast City Hall, as does that for Queen Mary. 103 Sir James Craig had drafted a speech which “greatly distressed” the King, who felt he was “being made a mouthpiece of Ulster in the speech rather than that of the Empire”. It was subsequently redrafted by , the South African Prime Minister, who convinced the King to use it as an olive branch to Sinn Féin (see Cormac Moore, p47). 104 Sir Arthur Quekett, p21. 105 Cormac Moore, p55. 27 Commons Library Briefing, 21 December 2020

on a similar basis to that in Northern Ireland, but with 128 and 64 members respectively. It was established, like the Parliament of Northern Ireland, on 3 May 1921.106 Two days later Sir James Craig had a clandestine meeting with de Valera while calling on the Lord Lieutenant in Dublin. De Valera divulged to Craig that “we can get more out of England by refusing to work the [Government of Ireland] Act than by working it”, a remark that was passed on to Lloyd George.107 Elections for the House of Commons of Southern Ireland were held concurrently with those in Northern Ireland on 24 May 1921. Sinn Féin candidates (who treated it as an election to the still-unrecognised Dáil) were returned unopposed in 124 seats, while Unionists won the 4 seats elected by graduates of the . On 28 June, the Commons together with the appointed Senate formally assembled at the Royal College of Science for Ireland (now the ) for its own state opening, which took place six days after that in Belfast. Only fifteen Senators and four MPs attended. Proceedings were opened by Ireland’s Lord Chief Justice in the absence of the Lord Lieutenant. He delivered a short speech on behalf of the Crown, stating that “when a sufficient number of members have taken the oath the causes of His Majesty calling this Parliament will be declared to you”. Each House then adjourned until 18 July, “the entire proceedings lasting for about fifteen minutes”. Both Houses met again in the same location on 18 , when 12 Senators and two MPs were present. The Lord , Sir John Ross, presided in the Senate, and both Houses adjourned without a day named “until His Majesty shall be pleased to declare His gracious will and pleasure”.108 As already noted, the 1920 Act’s explanatory memorandum had foreseen a refusal “to work the act”, but the provision allowing the implementation of “Crown colony” government was not enacted. Instead, the Parliament of Southern Ireland remained in “suspended animation” until 1922.109

2.12 Negotiations With a view to ending the ongoing war of independence, the UK government entered talks with representatives of the (they claimed plenipotentiary status). On 24 June 1921, two days after the Northern Ireland state opening, Prime Minister David Lloyd George invited Éamon de Valera, President of Dáil Éireann, and Sir James Craig to London, which led to a truce in July and culminated in the London Treaty Conference on 11 October 1921.

106 Section 66 of the 1920 Act stated that the Parliament of Southern Ireland could only house itself in the building (home to the pre-1800 Irish parliament) upon provision of compensation and alternative accommodation for the bank. 107 Ronan Fanning, p253. 108 Sir Arthur Quekett, pp18-19. 109 Sir Arthur Quekett, p19. 28 Parliament and Northern Ireland, 1921-2021

Although Sinn Féin opposed the existence of a parliament in Northern Ireland, the Government of Northern Ireland had, since June 1921, continued to form an administration. On this basis, Lloyd George refused to “coerce” Northern Ireland into a constitutional arrangement it did not want.110 At the same time, the UK government refused formally to transfer services to Northern Ireland (under the 1920 Act) while talks were still ongoing with Sinn Féin. The UK government’s other red lines were maintaining the integrity of the British Empire, preventing the creation of an Irish Navy and the prospect of hostile tariffs. The main focus of the negotiations that followed was the Crown rather than partition. Shortly before talks began, de Valera told the Dáil that using “force with Ulster” would not work and that if a Republic were recognised then he would favour giving each Ulster county “power to vote itself out of the Republic if it so wished”.111 Sir James Craig argued that the 1920 Act’s crown colony clause should be invoked in Southern Ireland and that the Lord Lieutenant should appoint its members of the Joint Exchequer Board and Civil Service Committee using an , as neither could be constituted until both Northern and Southern Ireland possessed functioning governments.112 Lloyd George attempted to pressure Sir James into accepting legislative subordination under an all-Ireland settlement, warning that not to do so would lead to economic dislocation and a damaging customs barrier. In response, the Prime Minister of Northern Ireland demanded Dominion status, akin to Canada or, perhaps more accurately, .113 This impasse was resolved on 5 November when Lloyd George authorised the transfer of functions to the Government of Northern Ireland. Sir James Craig wrote to Lloyd George on 11 saying that “as a final settlement and supreme sacrifice in the interests of peace the Government of Ireland Act, 1920 was accepted by Northern Ireland, although not asked for by her representatives”.114 On 9 November, the King made two Orders in Council under s69 of the 1920 Act which enabled the transfer of powers. Partition, as John McColgan observed, “was now legally complete”.115 Viscount FitzAlan had already been granted authority to appoint Southern Ireland’s representatives to the Joint Exchequer Board and Civil Service Committee.116

110 Before the 1918 general election, the Liberal-Conservative coalition government had issued a manifesto in which it ruled out any “forcible submission of the six counties of Ulster to a Home Rule Parliament against their will” (Michael Laffan, p62). 111 Michael Laffan, p79. 112 John McColgan, British Policy and the Irish Administration 1920–22, London: HarperCollins, 1983, pp63-65. 113 Bryan A. Follis, pp65-66. 114 R. J. Lawrence, p18. 115 John McColgan, p69. 116 See the Government of Ireland (Temporary Constitution of Joint Exchequer Board and Civil Service Committee) Order 1921. 29 Commons Library Briefing, 21 December 2020

One Order set 22 November 1921 as the appointed day upon which financial provisions would come into operation. Law and order and the administration of justice were to be transferred on 22 November, with local government, housing, pensions, road transport and public health following on 1 December. All other Irish services were to be transferred to Northern Ireland on 1 (except education, which was scheduled for 1 February 1922).117

2.13 Anglo-Irish Treaty The Articles of Agreement for a Treaty, generally known as the Anglo- Irish Treaty, was signed in London on 6 December 1921 by the UK government and representatives of Sinn Féin.118 This accepted that all of Ireland would secede from the UK and become known as the , a Dominion under the British Crown (Article 1), but that the Parliament of Northern Ireland could request that the powers of the Irish parliament not be extended to the six counties of Ulster after the period of one month (Articles 11 and 12). There was also agreement on a boundary commission which could potentially alter the exact border between Northern Ireland and the Free State (triggered if the Parliament of Northern Ireland requested exclusion).119 “The Ulster clauses in the Anglo-Irish treaty gave unionists little cause for alarm”, judged Michael Laffan, “or Sinn Fein little cause for hope.”120 Articles 11 and 12, concluded Ronan Fanning, were “fig leaves to cover the Irish negotiators’ impotence to end partition”, maintaining the “polite fiction” of Ireland’s “essential unity”.121 The Treaty was debated in the UK House of Commons and the Irish Dáil during December 1921 and encountered opposition in both. In an acrimonious debate in the House of Lords, Lord Carson said the boundary commission proposal constituted a betrayal of the area defined as Northern Ireland,122 while the Dáil split between those who accepted the Treaty as the best possible outcome and those who wanted to hold out for an all-Ireland republic.123 In the latter camp was de Valera, who resigned as president of Dáil Éireann. This, in time, led to the . F. H. Newark regarded the Treaty as “an odd document, and to constitutional lawyers a rather irregular document”, in that treaties

117 The transfer of health was later delayed until 1 March 1922 by another Order in Council laid on 22 December 1921. 118 For a detailed account of the Treaty negotiations, see Lord Longford, Peace by Ordeal: The Negotiation of the Anglo-Irish Treaty, 1921, London: Sidgwick & Jackson, 1972. 119 The idea of a boundary commission had existed since 1916 and had once been supported by Sir James Craig (Michael Laffan, p66). 120 Michael Laffan, p90. 121 Ronan Fanning, p314 & p316. 122 Sir Edward Carson had joined the House of Lords as a Lord of Appeal in Ordinary (or Law Lord) in June 1921. 123 Ivan Gibbons has noted that Northern Ireland only occupied 9 out of 338 paragraphs of Treaty debates in the Dáil between December 1921 and January 1922 (Ivan Gibbons, p69). 30 Parliament and Northern Ireland, 1921-2021

were usually “entered into between sovereign States and the ‘Republic of Ireland’ was not a sovereign State”.124 In accordance with its terms, the Treaty required “approval” by both the UK Parliament and “at a meeting of members of the Parliament elected for constituencies in Southern Ireland” (the UK had declared the Dáil constituted in 1919 illegal on 12 September of that year). If approved, it would then be “ratified by the necessary legislation” in the UK Parliament. The Provisional Government of the Irish Free State was constituted on 14 January 1922 at Dublin’s Mansion House. Nationalists denied that this was a meeting of the House of Commons of Southern Ireland elected the previous May, but rather a gathering of members elected to sit in that parliament. There was also debate as to who had authority to “convene” the meeting. Under the 1920 Act, Viscount FitzAlan possessed such authority, although in the event it was convened by as “Chairman of the Irish Delegation of Plenipotentiaries”. Dáil Éireann duly ratified the Treaty and nominated Michael Collins as Chairman of the Provisional Government.125 Collins was installed in this post by the Lord Lieutenant at Dublin Castle on 16 January 1922, while the Castle itself was handed over to the Provisional Government. The following day, Collins suspended transfers of Irish civil servants to the Government of Northern Ireland which had been taking place under the 1920 Act. Indeed, the Treaty created considerable confusion within the Irish Civil Service: Was the North not theoretically a part of the Irish Free State? In time would it not become, at best, a regional administration, possible with a restricted area under an all-Ireland parliament? Should not the Free State government be involved in the allocation of officers? And since the Government of Ireland Act appeared to have been superseded, was the Civil Service Committee the proper body to allocate staff?126 There was also concern that Free State government departments would end up running reserved services operating in Northern Ireland, but in the event, as the historian John McColgan has written, “the Treaty inadvertently achieved for the Northern Unionists that more complete administrative partition they had hoped for, but could not find in the Government of Ireland Act 1920”.127 The UK Irish Free State (Agreement) Act 1922, which received Royal Assent on 31 March 1922, gave legal force to the 1921 Treaty (apart from Article 11). Section 1(2) provided that the Parliament of Southern Ireland would be dissolved within four months of the Act’s passing. On

124 F. H. Newark, 1955, p24. 125 Those present on 14 January 1922 were not required to take the oath of allegiance, unlike MPs present at the first meeting of the House of Commons of Southern Ireland on 28 June 1921. 126 John McColgan, p83. 127 John McColgan, p136. 31 Commons Library Briefing, 21 December 2020

27 May 1922, Viscount FitzAlan formally dissolved it and by proclamation called “a Parliament to be known as and styled the Provisional Parliament”. This, also known as the Third Dáil, was constituted following an election held on 16 June 1922. The Irish Free State (Consequential Provisions) Act 1922 (the 1922 Act), meanwhile, provided that the Government of Ireland Act 1920 ceased to apply beyond Northern Ireland. Thus s75 of the 1920 Act was amended to state that the “supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters and things in [Northern Ireland]”. The 1922 Act also abolished the post of and the of Appeal for Ireland; reconstituted the Joint Exchequer Board and Civil Service Committee; created a Privy Council of Northern Ireland and replaced the Lord Lieutenant of Ireland with a Governor of Northern Ireland.128 Enactments relating to the Council of Ireland were postponed. It received Royal Assent on 5 . The Free State’s constitution had been approved by its Provisional Parliament on 25 , while the Irish Free State Constitution Bill was introduced to the UK Parliament by Andrew Bonar Law, who had just become Prime Minister following a general election. Ironically, he had once been a fervent opponent of Home Rule (see Section 2.1).129 The Irish Free State Constitution Act 1922 also received Royal Assent on 5 December 1922. The New Times reported its passing thus: At 6 o’clock this evening an event of great historic interest and of international importance took place in the House of Lords. A few minutes before that hour the Irish Free State Constitution bills had passed the final stage in the House of Commons by formal acceptance of the Lords’ amendments. It was brought back, beribboned and sealed, by the Clerk of the Commons himself, and handed to the Clerk of the Parliament to receive the Royal assent […] King George will make a special journey from Sandringham tomorrow to hold a privy council in Buckingham Palace, at which he will sign a proclamation declaring the adoption of the Irish Constitution by the British and Irish Parliaments. The Constitution will come into operation immediately on the issue of the proclamation.130 2.14 The Irish Free State and “Ulster Month” Under Articles 11 and 12 of the Anglo-Irish Treaty, the Parliament of Northern Ireland had a month – dubbed the “Ulster Month” – in which to decide whether the territory of Northern Ireland should remain a devolved part of the UK or come under the jurisdiction of the Irish Free State once that period of one month had passed. The Treaty was ambiguous as to whether this month ought to run from the date of ratification (31 March 1922) or the date upon which the Free State was to be established, 6 December 1922. In the event, Section 5 of the Irish Free State Constitution Act 1922 provided that it

128 The Irish Free State was to have a Governor-General, the first of which was , a former Westminster Irish Parliamentary Party MP. 129 Ivan Gibbons, p79. 130 New York Times, 6 December 1922. 32 Parliament and Northern Ireland, 1921-2021

should run from 5 December 1922 (thus ratifying Article 11 of the Treaty). Interestingly, during one meeting with Michael Collins during 1922, Sir James Craig had told him that: for the present an all-Ireland Parliament was out of the question, possibly in years to come – 10, 20, or 50 years – Ulster might be tempted to join with the South […] He would do nothing to prevent an all-Ireland Parliament, and […] if he were convinced it were in the interests of the people of Ulster, he would frankly tell them of his views, but should such an eventuality arise, he would not feel justified himself in taking part in an all-Ireland Parliament.131 But speaking in the Northern Ireland House of Commons in October 1922, Sir James said it was important to make a choice as soon as possible after 6 December 1922 “in order that it may not go forth to the world that we had the slightest hesitation”. On 7 December 1922, the Commons resolved to make the following address to the King: MOST GRACIOUS SOVEREIGN, We, your Majesty’s most dutiful and loyal subjects, the Commons of Northern Ireland in Parliament assembled, having learnt of the passing of the Irish Free State Constitution Act, 1922, being the Act of Parliament for the ratification of the Articles of Agreement for a Treaty between Great Britain and Ireland, do, by this , pray Your Majesty that the powers of the Parliament and Government of the Irish Free State shall no longer extend to Northern Ireland.132 The Prime Minister then left for London with the memorial embodying the address on the night boat. The King received it the following day, with The Times reporting: YORK COTTAGE, SANDRINGHAM, DEC. 8. The Earl of Cromer (Lord Chamberlain) was received in audience by The King this evening and presented an Address from the Houses of Parliament of Northern Ireland, to which His Majesty was graciously pleased to make reply.133 On 13 December, Sir James Craig informed the House of Commons of Northern Ireland that the King had responded to its address as follows: I have received the Address presented to me by both Houses of the Parliament of Northern Ireland in pursuance of Article 12 of the Articles of Agreement set forth in the Schedule to the Irish Free State (Agreement) Act, 1922, and of Section 5 of the Irish Free State Constitution Act, 1922; and I have caused my Ministers and the Irish Free State Government to be so informed.134 Had Northern Ireland opted to come under the jurisdiction of the Irish Free State, then Article 14 of the Treaty intended that the Parliament of

131 Quoted in Robert Fisk, In Time of War: Ireland, Ulster and the Price of Neutrality 1939-45, London: Andre Deutsch, 1983, p216. Craig and Collins met several times during 1922. 132 There was no division or vote requested on the address, which was then approved by the Senate of Northern Ireland. The Senate then added the words “Senators and” before the word “Commons” (Sir Arthur Quekett, pp58-59). 133 The Times, 9 December 1922. 134 Belfast Gazette, 15 December 1922. 33 Commons Library Briefing, 21 December 2020

Northern Ireland remain as a devolved legislature within the new Dominion. Instead, by the end of 1922, “the six north-eastern Irish counties had become the vestigial remnant of the Home Rule struggle”.135 In the view of civil servant John Oliver, Northern Ireland found itself “in the extraordinary position of trying to function under the fragment of a constitution – and of a written constitution at that”.136 Constitutional instability, he added elsewhere, “was therefore statutorily built into the new system from the start.”137

135 R. J. Lawrence, pp17-18. 136 John Oliver, Working at Stormont: Memoirs, Dublin: Institute of Public Administration, 1978, p23. 137 John Oliver, Aspects of Ulster, Greystone, 1994, p105. 34 Parliament and Northern Ireland, 1921-2021

3. Parliament of Northern Ireland

This section provides more information on the institutions established by the Government of Ireland Act 1920, the most important of which was the Parliament of Northern Ireland. This was based on the Westminster model and consisted of His Majesty the King, a House of Commons and a Senate.

3.1 House of Commons The House of Commons of Northern Ireland was the of the Parliament of Northern Ireland. It had a membership of 52, 48 of whom were initially elected from multi-member constituencies and 4 by graduates of Queen’s University Belfast.138 Elections were by the single transferable vote (STV), but under the 1920 Act the Parliament of Northern Ireland was granted the power to alter its electoral system three years after its first meeting in June 1921. This it did in 1929, switching to first past the post for the 48 territorial constituencies while retaining STV for the 4 university seats (see Section 4.10).139 In most respects, the House of Commons deliberately followed the same procedure as the lower house of the UK Parliament. Ministers spoke from a dispatch box in a chamber modelled on the UK House of Commons, although its benches were blue rather than green. Bills followed a similar course through the Commons and Senate as at Westminster. There was no system of standing committees as in the UK Parliament. Instead the committee stage of all Bills were taken by a committee of the whole House. The practice soon became established of inserting the words “Northern Ireland” in round brackets after the word “Act” and before the year, in order to indicate a measure passed by the Parliament of Northern Ireland. A measure passed by UK Parliament but dealing specifically with Northern Ireland had the words “Northern Ireland” inserted in parenthesis before the word “Act”.140 As at Westminster, the House of Commons granted Supply (money) to the Government of Northern Ireland and provided most of its members. It was dominated throughout its existence by Ulster Unionist MPs. The Nationalist Party (a continuation of the Irish Parliamentary Party) contested elections but did not begin to take their seats until after the boundary issue had been settled in 1925 (see Section 3.10).141 Other parties, for example the Northern Ireland Labour Party, did take their

138 The 48 constituency seats were distributed between 9 multi-member constituencies, with between 4 and 8 seats each. 139 Sir James Craig told William Cosgrave, president of the Irish Free State’s Executive Council, that he could not “stick PR. Does not seem to be British. Too continental” (Michael Laffan, p107). 140 John Oliver, 1978, p29. 141 By 1927 there were 10 Nationalist MPs, with 2 Republicans still abstaining. 35 Commons Library Briefing, 21 December 2020

seats.142 There were also independent Unionists who were critical of the Government. In 1925 the Speaker of the Northern Ireland House of Commons invited the (Catholic) Bishop of Armagh to nominate a chaplain but he declined. In the view of Marianne Elliott, the Nationalist policy of abstention was: disastrous, particularly in these early days when things were still open to change. It also absolved the Unionists from blame for the developing bias, since they could legitimately claim that Nationalists had been given the opportunity to influence developments, but refused, and by so refusing simply proved their disloyalty.143 Even had all Nationalist and Sinn Féin MPs taken their seats, however, Unionists would have outnumbered them by more than 3 to 1. In more than 50 years, the only piece of legislation successfully promoted by the opposition was the Birds Protection Act (Northern Ireland) 1931. Section 18(3) of the 1920 Act stated that UK, Great Britain, English, Scottish or Irish peers were eligible for membership of the House of Commons, unlike at Westminster. Northern Irish MPs were unsalaried until March 1923 when they began to receive £200 a year. There was no equivalent of Westminster’s Chiltern Hundreds. Section 18(5) allowed a Member of the House of Commons to resign by writing to the Speaker, upon which their seat was automatically vacated.144 In March 1923 the Speaker refused the moving of a by-election writ because there was no official appointed to do so. The confusion arose from the ambiguity surrounding the Clerk of the Crown and Hanaper, who had issued the writs for the 1921 Northern Ireland and 1922 Free State elections. The office, however, had lapsed by the end of 1922. This was resolved in August 1924 when Order in Council transferred the Clerk’s election functions in Northern Ireland to the Clerk of the Crown for Northern Ireland. The dominance by a single party was widely criticised. Nicholas Mansergh was clear that parliamentary democracy could not properly function “under such frozen political conditions”.145 Similarly, F. H. Newark noted that Northern Ireland did “not have, and will never have, that healthy interchange of parties – now in office, now in opposition”, an interchange which was “not only healthy for the State, but healthy for the M.P.s themselves”.146

142 See Aaron Edwards, A History of the Northern Ireland Labour Party: Democratic and Sectarianism, Manchester: Manchester University Press, 2009. 143 Marianne Elliott, The Catholics of Ulster: A History, London: Penguin, 2001, p383. 144 Harry Calvert, p148. 145 Nicholas Mansergh, The Government of Northern Ireland: A Study in Devolution, London: George Allen and Unwin, 1936, p114. 146 F. H. Newark, 1953, p10. 36 Parliament and Northern Ireland, 1921-2021

The franchise, as in Great Britain, was extended to all women in 1928. Only ten women were elected to the Parliament of Northern Ireland between 1921 and 1972, six of them Unionists.147 This historian Patrick Buckland described Northern Ireland Parliament “very much a part-time affair, usually meeting for only a couple of months each year and seeming to exist largely to endorse government policy”.148 Civil servants who worked at Stormont (where the Parliament of Northern Ireland came to be accommodated) found proceedings uninspiring. Patrick Shea, a Catholic member of the Northern Ireland Civil Service, said: Sitting through a debate in Stormont was never an inspiring and rarely even a moderately interesting experience. The standard of debate was – as it probably is in most elected assemblies – low. Most of our public representatives were dull people with little capacity for eloquence or originality or humour.149 Similarly, Kenneth Bloomfield (a Protestant) recalled debates being “dry and dusty” affairs with Unionist MPs “lazy, complacent and confident of carrying in Parliament whatever they chose”, while Nationalists, if present, were “more concerned to reiterate grievances than to play a constructive role in addressing economic or social issues”.150 On the other hand, Patrick Buckland concluded that the Parliament of Northern Ireland was generally regarded as “responsive and accessible”.151 3.2 Senate of Northern Ireland The Northern Ireland Senate was the upper house of the Northern Ireland Parliament. It had 26 members, 24 of whom were elected by STV by members of the lower house in blocks of 12 for 8-year terms, one half retiring at the end of every fourth year. The remaining two members were ex-officio, the Lord Mayor of Belfast and the Mayor of Londonderry.152 If a member of the lower house became Lord Mayor or Mayor, then they were obliged to give up their seat in the Commons. In the view of Harry Calvert, while the House of Commons was the “dynamo” of government in Northern Ireland, the Senate’s functions were “largely confined to initiation of non-controversial legislation, limited revision of commons-initiated legislation, and public debate”.153

147 Diarmaid Ferriter, The Transformation of Ireland 1900-2000, London: Profile, 2004, p289. 148 Patrick Buckland, The Factory of Grievances: Devolved Government in Northern Ireland 1921-39, Dublin: Gill and Macmillan, 1979, p26. 149 Patrick Shea, Voices and the Sound of Drums: An Irish Autobiography, Belfast: Blackstaff Press, 1981, p139. 150 Kenneth Bloomfield, A Tragedy of Errors: The Government and Misgovernment of Northern Ireland, Liverpool: Liverpool University Press, 2007, p154. 151 Patrick Buckland, 1979, p68. 152 When the Londonderry Corporation was replaced by a Development Commission in 1969, the Mayor's place in the Senate was not filled and there were thus only 25 Senators rather than 26 for the last few years of its existence. 153 Harry Calvert, p136. 37 Commons Library Briefing, 21 December 2020

The Senate of Northern Ireland was governed by standing orders “which generally assimilate the practice of the House of Lords at Westminster”.154 It had a Speaker with two deputies, a Leader and (until 1961) a Deputy Leader. Its benches, like those in the House of Lords, were coloured red. Nine Senators were or became peers while members, while 7 also sat in the Westminster House of Commons. Twenty-five Senators had, at some point, also been members of the House of Commons of Northern Ireland. There was usually one Cabinet minister who was a Senator. Lord Londonderry, for example, was Northern Ireland’s first Minister for Education. Unlike at Westminster, ministers could sit and speak in both Houses of the Northern Ireland Parliament but could only move motions and vote in the House of which they were a member. This meant the same minister could help pilot a bill through both Houses. Like the Lower House, the Senate was dominated by Ulster Unionist Patrick Francis members. There were Nationalist members, some of whom served as McGill (1913-77) Deputy Speaker.155 One such member, Patrick Magill, later observed was a journalist and that there was “no Upper House in Northern Ireland but, rather, a Nationalist Senator 156 second Lower House”. from 1953 until Each session of the Parliament of Northern Ireland opened with a King’s 1972. In 1965, (and later Queen’s) Speech in the Senate chamber, although after 1922 McGill was awarded a PhD this was delivered by the Governor of Northern Ireland rather than the from Queen’s monarch personally. After 1932, the speech was delivered in Stormont’s University, Belfast. Great Hall (see Section 3.5). His thesis was As with the UK House of Lords, the Senate could not amend money entitled “The Bills. If a public Bill was rejected by the Senate in two successive sessions Senate in Northern then the 1920 Act provided for a joint sitting at which members could Ireland, 1921-62”. He served as deliberate and vote on the Bill as last proposed in the Commons. If Deputy Speaker subsequently passed by a majority, it was taken to have been passed by from 1965 until its 157 both Houses. abolition. According to the unionist historian Hugh Shearman, this “deadlock” provision arose from “a constitutional problem which was still much in the public mind since the rejection by the House of Lords of the Liberal government’s budget in 1909”.158 It also borrowed from similar provisions in the Australian and South African constitutions. It was never used. On the rare occasions that the Senate rejected Bills from the Commons, the latter yielded.159 3.3 Governor of Northern Ireland The Governor of Northern Ireland was the representative of the British monarch in Northern Ireland. The office was established on 9 December 1922 under letters patent to:

154 Sir Arthur Quekett, p25. 155 For an alphabetical list of Senators, see The Northern Ireland Senate, 1921-72. 156 Quoted in Patrick Buckland, 1979, p28. 157 Sir Arthur Quekett, p27. 158 Hugh Shearman, Northern Ireland 1921-1971, Belfast: HMSO, 1971, p18. 159 Harry Calvert, pp156-57. 38 Parliament and Northern Ireland, 1921-2021

do and execute in due manner as respects Northern Ireland all things which by virtue of the [1920] Act and our said Letters Patent of 27 April 1921 or otherwise belonged to the office of Lord Lieutenant at the time of the passing of the Irish Free State Constitution Act 1922.160 According to Nicholas Mansergh, the Governor fulfilled “a role similar in all important respects to that played by the Governors-General of the British ”,161 the difference being that Northern Ireland was an autonomous part of the United Kingdom. In that respect, the Governor was more akin to a state governor in Australia or Canada rather than a Dominion-wide governor-general. But it was felt, wrote Donal Lowry, “that the creation of such a vice-regal office would add to the prestige of the new government”.162 Technically, the Governor exercised the executive powers of the Crown in respect of all transferred matters, with ministers forming an “Executive Committee of the Privy Council of Northern Ireland” (the Cabinet) to “aid and advise the Governor”. In practice, however, the relationship was like that between the monarch and the UK Cabinet.163 The prerogative of mercy, for example, rested with the Governor on the advice of the Government of Northern Ireland. The Governor was to be appointed by the Crown on the advice of the UK government, although a practice soon developed whereby the Prime Minister of Northern Ireland was also consulted. Section 37(2) of the 1920 Act specified a term of six years. It was the Governor’s duty to summon, prorogue and dissolve the Parliament of Northern Ireland in the monarch’s name. Royal Assent to Bills was also given on the monarch’s behalf by the Governor. A UK Treasury document from 1953 described the process: Every Bill submitted to the Governor for the Royal Assent is accompanied by a certificate from the Attorney General of Northern Ireland that all its provisions are within the powers of the Northern Ireland Parliament. The Governor, if so directed by Her Majesty, must reserve a Bill for the signification of Her Majesty’s pleasure. Copies of Bills are sent to the so that he may consider whether any advice should be given to Her Majesty.164 The involvement of the Home Secretary meant that the question of legality was not the only consideration, providing the UK government with a “fundamentally important ability to weigh the wisdom as well as the validity of Northern Ireland legislation”.165

160 Amending letters patent issued in 1929 corrected an oversight in that no allowance had been made for the continuing governance of Northern Ireland should the Governor die, be incapacitated or removed. 161 Nicholas Mansergh, 1936, p154. 162 Donal Lowry, “A ‘Supreme and Permanent Symbol of Executive Authority’: The Crown and the Governorship of Northern Ireland in an Age of ‘Troubles’” in Harshan Kumarasingham (ed), Viceregalism: The Crown and its Representatives in Post-War Crises, Basingstoke: Palgrave, 2020, p95. 163 Kenneth Bloomfield, 2007, p9. 164 HM Treasury, Northern Ireland, the and the : A Treasury Paper, December 1953, p5. 165 Kenneth Bloomfield, 2007, p10. 39 Commons Library Briefing, 21 December 2020

The “wisdom” of Northern Ireland legislation was first questioned in 1922 when STV for local government elections was abolished. Lawyers at the Colonial and Home Offices in London concluded that this justified a reservation of Assent (even though local government was clearly a transferred matter). The Governor accordingly set aside the Bill, prompting a threat of resignation from the Government of Northern Ireland. The Northern Ireland Cabinet agreed that to “allow this precedent to be created would warrant the interference by the Imperial Government in almost every Act introduced in Northern Ireland”. Sir James Craig stated that “we must be masters in our own house”. Fearing constitutional instability before the 1921 Treaty had been fully ratified , Westminster backed down and the Bill was reluctantly approved.166 As the civil servant Kenneth Bloomfield later observed: Not only was this form of overt action, or the threat of it, not repeated, but also progressively the authorities in London were to impose upon themselves a convention that legislation impinging on powers transferred to the Northern Ireland Parliament would only be introduced with the approval of, or indeed at the request of, the Northern Ireland Government.167 The constitutional academic F. H. Newark distinguished between the Governor’s “strictly legal position” and what “in fact happens by constitutional convention”: The theoretical position is that, unless the King gives the Governor special instructions to assent to, or withhold assent from, or to reserve a bill, the Governor can please himself whether he gives or refuses assent. In fact, the Governor acts like a constitutional monarch, and if a bill passes the Commons and Senate he must give his assent. Nor, in fact, can the King, either on his own accord, or on the advice of his Whitehall ministers, give instructions to the Governor to refuse assent or to reserve.168 Northern Ireland legislation lapsed if Royal Assent had not been granted within one year. A. G. Donaldson described what happened once a Bill passed its third reading in both Houses: The bill and [Attorney General’s] certificate are sent off to Government House in Hillsborough and [...] it duly receives the Royal Assent [...] Royal Assent is announced in both Houses by the Prime Minister (in the Commons) or the Minister in the Senate [...] reading the Governor’s message that he has given the Royal Assent ‘for and on behalf of Her Majesty’.169 An “Imperial Secretary” was appointed to advise both the Governor and the Government of Northern Ireland on reserved matters until that post was also deemed superfluous and abolished in 1926.

166 F. H. Newark, 1955, p35. Churchill explained to the Irish Provisional Government’s William Cosgrave, who had complained to the UK government, “that for us to veto a measure clearly within the powers delegated to the Parliament of Northern Ireland would form a dangerous precedent” (see Brendan O’Leary, p35). 167 Kenneth Bloomfield, 2007, p10. 168 F. H. Newark, 1955, pp34-35. 169 A. G. Donaldson, “Law Making” in Edwin Rhodes (ed), Public Administration in Northern Ireland, Londonderry: Magee University College, 1967, p38. 40 Parliament and Northern Ireland, 1921-2021

The Government’s official residence was or 3rd Duke of Government House in , not far from Belfast. Following its Abercorn (1869- refurbishment, the , the first Governor, took up 1953) residence in 1925. He and all of his successors were either hereditary or James Hamilton, life members of the UK House of Lords. The 1920 Act made no who became the 3rd provision for a Lieutenant Governor, although the Governor was able to Duke of Abercorn appoint Deputies or Lords Justices to act in his place.170 in 1913, was a British peer and When Lord Craigavon (as Sir James Craig had become) died in 1940 Unionist politician. without recommending a successor, Abercorn took private soundings He became the first from leading Ulster Unionists and invited John Miller Andrews to form a Governor of government.171 When Andrews resigned in 1943, again without Northern Ireland in nominating a successor, Abercorn followed the 1940 precedent and 1922, a post he asked Sir Basil Brooke to form a government. held until 1945, having been 3.4 Privy Council and Great Seal of Northern reappointed in 1928 and 1934. He Ireland was a great- A Schedule to the Irish Free State (Consequential Provisions) Act 1922 grandfather of had created a Privy Council of Northern Ireland (PCNI) to replace the Diana, Princess of Wales. The 1st Duke . The Governor of Northern Ireland chose its had been Lord members and presided over their swearing in. He also had the power to Lieutenant of pre- remove Privy Councillors who, as in the UK, were appointed for life and partition Ireland. styled the “Right Honourable”. The PCNI consisted of senior members of the Government of Northern Ireland, including the Prime Minister. It rarely met and was largely a ceremonial body with its responsibilities discharged by the Cabinet. Its last members were appointed in 1971 and its powers transferred to the Secretary of State for Northern Ireland in 1973.172 Like the former Privy Council of Ireland, it was not formally abolished but did not meet after that date. A Great Seal of Northern Ireland was also created by the 1922 Act for possession by the Governor of Northern Ireland. Designed by Neville Wilkinson, the then Ulster King of Arms,173 it was based on the but with the royal coat of arms bearing an escutcheon with a red cross on a gold field – the basis of the historic Ulster coat of arms. The first Great Seal was provided in time for the state opening of the 1924 session of the Parliament of Northern Ireland. Prior to this, the

170 Sir Arthur Quekett, The Constitution of Northern Ireland Part 3: A review of operations under the Government of Ireland Act, 1920, Belfast: HMSO, 1945, p92 & p95. 171 One of Andrews’ brothers was Lord Chief Justice and another the designer of the Titanic; he went down with the ship in 1912. His son J. L. O. Andrews later became an MP and minister in Northern Ireland. 172 At the time of publication, three members of the Privy Council of Northern Ireland remained, John Dobson (appointed 1969), Lord (John) Taylor (1970) and (1971), all former members of the House of Commons of Northern Ireland. 173 Despite the name, this was an all-Ireland body. In 1943 the office of Ulster King of Arms (vacant since Wilkinson’s death in 1940) was combined with that of Norroy. Norroy and Ulster has jurisdiction over the six counties of Northern Ireland as well as those of England north of the Trent. The Ulster King of Arms’ functions in the rest of Ireland were transferred to the Office of the Chief Herald. 41 Commons Library Briefing, 21 December 2020

Duke of Abercorn had used his private seal (as permitted under the 1922 Act). In 1936, King Edward VIII abdicated before his Northern Ireland seal had been struck, meaning the 1924 seal (which bore an image of George V) was not replaced until 1938 with that for King George VI.

3.5 Stormont The first meeting of the Parliament of Northern Ireland took place at Belfast City Hall, while for the next decade the Commons and Senate met at the nearby Union Theological College.174 The Cabinet of Northern Ireland agreed to erect a permanent home on the Stormont Estate at a meeting on 5 August 1921, a decision endorsed by resolution of both Houses on 20 September. Preliminary work began on site in 1923, and the foundation stone was laid by the Governor of Northern Ireland in 1928. The Government of Ireland Act 1920 had granted the UK responsibility for providing buildings (including sites and equipment) for the Parliament of Northern Ireland and its associated departments, as well as a Supreme Court. The 1920 Act also stipulated that these must be in Belfast. The city’s boundaries were later altered to include the Stormont estate, which originally lay outside. The rising cost of the parliament buildings caused controversy at Westminster. Sir Frederick Banbury, the Conservative MP for the , said he had “great regard” for the Ulster Unionists but said he: thought they were going to have their own Parliament, and were going to deal with their own affairs. Why should I put my hand into my nearly depleted pocket in order to provide premises for my hon. Friends in Ulster. Now when strongly against my own convictions, Ulster is going to set up a Government it ought to be able to provide for it.175 The Office of Works appointed two prominent British architects to design a “trinitarian composition” with a central two-storey building in classical , topped by a great dome.176 The intention was for the judiciary to occupy one wing and civil servants the other. Amid rising costs, however, the dome and adjacent office blocks were scrapped.177 A long processional road was retained at the request of Sir James Craig.178 Despite the changes, the plural nomenclature of “Parliament Buildings” continued to be used. As the political scientist Alan Greer has observed, their “monumental” design was symbolic, “intended to demonstrate the permanence and

174 Even after Stormont opened in 1932, the Parliamentary Library continued to use the Union Theological College on its bookplate. 175 HC Debs 2 March 1921 Vol 138 c1895 176 The scheme bore some resemblance to a state capitol complex in the United States. 177 Architect Ralph Knott’s designs for the office blocks were not used, although he later designed the Georgian-style Speaker’s residence. 178 This was later emulated by the King of Buganda in Kampala, with a similar processional road connecting his palace to the Bugandan parliament. 42 Parliament and Northern Ireland, 1921-2021

status of Northern Ireland to the wider world, and become an icon for the new regime.179 The Nationalist MP Joseph Devlin was a persistent critic, calling Stormont a “palace in no-man’s land” which would render parliament “completely out of touch with the commercial and industrial life of the community”.180 Later, he called it “the symbol of permanent division in this country”.181 Departmental offices were occupied in April 1931182 and the new Parliament Buildings officially opened by the (the future Edward VIII) on 16 November 1932. Nationalists boycotted the opening ceremony, although the Prince of Wales made a point of visiting the Catholic Mater Hospital in North Belfast, which attracted the largest turnout of all his Northern Ireland engagements.183 The first session in the new building commenced on 22 November 1932. The House of Commons and Senate chambers were located across the Central Hall (usually known as the Great Hall), replicating the link between the Commons and Lords at Westminster.184 An official pamphlet later described how the Central Hall was the setting “once a year for the State Opening of Parliament” when: His Excellency the Governor of Northern Ireland is escorted in procession down the staircase and takes his seat on a Throne on a dais erected at the foot of the staircase. The Members of the Senate have seats on either side of the dais. The Gentleman Usher of the Black Rod then summons the Members of the House of Commons to attend His Excellency and, led by their Speaker, the Commons assemble in front of the dais to hear His Excellency read the Queen’s Speech.185 Later additions to the Parliament Buildings and Stormont estate included a statue of Edward Carson (July 1933),186 Lord Craigavon’s sarcophagus to the east of the building (1940), and his statue in the Great Hall (October 1945). According to the historian Gillian McIntosh, all of this made “the abstract Northern Ireland state, its place in the union and its unionist identity tangible to the unionist community and to onlookers”.187

179 Alan Greer, “Sir James Craig and the construction of Parliament Buildings at Stormont”, Irish Historical Studies 31:123, May 1999, pp374-75. 180 HC Debs NI 6 April 1927 Vol 8 c727 181 HC Debs NI 15 March 1928 Vol 9 c1284. The Irish News published a critical supplement in January 1933 entitled “The truth about Stormont: full facts and figures showing the cost of setting up and running the partition parliament and administrative machine of the government of Northern Ireland”. 182 Unlike Westminster, therefore, Stormont was both a parliamentary and executive building in that it housed civil servants as well as parliamentarians. 183 Marianne Elliott, p400. 184 Between the two chambers was a large chandelier from Windsor Castle. This had been given to King George V by his cousin, Kaiser Wilhelm II of . It was put into storage during the First World War and remained there until installed at Stormont. 185 The Parliament of Northern Ireland, Belfast: HMSO, 1971, p15. 186 See Gillian McIntosh, “Symbolic Mirrors: Commemorations of Edward Carson in the 1930s”, Irish Historical Studies 32:125, May 2000, pp93-112. 187 Gillian McIntosh, p94. 43 Commons Library Briefing, 21 December 2020

Stormont was to become a metonym for the Parliament of Northern Ireland and indeed the “state” of Northern Ireland. As Michael Laffan observed, “over the decades it came to replace Westminster as the principle focus of unionist loyalties”.188

3.6 Royal Courts of Justice Under Section 38 of the Government of Ireland Act 1920, the Supreme Court of Judicature in Ireland ceased to exist and was replaced by a Supreme Court for Southern Ireland and a Supreme Court for Northern Ireland, with a High Court of Appeal for the whole of Ireland. All were reserved matters under the 1920 Act. The all-Ireland High Court of Appeal for Ireland was constituted on 15 December 1921. This was to determine cases involving inter-provincial matters between Northern and Southern Ireland. During its brief existence, its role was described as: absolutely necessary for the determination of the mutual rights and obligations of the component parts of the federation […] It is the supreme guardian of the constitution, and the pivot upon which all the constitutional machinery turns.189 On 5 December 1922, the High Court of Appeal was abolished, a day before the new Irish Free State constitution took effect. The first Lord Chief Justice of the Northern Ireland Supreme Court was a Catholic (and former Ulster Unionist MP) Sir Denis Stanislaus Henry, who had strongly opposed the creation of a separate legislature for Northern Ireland.190 When he died in 1925, no other Catholic was appointed until Mr Justice Sheil 1949. Northern Ireland’s justice system became operative on 1 October 1921 and was formally opened on 24 October. Under the 1920 Act, the UK government was responsible for providing a suitable dwelling. The Antrim County Courthouse on Belfast’s served as interim accommodation until a custom-built Royal Courts of Justice opened on Belfast’s Chichester Street in 1933.191 Although the Supreme Court was reserved, law and order in general – including county and magistrates courts – was transferred. In 1926, Westminster legislated so that the Government of Northern Ireland could alter the law relating to juries,192 while in 1930 the Criminal Appeal (Northern Ireland) Act 1930 created a Court of Criminal Appeal (following those in England and Scotland in 1907 and 1926 respectively).

188 Michael Laffan, p106. 189 Harry Calvert, p112. 190 See Éamon Phoenix, “Catholic Unionism: a case study: Sir Denis Stanislaus Henry (1864–1925)” in O. P. Rafferty (ed), Irish Catholic identities, Manchester: Manchester University Press, pp292-304. 191 Initially, in Northern Ireland were required to study at King's Inns in Dublin, there being no Inns of Court in Belfast. On 31 July 1925 the Northern Bar told King’s Inns that it was severing connections. It explored affiliating with Gray’s Inn in London, but ultimately established its own Inn of Court of Northern Ireland, which was inaugurated at the Belfast Law Courts on 11 January 1926. 192 See HL Debs 7 December 1926 Vol 65 c1285 44 Parliament and Northern Ireland, 1921-2021

Northern Ireland’s judges were appointed not by the Governor but the monarch, as advised by the UK Lord Chancellor. Northern Ireland thus had a distinct legal system, one of three in the UK. But while technically distinct from that in , F. H. Newark observed that “its descent from and continued association with the English system means that a lawyer from England would find himself quite at home in the courts of Northern Ireland”.193

3.7 Northern Ireland Civil Service Following initial confusion arising from the Anglo-Irish Treaty, a distinct Northern Ireland Civil Service (NICS) separate from the Home Civil Service in Great Britain was established in Belfast.194 It had three main bands: clerical, executive and administrative. Regulation of the NICS fell within the common law executive powers of the Crown and was thus exercised by the Governor under the 1920 Act.195 A 1923 Order by the Governor appointed the Minister of Finance and two permanent officials as Civil Service Commissioners. There were also “Imperial” civil servants based in Northern Ireland dealing with income tax, customs or the civilian support of the Armed Forces on behalf of the UK government. By 1931, all Northern Ireland departments except the Ministry of Commerce had moved to the Parliament Buildings at Stormont. Within the seven departments resided the functions of formerly all- Ireland boards or authorities. The instruments effecting the transfer “made provision, as a matter of legal necessity, for the establishment of various separate branches within each department, which took over groups of functions formerly residing in separate authorities”. These, however, were never established.196 An early Act made each Northern Ireland department a legal entity or “corporation sole” (with its own official seal) rather than its minister, an arrangement unique within the UK.197 Technically, the Prime Minister of Northern Ireland was ministerial head of the Department of the Prime Minister.198 But Harry Calvert noted that the 1920 Act was “silent” on the “existence of the office of Prime Minister, let alone any obligation on the part of the Governor to act on his advice”.199

193 F. H. Newark, Northern Ireland Charter, Belfast: HMSO, 1950, p7. 194 There is no general history of the NICS, although Arthur Green’s paper “Bureaucracy for Belfast: A Hagiography (1920-1970)” is a useful source. See also Paul Carmichael and Robert Osborne, “The Northern Ireland Civil Service under Direct Rule and Devolution”, International Review of Administrative Sciences 69:2, 2003, for developments after 1970. 195 Sir Arthur Quekett, 1928, p68. 196 Sir Arthur Quekett, 1928, p39. 197 See Paul Carmichael, “The Northern Ireland Civil Service: Characteristics and Trends since 1970”, Public Administration 80:1, 2002, pp23-49. 198 Harry Calvert, p353. 199 Harry Calvert, p350. 45 Commons Library Briefing, 21 December 2020

The percentage of Catholics in the NICS between 1927 and 1959 remained at 6%.200 In the early years, many were transferred from what was now the capital of the Irish Free State. “The Dubliners in particular brought wit, culture, grace and charm and left a strong imprint on our Administration,” recalled the Stormont official John Oliver.201 One of them was A. N. Bonaparte Wyse, permanent secretary at the Ministry of Education. The fact he was a Catholic, recalled Patrick Shea in his memoirs, “was a matter of some wonder”.202 Bonaparte Wyse travelled each weekend to his home in Dublin, his family having remained in the Free State after 1922. Shea, also a Catholic, decided on a civil service career on leaving school: “I was, for better or worse, a citizen of the new state of Northern Ireland and I was claiming my piece of it.”203 Ministers often made statements which, in the judgement of John Whyte, “must have given Catholics the impression that they were not wanted in the civil service”.204 In 1925 the Minister of Agriculture, Sir Edward Archdale, said: I have 109 officials, and so far as I know there are four Roman Catholics, three of whom were Civil Servants turned over to me, whom I had to take when we began.205 And in 1933 the Minister of Labour (and future Prime Minister), J. M. Andrews, said: Another allegation made against the Government and which was untrue, was that, of 31 porters at Stormont, 28 were Roman Catholics. I have investigated the matter, and I find that there are 30 Protestants, and only one Roman Catholic there temporarily.206 There were persistent charges that Catholic civil servants could not advance within the service. When Shea was passed over as private secretary to a Cabinet minister on account of his religion, Sir Wilfred Spender, the Cabinet secretary, and the Minister of Finance arranged for a raise so he would not be “deprived of the advancement which [he] had earned because of the Minister’s narrowmindedness”.207 A marriage bar was retained by the NICS for much longer than the Home Civil Service. By 1974, there were only two women assistant secretaries.208 Otherwise, the NICS often attracted praise for its professionalism and responsiveness. The Royal Commission on the Constitution later observed that: a dissatisfied farmer anywhere within its boundaries ought to be able (and is able) to travel by public transport to the administrative

200 Marianne Elliott, p391. 201 John Oliver, 1994, p106. 202 Patrick Shea, p115. 203 Patrick Shea, p113. 204 John Whyte, “How much discrimination was there under the Unionist regime in 1921-1968?”, Contemporary Irish Studies, 1983. 205 Quoted in John Whyte. 206 Quoted in John Whyte. 207 Patrick Shea, p143. Shea served as secretary to the Civil Service Committee and the Joint Exchequer Board, the two Whitehall-Stormont bodies established by the 1920 Act. 208 John Oliver, 1978, p156. 46 Parliament and Northern Ireland, 1921-2021

capital, horse-whip the responsible official and get home again (in time to milk the cow).209

3.8 Representation at Westminster The Government of Ireland Act 1920 reduced Ireland's representation in the UK House of Commons from 105 MPs to 46 (13 of which came from the six counties of Ulster). This, explained the Act’s Explanatory Notes, granted “Irishmen the power to take part in legislation affecting Sir Hugh O’Neill the United Kingdom as well as managing their own affairs under the Bt (1883-1982) Sir new Act”.210 Hugh O’Neill was The arrangements for Southern Ireland were, however, superseded by an Ulster Unionist member of both the 1921 Treaty. The Irish Free State (Agreement) Act 1922 provided for the UK and only 13 MPs representing Northern Ireland to sit in the UK House of 211 Northern Ireland Commons. This was deferred until the next Westminster , parliaments. He was 212 which took place on 26 October 1922. the first Speaker of During debates on what became the 1920 Act, there had been the Northern arguments as to whether MPs elected in Ireland ought to be allowed full Ireland House of Commons and, at speaking or voting rights. The 1893 Home Rule Bill had included a Westminster, provision prohibiting Irish MPs deliberating and voting on Bills, motions Chairman of the or resolutions on matters exclusively affecting Great Britain. The 1920 , Act included no such provision.213 minister for India and Burma (1939- 3.9 Northern Ireland MPs at Westminster 40), and latterly Father of the UK Ulster Unionists elected to the UK House of Commons took the House of Conservative whip and occasionally served as ministers or parliamentary Commons. O’Neill private secretaries in Conservative governments. They “tended to be became Baron aristocratic, officer class or barristers, and were largely left to their own Rathcavan in 1952 devices”.214 and was a member of three Privy Ulster Unionists also had their own organisation (as did the Scottish Councils (Ireland, Unionist Party) with their own chairman, secretary and whip. Some were Northern Ireland simultaneously Members of both the UK and Northern Ireland House of and the UK). His Commons, although this was prohibited by Sir James Craig in 1929. nephew, Terence There had been criticism of poor attendance from those with a dual O’Neill, was Prime mandate.215 Minister of Northern Ireland Other MPs moved to Westminster following service at Stormont. Hugh from 1963 to 1969. O’Neill, for example, had a long career as a UK Commons MP after serving as Speaker of the Northern Ireland Commons.216 Several former

209 Royal Commission on the Constitution, 1969-1973, London: HMSO, para 1256. 210 Government of Ireland Act, “Representation of Ireland in the United Kingdom House of Commons”, 1920, p7. 211 This number was reduced to 12 by the UK Representation of the People Act 1948. 212 Sir Arthur Quekett, 1928, p32. 213 Sir Arthur Quekett, 1928, pp31-32. 214 Jeffrey Dudgeon, H. Montgomery Hyde: Ulster Unionist MP, gay law reform campaigner and prodigious author, Belfast: Belfast Press, 2018, p20. 215 See Alvin Jackson, “Tame Tory Hacks”? The Ulster Party at Westminster, 1922-1972, 54:2, 2011, pp453-75. 216 Hugh O’Neill served as Minister for India and Burma in 1939-40, having previously been chairman of the Conservative backbench 1922 Committee. 47 Commons Library Briefing, 21 December 2020

Stormont MPs also became members of the House of Lords, as did two Prime Ministers of Northern Ireland while in office.217 Kenneth Bloomfield referred to a “close fraternal relationship” between the Ulster Unionist and Conservative parties.218 A prominent Conservative attended the Ulster Unionist Council (a sort of party conference) every spring to give an address.219 At Westminster, noted Martin Wallace, Ulster Unionist MPs “seemed to represent not merely their constituents, but also the Northern Ireland Government, defending it when necessary against criticisms of conditions in Northern Ireland from Labour and Liberal MPs”.220 It was sometimes suggested that Northern Ireland MPs should not take part or vote in debates on housing, education and local government which related only to Great Britain. Anticipating what would later become known as the (having earlier been raised in the Home Rule debates of the late 19th century), Martin Wallace summarised the argument thus: MPs representing constituencies in Great Britain have no direct influence on the conduct of such transferred services in Northern Ireland […] so why should Ulster MPs have a say in what happens in Great Britain? The counter argument was that Northern Ireland was under-represented at Westminster for this reason.221 There were occasional tensions between Ulster Unionists in the two parliaments. As Alvin Jackson has written: The Unionist leadership in Belfast was generally pragmatic, understanding the need to placate British governments of whatever political hue; and it was also the case that – for essentially constitutional reasons – Stormont ministers did not want a legislative gap opening up between Britain and Northern Ireland in areas such as provision. This meant that ‘socialistic’ legislation which the Ulster Unionist Party in London opposed (disciplined, as they often were, by the Conservative whip) was readily accepted by the Ulster Unionist Party in Belfast. During the UK Labour government of 1929–31, for example, Sir James Craig wanted Ulster Unionist MPs at Westminster to support its Widows’, Orphans’ and Old Age Contributory Pensions Bill, but they voted with the Conservative Party to amend the proposed legislation.222

3.10 Irish Boundary Commission, 1924-25 As John Oliver, a Northern Ireland civil servant, observed, the “very boundaries of the [Northern Ireland] state were uncertain and remained

217 Sir James Craig became and Sir Basil Brooke became Viscount . 218 Kenneth Bloomfield, Stormont in Crisis: A Memoir, Belfast: Blackstaff Press, 1994, p128. 219 John Oliver, 1994, p124. 220 Martin Wallace, Northern Ireland: 50 Years of Self Government, Newton Abbot: David & Charles, 1971, p43. 221 Martin Wallace, p43. 222 Alvin Jackson, 2011, p461. 48 Parliament and Northern Ireland, 1921-2021

in serious doubt from 1920 right until the 1925 agreement with the South was signed”.223 Article 12 of the 1921 Anglo-Irish Treaty had provided for an Irish Boundary Commission should Northern Ireland opt out of the Irish Free State, which it did in December 1922. This was to have “powers to modify the partition line” between the Irish Free State and Northern Ireland (as established by the 1920 Act), with the governments of the UK, Free State and Northern Ireland each nominating one member of the commission. The Irish Civil War did not end until May 1923 and elections to the Parliament of Northern Ireland in were dominated by the border issue. But while the Free State turned its attention to the Boundary Commission, the Government of Northern Ireland was in no rush to nominate its representative. The commission’s formation was also subject to political considerations in Great Britain. On 2 February 1924 Ramsay MacDonald, the new (and first) Labour Prime Minister, suggested that reserved matters such as railways, fisheries and animal diseases (due for transfer to the Council of Ireland) be relinquished to joint administration by the Free State and Northern Ireland governments under legislative powers conferred by both parliaments sitting together, alternately in Dublin and Belfast, for a trial period of 12 months. In return, the Free State was not to push for formation of the Boundary Commission and Northern Ireland would postpone plans to abolish STV for parliamentary elections.224 Both governments had objections and these proposals did not develop. A tripartite conference was eventually held in London on 24 April 1924 and on 26 April the Free State formally requested that the Boundary Commission be formed in the absence of any agreement. This was publicly announced by the UK government but the Government of Northern Ireland still refused to appoint a representative. On 21 May 1924, the UK Cabinet referred to the Judicial Committee of the Privy Council (JCPC) the question of the UK government appointing a representative on Northern Ireland’s behalf. In July 1924 the JCPC ruled that this would be beyond its legislative competence under the 1921 Treaty and associated legislation.225 The UK government decided to amend the Irish Free State (Agreement) Act 1922 (“the 1922 Act) following a supplementary agreement with the Free State. In July, the Free State government had registered the 1921 Treaty with the in Geneva despite British objections.226 The Irish Free State (Confirmation of Agreement) Bill received its second reading in the UK House of Commons on 1 October 1924. Conservative

223 John Oliver, 1978, p25. 224 See Ivan Gibbons, The British Labour Party and the Establishment of the Irish Free State, 1918-1924, Basingstoke: Palgrave Macmillan, 2015, pp149-212 for a full account of this episode. 225 See Sir Arthur Quekett, 1928, pp61-62. The chairman of the putative Boundary Commission also asked the JCPC to rule on whether is decisions could be made unanimously or by a majority. The JCPC said the latter. 226 Ronan Fanning, p345. 49 Commons Library Briefing, 21 December 2020

MPs proposed amendments but did not oppose it. Ulster Unionist MPs at Westminster pushed for its defeat, but on 9 October it received Royal Assent. The UK government had already named Mr Justice of the Supreme Court as chairman of the Boundary Commission, and on 24 October 1924 it appointed Joseph R. Fisher, a Belfast and newspaper editor, as Northern Ireland’s representative. The Boundary Commission was fully constituted on 29 October (the same day Labour lost the UK general election) and first met on 6 November 1924. It met in secret throughout the following year, during which the Ulster Unionist Party fought another election in Northern Ireland under the banner “Not an inch”. By October 1925 the commission had reached its conclusions, which according to the 1921 Treaty would automatically become the new boundary without enabling legislation in London or Dublin. The Commission had recommended relatively minor territorial transfers between the Free State and Northern Ireland (and vice versa), what Ivan Gibbons called “a tidied-up version of what had originally been demarcated in the Government of Ireland Act five years earlier”.227 These were leaked to the conservative Morning Post newspaper and published on 7 November. Amid the resulting controversy, the three governments – all of whom feared the electoral consequences of implementing the transfers – agreed to suppress the commission’s report and confirm the existing border on 3 December 1925. This formed part of a wider agreement which included a resolution of outstanding financial issues between Dublin and London,228 the release of IRA prisoners in Northern Ireland, and the transfer of all putative Council of Ireland functions to the Parliament and Government of Northern Ireland. The agreement was ratified by the UK and Free State parliaments (and approved by the Parliament of Northern Ireland) by the end of that year. The Ireland (Confirmation of Agreement) Act 1925 (“the 1925 Act”) amended the 1921 Treaty and the 1922 Act by revoking the powers conferred by Article 12 on the Boundary Commission. However, the question of the extent of the Free State’s territorial waters remained unsettled.229 A Schedule to the 1925 Act referred to the “improved relations” that now existed between the three governments and the desirability of avoiding “any causes of friction which might mar or retard the further growth of friendly relations between the said governments and

227 Ivan Gibbons, p114. 228 The Irish Free State was absolved of its responsibility under Article 5 of the 1921 Treaty to pay the UK Exchequer £10m a year towards the UK national debt. In return, the Free State paid compensation for property damaged during the war of independence and civil war. 229 For a full discussion, see Brigid Hadfield, p75. 50 Parliament and Northern Ireland, 1921-2021

peoples”.230 The Irish Boundary Commission’s report was not published until 1969.231 The Council of Ireland ceased to have a statutory existence as of 1 April 1926. The events of the previous year, as Ivan Gibbons has written, “marked the Irish Free State’s final acceptance of the reality of partition”.232 “Ambiguities were now at an end,” agreed Maureen Wall: This time the unionists had got all they wanted, and the agreement bore the signatures not only of British and Free State representatives, but, for the first time, the signatures also of the representatives of Northern Ireland.233 The 1922 and 1925 Acts represented important transitions from the Government of Ireland 1920 Act as intended and the constitutional settlement for Northern Ireland as it became. It also meant the Irish issue – which had dominated British politics since the late 19th century – began to recede at Westminster.

3.11 Changes to Royal Titles Settlement of the boundary issue also led to consideration of how the British monarch and UK Parliament ought to be styled. The King’s title, proclaimed under the Royal Titles Act 1901, was George V of “the United Kingdom of Great Britain and Ireland”,234 but at the 1926 Imperial Conference it was agreed that this “hardly accorded with the altered state of affairs arising from the establishment of the Irish Free State as a Dominion”.235 Accepting a suggestion from Kevin O'Higgins, the Free State’s Minister for External Affairs, the Conference concluded that the wording should be changed to: George V, by the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India.236 This became known as “O'Higgins’s comma”.237 A Bill was introduced to the UK House of Commons in March 1927, prompting Viscount Sandon to question why Ireland required specific mention given it was itself a Dominion. In response, William Joynson-Hicks, the Home Secretary, said the UK government had chosen: to treat it geographically, and put in “Great Britain, Ireland”—not as a political entity, but as a geographical entity— “and of British Dominions beyond the Seas.” That, of course, saves anybody's

230 Brigid Hadfield , pp38-39. 231 See Report of the Irish Boundary Commission, Dublin: Irish University Press, 1969. 232 Ivan Gibbons, p119. 233 Maureen Wall, “Partition: The Ulster question (1916-26)” in D. Williams (ed), The Irish Struggle 1916-26, London: Routledge and Kegan Paul, 1966, p89. 234 Or, in full, “George V, by the Grace of God, of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India”. 235 Imperial Conference, 1926: Summary of Proceedings, Cmnd 2768, London: HMSO, 1926, p15. 236 Ibid., p16. 237 John Coakley, “’Irish Republic’, ‘Eire’ or ‘Ireland’? The Contested Name of John Bull’s Other Island”, The Political Quarterly 80:1, Jan-Mar 2009, p53. 51 Commons Library Briefing, 21 December 2020

feelings, and, as I think my Noble Friend will realise, although he is technically correct, expresses the position the King does occupy as King over all the Dominions.238 The Royal and Parliamentary Titles Act 1927 received Royal Assent on 12 April 1927 and contained three substantive provisions: • The King was authorised to issue a royal proclamation within six months authorising him to alter the royal style and titles (the Act itself did not set out the form); • The “Parliament of the United Kingdom of Great Britain and Ireland” was to be known as the “Parliament of the United Kingdom of Great Britain and Northern Ireland”; • And the term “United Kingdom” would mean, in every Act and public document produced thereafter, Great Britain and Northern Ireland (unless otherwise noted). A royal proclamation was subsequently issued under the terms of the Act on 13 May 1927.239 The Great Seal of the Realm and the Great Seal of Scotland were also replaced with new designs by , which were presented at a meeting of the United Kingdom Privy Council on 27 October 1930.

238 HC Debs 15 March 1927 Vol 203 c1879-80 239 London Gazette, 3 May 1927. 52 Parliament and Northern Ireland, 1921-2021

4. Northern Ireland, 1921-39

The unionist historian Hugh Shearman wrote of a “new spirit of relaxation and generosity” following settlement of the border issue in 1925.240 Michael Laffan took a different view, comparing Anglo-Irish- Ulster relations to “a nest of Russian matryoshka dolls, one doll enclosing another”: Britain tried to dominate Ireland. The Irish majority tried to dominate protestant Ulster. The Ulster majority tried to dominate the Ulster minority. The northern catholics were the smallest and innermost doll, with no one else to envelop or dominate.241 Tripartite relations continued to evolve during the 1920s and 1930s. This section looks at this period through the lens of different policy areas, parliamentary procedure and constitutional matters

4.1 Financial relations The most complex of these concerned financial relations between Belfast and London, which as Bryan Follis has observed was “from the outset a complex one”. Of the 76 articles and 9 schedules comprising the Government of Ireland Act 1920, some 14 articles dealt with financial provisions.242 Northern Ireland had its own Exchequer and Consolidated Fund under the 1920 Act, together with a Comptroller and Auditor-General appointed by the Governor. Only minor taxes were transferred to Northern Ireland, including motor vehicle, stamp and death duties. Most revenue, therefore, was to come from reserved taxes, imposed and collected by the UK government. The proportion of this to be allocated to the Northern Ireland Exchequer – known as the Residuary Share of Reserved Taxes (RSRT)243 – was to be agreed by the Joint Exchequer Board (JEB). This consisted of a chairman appointed by the Crown (often a Scottish judge) and representatives from the UK Treasury and Ministry of Finance in Belfast.244 Northern Ireland was also to make an annual “Imperial Contribution” to the Treasury for its share of expenditure on excepted and reserved services. Financially, the 1920 Act had intended Northern (and Southern) Ireland to be financially self-sufficient, but almost as soon as it received Royal Assent the economic climate changed significantly. A depression meant incomes in Northern Ireland fell and unemployment rose, with a corresponding reduction in taxation revenue and an increase in spending on unemployment.

240 Hugh Shearman, p28. 241 Michael Laffan, p113. 242 Bryan A. Follis, p117. 243 See Peter Robson, “Aspects of Public Expenditure in Northern Ireland”, Journal of the Statistical and Social Inquiry Society of Ireland XXIX:II, 1954, pp38-57 for a full explanation. Ireland’s share of funding for services had previously been governed by the Goschen formula. 244 Government of Ireland Bill: Further Memorandum on Financial Provisions, Cmnd 707, 1920. 53 Commons Library Briefing, 21 December 2020

This created a situation in which Northern Ireland’s fiscal autonomy was severely constrained by decisions taken in Great Britain (GB). If, for example, GB lowered reserved taxes then Northern Ireland found itself with a reduced RSRT despite having to meet higher levels of expenditure on transferred services. On the other hand, if GB raised taxes then Northern Ireland “enjoyed an unexpected windfall when perhaps no expansion of services had been planned”.245 Between 1923 and 1925, the Government of Northern Ireland’s total revenue fell by 26% in real terms despite a 19% increase in revenue from transferred taxes, the result of Westminster reducing or abolishing a number of reserved taxes.246 Grant-in-aid from Westminster As early as November 1921, the Government of Northern Ireland made the first of what Patrick Buckland called “repeated begging expeditions”.247 The UK government agreed to a one-off grant in December, £1.6m to deal with the initial deficit arising from Northern Ireland’s Unemployment Fund. Further “one-off” grants followed in 1923 (£16.7m), 1924 (£10.6m) and 1925 (£8.3m). The first Ulster Year Book, published by the Ministry of Finance in 1929, listed four main grants from the “Imperial Exchequer”: • Grants for relief of additional unemployment arising from disturbances in the early 1920s; • Grants to local authorities to meet claims for malicious injuries during those disturbances; • Grants for the Ulster Special Constabulary, again in relation to the disturbances; • Unemployment insurance grant equalisation as of 1 October 1925.248 This ad hoc financial support was justified as covering the transitionary costs of establishing the new “state” of Northern Ireland amid a challenging security situation. The effect was significant, boosting the Government of Northern Ireland’s revenue by 26%, 19% and 16% in 1923, 1924 and 1925 respectively. None of this, however, was covered by the 1920 Act. As R. J. Lawrence later observed, the UK government had: demonstrated it was willing to revise its financial relations with [Northern Ireland] and accept liability for claims for further financial support. By demonstrating the de jure provisions of the 1920 Act could be substituted with alternative arrangements, it permanently weakened institutionalised authority. Westminster’s willingness to operate outside of the 1920 Act reinforced the expectation, created by the previous one-

245 John Oliver, 1978, p41. 246 Patrick Buckland, 1979, p.83. 247 Patrick Buckland, 1979, p86. 248 Ulster Year Book 1929, Belfast: HSMO, p172. 54 Parliament and Northern Ireland, 1921-2021

off support, that [Northern Ireland] would receive further financial assistance.249 Similarly, Martin Wallace said the story of Northern Ireland’s financial relations with Great Britain was “one of evading the consequences of the Government of Ireland Act, 1920”.250 Imperial Contribution The Joint Exchequer Committee (JEB) met for the first time on 2 December 1921 in London. Its chairman was Lord Colwyn, while Sir Ernest Clark, permanent secretary at the Ministry of Finance and head of the Northern Ireland Civil Service, became Northern Ireland’s representative.251 Both Northern Ireland’s Residuary Share of Reserved Taxes and Imperial Contribution were to be determined by the JEB “having regard to the relative taxable capacities” of Northern Ireland and the UK, although the 1920 Act had not defined what that meant. The 1920 Act had also calculated an Imperial Contribution of £8 million, set for two years. There were disagreements over figures. The Treasury and Ministry of Finance produced different estimates as to Northern Ireland’s share of reserved taxation, with the former later admitting to an error in its calculations.252 The politics of the Imperial Contribution, as John Oliver observed, proved challenging. If it was too low critics “could easily point to the failure of the North to pay its way”, and if it was too high “critics could claim that money was being handed over to Britain that could with greater advantage be spent on the improvement of local services”.253 Writing in 1950, F. H. Newark attempted to rationalise this by arguing that the Imperial Contribution was “not peculiar to Northern Ireland”: “There is an Imperial Contribution from Wales, for example, but it is concealed in a mass of figures. Indeed, every man in the United Kingdom who pays taxes makes an Imperial Contribution”.254 According to R. J. Lawrence, Sir James Craig, the first Prime Minister of Northern Ireland, believed the Imperial Contribution would gradually disappear and be replaced by an annual payment from the UK Treasury.255 He was half right (see Section 8.2).256

249 R. J. Lawrence, pp87-88. 250 Martin Wallace, p157. 251 The Treasury apparently “deeply resented” the JEB as “its very existence constituted a blow to the principle of strict Treasury accountability” (see Paul Bew et al, p23). 252 Bryan A. Follis, p77. 253 John Oliver, 1978, p40. 254 F. H. Newark, 1950, p6. 255 R. J. Lawrence, p46. 256 The Imperial Contribution was calculated differently in the course of its existence, see Sections 4.1 and 5.7. 55 Commons Library Briefing, 21 December 2020

Imperial Contributions paid by the Government of Northern Ireland

Year Amount (£) Year Amount (£) 1922–23 6,685,600 1948-49 22,500,000 1923–24 4,517,900 1949-50 19,121,000 1924–25 3,175,000 1950-51 17,000,000 1925–26 2,275,000 1951-52 19,750,000 1926–27 1,850,000 1952-53 20,600,000 1927–28 1,400,000 1953-54 8,600,000 1928–29 1,175,000 1954-55 17,500,000 1929–30 855,000 1955-56 16,000,000 1930–31 545,000 1956-57 14,000,000 1931–32 298,000 1957-58 9,500,000 1932–33 75,000 1958-59 9,000,000 1933–34 76,000 1959-60 7,000,000 1934–35 24,000 1960-61 5,300,000 1935–36 365,000 1961-62 8,700,000 1936–37 900,000 1962-63 7,500,000 1937–38 1,200,000 1963-64 3,500,000 (p) 1938–39 1,300,000 1964-65 3,500,000 1939-40 3,000,000 1965-66 3,500,000 1940-41 8,500,000 1966-67 3,500,000 1941-42 17,600,000 1967-68 500,000 1942-43 29,750,000 1968-69 1,700,000 1943-44 36,000,000 1969-70 500,000 1944-45 36,300,000 1970-71 1,000,000 1945-46 34,500,000 1971-72 .. 1946-47 22,500,000 1972-73 500,000 1947-48 22,500,000

Source: Ulster Year Books, 1926-73. The figure for 1963-64 was a provisional calculation. Colwyn Committee By 1923, the UK government had tired of repeated requests from the Government of Northern Ireland for grant-in-aid and embarked on what Hugh Shearman called “a great tidying-up operation”.257

257 Hugh Shearman, p169. 56 Parliament and Northern Ireland, 1921-2021

Andrew Bonar Law, the then UK Prime Minister, established a Northern Ireland Special Arbitration Committee chaired by Lord Colwyn. This was to: consider whether, in view of the ratification of the Constitution of the Irish Free State, any alteration is needed in the present scale of the contribution of Northern Ireland to the cost of imperial services.258 Its first report was published on 4 September 1923 and urged a reduction in Northern Ireland’s Imperial Contribution from £8m to £6m per year. The Committee’s second and final report on 1 December 1924 recommended that the: extent to which the total revenue exceeds the actual and necessary expenditure in Northern Ireland shall be taken as the basic sum for determining the contribution.259 Negotiations continued over the wording, and only on 10 March 1925 was the report presented to the UK House of Commons by the Chancellor. The Imperial Contribution now became a final rather than initial “charge” to the Northern Ireland Exchequer. The Contribution, therefore, was the sum left over once transferred services had been paid for. This was perceived as a victory for the Government of Northern Ireland, whose finances stabilised for the first time since the creation of Northern Ireland. As its Minister of Finance explained in the Northern Ireland House of Commons, the rationale was that total expenditure on local services: should be admitted to keep pace with the total expenditure of Britain on an equivalent basis per head of the population; that is, if Great Britain increases her local expenditure by 10/- per head of the population we in Northern Ireland can do the same.260 Termed the “Special Formula”, this assumed that changes in rates of taxation in Great Britain and Northern Ireland would be almost identical, and that the same or equivalent social services would be undertaken in both parts of the UK. Under the formula, standards of yields of revenue and expenditure in Northern Ireland on local services were fixed in respect of a standard year (1923/24) with variations from these standards in Great Britain “annually translated into equivalent figures for Northern Ireland, allowance being made for changes in productivity and population”. In 1923/24, expenditure per head of population was fixed at £5.00 in Northern Ireland and £3.90 in Great Britain.261 It might be called the of its day, although Barnett (as applied to Northern Ireland after 1978) did not take account of productivity.262

258 Sir Arthur Quekett, 1928, p49. 259 Final Report of the Northern Ireland Special Arbitration Committee, Cmnd 2072, 1 December 1924, para 5. 260 HC Debs NI May 1925 Vol 1 c727 cc451-54 261 Peter Robson, p41. 262 See Commons Library Briefing Paper CBP 7386, The Barnett formula, 6 January 2020. 57 Commons Library Briefing, 21 December 2020

This meant that by 1925 the Joint Exchequer Board had effectively been superseded by direct negotiations between Great Britain and Northern Ireland, recognising, to quote the 1973 Royal Commission on the Constitution, “without formal constitutional change, that Northern Ireland was financially dependent on the rest of the United Kingdom”.263 Nevertheless, as John Oliver observed, Treasury and Ministry of Finance officials reached annual agreements “while scrupulously preserving the outward forms of the 1920 act – maintaining a stiff upper lip to the public”.264 As the Royal Commission bluntly stated, the “basis of the arrangements was at best a legal fiction; the annual presentation of the Northern Ireland budget was regarded by some as a farce”.265 As the Royal Commission also concluded, the most obvious criticism of GB-NI financial arrangements was that “few people understood them”.266 Nicholas Mansergh noted the “secrecy which surrounds the all-important deliberations of the Joint Exchequer Board. The public are informed of the outcome but they are left in ignorance of the reasons for it.”267 There existed, he added, “a veiled financial unity between Great Britain and Northern Ireland.”268 The Colwyn Committee fixed Northern Ireland’s Imperial Contribution until 1930/31 but in 1931/32 it was found that, under the Special Formula, this would be -£640,000. The calculation was, therefore, essentially suspended, with only token payments between 1932 and 1935 (see Table above).269 As Nicholas Mansergh observed, by the mid-1930s the Imperial Contribution had been “reduced to vanishing point”,270 becoming, according to the Royal Commission, “purely a nominal book-keeping entry”.271 Transferred revenue Until 1928, UK government departments were used on an “Agency” basis for the collection of entertainment and excise licence duties in Northern Ireland, although most of this later became the responsibility of the Ministry of Finance in Belfast.272 The Government of Northern Ireland also received “transferred revenue” from: • Death duties;

263 Royal Commission on the Constitution, para 1306. 264 John Oliver, 1978, p43. 265 Royal Commission on the Constitution, para 1312. 266 Royal Commission on the Constitution, para 1308. 267 Nicholas Mansergh, 1936, p196. 268 Nicholas Mansergh, 1936, p199. 269 Peter Robson, pp42-43. 270 Nicholas Mansergh, 1936, p213. 271 Royal Commission on the Constitution, para 1295. 272 Other services administered on an Agency basis by UK government departments were the printing and production of maps, the manufacture and distribution of licences by the Inland Revenue Department, and certain services performed by the Post Office for the Ministry of Finance. 58 Parliament and Northern Ireland, 1921-2021

• Stamp duties; • Motor vehicle duties; • Entertainment duty; • Excise licence duties (with certain exceptions); • Mineral rights duty. Most important in terms of revenue were death duties, although during the 1920s these were generally levied at the same rates and on the same basis as in Great Britain.273

4.2 Law and order The Government of Northern Ireland assumed responsibility for law and order on 22 November 1921, although its powers were not fully operational until the Anglo-Irish Treaty was agreed on 6 December 1921. In early 1922, there arose confusion as to the precise division of responsibilities between Northern Ireland and Great Britain. This exchange from the UK House of Commons, following a decision by Winston Churchill (the Colonial Secretary) to send three battalions of troops to help stabilise the security situation,274 captures the ambiguity. A Member asked whether these troops were “under the control of the Northern Parliament”: Mr Churchill: No, they are under the control of the British . Mr Lambert: Is the British War Office, then, responsible for law and order in Northern Ireland? Mr Churchill: No, Sir; we are responsible for the defence of Northern Ireland.275 In February 1922, the Lord Lieutenant defied the Government of Northern Ireland by releasing nationalist prisoners and commuting the death sentence of a former prison warder convicted of murder. The Northern Whig newspaper denounced the Lord Lieutenant’s use of his prerogative powers as a “grave outrage […] against the Northern Parliament and against constitutional law – an outrage more suited to Stuart times than our own day”.276 Security was one of what Kenneth Bloomfield called the “fuzzy edges” created by the 1920 Act. While the Government of Northern Ireland was prohibited from raising or maintaining a military force, the Royal Ulster Constabulary (RUC) had inherited the “essential paramilitary and weapons-carrying characteristics of its all-Ireland predecessor”, the Royal Irish Constabulary (RIC), which came to be supported by the

273 Ulster Year Book 1929, p165. 274 Although Colonial Secretary, Churchill in effect “became minister for Irish affairs, South and North” during 1922 (Ronan Fanning, p313). 275 HC Debs 22 May 1922 Vol 154 cc802-03 276 Northern Whig, 25 February 1922. 59 Commons Library Briefing, 21 December 2020

Westminster-funded Ulster Special Constabulary (USC).277 This had been established on 1 November 1920, before Royal Assent was granted to the Government of Ireland Act 1920.278 Some in Whitehall believed the USC was ultra vires, although Sir James Craig argued that while the USC carried out some military-like functions (such as searching for arms) it remained a police force under civilian control. But if that were true, ran the counter argument, the USC ought wholly to be funded by the Government of Northern Ireland as a transferred service. Special Powers Act The Parliament of Northern Ireland also passed the Civil Authorities (Special Powers) Act (Northern Ireland) 1922, generally known as the “Special Powers Act”. This was enacted on 7 but only introduced fully following the shooting of a Unionist MP on 22 June 1922.279 It remained part of Northern Ireland’s security apparatus for the next 50 years, allowing for internment of suspects without trial, executions and corporal punishment in the form of flogging.280 Under the Act’s provisions, the Minister of Home Affairs in Northern Ireland could make further regulations without consulting parliament, and delegate his powers to any policeman. The Special Powers Act was initially renewed annually until 1928, then for five years until 1933, and finally made permanent. The UK government threatened a judicial inquiry when the Act was passed, arguing that some transferred matters (such as law and order) had broader implications for the British Empire, in particular the fate of the 1921 Treaty. The UK government also believed that as it was funding Northern Ireland’s main peace-keeping force at the time, the USC, then it had a duty to intervene.281 The Special Powers Act was often cited as an example of an over- powerful executive, although Hugh Shearman argued that similarly wide powers existed under UK legislation.282 In the view of Richard Rose, Éire’s Offences Against the State Act, 1939 “was passed to meet the same problem that confronted the Stormont regime – armed groups pursuing a policy intended to unite Ireland”.283 To Harry Calvert,

277 Kenneth Bloomfield, 2007, p9. The USC was divided into three categories: A (full- time), B (part-time) and C (reserve). The A and C Specials were phased out after the security situation in Northern Ireland improved in the mid-1920s. 278 The Special Constabulary Ireland Acts of 1832 and 1914 already afforded local authorities the power to raise a Special Constabulary in their areas, thus the USC was initiated by an Order from Dublin Castle on 22 . 279 This was Sir Henry Wilson, a former chief of the Imperial General Staff and military adviser to the Government of Northern Ireland. 280 Robert Lynch, p111. 281 Patrick Buckland, “Who governed Northern Ireland? The Royal Assent and the Local Government Bill 1922”, Irish Jurist 15:2, 1980, pp326-40. 282 Hugh Shearman, 1971. 283 Richard Rose, Governing without Consensus: An Irish Perspective, London: Faber and Faber, 1971, p432. 60 Parliament and Northern Ireland, 1921-2021

however, “the Act may be claimed to have gone further than was strictly necessary even at the height of ”.284 During the 1924 UK general election, Éamon de Valera was imprisoned in Belfast for a month under the provisions of the Special Powers Act. He had contravened an order signed by the Minister of Home Affairs prohibiting him from entering Northern Ireland.285

4.3 Case law Although controversial, the validity of the Special Powers Act was at no point challenged under the Government of Ireland Act 1920. Under s49 and s50, legislation could be referred to the Northern Ireland Court of Appeal, and with its (or the House of Lords’) permission to the Appellate Committee of the House of Lords. Sections 51 and 52 also provided for reference to the Judicial Committee of the Privy Council (JCPC). Reference under s51 was effected by the sovereign upon receiving a representation from the Governor, the Home Secretary, the Joint Exchequer Board or “two members thereof”.286 Section 53 of the 1920 Act provided that: Any decision of the House of Lords or of the Judicial Committee of the Privy Council as to the validity of any law made by or having the effect of an Act of Parliament of […] Northern Ireland, and any decision of the Judicial Committee of the Privy Council on any other question of law which is to be determined by the Judicial Committee of the Privy Council under this Act shall be final and conclusive and binding upon all courts. There were no such references until 1928, and in 1955 F. H. Newark could identify only (“or rather sections in Acts”) which had been challenged, five in course of ordinary litigation and the sixth on referral to the JCPC. “In each case”, judged Newark, “the point involved was highly technical and devoid of political importance.”287 Belfast Corporation Following pressure from Westminster, Stormont introduced a levy on local authorities in order to increase their contributions to education expenditure.288 This met with strong opposition, both from within the Ulster Unionist Party, and from local authorities in Northern Ireland. Belfast Corporation (a local authority) petitioned the Governor in 1936, arguing that the education levy in section 3 of the (Northern Ireland) 1934 was “substantially” the same as a general tax on income, something prohibited under the 1920 Act. The Governor referred the petition to the Home Secretary, who in turn referred it to the JCPC. This ruled that a levy on rates was not a tax on income.

284 Harry Calvert, p385. Calvert meant the “troubles” of the 1920s and 1950s. For a full analysis see Laura K. Donohue, Counter-Terrorist Law and Emergency Powers in the United Kingdom 1922-2000, Dublin: Irish Academic Press, 2007. 285 Robert Fisk, p71. This order was revoked in 1933. 286 Harry Calvert, p298. 287 F. H. Newark, 1955, p31. 288 Patrick Buckland, 1979, p100. 61 Commons Library Briefing, 21 December 2020

Gallagher v Lynn Perhaps the most significant challenge (and subsequent ruling) arose from a farmer, Mr Gallagher. He was prosecuted under an Act of the Northern Ireland Parliament, the Milk and Milk Products Act (Northern Ireland) 1934, for selling milk without a licence. Gallagher protested that this legislation was unconstitutional as it operated “in respect of” trade, an excepted matter under the 1920 Act. The case reached the House of Lords. Lord Atkin rejected Gallagher’s argument, arguing that: this Milk Act is not a law ‘in respect of’ trade; but it is a law for the peace, order and good government of Northern Ireland ‘in respect of’ precautions taken to secure the health of the inhabitants of NI by protecting them from the dangers of an unregulated supply of milk.289 Lord Atkin referred to a range of authority, largely from Canada, about the powers of subordinate parliaments or the distribution of powers between parliaments in a federal system. This produced Atkin’s classic statement that: It is well established that you ought to look at the true nature and character […] the pith and substance of the legislation. If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field.290 For Harry Calvert, this “pith and substance” doctrine was of “dubious relevance”, for the predominant theme of interpretation of the Northern Ireland constitution has been one of . Without the pith and substance or some equally pregnant doctrine, the constitution could never have been worked at all.291 Ulster Transport Authority v James Brown The only successful challenge to an Act of the Parliament of Northern Ireland came much later, in 1953. In the Northern Ireland Court of Appeal, the Lord Chief Justice Lord MacDermott (a former Ulster Unionist MP) found that the repeal of a statutory exemption which had allowed James Brown & Sons Ltd to trade in competition with the government-established Ulster Transport Authority had resulted in the loss of property without compensation, which was prohibited under s5 the 1920 Act.292

4.4 Social services In 1921 the Government of Northern Ireland had taken control of the Unemployment Insurance Fund – which became the Northern Ireland Insurance Fund – and immediately grappled with a deficit, largely on

289 Gallagher v Lynn [1937] AC 863 290 Gallagher v Lynn [1937] AC 863, para 870. The phrase “pith and substance” was first used in British Columbia Limited and others v John Bryden (British Columbia) [1899] UKPC 58 291 Harry Calvert, p125. 292 Ulster Transport Authority v James Brown & Sons Ltd [1953] NI 79 62 Parliament and Northern Ireland, 1921-2021

account of Northern Ireland’s exceptionally high rates of unemployment.293 This was exacerbated by the Government of Northern Ireland’s decision to raise the rate of unemployment benefit in line with that in Great Britain, thus establishing the principle that Northern Ireland maintain “parity” when it came to social services. Sir James Craig called this policy “step-by-step”, a long-term pledge to put transferred benefits on a par with those in Great Britain. Unemployment insurance was not considered by the Northern Ireland Special Arbitration Committee (see Section 4.1), and thus it was subject to bilateral negotiations between the governments of Northern Ireland and the UK. Sir James Craig proposed that the Northern Ireland and Great Britain insurance funds be amalgamated. The UK government appointed a committee under Lord Cave, the Lord Chancellor, to consider this proposal. Cave concluded in 1925 that the Northern Ireland fund should continue to be distinct but that responsibility for its deficit be amalgamated. Thereafter expenditure on old-age pensions and unemployment benefit rose in Northern Ireland as its government sought to keep pace with Great Britain. Although this stabilised funding for social services, it had the effect of squeezing spending in other transferred areas. Unemployment Insurance Agreements There followed a series of formal agreements between Northern Ireland and Great Britain ratified by legislation in their respective parliaments. The first, in 1926, provided that if in any year the payment by the Northern Ireland Exchequer to its Unemployment Fund exceeded, per head of population, the corresponding GB payment to its fund, then the UK Exchequer would meet three quarters of the excess.294 It was agreed in December 1928 to make this arrangement permanent, something given legal effect by the Unemployment Insurance (Northern Ireland Agreement) Act 1929. Winston Churchill, the then Chancellor, argued that this expenditure was justified on the basis that “Ulster” had not asked: for a separate Government to be set up in the northern corner of Ireland. On the contrary, they wished, and their only demand was, to take the rough and the smooth with Great Britain […] I have always considered that it is the interest as well as the duty of the House of Commons to make a success of the Government in Northern Ireland.295 Initial Agreements, however, did not work as expected, largely because the rate of unemployment in Great Britain after 1929 rose more quickly than in Northern Ireland, meaning that transfers from GB to Northern Ireland fell away.296 Between 1932 and 1935, the Ministry of Finance

293 In 1925, the percentage of insured persons unemployed in Great Britain was 11%, and in Northern Ireland 23.9%. 294 HL Debs 23 March 1926 Vol 63 c746 295 HC Debs 26 February 1929 Vol 225 c1810-11 296 R. J. Lawrence, pp54-55. 63 Commons Library Briefing, 21 December 2020

met the resulting shortfall by cutting expenditure “with the utmost rigour”.297 In 1935, the UK Exchequer agreed to cover any deficit in the Northern Ireland Insurance Fund up to £1m. By 1938, however, the prospective deficit had risen to £1.7m, a consequence of the 1937-38 depression. Unemployment in Northern Ireland was 28.3%, well above Great Britain’s rate of 12.5%. Another consideration was whether agricultural subsidies ought to be paid for by the UK or Northern Ireland government. Although fully transferred under the 1920 Act, in practice the UK government had taken responsibility for providing subsidies to farmers in Northern Ireland for cattle, oats, fertilisers and milk.298 The Northern Ireland Ministry of Agriculture administered this on an “Agency” basis for the Ministry of Agriculture, Fisheries and Food in Whitehall. 1938 financial agreement In May 1938, the UK and Northern Ireland governments reached an agreement on “certain financial matters” following the conclusion of trade negotiations with Éire (as the Irish Free State was now styled).299 A Memorandum stated that: • Despite agriculture being a transferred service, where subsidies were granted in Great Britain the cost of corresponding subsidies in Northern Ireland would be covered by the UK Ministry of Agriculture; • The UK government would not reopen the Unemployment Insurance Agreement of 1935 for as long as the Trade Agreement with Éire was in force; and • That if “in some future and different circumstances there were a deficit on the Northern Ireland Budget which was not the result of a standard of social expenditure higher than that of Great Britain nor the result of a standard of taxation lower than that of Great Britain, the United Kingdom Government agree that it would be equitable that means should be found to make good this deficit in such a way as to ensure that Northern Ireland should be in a financial position to continue to enjoy the same social services and have the same standards as Great Britain”.300 This last point became known as the “parity principle” and applied to both taxation and expenditure. In his memoirs, the civil servant Patrick Shea reflected that while this principle benefitted “a great many people” in Northern Ireland, the quid pro quo was a certain loss of autonomy under the 1920 Act: “Instead of managing our own house we were living in furnished lodgings under a

297 R. J. Lawrence, p56. 298 See D. S. Johnson, “Northern Ireland as a Problem in the Economic War 1932- 1938”, Irish Historical Studies 22:86, 1980, p155. 299 The Free State had defaulted on land annuities in 1933. Westminster responded with a 20% duty on all Irish goods entering the UK. The Free State responded in kind, provoking a “trade war” which lasted until the 1938 Agreement. 300 HC Debs 12 May 1938 Vol 335 cc1708-09 64 Parliament and Northern Ireland, 1921-2021

benevolent landlord.”301 R. J. Lawrence used a similar analogy: “By the law of the constitution Northern Ireland is still mistress in her own house, but the size and shape of that house are determined in large measure by the United Kingdom.”302 Parity, as Shea also observed, possessed a “political element”: Unionist politicians must have seen that as our standards, particularly in the social services, rose above those in Southern Ireland the economic argument against union with the South would grow stronger. Nationalist politicians, apparently blind to this consideration, were no less emphatic than Unionists in the agitation for the application of the higher British standards. Presumably they regarded any device to get extra money out of the pocket of John Bull as a praiseworthy operation.303

4.5 Intergovernmental relations Beyond Whitehall-Stormont bodies such as the Joint Exchequer Board, the Government of Ireland Act 1920 had said little about intergovernmental relations. These, therefore, developed informally in the two decades following the creation of Northern Ireland. A Chief Secretary for Ireland – a member of the UK Cabinet – remained responsible for Northern Ireland matters at Westminster until the office was abolished on 19 October 1922.304 An Imperial Secretary’s Office was instead set up to administer services intended for the Council of Ireland and certain other reserved matters.305 The Council of Ireland ceased to exist in 1926, following settlement of the border issue the previous year. Its powers were transferred to the Government of Northern Ireland and thus the “Imperial Secretary to the Governor” ceased to exist on 31 March 1926. The following day, a branch in the was established to deal with Northern Ireland affairs.306 Headed by an assistant secretary, this branch also covered vivisection, registration of London taxicabs, state management of public houses in Carlisle and relations with the .307 In 1928, the Home Office minister Sir Vivian Henderson stated that Northern Ireland was “for purposes of communication between this Government and the Government of Northern Ireland, like the Channel Islands and the Isle of Man”.308

301 Patrick Shea, p157. 302 R. J. Lawrence, p33. 303 Patrick Shea, pp155-56. 304 The Chief Secretary for Ireland had an office at Dublin Castle and an official residence next to the vice-regal Lodge in Dublin’s . In London, the Irish Office was based at 38 Old Queen Street. 305 John McColgan, p120. 306 Nicholas Mansergh, p288. The UK government had planned to set up a branch of the to deal with the affairs of “All Ireland” but Sir James Craig took “the strongest exception” and lobbied for the Home Office instead (Ronan Fanning, pp341-42). 307 Kenneth Bloomfield, 2007, p14. 308 HC Debs 28 June 1928 Vol 219 c847 65 Commons Library Briefing, 21 December 2020

This gave an indication of how Westminster viewed Northern Ireland following the Tripartite Agreement of 1925 (the Crown Dependencies were, unlike Northern Ireland, not part of the UK). Thereafter, “high- level dialogue between Belfast and London was conducted along the axis joining the Stormont with the Home Office”.309 An “Agent of the Government of Northern Ireland in Great Britain” also came to be based at an “Ulster Office” on Cockspur Street in Westminster.310 The Stormont civil servant John Oliver observed that there lay: a most fruitful field for bureaucratic friction and legalistic conflict with London over definition, responsibility, border-lines, overlap, precedent, decided court cases and so on. But although there was plenty of argument and occasional disagreement there was little or no conflict. That abstruse classification of functions was made to work from 1921 till 1972.311 Initially, intergovernmental relations were handled directly by Sir James Craig, who had been a Westminster MP and minister and therefore had a wide network of contacts. At times, remarked Patrick Buckland, he “acted less as Northern Ireland’s Prime Minister than its ambassador in Britain”.312 The UK government could and did exert pressure on the Government of Northern Ireland. Westminster, for example, took a close interest in the Northern Ireland Education Act of 1923 (as amended in 1925) and another in 1930, and considered reserving both (i.e. instructing the Governor to withhold Royal Assent). These dealt with religious instruction in schools and financial support for both Protestant and Catholic schools, though initially only the former were to receive support for capital costs (see Section 6.4). In 1925, the Duke of Abercorn warned Sir James Craig that had it not been for an impending election in Northern Ireland, the Home Secretary would have ordered reservation of the 1925 Act on the basis that it conflicted with s5 of the 1920 Act, which prohibited making “a law so as either directly or indirectly to establish or endow any religion”. A similar issue arose with the 1930 Act, which Nationalist MPs in the Parliament of Northern Ireland threatened to refer to the Judicial Committee of the Privy Council. The Act was an attempt by the Government of Northern Ireland to avoid a challenge to the previous Act.313 But “when the Stormont authorities held their ground, Whitehall baulked at the ultimate sanction of withheld Royal Assent”.314 In some areas, Northern Ireland was urged to come into line with Great Britain to facilitate the ratification of international treaties. Health insurance, for example, was extended “with the object not only of

309 John Oliver, p205. 310 The Ulster Office later moved to premises on Lower Regent Street and, finally, Berkeley Street. It survived the imposition of Direct Rule in 1972. 311 John Oliver, 1994, p106. 312 Patrick Buckland, 1979, p45. 313 Henry Patterson, Ireland Since 1939: The Persistence of Conflict, London: Penguin, 2007, p28. 314 Kenneth Bloomfield, 2007, p12. 66 Parliament and Northern Ireland, 1921-2021

improving the health of the working population but also of facilitating the ratification by His Majesty’s Government of the United Kingdom of the International Convention on Sickness Insurance”.315 During the 1930s, UK Treasury also pressured the Government of Northern Ireland into undertaking a general revaluation of rateable properties.316 The existing valuations were out of date but politicians in Northern Ireland feared the public response to any increase. The UK government threatened to legislate directly and, in 1932, Stormont reluctantly passed legislation authorising a general revaluation which came into force “amidst public outcry” in 1936.317 Threats to legislate were rare, a precedent having been set in 1922 (see Section 3.3) that Westminster would only do so – as in the Crown Dependencies – if asked. As a Treasury document put it in 1953: In practice the United Kingdom Parliament refrains from legislating on matters with which the Northern Ireland Parliament can deal, except at the request and with the consent of Northern Ireland. It is recognised that any departure from this practice would be open to objection as impairing the responsibility which has been placed on the Northern Ireland Parliament and Government, and stultifying the purpose for which the United Kingdom Parliament confers discretion and responsibility on that Parliament and Government.318

4.6 1923 Speaker’s Ruling The discussion of transferred matters at Westminster – and reserved or excepted matters in the Parliament of Northern Ireland – was another issue that evolved following enactment of the 1920 Act. Initially, lengthy discussion of transferred matters sometimes took place at Westminster.319 On 8 February 1922, however, the Unionist MP Charles Craig attempted to ask Lloyd George, the Prime Minister, about recent IRA activity in Northern Ireland, but was ruled out of order by the Speaker, who said: The question has only this moment been put into my hands, and at first sight I am inclined to think that, as we have transferred the responsibility for these matters to the Northern Parliament, this is a question which should be asked there rather than here.320 A week later, the Speaker took a more tolerant approach to Joseph Devlin, a Nationalist MP who had returned to the UK House of Commons following a period of abstention. The Speaker said: It is quite true that the administrative acts of the Northern Government are matters which should be dealt with in the Northern Parliament; but we have Members who come here to take part in these Debates, and it is only right and fair that they should be answered.321

315 Hugh Shearman, p182. 316 Kenneth Bloomfield, 2007, p12. 317 John Oliver, 1978, p41. 318 HM Treasury, p9. 319 Harry Calvert, p95. 320 HC Debs 8 February 1922 Vol 150 cc135-37 321 HC Debs 16 February 1922 Vol 150 cc1365-66 67 Commons Library Briefing, 21 December 2020

The first definitive ruling took place on 3 May 1923, in response to a question from Liberal MP Frank Gray. He argued that as Northern Ireland still sent Members to the UK Commons and was in receipt of grant-in-aid from Westminster, then “the affairs of Northern Ireland” ought to be in order for discussion. The Speaker replied that the fact Northern Ireland sent MPs to the UK House of Commons did “not affect the question”: With regard to those subjects which have been delegated to the Government of Northern Ireland, questions must be asked of Ministers in Northern Ireland, and not in . In the case of those subjects which were reserved to this Parliament, questions can be addressed here to the appropriate Ministers—for instance, the President of the , the Postmaster-General, etc. The policy of voting money here in aid of Irish services may be discussed here, but […] I would say that this right does not cover matters of administration for which a Minister in Northern Ireland is responsible. We give a subvention in aid of police, but outside the metropolitan area the administration and responsibility are local.322 This Speaker’s Ruling would remain in force until the late 1960s (see Section 8.3). A similar ruling in the Parliament of Northern Ireland prohibited questions on reserved and excepted matters,323 although Harry Calvert considered its Speaker mistaken in suggesting that the 1920 Act itself limited competence to discuss reserved and excepted matters, which it did not.324 The UK Speaker’s ruling was significant in another respect. It had, as James A. Cousins has observed, a substantial “effect on the efforts of nationalist representatives to use Westminster as a check on the actions of the government of Northern Ireland”.325

4.7 Cross-border issues After 1922, relations between the UK and Irish Free State were the responsibility of the Colonial Secretary, a member of the UK Cabinet. These were often poor, which had an impact on Northern Ireland. Although responsibility for education had been transferred to the Government of Northern Ireland on 1 February 1922, many Catholic teachers refused to recognise its authority or accept payment from the Ministry of Education. The Provisional Irish government, therefore, paid their salaries for most of that year.326 In late 1921, the Government of Northern Ireland had also dissolved the county councils of Fermanagh and Tyrone after they declared allegiance to the Free State.327 Effective on 1 April 1923, the Free State also announced that the boundary between it and Northern Ireland would become a customs

322 HC Debs 3 May 1923 Vol 163 cc1623-25 323 Brigid Hadfield, p81. 324 Harry Calvert, p109. 325 James A. Cousins, Without a Dog’s Chance: The Nationalists of Northern Ireland and the Irish Boundary Commission, 1920-25, Newbridge: Irish Academic Press, 2020, p110. 326 Cormac Moore, p175. 327 Michael Laffan, p91. 68 Parliament and Northern Ireland, 1921-2021

barrier.328 Customs and excise were reserved under the 1920 Act, but the cost of maintaining this new frontier was shared between London and Belfast on the basis of respective revenues from customs and excise. The Free State’s decision had a significant impact on what had hitherto been an open border. The import and export of merchandise was prohibited except through designated routes and at designated times. Farm produce was, however, exempt, as was the removal of household furniture and small domestic supplies of non-dutiable goods. This generated infrastructure. Customs huts and stations were erected along the border, while some roads were “cratered” using explosives and made impassable. There were also customs fees and some businesses which relied upon cross-border trade did not survive. There was free movement of people, although they were checked to prevent smuggling.329 The Londonderry and Lough Swilly Railway Company, a light railway linking North (in the Free State) with the port of /Londonderry (in Northern Ireland), symbolised other anomalies created by the border. Most of the railway’s track was in the Free State but its headquarters and terminus were in Northern Ireland. Railways were reserved under the 1920 Act, but the Londonderry and Lough Swilly Railway Bill, introduced to Westminster in 1923, did not progress as the UK could not legislate for the Free State (which wanted railways unified on an all-Ireland basis).330 The Post Office was another reserved service under the 1920 Act, for which the Postmaster General (PG) was responsible and accountable to the UK Parliament. Until April 1922 all of Ireland was served by the Holyhead-Kingstown mail route,331 so the Government of Northern Ireland asked the PG to divert all mail destined for Northern Ireland to the Stranraer-Larne service. Following years of delayed post, the previous route was restored on 1 March 1927. This meant Northern Ireland relied to some degree upon the Free State to deliver its mail.332 The theft of postal packets also highlighted an anomaly whereby the Government of Northern Ireland could not legislate on criminal offences relating to reserved services.333 There were more cordial relations in the spiritual sphere. In 1928, the Parliament of Northern Ireland and the Free State’s Dáil simultaneously passed the Methodist Church in Ireland Act, which allowed followers of that denomination to continue their work throughout the whole island of Ireland.334 The Catholic Church and main Protestant religions were

328 Ivan Gibbons points out that this Act preceded the final demarcation of the border in 1925 and “was enacted by a political entity totally opposed to having a border at all” (Ivan Gibbons, p102). 329 Cormac Moore, pp128-32. 330 Cormac Moore, p196. 331 Kingstown was south of Dublin. It was renamed Dún Laoghaire, the original Irish form of Dunleary, its pre-1821 name. 332 Cormac Moore, p205-08. 333 This was later rectified via UK legislation (see F. H. Newark, 1955, p30). 334 Cormac Moore, p157. 69 Commons Library Briefing, 21 December 2020

already all-Ireland bodies, as were many trade unions, charities and other voluntary groups.335 There were many institutions which partition did not directly effect. Lighthouses, for example, were another reserved service under the 1920 Act, although the Government of Northern Ireland wanted those in Northern Ireland to be administered by the Northern Lighthouse Board or Trinity House in London (which covered England and Wales). Ultimately, they remained under the aegis of the Commissioners of Irish Lights, which meant the Free State provided a service reserved to the UK parliament.336 In other respects, Northern Ireland behaved as if it too was a quasi- autonomous Dominion. The Government of Northern Ireland sent (at its own expense) a delegation to the 1932 Imperial Economic Conference in Ottawa. Led by Hugh Pollock, the then Minister of Finance, its status was blurred, neither an independent delegation nor full members of the UK delegation.337 At the 1924-25 and 1938 Empire Exhibitions (in London and respectively), meanwhile, there were Ulster pavilions alongside those representing the Irish Free State. After 1926, the Government of Northern Ireland was also responsible for its own census separate from that in Great Britain.338

4.8 Miscellaneous Provisions Westminster continued to legislate on excepted and reserved matters, while deficiencies in the 1920 Act were often addressed by extending the scope of the Parliament of Northern Ireland’s legislative power. Harry Calvert described the Northern Ireland constitution as “being completely rigid, when viewed from a Northern Ireland standpoint, and completely flexible, when viewed from a United Kingdom standpoint”.339 As , the Home Secretary, later explained in 1955: The interlocking of transferred subjects with reserved matters is very intricate and hence, when the law in Northern Ireland requires amendment, legislation is sometimes necessary here. We may be asked to legislate ourselves for Northern Ireland on some reserved matter, or to extend the legislative competence of the Northern Ireland Parliament to enable them to deal with something previously beyond their powers, or—a third possibility—to dispose of some doubt which has arisen on a borderline case as to whether the Parliament of Northern Ireland has power to deal with a particular question.340

335 Cormac Moore, p232. 336 Cormac Moore, p203. 337 Sam Logan, The Life of Sir Basil Brooke Bart, The First , Kibworth: Book Guild, 2018, pp48-49. 338 See Northern Ireland Statistics & Research Agency, Registrar General Northern Ireland Annual Report 2011, November 2012, pp35-58 for a history of the census in Northern Ireland between 1921 and 1971. 339 Harry Calvert, p53. 340 HC Debs 31 January 1955 Vol 536 c734 70 Parliament and Northern Ireland, 1921-2021

An early example was land. Section 9(3) of the 1920 Act had reserved completion of a compulsory land purchase policy which dated back to the 1870s. At the same time, the Government of Northern Ireland collected annuities paid by tenants who had bought their holdings under the Land Purchase Acts, retaining a proportion of this revenue for spending on transferred services.341 By the 1930s, the automatic sale of tenanted land was nearing completion, so Westminster legislation in 1925, 1928 and 1935 made provision for the transfer of certain powers to enable this to be completed in Northern Ireland.342 The first Northern Ireland (Miscellaneous Provisions) Bill was debated in the UK Parliament during 1928. This included provisions for appeals in the Northern Ireland Supreme Court from lower courts or tribunals, Northern Ireland’s foreshores and the administration of intestate estates. It also provided power to make “regulations as to standards of quality, inspection or compulsory insurance” governing the export of livestock or agricultural produce to other parts of the . The Northern Ireland (Miscellaneous Provisions) Act 1928 included an express provision that it “shall be construed as one with the principal Act” (i.e. the 1920 Act). No subsequent amending Act, however, repeated this provision.343 In 1932, a second Northern Ireland (Miscellaneous Provisions) Bill made further changes to responsibility for the Northern Ireland Supreme Court and extended the existing reciprocity between Great Britain and Northern Ireland for the Widows’, Orphans’ and Old Age Pensions Act to “other parts of His Majesty’s Dominions”. It also granted the Government of Northern Ireland power to brand barrels of herring and make plain (by amending the 1928 Act) the powers of the Northern Ireland Government “with regard to works on, under or over the sea, including ferries across tidal waters”. Taken together, the 1928 and 1932 amending Acts empowered the Parliament of Northern Ireland to repeal and re-enact pre- or post-1921 UK Acts in certain circumstances.344 To Nicholas Mansergh, their aim was not “any redistribution of legislative power, but […] the interpretation of certain provisions in the light of administrative experience”.345 As per convention, Westminster legislated on transferred matters only with Stormont’s consent. In such cases, a clause was included in a UK Act stating that, in so far as it related to matters within the Parliament of Northern Ireland’s competence, it was deemed to be an Act passed before the appointed day (3 May 1921). This meant it could be altered by the Parliament of Northern Ireland, even if it covered a reserved area of responsibility.346

341 Sir Arthur Quekett, 1928, p46. An equivalent sum was deducted from Northern Ireland’s Residuary Share of Reserved Taxes. 342 Sir Arthur Quekett, 1945, pp200-01. 343 Harry Calvert, p132. 344 Harry Calvert, p173. 345 Nicholas Mansergh, 1936, p152. 346 R. J. Lawrence, p28. 71 Commons Library Briefing, 21 December 2020

Part 3 of Sir Arthur Quekett’s The Constitution of Northern Ireland includes an appendix listing UK Acts with enabling provisions which allowed Stormont to legislate in this way.347

4.9 Free State becomes Éire The 1931 Statute of Westminster enabled each British Dominion, including the Irish Free State, to enact new legislation or to change any extant legislation without reference to the UK Parliament. It also removed Westminster's authority to legislate for the Dominions, except with the express request and consent of the relevant Dominion's parliament. As a result, the Dominions became de jure sovereign nations. The Free State took advantage of this autonomy by replacing the Great Seal of the Realm with the Great Seal of Saorstát Éireann. It also abolished the Oath of Allegiance and appeals from the Free State to the UK Judicial Committee of the Privy Council. While Éamon de Valera loosened ties with the British Crown, the Government of Northern Ireland reaffirmed them. When King George V died on 21 January 1936, a copy of the accession proclamation for Edward VIII was transmitted to the Governor of Northern Ireland who summoned the Privy Council of Northern Ireland under s11 of the Government of Ireland Act 1920. The Governor and other Privy Councillors took the oath of allegiance to the new sovereign and moved to Stormont’s Great Hall to hear the proclamation read. MPs and Senators then returned to their respective chambers to take their oaths before adjourning until the following day, when addresses of condolence were made. Upon the abdication of King Edward VIII in 1936,348 His Majesty’s Declaration of Abdication Act 1936 made provision for a demise of the Crown following Royal Assent. At Stormont on 17 December 1936, another Privy Council meeting was held and the events described above repeated.349 As Sir Arthur Quekett made clear: “The death of the Sovereign does not affect the continuance of the executive power in Northern Ireland […] It is the accession proceedings in London which supply the ultimate authority for what is done in Northern Ireland.”350 In the Irish Free State, de Valera’s response to the abdication crisis was very different. He attempted to remove the Crown and Governor- General from its constitution (although these still existed in law), while

347 Sir Arthur Quekett, 1945, pp233-42. 348 This required recognition by the Dáil separately from that by the UK Parliament. This took place in Ireland two days after Westminster, which meant the Duke of Windsor remained king in Ireland (if not King of Ireland) for a single day – 11 December 1936 – without being the UK’s sovereign (see , Vanished Kingdoms, London: Allen Lane, 2011, p 662). 349 Sir Arthur Quekett, 1945, pp101-06. 350 Sir Arthur Quekett, 1945, p101. 72 Parliament and Northern Ireland, 1921-2021

in 1937 he devised a new constitution for what was now to be called Éire. Articles 2 and 3 of that read as follows: Article 2: The national territory consists of the whole island of Ireland, its islands and the territorial seas. Article 3: Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect. Also in 1937, the Government of Northern Ireland proposed that Northern Ireland be renamed “Ulster”, although this was dropped when legal advice made it clear that Westminster legislation would be necessary. As John Coakley has written, there “was little enthusiasm in London for the opening of a second front in the terminological battle with Dublin, and neither the Home Office nor the Northern Ireland business community was enthusiastic”.351

4.10 Northern Ireland in the 1930s Events in the early 1930s served to reinforce poor relations between the two parts of Ireland. In 1929, Sir James Craig (who had become Viscount Craigavon in 1927) abolished PR for parliamentary elections. His rationale was that: At election times, the people do not really understand what danger may result if they make a mistake when it comes to third, fourth, fifth or sixth preferences. By an actual mistake, they might wake up to find Northern Ireland in the perilous position of being submerged in a Dublin parliament.352 The change (as in 1922 for local government elections) was criticised as a political manoeuvre to increase the number of government supporters and reduce Nationalist representation, although historians are generally agreed that the Ulster Unionists were targeting the Northern Ireland Labour Party – whose support was increasing – rather than Nationalists.353 Indeed, the decision to abolish PR for parliamentary elections “did not have a significant impact on nationalist representation in the northern House of Commons”.354 Nationalists retained around a dozen seats in subsequent elections. In the view of Patrick Buckland, while a “tendency towards discrimination” on matters of law and order had developed “almost accidentally out of the confused troubles of the years 1921-2”, in respect of education and representation “discrimination became an integral part of government policy”.355

351 John Coakley, p54. 352 Martin Wallace, p29. 353 Brigid Hadfield, p54. A 1928 law also meant no one could be registered to vote in devolved or local government elections unless born in Northern Ireland or resident there for three years. This was extended to seven years in 1962. 354 Cormac Moore, pp71-72. 355 Patrick Buckland, 1979, p6. 73 Commons Library Briefing, 21 December 2020

In 1932, Nationalist MPs withdrew from Stormont when the Commons Speaker refused to permit discussion of postal services (a reserved matter) during a Budget debate.356 Widely quoted was Craigavon’s declaration from the same year that “ours is a Protestant government and I am an Orangeman”. Unionists pointed out that de Valera had made a similar claim about the link between the Irish Free State and Catholicism.357 Craigavon made a similar statement in the Northern Ireland House of Commons on 22 April 1934: [I]n the South they boasted of a Catholic State. They still boast of Southern Ireland being a Catholic State. All I boast of is that we are a Protestant Parliament and a Protestant State.358 To the unionist historian Hugh Shearman, such sentiments belonged “to the nervous and vituperative atmosphere of the early 1930s” rather than being the “embodiment of a philosophy”.359 Also widely quoted, particularly after he became Prime Minister in 1943, was Sir Basil Brooke’s boast at a 1933 demonstration that he had “not one [Catholic] about my place”. Catholics, he added, were “out to destroy Ulster with all their might and power”. Later he declared that 99% of Catholics in Northern Ireland were “disloyal” and urged businesses not to employ them. “If you don’t act properly now,” warned Sir Basil, “before we know where we are, we shall find ourselves in the minority instead of the majority.”360 The Stormont civil servant Kenneth Bloomfield later observed that the “singular aspect of the morbid psychology of Northern Ireland was that both communities had this sense of the minority: Catholics because they were greatly outnumbered in Northern Ireland, and Protestants because they in turn were greatly outnumbered in Ireland as a whole”.361 In 1938 the UK government was sufficiently concerned about allegations of discrimination against Catholics in Northern Ireland that it initiated a private investigation. This found most specific examples to be substantiated and doubted the fairness of education legislation. More generally, an internal memorandum observed that: it is everywhere inimical to good and impartial administration where Government and Party are as closely united as in Northern Ireland […] If the Government of Northern Ireland wish partition to continue, they must make greater efforts than they have made at present to win over the Catholic minority, just as on his side Mr. de Valera, if he wishes to end partition, can only do so by winning over the Northern Protestants. At present both sides are showing a lamentable lack of statesmanship and foresight.362 In response, W. J. Stewart, an Ulster Unionist MP at Westminster, founded the Ulster Progressive Unionist Association in 1938. At that

356 Patrick Buckland, 1979, p26. 357 Marianne Elliott, pp399-400. 358 Patrick Buckland, 1979, p72. 359 Hugh Shearman, p174. 360 Martin Wallace, p70. 361 Kenneth Bloomfield, 1994, p66. 362 Marianne Elliott, p386. 74 Parliament and Northern Ireland, 1921-2021

year’s Northern Ireland election it “won many votes but no seats and soon faded from the political scene”.363 Patrick Buckland later noted that only 12 ministers had served in the Northern Ireland Cabinet between 1921 and 1940 (including Craigavon): In the main, ministers were competent but limited. They lacked imagination and adaptability. The Union and the maintenance of partition represented their basic platform, and they tended to view questions connected with the constitution, such as voting systems and the administration of justice, from a narrow Ulster Unionist viewpoint, with scant regard for wider interests or long- term benefits.364

363 Hugh Shearman, p176. 364 Patrick Buckland, 1979, p12. 75 Commons Library Briefing, 21 December 2020

5. “Matters arising from a state of war”, 1939-45

Section 4 of the Government of Ireland Act 1920 made clear that the “Imperial Parliament” was to maintain power to make laws in respect of “matters arising from a state of war” and “the defence of the realm”. For much of the inter-war period, this caused no difficulties. But as the situation deteriorated during the late 1930s, Professor J. W. Blake observed that the: realisation came that in time of war it might be wholly impossible to preserve the existing line of demarcation between the powers of the Government of Northern Ireland and those of the United Kingdom.365 This section looks at how the 1920 Act was adapted to take account of wartime circumstances.

5.1 Defence Regulations Professor Blake identified four means of adaptation used during the War: • UK legislation was drafted to remove doubts as to the intent or scope of the powers granted to the Parliament of Northern Ireland in the 1920 Act; • “Agency” arrangements between a department of the UK government and a department or officer of the Government of Northern Ireland were made; • “Delegations” of power under Defence Regulations by a UK authority (generally the Home Secretary) to an officer or a department of the Northern Ireland Government; and • the inclusion in Defence Regulations of clauses making special provision for their operation in Northern Ireland.366 Examples of (1) were the Air Raid Precautions Act 1937 and Civil Defence Act 1939, both of which made clear the Parliament of Northern Ireland could legislate in those areas. Agency arrangements were already in use before the War (as permitted under s63 of the 1920 Act), but an example of (2) was food, which now became a matter “arising from a state of war”. Great Britain’s Minister of Food delegated some of his powers to an officer of the Northern Ireland Ministry of Commerce, who became Divisional Food Officer for Northern Ireland. Costs were met by the UK government.367

365 J. W. Blake, Northern Ireland in the Second World War, Belfast: HMSO, 1956, p17. The Government of Northern Ireland commissioned Blake’s official history of Northern Ireland and the War in 1941. For a more recent account of Northern Ireland during this period, see Philip Ollerenshaw, Northern Ireland in the Second World War: Politics, economic mobilisation and society, 1939-45, Manchester: Manchester University Press, 2016. 366 J. W. Blake, p18. 367 J. W. Blake, p21. 76 Parliament and Northern Ireland, 1921-2021

When it came to (3), a clause was included in UK regulations which allowed the Home Secretary to delegate certain functions to Northern Ireland departments. As Sir Arthur Quekett explained, these were used: to form a local executive for specified Imperial purposes. This executive was formed out of departments, each of which had as its head a Minister responsible to the Parliament of Northern Ireland for his administration of matters within the jurisdiction of that Parliament.368 Under Defence Regulation 22 the Ministry of Home Affairs became responsible (on behalf of the Home Secretary) for billeting in Northern Ireland; under Regulation 50, the Ministry of Commerce for urgent supplies of electricity; and, under Regulation 55, the Ministry of Agriculture for the control of seeds, crops, foodstuffs and agricultural machinery. Indeed, delegation was so frequently used (by 1944 more than 100 delegations were being operated by Northern Ireland departments) that on 4 September 1940 Regulation 102A granted the Home Secretary a general power to delegate his functions to Northern Ireland departments in respect of any regulation, whether or not it had been specifically conferred. Finally, to illustrate (4), there were insertions in regulations having effect throughout the UK. Defence Regulation 58A, for example, dealt with control of employment in Great Britain, and Article 5 conferred upon the Ministry of Labour the same powers in respect of Northern Ireland. By 1944, the Government of Northern Ireland was operating more than 40 separate functions under Defence Regulations.369 Some UK Defence Regulations were drafted for Northern Ireland alone, i.e. the Defence (Agriculture and Fisheries) (Northern Ireland) Regulations 1940 and Defence (Ulster Home Guard) Regulations 1942, but these were few.370 The Ulster Home Guard regulation represented the resolution of a disagreement within the Government of Northern Ireland. The Minister of Public Security, John MacDermott (a future Lord Chief Justice of Northern Ireland) believed its intention to form a domestic Home Guard were impossible under the 1920 Act. He told the Northern Ireland Cabinet on 3 November 1940 to ask that the UK government assume responsibility for the Home Guard, and that if this was not possible then to “devise some constitutional expedient” and “give the necessary constitutional cover” so that the Government of Northern Ireland could do so. The UK Secretary of State for War authorised the above Regulation in 1942.371

368 Sir Arthur Quekett, 1945, p12. 369 J. W. Blake, p24. 370 The Defence Regulations remained in place at the end of the War, but clauses inserted into the Supplies and Services (Transitional Powers) Act 1945 and Emergency Laws (Transitional Provisions) Act 1946 empowered the Parliament of Northern Ireland to over-ride them with legislation of its own. 371 Robert Fisk, pp268-70. 77 Commons Library Briefing, 21 December 2020

5.2 Intergovernmental relations There were also more informal arrangements which built upon the pattern of intergovernmental relations which had developed since 1921. In January 1939, the UK and Northern Ireland governments agreed that: • Northern Ireland should be kept informed by Home Office of all pending wartime legislation; • UK ministries should submit drafts of orders under Defence Regulations via liaison officers to Northern Ireland; • The Secretary to the Northern Ireland Cabinet should act as a liaison officer for communications on all matters of principle between the Northern Ireland and UK governments; • Meetings between representatives of Northern Ireland Cabinet Secretariat and the Home Office should be held from time to time to consider matters arising.372 In addition to the “Ulster Office” which already existed in London, it was arranged for a representative of the Northern Ireland Cabinet Secretariat to be based at the Home Office to act as a liaison (as detailed above) between Northern Ireland departments and Whitehall.373 There were also changes to financial relations. Until 1939, the Northern Ireland Ministry of Finance was not consulted before UK Budget statements. At the beginning of each financial year, therefore, it “anxiously awaited the imperial budget so that Northern Ireland’s share of reserved revenue for that year could be provisionally determined by the Joint Exchequer Board”.374 After 1939, however, it became the practice for the Minister of Finance to be briefed in advance by the Treasury, which enabled the Government of Northern Ireland to prepare its own spending plans with greater confidence.

5.3 Scrutiny at Stormont The extensive use of Defence Regulations reopened the question of what sort of questions could be asked in the Northern Ireland House of Commons. In September 1939, during a debate on the Agriculture (Emergency Provisions) Bill, some MPs protested that a UK Order in Council issued under the Defence Regulations might prejudice the legitimate authority of the Parliament of Northern Ireland under the 1920 Act. The Speaker said Members had to limit discussion to matters of administration arising in Northern Ireland from such Orders. It soon became clear that this was unsustainable. On 8 November 1939, the Speaker explained at some length the position arising from Agency and Delegation arrangements. He ruled that the final responsibility for

372 Robert Fisk, pp28-29. 373 Robert Fisk, pp32-33. This liaison officer was retained after the War. 374 Patrick Buckland, 1979, p82. 78 Parliament and Northern Ireland, 1921-2021

Defence Regulations lay at Westminster, and therefore only questions asking for information from ministers acting as Agents for UK departments, or substantive motions calling on the Government of Northern Ireland to make representations to the UK government on matters arising from wartime enactments, would be in order.375 As such, it would be out of order for members of the Northern Ireland House of Commons to criticise UK government policy.376 This ruling held until 1945. The external appearance of the Parliament Buildings at Stormont was also significantly altered during the Second World War. It became an operations base for the and was thus camouflaged with cow dung and bitumen (this damaged the stonework and dulled its original white appearance). The RAF was granted use of the Senate chamber as an operations room for Bomber Command in Northern Ireland.377 The Senate met instead in a committee room.

5.4 Reunification? Éire declared its neutrality during the Second World War, which caused difficulties for the UK given that the former – which had remained sovereign UK territory under the 1921 Treaty – had been relinquished in 1938.378 The defeat of France in 1940 prompted the UK to consider retaking the Treaty Ports by force and also issuing a statement favouring the reunification of Ireland in an attempt to get de Valera join the Allies.379 Ministers envisaged an immediate declaration accepting “the principle” of a united Ireland, the establishment of a Joint Defence Council and another joint body to consider the possibility of merging the administrations of Northern and Southern Ireland. As a quid pro quo, de Valera – who suggested that “Ulster” might retain its autonomous parliament within a united Ireland380 – was asked to abandon his policy of neutrality. Anticipating opposition, Prime Minister told his colleagues that “the interests of Northern Ireland could not be allowed to stand against the vital interests of the British Empire”.381 Viscount Craigavon, the Prime Minister of Northern Ireland, was incensed on learning of the proposal and sent a cypher telegram to the UK government: AM PROFOUNDLY SHOCKED AND DISGUSTED BY YOUR LETTER MAKING SUGGESTIONS SO FAR REACHING BEHIND MY BACK AND WITHOUT ANY PRE-CONSULTATION WITH ME. TO SUCH TREACHERY TO LOYAL ULSTER I WILL NEVER BE A PARTY.382

375 Sir Arthur Quekett, 1945, p14. 376 J. W. Blake, p25. 377 A plaque in the Senate chamber later recorded the RAF’s occupancy. 378 Éire did acquiesce in British military use of the waters and airspace of the contested Lough Foyle estuary and airspace in Donegal. 379 Robert Fisk, p195. 380 See Robert Fisk, pp186-219, for the full story of Churchill’s proposal. 381 Michael Laffan, p112. 382 Robert Fisk, p207. 79 Commons Library Briefing, 21 December 2020

Craigavon set out an alternative six-point plan, including a “Military Governor” based in Dublin with a deputy in Belfast.383 Ultimately, de Valera rejected the plan on the basis that there was no guarantee of Northern Ireland agreeing to reunification. He also believed the UK would lose the War and that his Fianna Fail party would dissent.384 This did not prevent de Valera authorising fire brigades from Éire to aid Belfast and its citizens during an air raid in April 1941.385

5.5 Conscription When the UK Compulsory Military Training Bill included a clause allowing conscription to be extended to Northern Ireland, its government at once agreed. De Valera, however, invoked Éire’s 1937 constitution (with its territorial claim to Northern Ireland) and said such an extension would be “an act of aggression”.386 There was also opposition from the United States, Canada and from Nationalists in Northern Ireland. The UK government appealed to Craigavon to withdraw his call for its extension, doubtless influenced by the conscription crisis of 1918. Instead it agreed to form a Northern Ireland section of the Royal Armoured Corps. This did not prevent those in Northern Ireland from enlisting in the , as thousands did.387 Conscription came up again in May 1941. The Government of Northern Ireland said it supported its extension on the basis of “equality of sacrifice and service” between Northern Ireland and Great Britain. When Nationalist Senators and MPs attended a Catholic anti-conscription event, the UK War Cabinet relented.388 The UK Prime Minister, Winston Churchill, was frank in stating that the UK government had: come to the conclusion that at the present time, although there can be no dispute about our rights or about the merits, it would be more trouble than it is worth to enforce such a policy.389 Sir Hugh O’Neill asked if this decision would “not make a rather bad impression throughout the Empire that, once again, the Government have had to burke this issue, obviously because of pressure from Southern Ireland?”.390 Two years later, Paul Emrys-Evans, the Under-Secretary for Dominion Affairs, placed the full text of a “lengthy statement” made by de Valera in the Dáil on 26 May 1941 in the House of Commons Library. This

383 Robert Fisk, p211. 384 Rachel Donnelly, “Britain offered unity if Ireland entered war”, Irish Times, 15 February 2001. 385 Robert Fisk, pp487-88. 386 Robert Fisk, p93. 387 Tens of thousands in Éire also enlisted to serve in the British Armed Forces during the Second World War. Enlistment by Irish citizens continues until the present day. 388 Robert Fisk, pp509-27. 389 HC Debs 27 May 1941 Vol 371 c1718 390 HC Debs 27 May 1941 Vol 371 cc1718-19 80 Parliament and Northern Ireland, 1921-2021

contained “the substance of the representations made on behalf of the Eire Government” on possible conscription in Northern Ireland.391 The Northern Ireland Cabinet considered conscription one final time in spring of 1943, but again it was not extended.392

5.6 Ulster Unionist Party The Second World War coincided with a period of instability within the governing Ulster Unionist Party. Criticism of Craigavon’s government had grown between 1938 and Sir Basil Brooke 1940, not least because of what many saw as inadequate war (1888-1973) preparations. J. E. Warnock resigned “in disgust” from the Government Basil Brooke was an of Northern Ireland in 1940, saying the “numerically insignificant” Ulster Unionist opposition meant the “spur which is necessary to keep any politician and the Government, the best Government in the world, up to the mark is third Prime Minister lacking […] there is no possibility of any vote in the Lobby imperilling of Northern Ireland the existence of the Government”.393 between 1943 and 1963. He saw The first Prime Minister of Northern Ireland died in November 1940. action during the John Miller Andrews, Craigavon’s successor, retained the existing First World War and Cabinet, but he was soon beset by accusations of weakness, industrial was briefly a unrest and the loss of several by-elections. When it became clear that if Senator before his he continued as leader six of his ministers would quit, Andrews election to the informed the Governor of his resignation.394 He remained leader of the Northern Ireland Ulster Unionist Party until 1946. House of Commons in 1929. Brooke Sir Basil Brooke, the third Prime Minister of Northern Ireland in as many was Minister of years, attempted to rejuvenate his administration by replacing all but Agriculture and of one member of the previous Cabinet and appointing Harry Midgley, a Commerce before Commonwealth Labour Party MP, as Minister of Public Security. becoming premier Although pro-Union, he was the first non-Ulster Unionist to join the in 1943. He was Government of Northern Ireland; his appointment owed something to made Viscount Brookeborough in pressure from London to broaden the base of Northern Ireland 1952 and retired in government during wartime.395 1963. He died in In 1944, Midgley’s Ministry was wound up and a new Ministry of Health 1973. and Local Government created. In order to comply with the 1920 Act, an Order in Council was necessary both to merge the Ministry of Public Safety into that of Home Affairs and to move functions from there to the new ministry.396

5.7 Imperial Contribution For the duration of the War, Northern Ireland’s Imperial Contribution was replaced “by a set of principles which recognise the facts of to-day

391 HC Debs 13 May 1943 Vol 389 c789 392 Robert Fisk, p526. 393 Harry Calvert, p351. 394 See Brian Barton, “The Impact of World War II on Northern Ireland and on Belfast- London Relations”, in P. Catterall & S. McDougall (eds), The Northern Ireland Question in British Politics, Basingstoke: Macmillan, 1996, pp47-70. 395 See Graham Walker, The Politics of Frustration: Harry Midgley and the Failure of Labour in Northern Ireland, Manchester: Manchester University Press, 1986. 396 Sam Logan, p94. 81 Commons Library Briefing, 21 December 2020

and the close relations existing between the Ministry of Finance and the Treasury”.397 Under the Special Formula, this rose sharply given that higher British taxes made necessary by wartime spending had generated “spectacular increases in revenue”, giving Northern Ireland “enormous surpluses of income over expenditure”.398 Both Great Britain and Northern Ireland now enjoyed . Not only did this mean the pre-war Unemployment Insurance Agreement was no longer necessary (it was suspended with UK Treasury agreement on 31 March 1942), but the Government of Northern Ireland was able to fund several delegated services, for which the UK government agreed to refund it once hostilities had ceased. Another significant change to financial arrangements between Northern Ireland and Great Britain came in the Finance (No. 2) Act 1940. This added to list of reserved taxes a purchase tax which would otherwise have been within Stormont’s competence.399

5.8 Travel restrictions Although Great Britain and Northern Ireland were both parts of the United Kingdom, travel restrictions were imposed between the two on the outbreak of war.400 Sir John Anderson, the Home Secretary, told the UK House of Commons that “all forms of unnecessary travel shall be reduced as far as possible”, although there were exemptions for those travelling in either direction “on business of national importance”.401 The restrictions also did not apply to members of the Armed Forces, while exit permits were later granted to those travelling “for urgent family reasons such as the serious illness or death of a close relative”.402 Even after the War had ended, British subjects normally resident in Great Britain or Northern Ireland were required “to carry either travel identity cards or passports […] to enable them to be distinguished at sight from other passengers and passed through the [border] control without delay”.403 The fee for the issue of travel identity cards was abolished in October 1946 but the identity requirement remained in place until 1952.404 In 1942, the Government of Northern Ireland also approached , the then Home Secretary, to ask for new powers to control the movement of labour from Éire. Under the Residence in Northern

397 Peter Robson, pp42-43. 398 Patrick Shea, p155. 399 R. J. Lawrence considered this to be of dubious constitutionality (see R. J. Lawrence, pp28-29). 400 The legal basis for these restrictions were the Aliens Restriction Acts and Laws (Transitional Provisions) Act, which continued Defence Regulation 18. A Travel Permit Office was set up in premises occupied by RUC staff in Belfast. This acted on an “Agency” for the Home Office. 401 HC Debs 20 June 1940 Vol 362 c226 402 HC Debs 18 July 1940 Vol 363 c384 403 HC Debs 10 October 1946 Vol 427 c333 404 See HC Debs 27 March 1952 Vol 498 c821 82 Parliament and Northern Ireland, 1921-2021

Ireland Restriction Order laid at Westminster in October 1942, all British subjects (which still included those in Éire) not normally resident in Northern Ireland on 1 January 1940 were required to obtain a permit from the Ministry of Home Affairs if they wished to stay in Northern Ireland for longer than six weeks.405 By September 1946 permits had been refused to 18% of applicants from Éire (36,447 were approved), compared with only 2% of non-Éire applicants.406 5.9 Prolongation Section 14(4) of the Government of Ireland Act 1920 provided that parliamentary terms were to last five years. The current term of the House of Commons of Northern Ireland was due to expire on 1 March 1943 and could only be prolonged via UK legislation. On 23 July 1942 Herbert Morrison confirmed the UK government’s intention to legislate to extend the duration of the UK Parliament for another year, and to include provision enabling the House of Commons of Northern Ireland to do likewise as of March 1943, “provided such prolongation is approved by a resolution of the Northern Ireland House of Commons”.407 The Prolongation of Parliament Act 1942 thus contained a provision that s14(4) of the 1920 Act could be amended. This was put into operation by a resolution of the Parliament of Northern Ireland on 25 November 1942. This was repeated towards the end of 1943, enabling the House of Commons of Northern Ireland to prolong its duration for another year. John Beattie, the Northern Ireland Labour Party MP for Belfast West, objected on the basis that the Government of Northern Ireland “did not stand as a Coalition” like that in Great Britain, but had been in session since 1938 and with “the same controlling authority […] in power for the last 22 years”: We in the working class movement in that area know that the life of the Parliament of Northern Ireland will be extended if power is given. We seek protection from this House against the dominating factor in the Parliament of Northern Ireland, the Tory party. If this Clause is passed the Storm Troopers at Stormont belonging to the Unionist party will trot into the Division Lobby to extend their own life, because there is nothing of which they are so afraid as a General Election.408 In November 1944, the UK Parliament passed an enabling clause for a third time, allowing the Northern Ireland House of Commons elected in 1938 to continue until 1946 at the latest.409 The Redistribution of Seats Act 1944, meanwhile, set a statutory limit on the number of Northern Ireland seats at Westminster. As Harry

405 Henry Patterson, p47. 406 Henry Patterson, p48. 407 HC Debs 23 July 1942 Vol 382 c167 408 HC Debs 3 November 1943 Vol 393 c814-15 409 HC Debs 7 November 1944 Vol 404 c1296 83 Commons Library Briefing, 21 December 2020

Calvert observed: “No other part of the United Kingdom has a fixed number of seats.”410

5.10 Northern Ireland (Miscellaneous Provisions) Act 1945 As the War drew to a close, the UK Parliament debated a third Northern Ireland Miscellaneous Provisions Bill, the second having been granted Royal Assent in 1932. This was another tidying up exercise in relation to the 1920 Act. Most significantly, the resulting Act allowed the Government of Northern Ireland to legislate in relation to criminal justice or procedure “affecting an offence which is, or is connected with, an excepted or reserved matter”.411 Section 2 of the Act enabled the Governor of Northern Ireland (rather than the UK Parliament) to transfer functions between Northern Ireland departments and ministers via an Order in Council with the consent of the Home Secretary.412 The Government of Northern Ireland also asked that Section 5 of the 1920 Act be amended so that it could compel teachers paid with public funds to give Bible instruction. The Home Secretary refused, arguing that there “would be great objection to an enabling act which could be represented as impairing safeguards in the 1920 act for the toleration and protection of minorities”.413

5.11 The “Ulster bridgehead” On 27 April 1944, Sir Basil Brooke addressed a British audience with the observation that: Before 1939 Ulster was too often in the position of reminding Great Britain that she also was one of the great family of the British Commonwealth and Empire. During this war Great Britain and the Allies have had reason to be grateful for our insistence on remaining in the family group […] We have never doubted that you are necessary to us. We hope that you now realise that we are necessary to you.414 Some Ulster Unionists referred to “the Ulster bridgehead”, without which the battle of the Atlantic: could never have been won; the food ships could never have got into this country; the American troops could never have got here through the narrow North Channel, which was the only safe approach to this Island at that time.415

410 Harry Calvert, p69. The House of Commons (Redistribution of Seats) Act 1949 later established a Boundary Commission for Westminster constituencies in Northern Ireland. 411 Harry Calvert, p175. 412 This arose from the creation in 1944 of the Ministry of Health and Local Government, which had required a UK Order in Council. 413 Derek Birrell and Alan Murie, Policy and Government in Northern Ireland: Lessons of Devolution, Dublin: Gill and Macmillan, 1980, p11. 414 Robert Fisk, p447. 415 HC Debs 13 June 1947 Vol 438 c1492 84 Parliament and Northern Ireland, 1921-2021

At the end of the War, Winston Churchill sent a telegram to the Prime Minister of Northern Ireland which stated that: The loyalty and courage of Ulster have gleamed before the eyes of men. It enabled the British nation to live and to use its mighty power in the world crusade without coming into collision with de Valera’s government and thus prevented a very agonising breach. A strong loyal Ulster will always be vital to the security and well- being of our whole Empire and Commonwealth.416 Shortly after that message was sent, George VI travelled to Belfast to address both Houses of the Parliament of Northern Ireland. He thanked the people of Northern Ireland “for the notable contribution they have made towards our hard-won triumph”.417

416 Sam Logan, p100. 417 Parliament of Northern Ireland, King’s Speech 1921-1951/Queen’s Speech 1952- 1960, Parliamentary Library of Northern Ireland (author’s collection). 85 Commons Library Briefing, 21 December 2020

6. Post-war Northern Ireland, 1945-50

The Second World War altered perceptions of Northern Ireland within the Labour Party, of which Ulster Unionists had long been suspicious given its historic sympathy for Irish reunification. Labour’s landside election in 1945, however, reawakened Ulster Unionist fears that Northern Ireland might be “coerced” into a united Ireland. Chuter Ede, the new Home Secretary (with responsibility for relations with Northern Ireland), had once characterized the Ulster Unionist leadership as “remnants of the old ascendancy class, very frightened of the catholics and the general world trend to the left”.418 But Herbert Morrison, Labour Home Secretary between 1940 and 1945, believed the War had: bound Great Britain and Northern Ireland together in indissoluble union. The possibility that any government in London might press Belfast to come to terms with Dublin (as after the First World War) had grown remote with the years. It was now non-existent.419 After the War, Morrison visited Éire privately and drafted a Cabinet memorandum advocating support for partition regardless of its impact on the UK’s relations with southern Ireland.420 This section looks at how relations between Northern Ireland and Great Britain were impacted by a Labour government committed to creating an extensive . It also examines how Éire’s departure from the British Commonwealth affected the constitutional status of Northern Ireland.

6.1 Intergovernmental tensions There was an early confrontation between the two governments when in early 1946 the UK government moved to abolish the rate-payers’ franchise in local government elections. This was a transferred matter and the Government of Northern Ireland decided not to follow suit. This franchise had two elements, ratepayer and the company vote. Ratepayer suffrage meant that, with some exceptions, only those who were owners or tenants of a dwelling (or their spouses) were entitled to vote in local government elections. This disenfranchised many adults who did not meet these criteria. The company vote resulted in a number of company directors (property owners) being entitled to more than one vote. Critics argued that the maintenance of this franchise in Northern Ireland would disenfranchise a greater number of Catholics, whose families tended to be larger and less likely to be company directors or homeowners. Stormont’s Representation of the People Act 1946,

418 Brian Barton, 1996, p61. 419 R. J. Lawrence, p64. 420 Henry Patterson, p114. 86 Parliament and Northern Ireland, 1921-2021

meanwhile, removed the vote from non-rate paying lodgers, thereby narrowing the existing franchise even further. The Home Secretary intimated to Edmond Warnock, the Northern Ireland Minister of Home Affairs, that the King might be advised to withhold his Assent to the UK Northern Ireland Bill, which proposed the transfer of additional powers to Stormont (see Section 6.4). This tension cut both ways. In 1947, the Government of Northern Ireland was unhappy when the UK government decided not to extend National Service to Northern Ireland without consulting Stormont. Some Ulster Unionists considered pushing for Dominion status, a constitutional option first floated by Sir James Craig in 1921 and which would have given Northern Ireland the same status as Canada or Australia. Writing in his diary in November 1945, Sir Basil Brooke listed this as one of Northern Ireland’s options in dealing with a Labour government at Westminster: “Stay as we are with possible chaos; join Eire-unthinkable; back to Westminster-dangerous; dominion status, might lower living standards.”421

6.2 Financial relations Until 1939, reserved revenue accounted for around 70% of Northern Ireland’s income, with revenue from transferred taxes at 21% and that derived from special receipts accounting for the remaining 9%. The Second World War, however, meant the first figure increased to as much as 85%.422 In addition, the Ulster Year Book 1947 listed the following grants from the Imperial Exchequer to Northern Ireland: • Inaugural expenses (final payment, 1926-27); • Provision of public buildings (final payment, 1939-40); • Milk Industry Assistance Grant (final payment, 1938-39); • Excess War Expenditure (reimbursement for the Government of Northern Ireland administering reserved services such as Civil Defence during the War); • Unemployment Reinsurance.423 Transferred taxes remained largely unchanged from 1929. Stamp duties, for example, “with some trifling exceptions”, continued to be levied at same rate and manner as in Great Britain.424 In 1946, the “parity principle” established in 1938 (see Section 4.4) was restated while it also became the practice for Northern Ireland’s

421 Quoted by Brian Barton, “Relations between Westminster and Stormont during the Attlee Premiership”, Irish Political Studies 7:1, 1992, p2. 422 Peter Robson, pp38-57. 423 Ulster Year Book 1947, Belfast: HMSO, pp261-62. 424 Ulster Year Book 1947, p255. 87 Commons Library Briefing, 21 December 2020

Budget to be agreed each year between the Treasury and Ministry of Finance for submission to the revived Joint Exchequer Board.425 All Supplementary Estimates for Northern Ireland were also to be submitted to HM Treasury for agreement, while advance consultation was necessary for expenditure exceeding £50,000 and which was not covered by parity services.426

6.3 Social security The first Northern Ireland general election since 1938 had taken place on 14 June 1945.427 This had been fought by Unionists on a strongly anti-socialist platform428 despite repeated statements from the Government of Northern Ireland that, to quote the King’s Speech of 23 February 1943, whatever “improvements are effected by the Imperial Government in connection with the social services in Great Britain will be carried out on a similar scale in Northern Ireland”.429 As Desmond G. Neill has observed, the 1920 Act “had no clear view of the future emergence of the Welfare State and had not foreseen the possibility of such comprehensive legislation” coming under transferred legislative responsibility.430 The extent and expense of the Welfare State – unforeseen in 1938 – also meant “much greater transfers of income to the Ulster exchequer than would have been thought remotely feasible before the war”.431 This was also useful politically for Ulster Unionists. Ever fearful of losing votes to the Northern Ireland Labour Party, it allowed the Government of Northern Ireland to highlight differences with welfare provision in Éire. Nationalists in Northern Ireland, as it happened, had been critical of Labour’s proposals, saying they were extravagant and unsuited to a predominantly agricultural area such as Northern Ireland.432 According to Graham Walker, the universal (and religion-blind) nature of the Welfare State also meant Ulster Unionists could “refute at least some of the allegations of discrimination against the Catholic minority in the light of the impartial administration of welfare benefits”.433 A Northern Ireland Housing Trust established in 1945 also had a statutory obligation to allocate housing fairly (which was necessary in order to comply with the 1920 Act). There followed a number of inter-governmental agreements dealing with different aspects of the Welfare State.

425 The JEB had stopped meeting in the 1930s. 426 R. J. Lawrence, p77. 427 That election saw the election of three female MPs to Stormont, including an Independent, Irene Calvert, representing Queen’s University Belfast. 428 Henry Patterson, p49. 429 Parliament of Northern Ireland, King’s Speech 1921-1951/Queen’s Speech 1952- 1960, Parliamentary Library of Northern Ireland (author’s collection). 430 Desmond G. Neill, “Some Consequences” in D. G. Neill (ed), Devolution of Government: The Experiment in Northern Ireland, 1953, p89. 431 D. S. Johnson, p158. 432 Henry Patterson, p130. 433 Graham Walker, p76. 88 Parliament and Northern Ireland, 1921-2021

Interim agreement of 1946 The UK government intended to merge unemployment insurance and unemployment assistance into a single National Insurance Fund. While the 1935 Agreement between Northern Ireland and Great Britain had provided for the UK Exchequer to pay 75% of the excess cost to Northern Ireland of its expenditure on unemployment insurance and unemployment assistance, a new Agreement in 1946 raised that to 80%. The Unemployment And Family Allowances (Northern Ireland) Agreement of 18 September 1946 provided for “payments by the two Exchequers to meet a part of any difference arising in the cost of unemployment insurance, unemployment assistance, and family allowances, as between the two countries”. Glenvil Hall, the UK Financial Secretary to the Treasury told the House of Commons that it was: sometimes forgotten that Northern Ireland is part of the United Kingdom. It pays the same taxes, it maintains the same social services, and the same standards as this country, but, owing to industrial and social conditions, which are different in some respects from those in other parts of the United Kingdom, the cost of the social services there is higher than in this country. Since 1926 Parliament has recognised this and it has accepted the principle that the United Kingdom should assist Northern Ireland by helping to meet some of the additional cost which falls upon that country so far as unemployment assistance and unemployment insurance are concerned. The Financial Secretary requested that the second reading of the Bill implementing the Agreement be passed without a division on the basis that Northern Ireland had “stood by” Great Britain during the recent War: “She assisted us materially, from the financial point of view as well as with moral find material support. She assisted us with men and she raised very large sums of money which were of great help.”434 With the new social security measures not due to take effect until 1948, however, the Bill ratifying the 1946 Agreement visualised “another and fuller agreement to come”. Further Agreement, 1948 A new system of National Insurance began throughout the United Kingdom on 5 July 1948. For National Insurance and industrial injuries, it was arranged that the Northern Ireland and Great Britain funds be maintained in the same proportionate relationship as that of their contributing populations by transfers from the richer to the poorer funds. In practice, this meant Great Britain made substantial payments to Northern Ireland for National Insurance, while Northern Ireland made small payments to Great Britain for industrial injuries. The Social Services Agreement, meanwhile, covered national assistance, family allowances, non-contributory pensions, health services and

434 HC Debs 21 November 1946 Vol 430 c1132 & c1135 89 Commons Library Briefing, 21 December 2020

temporary unemployment benefit. This provided that if the cost of those services in Northern Ireland exceeded 2.5% of the total UK cost, the UK Exchequer would pay 80% of the excess to the Northern Ireland Exchequer.435 This was known as the “parity proportion”, which had previously been set at 2.2%. The Social Services (Northern Ireland Agreement) Act 1949, passed by the Parliament of Northern Ireland, took account of equivalent legislation in Great Britain. To R. J. Lawrence, these agreements meant Northern Ireland’s “vestige of autonomy” had been “virtually swept away”.436 Health Services A Northern Ireland Tuberculosis Authority had been established in 1946, followed by the Northern Ireland Hospitals Authority (NIHA) two years later. The Northern Ireland health service, meanwhile, maintained “the scale and standard of comprehensive services in general conformity with Britain”,437 although there were certain differences: • Hospitals were vested in the NIHA and not the minister, as in Great Britain; • Endowments were vested in the responsible management committee; • The Government of Northern Ireland was responsible for promoting health services in general rather than merely providing the service, as in Great Britain; • There was only one regional board in Northern Ireland instead of several, as in England.438 Other important differences included a residency requirement, which also existed for other social services in Northern Ireland, and the absence of a reciprocal arrangement, which meant citizens of Éire could not receive treatment in Northern Ireland (and vice versa). The Health Services Act (Northern Ireland) 1948 did not include a clause in the equivalent UK legislation whereby hospitals with religious links could maintain those within the new health service. This impacted Belfast’s Mater Hospital, a large Catholic teaching facility, which could not on conscience grounds hand over its building and property to the state. As a result, it received no public funds even though it ended up treating lots of patients who were eligible for free healthcare. “In effect,” judged R. J. Lawrence, “the Mater Hospital at its own expense was helping the Northern Ireland Hospitals Authority to fulfil its statutory responsibilities.”439

435 This was subsequently amended to cover only family allowances, supplementary benefits and health services (see Royal Commission on the Constitution, para 1290). 436 R. J. Lawrence, p77. In 2020, the Northern Ireland National Insurance Fund Account remained separate from that in Great Britain. 437 R. J. Lawrence, p79. 438 L. G. P. Freer, “Recent Tendencies” in D. G. Neill (ed), 1953, p66. 439 R. J. Lawrence, p144. 90 Parliament and Northern Ireland, 1921-2021

Health highlighted a long-standing contradiction in that the Government of Northern Ireland found politically useful policies to which it had an ideological objection. John E. Sayers believed that the majority of Ulster Unionist ministers, doctors and middle- to upper-class Unionists were “not really in favour of the Health Service, certainly not on the scale at which it was introduced”. They had therefore sought to “remove what were regarded as its more Socialistic features” (see above), although its central principle survived.440 Ulster Unionist MPs at Westminster also argued and voted against the UK government’s National Insurance and Health Services Bills (following the Conservative whip) apparently unaware that their colleagues at Stormont intended to enact identical measures for Northern Ireland. They then pleaded with Sir Basil Brooke to include cosmetic changes so as to maintain some semblance of independence.441

6.4 Northern Ireland Act 1947 As already noted, the UK government threatened to withhold Royal Assent for the Northern Ireland Bill in response to the Government of Northern Ireland refusing to abolish the rate payers’ franchise in local government. Nevertheless, this received its second reading in the UK Commons on 13 June 1947 and further extended the Parliament of Northern Ireland’s legislative scope. Most significantly, Clause 1 enabled the Parliament of Northern Ireland to make provisions for hydro-electric, drainage, water and other schemes to be operated on both sides of the border in conjunction with the government of Éire. Desmond G. Neill observed that the sort of role once envisaged for the Council of Ireland, “rejected in the heat of political controversy on both sides in 1925”, had now “re-appearing in the guise of ad hoc co- operation on such technical problems”.442 Clauses 8 and 9 of the Northern Ireland Bill made the Registry of Deeds and the Registry of Land transferred rather than reserved matters. Clause 10 dealt with an anomaly whereby the Parliament of Northern Ireland could repeal or alter Acts of the UK Parliament passed before 1920 relating to transferred areas, and UK Acts passed since 1920 if there was a specific provision enabling them to do so, but not alter a subordinate instrument passed by the UK Parliament since 1920. Finally, Clause 13 extended provision in the Northern Ireland (Miscellaneous Provisions) Act 1945 so that the Governor could alter the functions of local authorities as well as those of Northern Ireland ministries (as departments had become in 1946). Geoffrey Bing, the Labour MP for Hornchurch, attempted to insert a Clause validating the various Special Powers Acts passed by the Parliament of Northern Ireland. These were controversial in having been

440 John E. Sayers, “Political Parties and Social Background” in T. Wilson (ed), Ulster Under Home Rule, 1955, p64. 441 Alvin Jackson, 2011, p462. 442 Desmond G. Neill, p93. 91 Commons Library Briefing, 21 December 2020

used during raids on members of the Northern Ireland Labour Party (see Section 4.2). Bing argued that these infringed Section 5(1) of the 1920 Act and therefore he wished: to validate for a period the actions of the Northern Ireland Government and thus give them the opportunity, after 1st October, 1947, to reconsider the position— either by coming to the House to ask for further authority to enable them to carry their Special Powers Act, or else to repeal those portions of the Special Powers Act which they may come to the conclusion infringe the constitution of Northern Ireland.443 The Clause was removed in Committee. The Northern Ireland Act 1947 received Royal Assent on 31 July 1947. Other MPs used debates on the Northern Ireland Bill to criticise the Government of Northern Ireland for discrimination, allegations the veteran Ulster Unionist Sir Hugh O’Neill dismissed as “so much nonsense and wind”: The real trouble is this. Roman Catholics of the type to whom I have referred, who cooperate, are taken into the life of the community; they are welcomed and respected, and they get on. Everything works smoothly. The trouble is that the great bulk of the Roman Catholic minority in Ulster refuse to co-operate. They will not play their part in the life of the country. They stand outside everything. They clamour for some chimera of a united Ireland. They are always having grievances. There are in Northern Ireland some fine, splendid, decent Roman Catholics for whom no one has a greater admiration than I. I hope the time may come when co-operation will increase and when we shall be able to get rid of this position in which the minority are always putting up grievances and very seldom co-operating.444 Another common argument made by Ulster Unionists was that Catholics in Northern Ireland refused to take advantage of the opportunities available to them.445 Nationalists, however, maintained this was cover for widespread discrimination. Patrick Shea, a Catholic civil servant at Stormont, acknowledged “serious discriminatory practices” operating to the disadvantage of Northern Ireland’s Catholics, but also believed they had “failed to make full use of the opportunities which were there; too often they accepted second-class as their lot and they got little help from their political representatives”.446 Education legislation further highlighted these long-running tensions. In 1946 the Attorney General for Northern Ireland declared that the Education Act (Northern Ireland) 1930 (see Section 4.5) was ultra vires in that it compelled teachers to provide Bible instruction. R. J. Lawrence called this a “belated discovery that their legislation for some fifteen years had been unconstitutional”.447

443 HC Decs 27 June 1947 Vol 439 c859 444 HC Debs 27 June 1947 Vol 439 c1499 445 Diarmaid Ferriter, p443. 446 Patrick Shea, p197. 447 R. J. Lawrence, p120. 92 Parliament and Northern Ireland, 1921-2021

This necessitated new legislation “lacking some of the more obviously offensive features”.448 The resulting Education Bill debated by the Parliament of Northern Ireland in 1947 echoed the Butler Act, which had established grammar, intermediate and technical schools in England and Wales. The Northern Ireland Act increased capital grants for voluntary schools (which generally catered for Catholic pupils) from 50 to 65%. Harry Calvert doubted the “constitutional validity” of the Education Act (Northern Ireland) 1947 on this basis, as well as its requirement “that religious instruction shall be provided”. He identified an “assumption” (which could be traced back to earlier Education Acts) that “constitutional proprieties” were observed by granting aid to both state (generally Protestant) and voluntary institutions. Calvert argued that in providing funds for religious purposes at all there was a clear “infringement of section 5(1)”.449 The Government of Northern Ireland’s legal advisers had eventually reached the view, as Calvert identified, that so long as public funds were provided for religious instruction in both Protestant and Catholic schools there was no “breach of the provisions of the Government of Ireland Act”. However, the same legal advisers believed that funding students who were training for entry to the ministry of any church “would constitute an endowment of religion”.450 Thus no publicly- funded scholarships or bursaries were available, unlike in Great Britain.

6.5 Anti-Partition League Since 1921, elections in Northern Ireland had been dominated by its constitutional status. F. H. Newark’s view was that as ending partition was the Nationalist Party’s platform, the consequence was “that every election is fought on the constitutional issue, and the Constitution can only survive if the government survives”.451 Indeed, Viscount Craigavon had justified the abolition of PR in 1929 on the basis of having “men who are for the Union on the one hand, or who are against it and want to go into a Dublin parliament on the other”.452 Nationalist candidates at the 1945 Northern Ireland election had made efforts to unite all Irish nationalists (i.e. those who supported Irish reunification) into one organisation, which became the Irish Anti- Partition League (APL). This was supported at Westminster by the Labour-initiated Friends of Ireland (FoI) group. Together, the APL and FoI had drawn up a joint amendment to the Northern Ireland Bill (see above) calling for a full discussion on the governance of Northern Ireland.

448 Harry Calvert, p289. 449 Harry Calvert, p275. 450 Royal Commission on the Constitution, Written Evidence 3: The Home Office (Note on the Status of Northern Ireland within the United Kingdom), London: HMSO, 1973, p35. 451 F. H. Newark, 1955, p34. 452 Quoted in Brendan O’Leary, p47. 93 Commons Library Briefing, 21 December 2020

The British section of the APL was formed in 1946 and opened an office in Belfast in 1948. An APL candidate contested the 1948 Armagh by- election and won more than 40 per cent of the vote, while a major APL rally in Dublin in early 1948 challenged Éamon de Valera, of Éire since 1937, to step up pressure on the UK.453 On leaving office in February 1948, de Valera embarked upon a world tour to speak in favour of a united Ireland. The status of Northern Ireland and possible reunification with Éire therefore dominated public discourse in the late 1940s. In June 1947, , the UK Prime Minister, was asked to respond to remarks made by de Valera in the Dáil: to the effect that a simple declaration from the British Government that it was their desire to see partition ended, and that, if an agreement were reached between the people of the two parts of Ireland, His Majesty’s Government would not hesitate to give it effect, would help towards a solution of the problem. Attlee replied that it had been made: clear on many occasions that it is the policy of His Majesty’s Government in the United Kingdom to maintain and develop by all practicable means the closest relations between Great Britain and both Northern Ireland and Eire, and to facilitate the solution of any outstanding questions.454 The following year, Attlee also made it clear that in the: course of the recent conversations at with Ministers from Eire no discussion took place on the constitutional position of Northern Ireland. The view of His Majesty’s Government in the United Kingdom has always been that no change should be made in the constitutional status of Northern Ireland without Northern Ireland's free agreement.455 During a visit to Canada in 1948, de Valera’s successor, John A. Costello, head of a coalition that included a small but influential radical republican party, revealed that he intended to take the country out of the British Commonwealth, something made possible by the 1931 Statute of Westminster. Section 1 of Éire’s Republic of Ireland Act 1948 subsequently repealed the Executive Authority (External Relations) Act 1936 and, in so doing, removed the last remaining functions of King George VI in relation to Ireland (which were mainly confined to diplomatic credentials and international agreements).456 It also declared that “the description of the State shall be the Republic of Ireland”, a confusing provision since the 1937 constitution defined the name of the state as “Ireland”. This came into force on 18 April 1949. Attlee formed a UK Cabinet subcommittee to consider the implications for Great Britain and particularly Northern Ireland. This suggested changing the UK’s name to the “United Kingdom of Great Britain and

453 , the only Ulster Protestant to have served in the government of the Free State, was critical of its anti-partition stance and campaign. 454 HC Debs 14 June 1947 Vol 439 c941 455 HC Debs 28 October 1948 Vol 457 c240 456 Only with the Statute Law Revision (Pre-Union Irish Statutes) Act 1962 was the Crown fully removed from the Irish statute book, in that it repealed the Crown of Ireland Act 1542. 94 Parliament and Northern Ireland, 1921-2021

Ulster”, something only ruled out when the UK Prime Minister declared that the accepted nomenclature would instead be the “Republic of Ireland” (its government’s own preference) and “Northern Ireland”.457 Sir Basil Brooke, Prime Minister of Northern Ireland since 1943, was concerned that the necessary legislation at Westminster would provide an opportunity for anti-partitionists to “seek to merge Northern Ireland with Eire rather than grant greater independence to Northern Ireland”.458 To guard against this possibility, Sir Basil pressed for a clear statement of Northern Ireland’s constitutional status in the Ireland Bill.459

6.6 Ireland Act 1949 According to the historian Brian Barton, Clement Attlee was keen to reassure Ulster Unionists and also believed such a statement would be popular with voters in Great Britain.460 The declaration of the Republic of Ireland had also animated the Northern Ireland general election of February 1949. Both the Ulster Unionists and Nationalists increased their share of the vote (by 12.3% and 17.6% respectively), with the Anti-Partition League helping to retain almost all Nationalist-held constituencies. The Northern Ireland Labour Party had also been compelled to adopt a definite position on the constitutional question, pledging itself to “maintain unbroken the connexion between Great Britain and Northern Ireland as a part of the Commonwealth”. Nevertheless, it lost both its MPs and more than 11% of the vote.461 The Ireland Bill was read for a second time on 11 May 1949. Clause 1(1b) declared the existing position of Northern Ireland and, as the Prime Minister observed, was “entirely consistent” with his statement of 28 October 1948. As a result, Attlee added that he was “surprised” to have received protests from the government of Éire: It seems to be suggested that this is a new declaration by His Majesty’s Government affirming the permanence of partition, but actually the initiative did not come from this side. It is the action of the Eire Government itself in deciding to leave the Commonwealth that has made it quite inevitable that a declaration as to the position of that part of Ireland which is continuing in the Commonwealth should be made. Attlee argued that the “natural corollary” of Éire ceasing to be part of the Commonwealth was to “declare that Northern Ireland remains part of the Commonwealth and of the United Kingdom, and will not cease

457 Sam Logan, p119. After 1949, the UK generally referred to the “Republic of Ireland” rather than “Ireland”, while the Irish referred to “the United Kingdom” rather than the “United Kingdom of Great Britain and Northern Ireland”. The Irish government also referred to “the Six Counties” rather than “Northern Ireland”, a practice that only changed in the early 1970s (John Coakley, pp53-54). 458 Henry Patterson, p117. See also CAB/129/32, “Memorandum by PM Attlee to Cabinet appending Working Party Report”, National Archives. 459 For a detailed account of this episode, see Brian Barton, 1992, pp1-20. 460 Brian Barton, 1996, p65. 461 Hugh Shearman, p184. 95 Commons Library Briefing, 21 December 2020

to be so without the consent of the Parliament of Northern Ireland”. He continued: We recognise the authority of the Parliament of Eire, now the Republic of Ireland, to act on behalf of the people of Eire in carrying out their decision to leave the Commonwealth and we do not look behind that. We recognise equally the right of the Parliament of Northern Ireland to decide on behalf of the people of Northern Ireland to stay in or leave the United Kingdom and Commonwealth.462 Speaking on behalf of the Conservative opposition, Sir supported and welcomed the Prime Minister’s “pledge”: If union between North and South Ireland is to come about, it must do so not by force or by threats of force but by agreement and by Parliamentary and democratic means. It would really be fantastic that anyone could suppose that we should invite Northern Ireland to leave the British Commonwealth against her will, or even that we should wish her to do so.463 Sir Hugh O’Neill, the Ulster Unionist MP, said the Prime Minister’s “guarantee” had been “received with satisfaction throughout Ulster”, although he agreed with Attlee that “it does not really embody anything new; it merely emphasises and confirms the existing situation”. A dissenting voice came from Professor William Gruffydd, the Liberal MP for the , who believed the Bill’s reception in Ireland had “inflamed ancient hostilities”. He observed that an earlier statement had not referred to the “Parliament of Northern Ireland” but to “its inhabitants” (Attlee had actually said “without Northern Ireland’s free agreement”): Gruffydd argued that: If […] the pledge were given that Northern Ireland would never cease to be part of the United Kingdom except with the consent of its inhabitants, then I think this Bill would come nearer to acceptance in Southern Ireland.464 The Ireland Act 1949 received Royal Assent on 2 June 1949. Clause 2(1) declared that: the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom or in any colony, protectorate or United Kingdom trust territory, whether by virtue of a or of an Act of Parliament or any other enactment or instrument whatsoever.465

462 HC Debs 11 May 1949 Vol 464 cc1854-57 463 HC Debs 11 May 1949 Vol 464 c1867 464 HC Debs 11 May 1949 Vol 464 c1894. Attlee squared the circle by recognising “equally the right of the Parliament of Northern Ireland to decide on behalf of the people of Northern Ireland to stay in or leave the United Kingdom and Commonwealth”. 465 Clause 6(1) of the 1949 Act also added a three-month residence qualification for Northern Ireland electors voting in UK elections. 96 Parliament and Northern Ireland, 1921-2021

6.7 Constitutional implications of the 1949 Act One historian has argued that Ireland’s decision to leave the Commonwealth “while Northern Ireland remained seemed only to reinforce partition”.466 Clement Attlee’s own view that that the Irish government considered cutting its last ties with the Commonwealth “a more important objective of policy than ending partition”.467 Others believe it had a negative impact on those who had pushed for a restatement of the constitutional status quo. Graham Walker has argued that the Ireland Act 1949 fed “illusions of sovereignty on the part of Ulster unionists and bolstered the claims of those who were inclined in the 60s and 70s to regard Northern Ireland’s relationship to the rest of the UK as ‘de facto’ federalism”.468 Self-determination had long been a feature of Ulster Unionist discourse. Sir Basil Brooke viewed the 1949 Act as having “placed the fate of Ulster in our own hands”,469 while the unionist historian Hugh Shearman believed it “had practically the effect of giving Northern Ireland a federal status within the United Kingdom”.470 Harry Calvert viewed the 1949 Act as having added a “fourth estate” to that of the UK Commons, Lords and the sovereign, in that the Parliament of Northern Ireland had been recognised “as being the voice of Northern Ireland for the purpose of negotiations or agreements amending the treaty of 1800”.471 And while Westminster could remove this “veto” by repealing or amending the 1949 Act,472 Calvert believed this would be “ineffective”.473 If, in future, Westminster moved to sever the union of Great Britain and Northern Ireland against the wishes of people in the latter, then it would, he added, be “unconstitutional”, “quite unprecedented” and Royal Assent ought to be withheld on that basis.474 The 1949 Act also had an impact on the Anti-Partition League. Frustrated at a Labour government’s willingness to preserve the constitutional status quo, the APL’s British section challenged incumbent Labour MPs in four constituencies at the 1950 UK general election, all areas with large Irish populations. Labour held all four and by 1951 the APL was in decline. Its committee resigned in 1956.

466 Diarmaid Ferriter, p486. 467 Diarmaid Ferriter, p455. At this point, could not be members of the Commonwealth, although this would subsequently change in order to maintain India as a member. 468 Graham Walker, p71. 469 Brian Barton, 1996, p66. 470 Hugh Shearman, How Northern Ireland Is Governed, Belfast: HMSO, 1963, p14. 471 Harry Calvert, p24 & p27. 472 Indeed, Clement Attlee had made this clear to Ulster Unionist ministers in private conversation (Brian Barton, 1992, p19). 473 Harry Calvert, pp28-29. In the event, the Government of Northern Ireland did not so consent when Direct Rule was imposed in 1972. 474 Harry Calvert, p32. 97 Commons Library Briefing, 21 December 2020

98 Parliament and Northern Ireland, 1921-2021

7. Northern Ireland, 1950-66

The Ireland Act 1949 might have restated Northern Ireland’s constitutional status, but it did not remove controversy surrounding the Government of Ireland Act 1920. This had long been contested, but during the 1950s and early 1960s allegations of discrimination against the Catholic minority continued to grow.475 After 1956, this was accompanied by a renewed campaign of IRA violence relating to the border. This section looks at those tensions as well as further changes to the 1920 Act. It also examines the impact of high unemployment and sluggish economic development in Northern Ireland on its relations with Great Britain.

7.1 Reopening the 1920 Act In May 1951, the Labour MP George Thomas, a future Secretary of State for Wales and Speaker of the UK House of Commons, attempted to amend the 1920 Act so as: to provide for the prohibition of religious discrimination, the safeguarding of civil , the establishment of an impartial police force and the holding of impartial local and Parliamentary elections with a universal franchise in Northern Ireland.476 Thomas believed that the resulting Commons discussion on 1 June 1951 was the first “full-dress debate in the House” on the way the 1920 Act was “working out” since its passage more than three decades earlier. While recognising “that it is inadvisable for a superior Parliament to interfere in the day-to-day affairs of a Government in a land to which devolution of powers has been given”, Thomas gave a lengthy critique of the local government franchise (“undemocratic, […] unequally distributed”), the distribution of houses in a given area (“the fact that houses […] are the pawn of politics ought to be enough to shake this House to its foundations”), and the police. He concluded that: This House has a responsibility for ensuring that the Government of Ireland Act, 1920, gives to every citizen of Northern Ireland the same fair play as his brethren enjoy in the rest of the United Kingdom.477 Sir Hugh O’Neill, chairman of the Ulster Unionist Group of MPs at Westminster, said that in criticising the “legislation and administration of a parliament and government with respect to matters within their sole and absolute control”, Thomas’s motion was “completely at variance with the conception on which the and independence of the many Parliaments within the British Commonwealth are based”.

475 ’s The Indivisible Island: The History of the Partition of Ireland (Victor Gollancz, 1957) was the first substantial charge sheet against the Government and Parliament of Northern Ireland. The first academic audit of alleged discrimination was published in 1962, Denis Barritt and Charles Carter’s The Northern Ireland Problem: A Study in Group Relations (Oxford University Press). 476 HC Debs 9 May 1951 Vol 487 c1962 477 HC Debs 1 June 1951 Vol 488 cc557-67 99 Commons Library Briefing, 21 December 2020

But given the motion was “presumably technically in order because it seeks power to amend the Government of Ireland Act”, Sir Hugh responded to what he called the “grossly distorted and inaccurate charges which are made against the Unionist section […] of the Ulster people”: The exercise of religion in Northern Ireland is completely free, and there is no interference with it whatever. The Roman Catholic schools are, I believe, treated more favourably than they are under the Education Act here. Many Roman Catholics have occupied, and still occupy positions of power and influence in the province. My hon. Friend just now reminded the House that the first Lord Chief Justice of Northern Ireland was a Roman Catholic.478 Responding to the motion on behalf of the then Labour government, the Home Secretary, Chuter Ede, said it was “no part of the duty of the Home Secretary in this country to defend here the actions of the Northern Ireland Government […] in the Act we have delegated to them certain quite specific functions, and they must answer for them to the people to whom they are responsible”. He concluded: I think it would be unwise of this House to exercise too meticulous a control over an area to which it has given self-government, but I hope—and I repeat this—that Northern Ireland will listen to this debate, rather more, perhaps, to the spirit that has animated us than sometimes to the exact words which have been uttered, so that we may get nearer to the time when the full co-operation of every citizen in Northern Ireland in the government of that province may be assured.479 George Thomas withdrew his motion and it was not put to a vote. Some historians detected a shift in Unionist attitudes. In 1953 the European Convention on Human Rights (ECHR), to which the UK was a signatory, came into force. According to Henry Patterson, Viscount Brookeborough (as Prime Minister Sir Basil Brooke became in 1952) recognised that this “compelled” the Government of Northern Ireland “to be fair” and that he “was not going to be responsible for discrimination”.480

7.2 Intergovernmental relations In 1953, a document “Issued by the Treasury for Official Use” stated that, in practice, the UK Parliament: refrains from legislating on matters with which the Northern Ireland Parliament can deal, except at the request and with the consent of Northern Ireland. It is recognised that any departure from this practice would be open to objection as impairing the responsibility which has been placed on the Northern Ireland Parliament and Government [...]481 The English jurist Sir Ivor Jennings went so far as to argue that it would be “unconstitutional” for the UK Parliament to exercise that “legal

478 HC Debs 1 June 1951 Vol 488 cc573-79 479 HC Debs 1 June 1951 Vol 488 cc623-31 480 Quoted in Henry Patterson, p119. 481 HM Treasury, p9. 100 Parliament and Northern Ireland, 1921-2021

power of legislation in the matters delegated to the Parliament of Northern Ireland, except with the consent of that parliament”.482 The UK Home Secretary continued to act as the main channel for relations between Great Britain and Northern Ireland, although Paul Bew et al have argued that the Home Office “acquired the role of sponsoring the [Ulster] Unionist interest in Whitehall”. Writing in 1954, Sir , its permanent under-secretary, summarised the Home Secretary’s Northern Ireland responsibilities as: • acting as the “official channel” of communications between the two governments; • ensuring Northern Ireland’s “constitutional rights” were not “infringed”; • safeguarding Norther Ireland’s interests “with regard to schemes under the Agricultural Marketing Acts”; and • ensuring the Government of Northern Ireland’s “views” on matters affecting it were “made known to the Government of the United Kingdom”.483 Writing in 1950, F. H. Newark had observed that in the Parliament of Northern Ireland there was: no to follow Westminster in a wholly uncritical frame of mind. Sometimes Stormont will follow the general idea but make changes of detail which will be more acceptable to the Ulster people. Sometimes it happens that Stormont gives a lead which Westminster will follow at a later date. The experiment in devolution has not led to that disparity in legislation which those who initiated the experiment expected.484 In the earlier view of Nicholas Mansergh, the Government and Parliament of Northern Ireland had innovated – and therefore diverged from policy in Great Britain – when it came to agriculture, education and labour policy.485

7.3 Northern Ireland (Foyle Fisheries) Act 1952 The early 1950s also saw closer collaboration between the Government of Northern Ireland and that of the Republic of Ireland.486 Section 4 of the 1920 Act stipulated that Stormont could only engage in projects solely within its own jurisdiction, thus when the two governments wanted to co-operate on the Erne Hydroelectric Scheme in the 1940s, legislation had been required at Westminster.487

482 Ivor Jennings, The Law and the Constitution, London: Press, 1959, p157. 483 Frank Newsam, The Home Office, London: Allen & Unwin, 1954, pp168-69. 484 F. H. Newark, 1950, pp4-5. 485 Nicholas Mansergh, 1936, p305. 486 See Michael Kennedy, Division and Consensus: The Politics of Irish Cross-border Relations, 1925-1969, Dublin: Institute of Public Administration, 2000. 487 This was the Northern Ireland Act 1947 (see Section 6.4). 101 Commons Library Briefing, 21 December 2020

As a result, in 1951 the two governments agreed to purchase the Great Northern Railway (some of which lay outside Northern Ireland) and for it to be administered by a joint board nominated by both. A dispute regarding fishing rights on Lough Foyle and the River Foyle, however, had been ongoing for three decades. Lough Foyle was an expanse of water north of Derry/Londonderry, with the Republic to the north and Northern Ireland to the south. The 1920 Act had envisaged two devolved parliaments and therefore no issue with territorial waters, but when the Free State became a Dominion and Éire a Republic, the exact pattern of the border became an issue. Nor had the 1921 Treaty identified Northern Ireland’s territorial waters (which led the Free State/Ireland to argue that these were under its jurisdiction). Both governments claimed the whole of Lough Foyle as their exclusive territory, leading to various court cases in which neither side could enforce their respective claims. The two governments’ attorney generals worked towards an agreement, and in 1950 they agreed to acquire all fishing rights from The Irish Society and establish a joint authority to regulate and conserve fisheries for the Foyle region. Notably, the Foyle Fisheries Commission was "brought about not because of an initiative led by either government, but by a determined campaign by fishermen".488 This also required enabling legislation in the UK Parliament, and the Northern Ireland (Foyle Fisheries) Bill received its second reading on 3 December 1951. The Home Secretary, Sir David Maxwell Fyfe, set out a Commission “on which each Government shall have the same number of representatives as the other”: A common code of Regulations will apply throughout the area, and poachers, who have hitherto been inclined to poach just over the Border, so that they can, if detected, escape into their country of residence with a reasonable prospect of avoiding prosecution, will no longer be able to do this. A resident of one country who offends against the common code in the other country will be guilty of an offence in his country of residence, and, if caught in the act, will be sent back there for trial. While the Parliament of Northern Ireland was competent to legislate for most of the resulting arrangements, Section 4 of the 1920 Act also prohibited it from making laws in respect of offences connected with “relations with foreign States […] or in respect of the return of fugitive offenders from or to any part of His Majesty’s Dominions”.489 Section 4 of the 1920 Act was therefore amended by the Northern Ireland (Foyle Fisheries) Act 1952.490

488 Cormac Moore, p202. 489 HC Debs 3 December 1951 Vol 494 cc2072-74 490 The Foyle Fisheries Commission became the Loughs Agency following the 1998 Belfast/Good Friday Agreement. 102 Parliament and Northern Ireland, 1921-2021

7.4 Parity and Leeway The 1953 Treasury paper admitted that the Government of Northern Ireland’s fiscal powers were “narrowly limited” by the 1920 Act. While it was true that the power existed to grant relief on UK taxes, it observed that “no use has been made of this power, and it would be impracticable for the Northern Ireland Parliament to use it, except by lowering pro tanto the expenditure on transferred services”.491 Northern Ireland also felt the impact of budgetary decisions at Westminster. Since 1948, Northern Ireland had followed Great Britain’s rates of National Insurance contributions and benefits, but when in 1951-52 the UK Treasury increased benefits, Northern Ireland’s Insurance Fund sustained a considerable loss while Great Britain’s remained in surplus. Another Insurance agreement in 1951 (backdated to 5 July 1948) meant the two funds were “virtually amalgamated”, something enabled by the 1946 Act.492 As the Royal Commission on the Constitution later observed, “in practice parity was a vague and flexible concept, and it was being developed all the time”.493 In 1952, for example, , the Northern Ireland Minister of Finance, sought changes to two transferred taxes: death and motor duties. The former was intended to ease the problems of family firms, which were more common in Northern Ireland than in Great Britain. In keeping with conventions established before the War (see Section 5.2), Sinclair consulted the UK Chancellor of the Exchequer. The Treasury concluded that Sinclair’s proposals could not “automatically” be “thrown out as […] against the principle of parity” but could set an awkward precedent: we dislike both of Major Sinclair’s proposals because they give ammunition to those who want to press for similar concessions here, but we cannot suggest that they are against the rules of the game provided they turn out to be reasonable in character, with compensating adjustments elsewhere.494 Following a wartime boom, the 1950s found the economy of Northern Ireland suffering a return to pre-war problems, particularly high unemployment, which peaked at 11% in 1952. Viscount Brookeborough “mercilessly exploited metropolitan gratitude for the North’s wartime role” and secured extra orders for ships and textiles as well as a joint committee of UK and Stormont officials to investigate long-term economic solutions.495 In 1954 the Joint Exchequer Board accepted that in determining Northern Ireland’s Imperial Contribution, it was relevant to consider not only parity but the necessity for “leeway”, expenditure to enable services such as housing, schools and hospitals in Northern Ireland to

491 HM Treasury, p11. 492 R. J. Lawrence, p78. 493 Royal Commission on the Constitution, para 1288. 494 James Mitchell, “Undignified and Inefficient: Financial Relations between London and Stormont”, Contemporary British History 20:1, 2006, pp63-64. 495 Henry Patterson, pp130-31. 103 Commons Library Briefing, 21 December 2020

reach the standard of equivalent services in Great Britain. This resulted in further “special expenditure” from Westminster to offset Northern Ireland’s geographical disadvantages.

7.5 Dominion status On 2 July 1953 the Parliament of Northern Ireland presented an address to Queen Elizabeth II during her post-Coronation visit to Belfast.496 The monarch replied that: As your Queen I am now even more closely concerned with the affairs of Northern Ireland, and I assure you that I shall always strive to repay your loyalty and devotion with my steadfast service to you all.497 That loyalty was later characterised as “conditional” by the historian David Miller, who argued that the Ulster Unionist principle of “self- determination” included the possibility of choosing to leave the United Kingdom.498 As Michael Laffan observed, Ulster Unionists were generally “loyal to their place in the United Kingdom and the empire rather than to Britain or any British government”.499 The idea of Northern Ireland seeking “Dominion status” had first been floated by Sir James Craig in 1921 and again in the late 1940s, on both occasions in response to a perceived threat to Northern Ireland’s autonomy. This would have seen Northern Ireland cease to be part of the UK and instead become an independent country within the British Commonwealth, similar to Canada or Australia. These arguments had not gone away despite the reassurances offered in the Ireland Act 1949. Writing in 1953, F. H. Newark said Dominion status had “certain attractions” but concluded it would be “a fatal step” in that economically, culturally and politically, “Northern Ireland is too bound up with England, Scotland and Wales to contemplate an existence as a completely separate constitutional entity.”500 As Kenneth Isles & Norman Cuthbert concluded in their Economic Survey of Northern Ireland (written in 1955 but published two years later), the fiscal independence implied by Dominion status “would make it necessary for Northern Ireland either to tax more severely than Great Britain or to stint governmental services as a whole”. They continued:

496 It was only after Elizabeth II acceded to the throne as, among her other titles, Queen of Ireland, but before her Coronation, that the royal title was changed to refer to “the United Kingdom of Great Britain and Northern Ireland” (John Coakley, p53). 497 Parliament of Northern Ireland, King’s Speech 1921-1951/Queen’s Speech 1952- 1960, Parliamentary Library of Northern Ireland (author’s collection). Queen Elizabeth’s Great Seal of Northern Ireland was delivered to the Governor, the 2nd Baron Wakehurst, on 5 November 1953 at a meeting of the Privy Council of Northern Ireland, after which the 1938 seal was ceremonially defaced with a hammer by the Clerk of the Council. 498 David Miller, Queen’s Rebels: in Historical Perspective, London: Gill & Macmillan, 1978. 499 Michael Laffan, p113. 500 F. H. Newark, 1953, p16. The Royal Commission on Scottish Affairs had concluded in 1954 that “however well adapted to conditions there”, Northern Ireland-style devolution “would not further the special needs and interests of Scotland” (Cmnd 9212, Edinburgh: HMSO, July 1954, para 166). 104 Parliament and Northern Ireland, 1921-2021

Thus full self-government would be against Northern Ireland’s economic interests. It would be against the whole trend of world development. For, with growing acceptance of the doctrine that governments have a duty to exercise deliberate control over the economic climate of their respective countries, and to co-ordinate in ensuring that they do not undermine each others’ efforts in this respect, the whole drift it towards closer economic union, both within and between the different countries, coupled with devolution of administration.501 R. J. Lawrence agreed, concluding that if Northern Ireland had to fund its own “Imperial” services, then “she would either have to cut domestic spending by some £50m a year or raise that sum by taxation. Either course would be catastrophic.”502 Newark also identified a “third course” which he called “back to Westminster”, i.e. repeal of the 1920 Act “and a reversion to the original principles of the Union”.503 This “integrationist” argument would later be made by the Conservative-turned-Ulster Unionist politician (see Section 10.2). While foreign and Commonwealth affairs were clearly reserved matters under the 1920 Act, during the 1950s and 1960s Prime Ministers of Northern Ireland began to attend the annual Commonwealth Prime Ministers’ Conference, although this was a matter of courtesy rather than of right.504

7.6 Northern Ireland Act 1955 The monarch’s representative in Northern Ireland continued to be the Governor, whose salary and expenses were addressed by the UK Northern Ireland Act 1955. These were a reserved matter except as regards the Governor’s executive functions in relation to transferred matters. The Irish Free State (Consequential Provisions) Act 1922 had provided the Governor with £8,000 a year (75% of which was provided by the UK Parliament, the remainder by the Parliament of Northern Ireland), but this had proved insufficient, not least because it had to cover staff salaries as well as the Governor’s own. Clause 1 of the 1955 Act therefore followed the precedent of the Lord High Commissioner () Act 1948, which had permitted ad hoc payments from the Consolidated Fund.505 Northern Ireland was no longer required to contribute to the Governor’s salary. Other parts of the 1955 Act touched upon aspects of the . Section 4(1) of the Government of Ireland 1920 Act prohibited the Parliament of Northern Ireland from legislating on matters affecting the interests of the Crown, which included coroners and coroners' juries as

501 Keith S. Isles and Norman Cuthbert, An Economic Survey of Northern Ireland, Belfast: HMSO, 1957, p425 and 429. 502 R. J. Lawrence, p88. 503 F. H. Newark, 1955, p54. 504 F. H. Newark, 1955, p34. 505 It had proved impossible for the Lord High Commissioner to carry out the functions of his office within the expenses limits set out in a statute from 1832. 105 Commons Library Briefing, 21 December 2020

officers of the Crown. Section 5 therefore made clear Stormont’s ability to legislate in those areas. As per convention, this and the rest of the 1955 Act had been “strongly requested by the Government of Northern Ireland with the concurrence […] of the Lord Chief Justice of Northern Ireland”.506

7.7 The border On 12 December 1956 the Irish Republican Army (IRA) launched Operation Harvest with attacks on public buildings and RUC posts In Northern Ireland. These continued for the next five years. Sir Anthony Eden, who had succeeded Winston Churchill as Prime Minister in 1955, reminded the UK House of Commons that the Ireland Act 1949 had declared: Northern Ireland to be an integral part of the United Kingdom. This is a declaration which all parties in this House are pledged to support. The safety of Northern Ireland and of its inhabitants is, therefore, a direct responsibility of Her Majesty’s Government, which they will, of course, discharge.507 Viscount Brookeborough responded to these “Troubles” with renewed arguments for partition. Northern Ireland’s union with Great Britain, he wrote in a Government of Northern Ireland pamphlet, was “preserved not by a British garrison but by the declared will of the Northern Ireland people expressed through their elected Parliament – and that will is paramount”.508 In the same publication , the Northern Ireland Minister of Finance, said partition was “based not upon geographical, racial or language difference, but on differences of ideas”.509 He said Éire [sic] had press censorship, while Northern Ireland did not. “Eire has disowned the Crown,” added Maginess, “we in Ulster revere it as the symbol of the headship of a great family of nations of which we are a unit.”510

7.8 Disqualification from parliament(s) In 1954, an Irish Republican called Thomas James Mitchell had taken part in a raid on barracks. He was imprisoned and, while in jail, twice elected to the UK House of Commons. He first won Mid-Ulster on an abstentionist platform for Sinn Féin at the 1955 general election, the first successful candidate in an Ulster constituency since 1918. The provided that anyone convicted of or felony and sentenced to a term of imprisonment exceeding 12 months was incapable of being elected to or sitting in the House of Commons.

506 HC Debs 31 January 1955 Vol 536 cc734-41 507 HC Debs 19 December 1956 Vol 562 cc1265-66 508 Government of Northern Ireland, Why the Border must be: The Northern Ireland Case in brief, Belfast: HMSO, 1956, p4. 509 Government of Northern Ireland, p8. 510 Government of Northern Ireland, p11. The failure of the Republic of Ireland’s “Mother and Child” reforms in 1951 had also been regarded “as a perfect justification for the Partition of Ireland” (See John E. Sayers, p56). 106 Parliament and Northern Ireland, 1921-2021

On 18 July 1955 a resolution of the House of Commons formally declared that Mitchell was covered by this provision and ordered that a by-election be held. Mitchell once again stood as a candidate, facing the same Ulster Unionist Party opponent as in the general election. He won the election with an increased majority of 806. On this occasion, Mitchell’s defeated opponent lodged an Election Petition, claiming to have won on the basis that voters knew Mitchell to be disqualified and therefore incapable of election. The declared that Mitchell was not duly elected and awarded the seat to Beattie. The following year, Beattie was himself disqualified from the UK Parliament, as he held appointments which were legally “offices of profit under the crown”. In February 1956 the UK Commons debated a Bill to indemnify Beattie from “any penal consequences which he may have incurred” while holding offices created by National Insurance legislation passed by the Parliament of Northern Ireland.511 In March 1956, the UK Parliament was also required to indemnify four members of the Northern Ireland House of Commons, including the former Speaker Sir Norman Stronge and former Minister of Commerce Sir William McCleery, as well as two members of its Senate, one of whom was deceased. They too had held offices of profit under the Crown. The law relating to disqualification from membership of both the Northern Ireland and UK Parliaments was reserved under the 1920 Act.512 The House of Commons Disqualification Act 1957, meanwhile, disqualified ministers in the Government of Northern Ireland from becoming Members of the UK House of Commons (but not the House of Lords).513

7.9 Northern Irish peers Another anomaly when it came to Northern Ireland’s representation in the UK Parliament related to the House of Lords. The Act of Union 1800 had provided for the “election” of 28 Irish representative peers to sit in the House of Lords for life. There was no provision in the 1920 Act for continuing these elections, while the Irish Free State (Consequential Provisions) Act 1922 (“the 1922 Act”) had abolished the position of Lord Chancellor of Ireland, who had been responsible for administering the election of Irish peers. No further elections took place after 1922, but the existing Irish representative peers continued to sit in the House of Lords. Sir Hugh O’Neill, the Ulster Unionist MP, had raised this “constitutional anomaly” during debates on the Ireland Bill in 1949, arguing that

511 In 1951, the UK House of Commons had also indemnified the Reverend J. G. MacManaway, who had been disqualified from sitting in the UK Commons on account of being an ordained priest of the . 512 HC Debs 8 March 1956 Vol 549 c2313-15 513 Harry Calvert, p148. 107 Commons Library Briefing, 21 December 2020

Northern Ireland “should have the right to its quota of Irish representative Peers”.514 Another Ulster Unionist MP, Harford Montgomery Hyde, quoted Sir Hugh’s words during a UK Commons debate on the Life Peerages Bill in April 1958. Although this Bill made Irish peers (most of whom were not able to sit in the Lords) eligible for UK life peerages, he considered the matter still not to be “completely settled”: Of the 66 existing Irish peers, about a dozen have a special connection with Northern Ireland through residence or other interests, and I hope that their claims will be remembered when the new life peers are being created. On these grounds particularly, I welcome the Bill, and I am sure that it will also be welcomed by that section of the community which has tended to be somewhat overlooked in our constitutional development, namely, the peers of Ireland.515 The last Irish died in 1961. The ended the election of Scottish representative peers, of which there had been 16 since the 1707 Act of Union. The Act also removed a ban on Peers of Ireland voting in elections to the UK House of Commons, or sitting in the UK Commons without losing the privilege of a peerage. In 1966, the Committee of Privileges of the House of Lords ruled that the provisions of the 1800 Act of Union relating to Irish representative peers had ceased to be effective on the passing of the 1922 Act. The relevant clauses were repealed by the Statute Law () Act 1971.

7.10 Northern Ireland Act 1962 As Viscount Kilmuir, the then Lord Chancellor, stated in 1962, “Northern Ireland has a written Constitution, which is contained in the Government of Ireland Act, 1920, as amended from time to time”.516 The Northern Ireland Act 1962 was the last piece of UK legislation to significantly amend the 1920 Act. John Oliver believed that six words in that Act, “or take any property without compensation”, had produced the “most inhibiting effect on town and country planning and slum- clearance legislation” in Northern Ireland, being “responsible for many of the eyesores to be seen in our physical environment today”.517 Harry Calvert called it the “most thoroughly litigated provision of the Northern Ireland constitution”.518 Section 5 of the 1920 Act also limited “the purposes for which the property of religious denominations may be taken even on payment of compensation”. Clause 13(1a) of the 1962 Act therefore made it possible for the Parliament of Northern Ireland “to authorise the compulsory acquisition of land belonging to

514 HC Debs 11 May 1949 Vol 464 c1877 515 HC Debs 2 April 1958 Vol 585 c1267 516 HL Debs 1 February 1962 Vol 236 c1125 517 John Oliver, 1978, p24. 518 Harry Calvert, p178. 108 Parliament and Northern Ireland, 1921-2021

religious and educational bodies […] for the purpose of housing, slum clearance and the development or redevelopment of any area”. Clause 17 of the 1962 Act, meanwhile, enabled Stormont to legislate so as to prevent cruelty to horses, asses and mules when exported from Northern Ireland, whether by land, sea or air. “It is unlikely that many old or worn-out horses are, in fact, exported from Northern Ireland,” observed Viscount Kilmuir during Lords consideration of the Bill, “but it is clearly desirable that Parliament at Stormont should be able to introduce their own legislation on this subject.”519

7.11 “Treasury control” An Economic Survey of Northern Ireland first commissioned by the Ministry of Finance in 1947 was finally published a decade later. Its authors, the economists Kenneth Isles and Norman Cuthbert, observed that the “outstanding feature” of financial relations between the UK and Northern Ireland governments was “their smoothness”.520 Isles and Cuthbert also examined ongoing arguments for greater fiscal autonomy: The argument appears to rest on two distinct ideas, the one political and the other economic. The political argument is that when the Labour party is in power in Great Britain the government [of Northern Ireland] is forced, in the name of the principle of parity of services, to enact socialist legislation, whether it likes it or not. The economic argument is that Northern Ireland has to contribute (through the imperial contribution) towards the cost of any unprofitable ventures of the central government, for example towards any loss on nationalised industries.521 So while constitutionally the Government of Northern Ireland had the power “to make a very large reduction in total taxation”, given that this “could only be made at the cost of having a correspondingly lower expenditure on transferred services (not at the expense of the imperial contribution) there [was] a serious risk that it would do more harm to the provincial economy”.522 This led R. J. Lawrence to state bluntly that Northern Ireland was “subject to Treasury control”.523 Indeed by the 1950s it had become a tradition for Northern Ireland’s Minister of Finance to visit the Treasury on UK for “the privilege of learning in advance the main outline of the Budget proposals”.524 As the Royal Commission on the Constitution later recounted, following that visit the Government of Northern Ireland would work out its estimates of revenue and expenditure, discuss them with the Treasury and frame its own budget “in the light of that discussion”:

519 HL Debs 1 February 1962 Vol 236 cc1125-31 520 Keith S. Isles and Norman Cuthbert, p407. 521 Keith S. Isles and Norman Cuthbert, p409. 522 Keith S. Isles and Norman Cuthbert, p420. 523 R. J. Lawrence, p90. 524 Kenneth Bloomfield, 1994, p29. 109 Commons Library Briefing, 21 December 2020

Just before the Northern Ireland budget in May there would be a meeting of the Joint Exchequer Board to fix Northern Ireland's residuary share of reserved taxation and to determine the imperial contribution. This operation put Northern Ireland in funds to the desired extent. In practice the role of the Joint Exchequer Board was purely formal. The two sides reached agreement in advance, and the Board gave formal authority to what had been decided.525 As the Royal Commission observed, “policies with substantial spending implications were ultimately dependent upon a favourable response from the Treasury”.526 Even changes to the salaries and pensions of Stormont MPs were later referred to the UK Treasury for its approval.527 Lord Alness, a retired Scottish judge and former Scottish Secretary, had chaired the Joint Exchequer Board (JEB) since 1930. In 1955 he was succeeded by another Scot, Sir John Erskine, Scots being considered “sort of neutral between the Governments in Westminster and in Belfast”.528 Responding to criticism of the JEB in a letter to The Economist, Sir John maintained that it agreed Northern Ireland’s Imperial Contribution “not only in theory but in practice”.529 The parity principle (and pressure from the Treasury) also constrained Stormont’s room for manoeuvre when it came to benefits. In April 1956, family allowances were increased in Great Britain for the third and fourth child. In Northern Ireland, the Minister of Labour proposed new rates which would even out the increases to include the second child but cost the same overall (in line with the 1938 agreement). This was criticised by Ulster Unionist MPs and other groups in Northern Ireland as discriminatory because it would give less to later children, thus disproportionately affecting Catholics. It was also “indicated discreetly from London that a very poor view indeed would be taken of such an initiative, and the Northern Ireland Government abjectly retreated”.530 The Minister of Labour reverted to the Great Britain rates.531 There remained, however, modest divergence in other areas. In 1958, death duties on Northern Ireland estates worth between £10,000 and £125,000 were lower than in Great Britain, while motor vehicle duties were slightly higher.532 The Treasury’s presence was increasingly felt in other Northern Ireland ministries as a consequence of Agency arrangements and ad hoc subsidies. By 1953, D. A. E. Harkness estimated that five-eighths of the activities of the Northern Ireland Ministry of Agriculture were in respect of Imperial services.533 Building on the 1938 Agreement, the UK Agriculture Act 1957 also paid to the Northern Ireland Exchequer a

525 Royal Commission on the Constitution, para 1301. 526 Royal Commission on the Constitution, para 1301. 527 R. J. Lawrence, p91. 528 James Mitchell, 2006, p59. 529 The Economist, 13 October 1956. 530 Kenneth Bloomfield, 2007, p12. 531 Sam Logan, p135. 532 R. J. Lawrence, p89. 533 D. A. E. Harkness, “Agricultural Administration” in D. G. Neill (ed), 1953, p49. 110 Parliament and Northern Ireland, 1921-2021

special subsidy to offset their remoteness from markets on the mainland.534 Regardless of who controlled what, parity achieved its desired effect. As Kenneth Bloomfield observed, by 1963 Northern Ireland “enjoyed in many important fields standards fully comparable with those in Britain, and in almost every respect far in advance of those in the Irish Republic at that time”.535

7.12 Economic development Just as the 1920 Act had not anticipated the huge expansion of social services after the War, nor had it made any provision for “national economic planning”,536 something both Labour and the Conservatives took increasingly seriously in the 1950s and 1960s. Economic development was, therefore, another grey area in constitutional terms. R. J. Lawrence observed that Stormont had “formal responsibility for employment and economic matters but little real power, while Westminster has power but no formal responsibility.”537 In response to growing concerns about high levels of unemployment in Northern Ireland,538 the Conservative politician R. A. Butler made it clear on a visit to Stormont in March 1961 that Stormont bore the ultimate responsibility for generating industrial development.539 Isles and Cuthbert had concluded, however, that the financial provisions of the 1920 Act were “too restrictive to permit it [the Government of Northern Ireland] to interfere in any very fundamental way either with the form or with the rate of economic development”.540 Another Westminster-Stormont “study group” of senior officials looked again at unemployment in 1961. Its Northern Ireland members asked for a manufacturing employment subsidy from the UK Treasury, which was refused. Sir Robert Hall submitted his report to the Home Secretary and Prime Minister of Northern Ireland on 8 June 1962.541 Provision already existed for the Northern Ireland Ministry of Finance to divert revenue from the Imperial Contribution to a capital-purposes fund to support industrial development.542 But after 1963, the UK government took further measures to improve Northern Ireland’s financial position, which included providing special payments to encourage industrial development (half of which were charged against the Imperial Contribution).543

534 R. J. Lawrence, p80. 535 Kenneth Bloomfield, 1994, p63. 536 Harry Calvert, p176. 537 R. J. Lawrence, p175. 538 See, for example, HC Debs 30 March 1960 Vol 620 c1402 539 Sam Logan, p133. 540 Keith S. Isles and Norman Cuthbert, p301. 541 Report of the Joint Working Party on the Economy of Northern Ireland, Cmnd 1835, London: HMSO, October 1962. 542 Henry Patterson, p116. 543 R. J. Lawrence, pp87-88. 111 Commons Library Briefing, 21 December 2020

Other initiatives floundered. The Northern Ireland civil servant Kenneth Bloomfield recalled a Treasury offer to locate the headquarters of its Premium Bonds scheme in Northern Ireland, “with the prospect of creating a large number of new jobs in an area of high unemployment”. But, anticipating “clerical criticism for encouraging gambling”, the Government of Northern Ireland rejected it.544 The UK Treasury did agree to attribute Northern Ireland’s share of revenue from customs and excise duties on a population basis (2.5 per cent) rather than on the basis of the proportion actually collected. Forecasts, however, still suggested that additional revenue would be required for Stormont to avoid a budget deficit.545 A 1961 Treasury memorandum listed Imperial Contribution payments alongside what would have been paid to Northern Ireland on a “crude population basis” and concluded that the “degree of subsidy was significant”.546 As James Mitchell has observed, by the early 1960s Northern Ireland’s financial arrangements “bore little semblance to their statutory basis”. R. J. Lawrence agreed that the financial provisions of the 1920 Act were largely “legal fictions” by the mid-1960s.547 The 1920 Act’s list of reserved taxes were also extended. Purchase tax had been added in 1940, while the UK added capital gains and corporation tax.548 7.13 Northern Ireland at Westminster Increasing engagement by the UK government on the economic situation in Northern Ireland also eroded long-standing restrictions on the discussion of transferred matters at Westminster. On 12 November 1957, for example, the Ulster Unionist MP H. Montgomery Hyde spoke at length about the economy of Northern Ireland in a debate on the Queen’s Speech and was not ruled out of order, while in November 1962 William , the Ulster Unionist MP for Belfast North, noted a “certain gap in Ministerial responsibility concerning Northern Ireland”: I ask the Home Secretary to cast his eyes over and to consider reviewing the overall system of Ministerial and Government responsibility between the two Governments. The situation in which the Home Secretary is directly responsible for Northern Ireland as a senior member of the Cabinet is in my view a good idea. I should not wish it to be interfered with, but I wonder whether there is not now a case for having a solely responsible for Northern Ireland under the Home Secretary. Such a Minister, I suggest, might sit in the House of Lords so that he would be able to get around much more both in England and in Northern Ireland. There is a respectable precedent for this in Wales. Such a Minister would be essentially a person with a

544 Kenneth Bloomfield, 2007, p158. 545 James Mitchell, 2006, pp55-71. 546 James Mitchell, Devolution in the UK, Manchester: Manchester University Press, 2009, p81. 547 R. J. Lawrence, p88. 548 Harry Calvert, p89. 112 Parliament and Northern Ireland, 1921-2021

Northern Ireland background. On many occasions he might regularly attend Northern Ireland Cabinet meetings by invitation. I think the system which operated before 1921, in which the Chief Secretary for Ireland had a foot on either side of the Irish Sea, is one to which in some measure we should attempt to return.549 Stratton Mills’ proposal was not taken up by the UK government. Harry Calvert, meanwhile, criticised certain Speakers of the UK House of Commons for what he considered their “rigid exclusion of questions concerning transferred matters”.550 Unlike the less exclusive practice at Westminster, the Speaker of the Northern Ireland House of Commons was always selected by the Ulster Unionist Party. In 1962, the Nationalist Party, which held nine seats, tried to get one of their MPs in the chair but failed. In the Senate, as already noted, a Nationalist Senator became Deputy Speaker in 1965. Nationalist MPs at Stormont had long refused to form an official opposition in the Northern Ireland House of Commons, leading its Terence O’Neill (1914-90) Speaker to recognise a Northern Ireland Labour Party MP as Leader of Terence O’Neill was the Opposition. an Ulster Unionist politician and the 7.14 Northern Ireland in the mid-1960s fourth Prime In March 1963 Viscount Brookeborough resigned on health grounds Minister of Northern Ireland after 20 years as Prime Minister of Northern Ireland.551 He declined to between 1963 and recommend a successor, having earlier promised Ulster Unionist MPs 1969. Born and and Senators that the choice would be theirs. educated in Ignoring this, Lord Wakehurst, the Governor of Northern Ireland, asked England, he was Terence O’Neill, Minister of Finance since 1956, “over a whiskey and elected to the soda at Government House” to become Prime Minister.552 O’Neill Parliament of Northern Ireland in agreed.553 The following year, O’Neill advised the appointment of Lord 1946. O’Neill served Erskine (chairman of the Joint Exchequer Board) to succeed Wakehurst, as Minister of Home believing the appointment of a Scottish Presbyterian would better Affairs and Minister 554 represent the majority denomination in Northern Ireland. of Finance before O’Neill continued a tradition in which Prime Ministers of Northern becoming Ulster Unionist Party Ireland met with the UK premier or Home Secretary, although these leader and premier were usually courtesy visits. In his memoirs, O’Neill gives an account of a in 1963. He became meeting in 1963, when Macmillan was surprised his Lord O’Neill of the Northern Ireland counterpart wanted to talk about anything other than Maine in 1970 and the weather.555 died in 1990.

549 HC Debs 22 November 1962 Vol 667 cc1479-80 550 Harry Calvert, p97. 551 Maynard Sinclair, Minister of Finance in 1943-53 and de facto Deputy Prime Minister, had once been regarded as Brookeborough’s natural successor, but he was drowned when the Stranraer to Larne ferry MV Princess Victoria sank on 31 January 1953. 552 O’Neill’s maternal grandfather was the 1st Marquess of Crewe who, as Liberal Leader of the House of Lords in 1914, had introduced the amending Bill which proposed the temporary exclusion of Ulster from the Third Home Rule Bill (see Section 2.2). 553 Marc Mulholland, Northern Ireland at the Crossroads: Ulster Unionism and the O’Neill Years, 1960–69, London: Palgrave Macmillan, 2000, p24. 554 Donal Lowry, p107. 555 Terence O’Neill, The Autobiography of Terence O’Neill: Prime Minister of Northern Ireland 1963-1969, London: Rupert Hart-Davis, 1972, p47. 113 Commons Library Briefing, 21 December 2020

O’Neill set out to modernise the Government of Northern Ireland and the Ulster Unionist Party in what became known as “O’Neillism”. He set out a new code of conduct for ministers in June 1963, established a Northern Ireland Economic Council in 1964, and replaced the Ministry of Health and Local Government with a new Ministry of Development in 1965 (as recommended by the Matthew Report).556 O’Neill made a point of sending condolences upon the death of Pope John and visited a Catholic school, both radical departures for an Ulster Unionist politician. There was also a détente in relations with the Republic of Ireland. Brookeborough had maintained that no constructive relationship with Dublin was possible because of its territorial claim to Northern Ireland, but in July 1963, shortly after O’Neill became Prime Minister, the Irish Taoiseach recognised in a speech that the Government and Parliament of Northern Ireland existed “with the consent of the majority”.557 O’Neill responded by inviting Lemass to Belfast where, on 14 January 1965, Ireland’s two met for the first time since 1922. The meeting at (an encounter criticised by some Unionists) covered possible areas of cross-border co-operation. The following month, O’Neill paid a reciprocal visit to Dublin. Later that year, reflecting these new realities in the North-South relationship, Nationalists agreed to act as the official opposition at Stormont for the first time.

556 Henry Patterson, p186. 557 Kenneth Bloomfield, 1994, p80. 114 Parliament and Northern Ireland, 1921-2021

8. The 1920 Act under pressure, 1966-72

The mid-to-late 1960s marked a decisive phase in the constitutional development of Northern Ireland. Instead of the UK Parliament and government maintaining the self-denying ordinance in place since 1922, it increasingly responded to calls for intervention in areas transferred to the Parliament and Government of Northern Ireland. This culminated in the outbreak of the period known as the “Troubles” in 1969 and the imposition of “Direct Rule” from Westminster in 1972. This section explores the events which led to the UK Parliament and government effectively suspending the Government of Ireland Act 1920 after more than half a century of devolution in Northern Ireland.

8.1 Labour and Northern Ireland The Labour leader , who became UK Prime Minister in October 1964, took office with a more sceptical view of both devolution in Northern Ireland and the Ulster Unionist Party.558 Wilson – whose Liverpool Huyton constituency included a substantial Irish electorate – was particularly unhappy that Ulster Unionist MPs tended to vote with the Conservative opposition at Westminster, thereby negating his party’s slim overall majority. While Sir , Wilson’s first Home Secretary, said of Ulster Unionism that “we watch it, we admire it and we rejoice in it”,559 the Prime Minister raised the voting rights of Ulster Unionist MPs with his Attorney General in 1965, and again during a meeting with Terence O’Neill. He referred to “an apparent lack of logic” about a situation in which MPs from Northern Ireland could “swell the Tory ranks” in opposition to UK legislation on steel “when we have no power to vote on questions about steel in Northern Ireland”.560 Wilson repeated this point when the Conservative Leader of the Opposition, Sir Alec Douglas-Home, asked him if he stood by Clement Attlee’s pledge of 28 October 1948 that no change would be made to the constitutional status of Northern Ireland without its agreement. The Prime Minister said he stood by that pledge but added that: It is certainly the case that Northern Ireland Members have great duties to perform here in the sense of foreign affairs, defence, and matters affecting Northern Ireland, including taxation and expenditure. What was not envisaged, I am sure, in 1920 was that those who came here with that responsibility for representing Northern Ireland interests should just become hacks supporting the English Tory Party.561 In January 1966, Wilson wrote to Herbert Bowden, the Leader of the House of Commons, again emphasizing the need to investigate the

558 Alvin Jackson, 2011, p467. 559 Belfast Telegraph, 29 April 1965. 560 HC Debs 6 May 1965 Vol 711 c1560 561 HC Debs 6 May 1965 Vol 711 cc1561-62 115 Commons Library Briefing, 21 December 2020

possibility that Northern Ireland’s MPs should be prevented from voting on “purely domestic matters affecting Great Britain”. Some of the urgency was taken out of this issue after , however, when the UK Labour government was returned with an increased majority following a general election.562 There were other straws in the wind. Paul Rose, a Manchester Labour MP, campaigned within the Parliamentary Labour Party for an end to the convention whereby the UK government did not intervene in matters transferred to the Government and Parliament of Northern Ireland. 563 He and other Labour activists formed the Campaign for Democracy in Ulster (CDU) in early 1965. This focused on section 75 of the 1920 Act regarding the supremacy of Westminster over “all persons, matters and things” in Northern Ireland. The CDU saw this as a possible basis for intervention in transferred areas as well as the justification for a Royal Commission to investigate discrimination.564 A Home Office memo in November 1964 had concluded that: Section 75 of the 1920 Act certainly provides technical authority for the United Kingdom parliament to impose legislation on Northern Ireland against the wishes of that government, but the consequences of such an act could only be a disastrous rupture between the two governments.565 During Wilson’s second government (1966-70), meanwhile, Stormont came under pressure to adopt Westminster reforms to laws governing abortion, homosexuality, divorce and capital punishment – all transferred matters under the 1920 Act.566 As the Royal Commission on the Constitution later noted, the Parliament of Northern Ireland could also exercise its autonomy in “deliberately not legislating in some matters […] which had been the subject of legislation at Westminster”.567 The seaman’s strike of 1966, meanwhile, revealed “a gap” between the emergency powers of Stormont and Westminster in that the former’s were limited to transferred services while the UK Parliament’s could only be exercised within Great Britain. So in an emergency affecting only Northern Ireland or in one affecting the whole of the UK, Stormont was not able to take action on reserved services such as merchant shipping, aerial navigation and the Post Office, and neither could Westminster in Northern Ireland.568

562 Alvin Jackson, 2011, p468. 563 Kenneth Bloomfield, 1994, p98. 564 Henry Patterson, pp196-97. 565 Henry Patterson, p195. 566 Stormont had also voted to maintain the death penalty in 1962. 567 Royal Commission on the Constitution, para 1262. On analysing the 190 Acts passed by the Parliament of Northern Ireland between 1965 and 1970, the Royal Commission found that 36 closely followed Westminster statute; 76 were peculiar to Northern Ireland and 62 fell somewhere in between those two categories. 568 Royal Commission on the Constitution, Written Evidence 3, p19. 116 Parliament and Northern Ireland, 1921-2021

8.2 Financial relations The financial relationship between Great Britain and Northern Ireland continued to become increasingly complex. In 1966 the Residuary Share of Reserved Taxes (RSRT) paid to the Northern Ireland Exchequer was increased by raising its customs and excise attribution to 2.7% (see Section 7.11). Together with advances from the UK Consolidated Fund and an agreement to fix the Imperial Contribution at £2million, Northern Ireland was able to balance its budget.569 By this point, the RSRT also included attributions for capital gains and corporation tax collected from residents of Northern Ireland since 1965, while the Government of Northern Ireland’s transferred revenue had been augmented with betting duties and selective employment tax. With minor exceptions these were levied at the same rate as in Great Britain.570 Ignorance of these arrangements was widespread. On 12 September 1968, the Labour Cabinet minister recorded in his diary that neither the Chancellor nor Chief Secretary to the Treasury understood the formula under which Northern Ireland received an annual subvention.571 later recalled that when he became Home Secretary (with responsibility for Northern Ireland relations) in 1967, he was greeted with civil service briefing papers on everything except Northern Ireland.572

8.3 Northern Ireland in 1966-68 April 1966 saw events marking the 50th anniversary of the Easter Rising in Dublin and Belfast. The unionist historian Hugh Shearman wrote that the “spectacle of the republican flag being carried through Ulster streets revived memories which stirred intense anger”.573 Terence O’Neill also believed this had produced a different, more fraught atmosphere.574 Unionists had commemorations of their own, including one to commemorate 50 years since the Battle of the Somme (see Section 2.3). Militant also began to manifest itself, with the preacher leading opposition to the perceived compromises of “O’Neillism” and, in particular, its willingness to engage with the Republic of Ireland. The group of back-bench Labour MPs led by Paul Rose, meanwhile, “began to seek – and on occasion to find – ways of raising ‘the question of Ulster’ on the floor of the House of Commons”.575

569 James Mitchell, 2006, p66. 570 NIO/HM Treasury, Northern Ireland: Financial Arrangements and Legislation, Cmnd 4998, June 1972, p5. 571 Richard Crossman, The Diaries of a Cabinet Minister Volume Three, London: Hamish Hamilton & Jonathan Cape, 1977, p187. 572 See James Callaghan, A House Divided: The Dilemma of Northern Ireland, London: HarperCollins, 1973. 573 Hugh Shearman, p188. 574 Henry Patterson, p197. 575 Kenneth Bloomfield, 2007, p17. 117 Commons Library Briefing, 21 December 2020

Significant in this respect was the election of the (RLP) politician to the UK House of Commons at the March 1966 general election. Not only was the RLP a “sister” party to Labour in Great Britain,576 but Fitt was also determined to challenge existing parliamentary conventions governing the discussion of Northern Ireland at Westminster. During a debate on the UK Consolidated Fund Bill in August 1966, Fitt called these conventions “entirely illogical” and said his “interpretation” of Section 75 of the 1920 Act was that: this gives ultimate and over-riding responsibility to the Parliament of the United Kingdom, and as the representative of Belfast, West, as the representative of 26,000 people, I stand here to demand of the British Government that they accept the responsibility which they themselves have written into this Act of 1920. The Deputy Speaker, Sir Eric Fletcher, said his predecessors in the chair had “ruled repeatedly that matters within the competence of the Northern Ireland Government […] are not subjects for debate in this House”. This led to a lengthy debate as to whether Section 75 of the 1920 Act permitted questions on transferred matters. The Deputy Speaker held firm to the 1923 ruling, while Fitt said they were: discussing a Bill which makes way for the payment of massive subventions of British taxpayers' money, money of the constituents of my hon. Friends who are paying Income Tax to the Treasury which in turn is paid out to the Northern Ireland Government, but none of my hon. Friends can question how that money is spent. That is an absolutely farcical situation.577 Later in the debate, Alice Bacon, Minister of State at the Home Office, argued that Section 75 preserved: the supreme authority of Parliament but not the Government of the United Kingdom over all persons, matters and things in Northern Ireland. I stress that the word used is "Parliament", not "Government". This means that in no event can there be any question of the United Kingdom Government interfering in transferred matters without legislation passed by virtue of that Section. It would need legislation by this Parliament. It is perfectly possible for the United Kingdom Parliament to change the situation by passing legislation.578 Bacon acknowledged calls for an inquiry into the working of the 1920 Act but said the UK government preferred “informal talks” with the Prime Minister of Northern Ireland, the first of which had recently taken place.579 Upon rejecting a Royal Commission on the administration of Northern Ireland in April 1966, , the then Home Secretary, said he and the Prime Minister had “not concealed” from the Prime Minister of Northern Ireland “the concern felt” at Westminster:

576 The UK Labour Party was not registered in Northern Ireland, did not contest elections there and did not accept membership applications from its citizens. 577 HC Debs 8 August 1966 Vol 733 cc1276-1311 578 HC Debs 8 August 1966 Vol 733 c1305 579 HC Debs 8 August 1966 Vol 733 c1307 118 Parliament and Northern Ireland, 1921-2021

After all, Northern Ireland is part of the United Kingdom […] but that unity can have little meaning unless we work towards common economic and social standards and common standards in political tolerance and non-discrimination on both sides of the Irish Sea. There is room for argument […] about the pace which is practicable or desirable. But we must at least be satisfied about the direction. Provided we can be so satisfied, there is a great deal to be said for not trying to settle the affairs of Northern Ireland too directly from London.580 The Speaker’s 1923 ruling was raised again in November 1966. The Labour MP Kevin McNamara (a future Shadow Northern Ireland Secretary) asked if the Prime Minister would introduce “amending legislation to enable all Northern Ireland matters to be raised in the House of Commons of the United Kingdom”.581 McNamara expressed: considerable concern on this side of the House that, whereas the hon. Member for Londonderry ([Robin] Chichester-Clark) can ask questions about direct building schemes in , we cannot ask questions about discrimination in housing matters in the hon. Member's constituency. The Prime Minister replied that there was “certainly illogicality here”, adding that there had been cases: When majorities were smaller than at present, when a Government could have fallen with a Northern Ireland vote on Rachmanism in London, although nothing could be said about housing conditions in Belfast. This is part and parcel of the long- standing arrangement between the two countries. In our talks with Captain O'Neill, my right hon. Friend the Home Secretary and I have been trying to discuss with him some of the questions on which there is anxiety on both sides of the House. Wilson added that O’Neill had “shown very great courage in this last year or two in standing up to some of the most reprehensible types of activity in Northern Ireland”, including “the very squalid mock religious campaign mounted against Captain O'Neill as a result of his actions”.582 Gerry Fitt then raised what he called a “completely undemocratic electoral system, allied to […] vicious gerrymandering in Derry City”, and asked if the Prime Minister would “impress” upon O’Neill in future talks the “necessity of implementing British standards in electoral law in Northern Ireland”. Wilson responded that: Where there are breaches of the law, that is a matter for the prosecuting authorities and not for Her Majesty's Government. I agree that over a period of time all these questions should be discussed with the Government of Northern Ireland because they affect […] representation in this House.583

580 HC Debs 25 October 1967 Vol 751 c1686 581 Legislation was unnecessary given it was a matter for the Speaker and the UK House of Commons. 582 It was the convention at Westminster to use Members’ wartime rank. “Rachmanism” was a reference to Peter Rachman, a London landlord whose practices became notorious in the early 1960s. 583 HC Debs 15 November 1966 Vol 736 cc224-28 119 Commons Library Briefing, 21 December 2020

In October 1968, Kevin McNamara asked the to refer to the Select Committee on Procedure “the convention whereby members of the House are unable to discuss matters or table questions relating to the administration in Northern Ireland”. Fred Peart replied that the House was “already free to discuss, on an appropriate Motion, those Northern Ireland affairs which are within the transferred field”. The 1923 Speaker’s ruling was finally superseded when Harold Wilson said he would personally answer questions on all Northern Ireland matters.584 Harry Calvert understood from his Home Office sources that “section 75 should only be used in the most exceptional circumstances”,585 while R. M. McBirney QC believed the time had come for “a careful reappraisal” of the Government of Ireland Act 1920, which had “now been enlarged and amended to such an extent that a new consolidating Act is required”. He argued that: A Constitution is a living body – not a mummy. It grows and changes; it needs re-consideration and revision, it needs to be adapted to changing circumstances. It needs occasional revitalisation. I look forward to the day when we really have [...] an Act that we can properly call the Government of Northern Ireland Act.586 Writing at around the same time, Harry Calvert presciently observed that: Should a government at Westminster ever become impatient with the conduct of Northern Ireland affairs, it might be revealed that the independence which Northern Ireland enjoys is based on no surer foundation than courtesy.587

8.4 Civil rights demonstrations On 5 October 1968, William Craig, the Northern Ireland Minister of Home Affairs, banned a march in Derry/Londonderry by the Northern Ireland Civil Rights Association (NICRA).588 When this nevertheless went ahead, it was met with violence from the Royal Ulster Constabulary. The MP Gerry Fitt was hospitalised and Terence O’Neill was summoned to London by Harold Wilson. Television images had drawn international attention to Catholic grievances in Northern Ireland, which put pressure on the UK government to act. The aims of the NICRA (which included liberal Unionists among its members) were abolition of the rate payers’ franchise, an end to

584 Harry Calvert, p110. 585 Harry Calvert, p92. 586 R. M. McBirney, "Stormont-Westminster Relations" in Edwin Rhodes (ed), Public Administration in Northern Ireland, Londonderry: Magee University College, 1967, p13. 587 Harry Calvert, p57. 588 The NICRA had been founded in 1967 with a constitution modelled on that of the National Council for Civil Liberties in Great Britain. In the view of Brendan O’Leary, it was “spearheaded by a new Catholic middle class […] who had grown up under the British welfare state” (Brendan O’Leary, p160). Graham Walker noted that education “did not feature in the catalogue of issues highlighted” by the NICRA (Graham Walker, p78). 120 Parliament and Northern Ireland, 1921-2021

electoral gerrymandering, prevention of discrimination in the allocation of government jobs, the fair allocation of council housing,589 repeal of the Special Powers Act,590 disbandment of the B-Specials (part of the Ulster Special Constabulary established in 1920) and the creation of a complaints procedure for breaches of these aims.591 To the civil servant Robert Ramsay, the “cardinal sins” of the Government of Northern Ireland were: ones of omission rather than commission – principally and fatally their failure to deal with the shortcomings of local authorities. They did not address this problem until too late in the day and, secondly, they hid behind the legal position regarding the powers of Local Government, the sphere in which minority grievances were most acute and justified.592 Derry/Londonderry, for example, represented a clear-cut case of gerrymandering. Carefully drawn wards meant the city’s majority Catholic population was governed by a local authority with a majority Protestant/Unionist administration. The academic John Whyte judged that while Northern Ireland’s local government franchise “made only a slight difference to election results”, the charge that local government boundaries had been gerrymandered was “much more firmly based”: “Nationalists were manipulated out of control in a number of councils where they had a majority of electors.” This, added Whyte, was “one of the clearest areas of discrimination in the whole field of controversy”.593 In November 1968, Harold Wilson reported back to the UK House of Commons following a further round of discussions with Terence O’Neill. These had covered five main areas: the local government franchise, the allocation of housing, recent events in Derry/Londonderry, the Special Powers Act and the appointment of a Parliamentary Commissioner for Administration in Northern Ireland. Wilson said certain matters were “too urgent” to wait for consideration by the recently established Royal Commission on the Constitution,594 including discrimination and the Special Powers Act, “for which we bear international responsibility, [and] are matters which must be discussed urgently”.595 This had long proved difficult for the UK government, which had had to request a derogation from the obligations imposed by the European Convention on Human Rights.596 In response, the Government of Northern Ireland published a Five Point Reform Programme, which while welcome, Wilson said did “not meet

589 The civil rights agitation was sparked by the allocation of a house in to an unmarried Protestant girl rather than Catholic families in the area (John Whyte). 590 Following the murder of a Catholic in 1966, the Special Powers Act was used to ban a non-republican body for the first time. This was the , an extremist Protestant organisation (John Whyte). 591 History Resource website, Northern Ireland Civil Rights Association. 592 Robert Ramsay, Ringside Seats: An Insider’s View of the Crisis in Northern Ireland, Dublin: Irish Academic Press, 2009, pp34-35. 593 John Whyte. 594 The Royal Commission on the Constitution was constituted on 15 April 1969. 595 HC Debs 12 December 1968 Vol 775 c580-81 596 Martin Wallace, p95. For an exhaustive analysis, see also Brice Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland, Oxford: Oxford University Press, 2012. 121 Commons Library Briefing, 21 December 2020

what most of us consider to be desirable and certainly needs speeding up”; he believed there to be no “justification for the prolonged postponement of the principle of one-man, one-vote in Northern Ireland”.597

8.5 “Ulster at the crossroads” In a televised address on 9 December 1968, Terence O’Neill admitted that “external pressure rather than widespread enthusiasm for change had played a large part in [his government’s] reform programme”.598 The Prime Minister of Northern Ireland also quoted Section 75 of the 1920 Act and referred to the “sound custom” of non-interference by the UK Parliament in transferred matters. “But Mr Wilson made it absolutely clear to us”, he added, “that if we did not face up to our problems the Westminster Parliament might well decide to act over our heads.”599 At a Unionist rally in Belfast the following day, the Ulster Unionist minister William Craig said he would: resist any effort by any government in Great Britain, whatever its complexion might be, to exercise that power [Section 75 of the 1920 Act] in any way to interfere with the proper jurisdiction of the Government of Northern Ireland. It is merely a reserve of power to deal with an emergency situation. It is difficult to envisage any situation in which it could be exercised without the consent of the Government of Northern Ireland. O’Neill then sacked Craig for choosing “to dispute my views on Section 75 of the Government of Ireland Act and to say that any use of Westminster’s sovereign powers under that Section should be ‘resisted’.”600 As the civil servant Kenneth Bloomfield observed, Craig’s argument was “that the theoretical power saved by Section 75 had withered from desuetude and that any attempt to breach such a well-established convention would be unconstitutional”.601 But just as the UK Parliament could amend its own laws, it could also depart from its own conventions. On 19 December 1968, the Ulster Unionist MP Robin Chichester-Clark asked if it would “not be wise and timely if this House [the UK Commons] were now to leave them alone [the Government of Northern Ireland] to get on with that which they are fully entitled to do without let or hindrance?” Harold Wilson replied that: There is no doubt, as I have repeatedly emphasised to Captain O'Neill and to the House, that the reforms which have been called for are under the law and the convention within the jurisdiction of the Northern Ireland Government. But the hon. Gentleman must form his own view, as I know my hon. Friends will, about whether

597 HC Debs 12 December 1968 Vol 775 c580-81 598 Kenneth Bloomfield, 2007, p18. 599 Martin Wallace, p167. 600 Martin Wallace, p39. 601 Kenneth Bloomfield, 2007, p11. British officials apparently referred to Section 75 as their “hydrogen bomb” (Brendan O’Leary, p191). 122 Parliament and Northern Ireland, 1921-2021

they would have moved so rapidly or whether they would have done what has been done but for the acute concern expressed in many quarters of this House about the fact that these things were not being done with the required speed until a few weeks ago.602 Despite the reluctant actions of the Government of Northern Ireland, there were further demonstrations and violence in Northern Ireland during the beginning of 1969. A decision to appoint a commission to examine the disturbances led to the resignation of as Minister of Commerce and a motion of no confidence in the Prime James Chichester- Minister of Northern Ireland, which was signed by 12 Ulster Unionist Clark (1923-2002) 603 MPs. James Chichester- Terence O’Neill called a “snap” general election in February 1969.604 Clark was an Ulster Unionist politician The Ulster Unionist Party split into pro- and anti-O’Neill factions, and and the fifth Prime although the former won a plurality of seats, the Prime Minister no Minister of longer had an overall majority with which to make his reforms a Northern Ireland. legislative reality. After the Second The UK government began to contemplate what would become known World War, in as Direct Rule, while the Home Secretary even told his Cabinet which he saw action, he acted as colleagues that “independence” for Northern Ireland might be a 605 aide-de-camp to “preferable option” to the status quo. In February 1969, meanwhile, the Governor- Stormont placed Derry/Londonderry under direct rule of a different sort, General of Canada. replacing Londonderry County Council with an unelected Chichester-Clark Londonderry Development Commission. was elected to the Parliament of Terence O’Neill resigned as Prime Minister of Northern Ireland on 1 May Northern Ireland in 1969. He was succeeded by James Chichester-Clark, whose brother 1960 and served as Robin was an Ulster Unionist MP at Westminster. Minister of Agriculture and 8.6 UK government intervention Leader of the House In his diary, Richard Crossman recorded another UK Cabinet meeting in before becoming premier. He was at which his colleagues frankly acknowledged how little they created Lord knew about events in Northern Ireland. James Callaghan said the Home Moyola in 1971 and Office had just two officials based in Belfast, while warned died in 2002. that “Northern Ireland has completely different conditions from Britain and we shall be blind men leading the blind if we have to go in there knowing nothing about the place”.606 The UK government continued to work with the Government of Northern Ireland on its five-point reform programme while also laying what the historian Alvin Jackson called the “foundations of direct rule from London”. This included “a UK minister with full powers to take up residence and direct Northern Ireland affairs from Stormont Castle”.607

602 HC Debs 19 December 1968 Vol 775 c1559 603 In March 1973 the Governor of Northern Ireland asked the Scottish judge Lord Cameron to chair this commission. 604 The 1969 election saw the first constituency changes since 1929. The Queen’s was abolished (almost two decades after Great Britain’s university seats), while four new constituencies were created on the outskirts of Belfast to account for population growth. 605 Henry Patterson, p213. 606 Richard Crossman, p463. 607 Alvin Jackson, Home Rule, London: Weidenfeld & Nicolson, 2003, pp202 & 253. 123 Commons Library Briefing, 21 December 2020

British troops arrived in Northern Ireland on 14 August 1969, the first since 1935.608 Intense rioting had broken out following an Apprentice Boys parade in Derry/Londonderry two days earlier and unrest spread across Northern Ireland. The IRA had split into two factions, Provisional and Official; the former pursuing armed conflict. It was assumed that the British Army, acting in support of the civil authorities, would derive its legal legitimacy from the Special Powers Act. On 19 August 1969 a communiqué later known as the “Downing Street Declaration”609 was issued following a six-hour meeting between senior UK and Northern Ireland government ministers. This agreed that: • the General Officer Commanding Northern Ireland (GOC NI) was to assume overall responsibility for security operations including the RUC, while continuing to be responsible directly to the UK Ministry of Defence; • the Government of Northern Ireland was to establish an impartial investigation into recent public disorder;610 • two senior civil servants from London be temporarily stationed in Belfast. The UK government also re-affirmed that: nothing which has happened in recent weeks in Northern Ireland derogates from the clear pledges made by successive United Kingdom Governments that Northern Ireland should not cease to be a part of the United Kingdom without the consent of the people of Northern Ireland or from the provision in Section I of the Ireland Act 1949 that in no event will Northern Ireland or any part thereof cease to be part of the United Kingdom without the consent of the Parliament of Northern Ireland. The Border is not an issue.611 A further communiqué was issued on 29 August 1969 following a high- profile visit by Home Secretary James Callaghan to Northern Ireland. The Cameron Report on Disturbances in Northern Ireland (the commissioning of which had precipitated O’Neill’s downfall) was published the following month. Lord Cameron was “satisfied” that Unionist-controlled councils had “used and use their power to make appointments in a way which benefitted Protestants” (he also concluded that the Nationalist- controlled Urban District employed very few Protestants).612 Standard Unionist defences of the rate payers’ franchise were rejected. Lord Cameron noted that “universal adult local government suffrage has for long been the rule in the remainder of the United Kingdom”.613

608 Henry Patterson, p213. 609 Not to be confused with the Downing Street Declaration of 15 December 1993. 610 A Tribunal of Inquiry chaired by Mr Justice Scarman was appointed by the Governor on 27 August 1969. This reported in April 1972, see Violence and Civil Disturbances in Northern Ireland in 1969, Cmnd 566, Belfast: HMSO. 611 Northern Ireland: Text of a Communiqué and Declaration issued after a meeting held at on 19 August 1969, Cmnd 4154, London: HMSO. 612 Lord Cameron, Disturbances in Northern Ireland, Cmnd 532, Belfast: HMSO, 1969, para 138. 613 Lord Cameron, para 141. 124 Parliament and Northern Ireland, 1921-2021

A Commentary by the Government of Northern Ireland to Accompany the Cameron Report was published the same month. James Callaghan visited Northern Ireland again on 9 and 10 October 1969, which led to a third Communiqué from the UK government and Government of Northern Ireland. The decision was taken during that visit to transfer responsibility for housing from local authorities and the Housing Trust (established in 1945) to a new statutory board, the Northern Ireland Housing Executive.614 A direct and secure “hotline” was installed between the Northern Ireland Cabinet Secretary, Sir Harold Black, and the Home Office.615 As per the Downing Street Declaration, a “UK Representative” in Northern Ireland was appointed. The first was the former UK Ambassador to Denmark, Oliver Wright. He was succeeded by Ronnie Burroughs, subsequently UK Ambassador to Algeria, and finally Sir Howard Smith, later head of MI5. Sir Howard operated “in effect a mini-embassy” located well away from Stormont in the New Town of Craigavon.616 This “Liaison Office”, judged Robert Ramsay, “was more like an embassy of the Soviet Union in a satellite state than an administrative liaison office within the United Kingdom”.617 As Donal Lowry has observed, the appointment “of a diplomatic envoy to an autonomous part of the same state was without precedent”.618 Ramsay believed, therefore, that the August 1969 agreement marked “the effective end of ‘Stormont’ as an autonomous regional government”.619 In November 1969, Harold Wilson told the UK House of Commons that the “problem” facing the new Prime Minister of Northern Ireland was: a backlog of nearly 50 years in which almost nothing was done. I am glad to feel that as a result of our pressure, long before the troubles this August, considerable progress was made both by the Government headed by Captain O’Neill and by the Government headed by Major Chichester-Clark. But there is a long history of fear, anxiety and failure to deal with the problems in time. Asked about UK proposals to establish an Ulster Defence Regiment (which had first been considered a decade before), Wilson said Westminster was “sovereign in terms of legislation that finally becomes law. Nobody is in any doubt at all about that.”620

8.7 Ulster Defence Regiment The House of Lords considered the Ulster Defence Regiment Bill the same month. This followed recommendations from the Hunt Report that the Royal Ulster Constabulary be relieved of its military duties and

614 This was established in 1971. 615 Kenneth Bloomfield, 2007, p15. 616 Kenneth Bloomfield, 2007, p15. Craigavon was named after the former Prime Minister of Northern Ireland, Sir James Craig (Viscount Craigavon). 617 Robert Ramsay, p84. Aptly, Sir Howard Smith began and ended his career in Moscow. 618 Donal Lowry, p112. Wright had also acted as Harold Wilson’s special envoy to Southern . 619 Robert Ramsay, p57. 620 HC Debs 18 November 1969 Vol 791 c1112-14 125 Commons Library Briefing, 21 December 2020

that the Ulster Special Constabulary be replaced by two separate forces, one a police reserve, the other a military force to assist the regular Armed Forces. In essence, the “B” Specials, controversial since the 1920s, were being disbanded under pressure from the UK government. Lord Shackleton explained that this new force would: be an integral part of the Army. It will be controlled by the Secretary of State for Defence, and will be under the command of the General Officer Commanding, Northern Ireland. Its immediate Commanding Officer will be a Brigadier of the Regular Army. The Regular Army will also supply administrative and training staff.621 Lord Boothby proposed an amendment to substitute “Northern Ireland” for “Ulster”, arguing that the Province of Ulster included three counties in the Republic of Ireland from which no recruitment would be permitted. Boothby’s second objection was the lack of precedent, it being the first time the name “Ulster” had been used in an Act of Parliament.622 This amendment was not accepted. The Ulster Defence Regiment Act 1969 received Royal Assent on 18 December 1969. As in 1921, this raised issues as to where responsibility for defence and security lay. , an Ulster Unionist MP, asked , a Home Office Minister, in November 1970 if he was satisfied that: the exercise by Her Majesty’s Government of control over security matters in Northern Ireland has in no way conflicted with the powers transferred to the Government of Northern Ireland under the Government of Ireland Act 1920. Carlisle replied that the arrangements had been reached by the previous Labour government and that there was no conflict. He added that: The position is that the United Kingdom Government have ultimate responsibility for the protection of those who live in Northern Ireland. When a breakdown of law and order has occurred a request is made—and a request was made—for the use of troops to be made available. That request was met by the Government of the United Kingdom.623 As Kenneth Bloomfield observed, the “first two headline objectives” of Northern Ireland’s “own constitution” (the 1920 Act) “’peace, order and good government’ – could no longer be guaranteed”.624

8.8 Discrimination The UK and Northern Ireland governments had previously agreed the appointment of a Parliamentary Commissioner for Administration in Northern Ireland. The Government of Northern Ireland suggested this should be Sir , already in post as the UK Parliamentary Commissioner for Administration. Stormont legislated accordingly and advised the Governor of Northern Ireland to appoint Sir Edmund.625

621 HL Debs 12 November 1969 Vol 305 c663 622 HL Debs 15 December 1969 Vol 306 c815 623 HC Debs 26 November 1970 Vol 807 cc605-06 624 Kenneth Bloomfield, 1994, p118. 625 This arrangement lasted for two years. 126 Parliament and Northern Ireland, 1921-2021

John Oliver, a Stormont civil servant, later observed that both Compton and the Northern Ireland Commissioner for Complaints “found little or nothing of substance” amid many claims of discrimination.626 The SDLP MP Gerry Fitt later argued that while legislation might not have been seen to operate against the minority, “the attitude of Ministers and a succession of Prime Ministers made clear what the majority population of Northern Ireland was entitled to do against the minority”.627 In an exhaustive survey of discrimination allegations between 1921 and 1968, the academic John Whyte reached a similar conclusion. He examined six areas of contention – electoral practices, public employment, private employment, public housing, regional policy, and policing – and judged that “the picture is neither black nor white, but a shade of grey”: The USC was everywhere a Protestant ; some police decisions betrayed partisanship; there were fewer Catholics in the higher reaches of the public service than were willing and qualified to serve; some private firms discriminated against Catholics […] The unionist government must bear its share of responsibility. It put through the original gerrymander which underpinned so many of the subsequent malpractices, and then, despite repeated protests, did nothing to stop those malpractices continuing. The most serious charge against the Northern Ireland government is not that it was directly responsible for widespread discrimination, but that it allowed discrimination on such a scale over a substantial segment of Northern Ireland.628 The political scientist Richard Rose also used survey data to test allegations of discrimination in housing. He found that 35 per cent of his Catholic respondents, as against 30 per cent of his Protestant ones, lived in public housing. On controlling for income, geography and family size, he only found evidence of bias against Catholics in the last of those categories.629 Sir Edmund Compton’s 1970 report on Northern Ireland had been full of praise for the Northern Ireland Civil Service. He concluded that: the individual citizen frequently gets a better service from a Northern Ireland Ministry than he would get from a United Kingdom Department in similar circumstances, owing to the easier access to central government that is both feasible and customary in a territory the size of Northern Ireland.630 On 23 December 1969 Patrick Shea, a Catholic civil servant who had long given up on promotion due to discrimination, was surprised to be appointed permanent secretary of the Northern Ireland Ministry of Education, which he took to mean “promotions to the top jobs would no longer be subject to Ministerial wishes or prejudices”.631 He was the first Catholic permanent secretary since the retirement of Bonaparte Wyse in 1938. By the end of the 1960s, meanwhile, Catholics held 6

626 John Oliver, 1994, pp116-17. 627 HC Debs 3 Dec 1981 Vol 14 cc376-77 628 John Whyte. See also John Whyte, Interpreting Northern Ireland, Oxford: Clarendon Press, 1991. 629 Richard Rose, pp293-94. 630 Royal Commission on the Constitution, para 1257. 631 Patrick Shea, p185. 127 Commons Library Briefing, 21 December 2020

out of 68 senior judicial appointments, including 1 out of 6 Supreme Court judges.632 The Royal Commission on the Constitution later judged that in “many fields” unaffected (or not dominated) by the “community problem", "the home rule experiment had considerable success”.633 The “most impressive” of these fields was health, where Northern Ireland, “which used to be well below the standards of Great Britain, caught up with and in some respects surpassed them”.634 But what the Royal Commission called the “community problem” now extended well beyond transferred services. UK government ministers began to send coded warnings to the Government of Northern Ireland. The Home Secretary, , said that to “depart from the ideals of impartiality and reconciliation” would endanger the constitutional status quo, while on a visit to Belfast Sir Alec Douglas- Home, the Foreign Secretary, identified two conditions that would justify intervention from Westminster: The authorities here would have to be shown to be acting in a way which encouraged or stimulated disorder; and it would have to be clear that such a radical and serious constitutional step would benefit all parties in Ulster.635 Following the killing of three off-duty British soldiers by the IRA in March 1971, James Chichester-Clark requested a new security initiative from , UK Conservative Prime Minister since 1970. Heath offered an additional 1,300 troops. Chichester-Clark also asked Lord Grey of Naunton, the Governor of Northern Ireland since 1968, to proclaim a State of Emergency. This was resisted by opposition MPs and Senators who petitioned the Governor to “reserve” (i.e. not grant Royal Assent to) the Public Order (Amendment) Act (Northern Ireland) 1970. Grey (a New Zealander) consulted the Home Office in London, who informed him that the Home Secretary had received no specific instructions to convey from the monarch and no direction that the Governor should reserve the Bill. It therefore become law on 7 December 1970.

8.9 A new Prime Minister James Chichester-Clark resigned as Prime Minister of Northern Ireland on 20 March 1971, saying he could “see no other way of bringing home to all concerned the realities of the present constitutional, political and security situation”.636 Reginald Maudling, Home Secretary since 1970, paid tribute to the “enormous contribution” of Chichester-Clark:

632 Aidan Corrigan, Eye-witness in Northern Ireland, Dungannon: self-published, 1969, p28. 633 Royal Commission on the Constitution, para 173. 634 Royal Commission on the Constitution, para 1264. 635 The Times, 14 August 1970. 636 Thomas Hennessy, A History of Northern Ireland 1920-1996, Basingstoke: Palgrave Macmillan, 1997, p189. 128 Parliament and Northern Ireland, 1921-2021

Legislation was passed in 1969 creating a full franchise on the basis of one-man, one-vote in local government elections. There has been the appointment of a Boundary Commissioner, the setting up of a housing executive which will be responsible, as sole housing authority, for the implementing of Government policy on housing, the establishment of a Ministry of Community Relations with responsibility for formulating policies for the improvement of community relations […]637 Unlike previous Prime Ministers, who had “emerged” following consultation between the Governor and Ulster Unionists (in the manner Brian Faulkner of UK Conservative premiers pre-1965), Brian Faulkner informed Lord (1921-77) Brian Faulkner was Grey of his election as party leader by Ulster Unionist MPs and Senators an Ulster Unionist on 23 March and was then invited to form a new Government of politician and the Northern Ireland. sixth and last Prime Kenneth Bloomfield later recalled that on becoming Governor, Lord Minister of Grey had asked to receive all Northern Ireland Cabinet conclusions, as Northern Ireland. Born to a family of was the practice in London. Nevertheless, although Grey: shirt makers, he had exercised the executive powers of a British colonial governor was elected to the in his previous posts […] he never showed any signs of Parliament of misunderstanding his very different role of ‘constitutional Northern Ireland in monarch’ in Northern Ireland […] he exercised in a shrewd and 1949. Faulkner was prudent way that ability to encourage, advise and warn ministers identified by Bagehot in his classic study of the British successively constitution.638 Minister of Home Affairs, Commerce Faulkner chose to become Minister of Home Affairs as well as Prime and Development Minister, appointing John Taylor Minister of State for Home Affairs.639 before becoming Senate Leader Jack Andrews, meanwhile, became “effectively deputy to premier in 1971. He the prime minister”.640 also served as the first and only Chief A little-known provision of the 1920 Act, s8(4)(b), enabled the Prime Executive of Minister to appoint as a minister someone who was not a member of Northern Ireland in either House of the Parliament of Northern Ireland for a period of no 1974. He became longer than six months. Faulkner utilised this power by inviting David Lord Faulkner in Bleakley, a former Northern Ireland Labour Party MP, to become 1977 but died Minister of Community Relations.641 He was the first non-unionist following a hunting member of the Government of Northern Ireland.642 accident later the same year. The early 1970s was a period of flux in a party system long dominated by the Ulster Unionists. The Social Democratic and Labour Party (SDLP) was formed in August 1970 when a Republican Labour Party MP and Senator joined with Independents (including ) and members

637 HC Debs 6 April 1971 Vol 815 cc260-61 The Ministry of Community Relations was created by the Governor of Northern Ireland using powers granted by the Northern Ireland (Miscellaneous Provisions) Act 1945. It existed until 1975. 638 Bloomfield, 1994, p104. 639 Robert Ramsay, p66. Ministers of State were a recent innovation for the Government of Northern Ireland, the first having been appointed in 1966. 640 Kenneth Bloomfield, 1994, p139. Andrews’ father, John Miller Andrews, had been Prime Minister of Northern Ireland between 1940 and 1943. 641 Bleakley later wrote Faulkner, a biography of Brian Faulkner (London & Oxford: Mowbrays, 1974). He was an elected member of the 1973-74 Northern Ireland Assembly. 642 On his appointment in 1943, Harry Midgley was a pro-Union Commonwealth Labour Party MP (see Section 5.6). 129 Commons Library Briefing, 21 December 2020

of the Nationalist and Northern Ireland Labour parties. The SDLP became the official opposition in the Parliament of Northern Ireland. An Alliance Party of Northern Ireland had been formed in April 1970 with the aim of acting as a non-sectarian bridge between the Protestant and Catholic communities.643 In September 1971 the Democratic Unionist Party (DUP) emerged from the Protestant Unionist Party, led by Ian Paisley.644 Finally, the Ulster Vanguard movement was formed in February 1972 by William Craig, a former Ulster Unionist MP and minister. This had originally operated as a pressure group within the Ulster Unionist Party. Vanguard revived the idea of Northern Ireland seeking Dominion status.645

8.10 50th anniversary of Northern Ireland On 22 June 1971 the Parliament of Northern Ireland marked its fiftieth anniversary.646 The Times noted that this was “celebrated in subdued style”. Responding to the Queen’s speech – held exactly 50 years after that delivered by George V – Brian Faulkner said Ulster Unionists “must aim to govern with the consent and the acceptance of a far wider majority than is constituted by those who elect the governing party”. To that end, Faulkner proposed to transfer responsibility for education, housing, planning and health from local government to institutions answerable to Stormont. He also proposed three “functional committees” of MPs which might “contribute to the making of policy at the formative stage”. At least two of the salaried four chairs were to go to the opposition. The SDLP’s Gerry Fitt expressed “cautious approval”, as did other opposition MPs.647 Another Times report noted that the security measures at the Parliament Buildings “reflected the disturbed state of the province”, the protection provided for “the principals in today’s ceremony […] scarcely less than it had been 50 years ago”. Lord Grey had read his speech to members of the Commons, Senate and a large gathering of community leaders in Stormont’s marble, blue-and-gold Great Hall.648 Faulkner’s speech, noted Kenneth Bloomfield, was the first time a Prime Minister of Northern Ireland had “openly acknowledged weaknesses in a system that had operated for fifty years”.649 Inter-party talks took place on 7 July 1971, but less than two weeks later the SDLP announced it would be withdrawing from Stormont to set up its own

643 See Brian R. Eggins, History and Hope: The Alliance Party of Northern Ireland, Cheltenham: The History Press, 2015. 644 Jonathan Tonge et al, The Democratic Unionist Party: From Protest to Power, Oxford: Oxford University Press, 2014. 645 See Ulster Vanguard, Ulster – A Nation, Belfast: Ulster Vanguard, 1972. Craig went on to win a seat in the 1973-74 Northern Ireland Assembly under the Vanguard platform, and a Westminster Commons seat in February 1974. 646 The Government of Northern Ireland also organised Ulster ’71, an exhibition it claimed was not necessarily connected with the anniversary. It also commissioned the unionist historian Hugh Shearman to “mark the 50th anniversary of the State” with a short history, published as Northern Ireland 1921-1971 in 1971. 647 The Times, 23 June 1971. 648 The Times, 23 June 1971. 649 Kenneth Bloomfield, 1994, p143. 130 Parliament and Northern Ireland, 1921-2021

“non-sectarian, non-unionist assembly”.650 This was the culmination of a long process of nationalist alienation from Stormont. On 9 August the Government of Northern Ireland introduced internment without trial under the Special Powers Act, a significant and controversial move in the midst of a deteriorating security situation. Talks at Chequers on 27 and 28 September 1971 produced another communique on “reciprocal de-escalation”, winding down both violence and emergency measures such as internment.651 This tripartite meeting between the Irish Taoiseach Jack Lynch, Edward Heath and Brian Faulkner “could be regarded as the first tacit recognition of the so-called ‘Irish dimension’” – a formal role for the Irish government in the affairs of Northern Ireland.652

8.11 Northern Ireland in 1971 At Westminster, there developed a high degree of consensus between Labour and the Conservative politicians regarding UK government policy towards Northern Ireland, something that would continue for the next 50 years. Drawing on his experiences as Home Secretary, James Callaghan told UK MPs that they had to “consider the situation in Northern Ireland and try to understand it”: The problem has been analysed, but it has not changed since 1969, not since 1959, 1949, or 1939. […] The problem is one of dual loyalty. […] There is—and it cannot be shot out of their hearts—in the minds and hearts of the minority in Northern Ireland a dual loyalty, a loyalty to the area, to the town, to the community, in which they live, and the loyalty to another concept of a united Ireland. Callaghan also addressed the myriad of “solutions” which had been advanced over the past few years: One of them is that we should pull out and let the people of Northern Ireland fight it out for themselves. Another is that we should abolish Stormont. Some people say, "If you will pull out they will come to their senses and realise that they must live and work together." I do not believe that […] The only consequence of withdrawing from Northern Ireland would be to promote and provoke a conflagration and civil war of the worst dimensions.653 Callaghan floated the idea of a consultative “Council of Ireland”, while on 25 November 1971, the Leader of the Opposition, Harold Wilson, reported back on a visit to Northern Ireland arranged by Edward Heath and hosted by the Governor of Northern Ireland. He later published a 15-point plan which involved the Republic of Ireland re-joining the Commonwealth, a joint commission of Westminster and Stormont MPs and the appointment of a “Minister Resident”.654

650 Kenneth Bloomfield, 1994, p146. This became the Assembly of the Northern Irish People. It only met on two occasions. 651 The introduction of internment had prompted the Republic of Ireland to call for Stormont’s abolition. 652 Kenneth Bloomfield, 2007, p136. 653 HC Debs 23 September 1971 Vol 823 cc184-91 654 Kenneth Bloomfield, 1994, p157. 131 Commons Library Briefing, 21 December 2020

The Government of Northern Ireland had published a Green Paper on The Future Development of the Parliament and Government of Northern Ireland in October 1971.655 This fleshed out Faulkner’s “functional committee” proposals of the previous June while also discussing electoral reform, expansion of the House of Commons and reform of the Senate. It rejected, however, the idea of a power-sharing executive as “fundamentally unrealistic”, although it acknowledged that where an “expectation does not exist” from the opposition that “sooner or later their turn to exercise [power] will come”, there was “clearly a risk of disenchantment with the democratic Parliamentary process”.656 The Green Paper, judged Kenneth Bloomfield, “was thus the first document produced by any Northern Ireland government to approach the heart of the matter”.657 resigned as Minister for Community Relations shortly before his six-month term expired under the 1920 Act. On 27 October 1971, Faulkner invited Gerard B. Newe, the Catholic secretary of the Northern Ireland Council of Social Service, to become a Minister of State.658 He was the first Catholic appointed to the Government of Northern Ireland in half a century. On 12 December 1971 the Ulster Unionist Senator Jack Barnhill was shot dead by Official IRA at his farmhouse near the Tyrone/Donegal border. It was the first political assassination in Northern Ireland since that of Sir Henry Wilson in June 1922.

8.12 Financial relations The long-standing Social Services Agreement between Great Britain and Northern Ireland had been replaced that same year. By 1972 Northern Ireland’s supplementary funds were as follows: • National Insurance, Industrial Injuries and Redundancy Funds. These were equalised each year and reciprocal, but usually operated in Northern Ireland’s favour; • Health Services Agreement. This provided that 90% of the amount by which the cost of services in Northern Ireland exceeded 2% of total UK cost was paid from the UK Consolidated Fund to the Northern Ireland Exchequer; • Social Services Payment. Under the UK Finance Act 1971 up to the whole cost of family allowances, supplementary benefits and some other benefits were paid to the Northern Ireland Exchequer from the UK Consolidated Fund;

655 The Government of Northern Ireland had also published A Record of Constructive Change (Cmnd 558) on 20 . 656 Government of Northern Ireland, The Future Development of the Parliament and Government of Northern Ireland, Cmnd 560, October 1971, p10. 657 Kenneth Bloomfield, 1994, p153. 658 Kenneth Bloomfield, 1994, p154. 132 Parliament and Northern Ireland, 1921-2021

• Regional Employment Premium (REP). Up to whole cost incurred by the Government of Northern Ireland in paying REP could be met from the UK Consolidated Fun; • Agricultural Payments. The Ministry of Agriculture, Fisheries and Food provided the Northern Ireland Ministry of Agriculture with money to pay a grant to farmers in Northern Ireland as compensation for their remoteness from UK markets. General farming subsidies were also UK wide.659 Family allowances and supplementary benefits, meanwhile, were separated and made subject to a similar arrangement as that for regional employment premiums. Death duties were also brought into line with Great Britain, ending a long-standing arrangement by which Northern Ireland rates had taken account of the relatively high number Bernadette Devlin of small private companies in that part of the UK. McAliskey (1947–) Bernadette Devlin McAliskey is an Irish 8.13 “Bloody Sunday” civil rights activist On 30 January 1972, 26 unarmed civilians were shot by British soldiers and former during a protest against internment in Derry/Londonderry. Fourteen politician. She stood people died, all of them Catholics. The British Army said it had acted in against the Prime response to gunfire, which was disputed by many of those present. Minister James Chichester-Clark at What became known as “Bloody Sunday” came to be regarded as one the 1969 Northern of the most significant – and controversial – events of the Troubles. Ireland general On 31 January 1972, the Home Secretary, Reginald Maudling, made a election but was statement on the disturbances: not successful. Soon after, Devlin A large number of trouble-makers refused to accept the (as she then was) instructions of the march stewards and attacked the Army with contested a stones, bottles, steel bars and canisters of C.S. The Army met this assault with two water cannon, C.S., and rubber bullets only. The Westminster by- G.O.C. has further reported that when the Army advanced to election in Mid- make arrests among the trouble-makers they came under fire Ulster and was from a block of flats and other quarters. At this stage the elected, serving in members of the orderly, although illegal, march were no longer in the UK Parliament the near vicinity. The Army returned the fire directed at them with until February 1974. aimed shots and inflicted a number of casualties on those who Aged 21 at her were attacking them with firearms and with bombs. election, she was At this point, Bernadette Devlin, Irish Nationalist MP the youngest for Mid-Ulster, intervened and asked if it was “in order for the Minister elected MP until 2015. Elected in to lie to this House”. Maudling finished his statement, announcing an 1969 on a “Unity” independent inquiry, although the SDLP MP Gerry Fitt warned that ticket, Devlin then “people in Northern Ireland will not accept the findings of any inquiry sat as an which is set up under the auspices of a Tory Government”. Fitt added Independent that: Republican. The sooner steps are taken to suspend the Stormont Government and to withdraw all British troops from Northern Ireland the better it will be for the people of Northern Ireland. Devlin then attempted to make another point of order, repeating her allegation that Maudling had “lied to the House”. She continued:

659 NIO/HM Treasury, Northern Ireland: Financial Arrangements and Legislation, Cmnd 4998, June 1972, pp5-6. 133 Commons Library Briefing, 21 December 2020

I am the only person in this House who was present yesterday when, whatever the facts of the situation might be said — [Interruption.] Shut up! I have a right, as the only representative in this House who was an eye witness, to ask a question of that murdering hypocrite— Parliamentary convention dictated that any MP witnessing an incident under discussion ought to be granted an opportunity to contribute, but the Speaker, , said the “hon. Lady has no such right. She has that right only if she is called on by me.” According to The Times, at this point Devlin “took off from her seat on the Opposition back benches”: As she leapt on the Home Secretary, one flying elbow caught Mr Heath who was sitting beside Mr Maudling. The latter seemed to make little attempt to defend himself, except to throw up his arms to protect his face. From the benches on both sides of the House MPs rushed to control the enraged Miss Devlin.660 One MP said Devlin’s conduct in the Chamber had been “most reprehensible” but criticised the Speaker’s attempt to “silence her”. The Speaker replied that “the proper place for her to give her evidence was not to the House but to the committee of inquiry”. Similar exchanges continued for some time: Mr. Biggs-Davison: On a point of order, Mr. Speaker. Is it really in keeping with the practices of the House that an hon. Member who has made a violent attack upon other Members of the House should remain seated within the Chamber? Miss Devlin: I did not shoot him in the back, which is what they did to our people.661 Devlin was not named or suspended by the Speaker. On 1 February 1972, the Prime Minister announced an inquiry under the Tribunals of Inquiry (Evidence) Act 1921. A resolution was tabled in the UK Parliament and in order to ensure the powers vested in the Tribunal – to be chaired by the Lord Chief Justice of England, Lord Widgery – extended to transferred matters under the 1920 Act, a similar resolution was tabled at Stormont. The Widgery Report was presented to the UK Parliament on 19 April 1972.662 The UK government accepted the Lord Chief Justice’s conclusion that: There would have been no deaths in Londonderry if those who organised the march had not thereby created a highly dangerous situation in which a clash between demonstrators and the security forces was almost inevitable. The government, added the Prime Minister, “deeply regret that there were any casualties, whatever the individual circumstances”.663

660 The Times, 1 February 1972. Bernadette Devlin was interviewed by the BBC following the incident. 661 HC Debs 31 January 1972 Vol 830 cc32-43 662 Report of the Tribunal appointed to inquire into the events on Sunday, 30th January 1972, London: HMSO, 18 April 1972. 663 HC Debs 19 April 1972 Vol 835 cc519-20 134 Parliament and Northern Ireland, 1921-2021

Widgery did not settle the issue, with his report widely criticised as a “whitewash”. A second inquiry chaired by Lord Saville was established in 1998 by the then UK Prime Minister, , following a campaign by families of those killed and injured in Derry/Londonderry in 1972. This reported on 15 June 2010 and was followed by an apology in the UK Parliament from .

8.14 Special Powers Act The Government of Ireland Act 1920 required further revision as a consequence of events in August 1971. During another demonstration in Derry/Londonderry John Hume, deputy leader of the SDLP, refused to disperse when ordered to do so by a British Army officer. The officer believed he was exercising powers under the Civil Authorities (Special Powers) Act (Northern Ireland) 1922. The Special Powers Act had long been controversial. While Section 1 carefully kept within the limits of the 1920 Act, Section 7 authorised any police constable “or member of any of His Majesty’s forces on duty” to arrest people for criminal offences or breaches of regulations under the 1922 Act. A Schedule conferred further powers on members of the Armed Forces. The National Council of Civil Liberties had concluded as long ago as 1936 that this provision was ultra vires,664 and it was generally believed that a court challenge would be successful.665 On 8 September 1971 Hume was convicted and fined £20. He joined others in asking the Northern Ireland High Court of Appeal to quash the conviction. On 23 February the Lord Chief Justice of Northern Ireland, Lord Lowry, held that the regulation concerned was ultra vires under Section 4 of the 1920 Act, which prohibited the Parliament of Northern Ireland to make laws “in respect of” the Navy, the Army, the Air Force or the defence of the Realm.666 This differed from a judgment in the English High Court in September 1971.667 To quote Brendan O’Leary, the “Government of Ireland Act was at last properly applied”.668 The UK government decided not to appeal on the basis that it would be “indefensible” to leave the Army “without the essential powers which enable it to discharge the duties for which it was sent to Northern Ireland”. Thus the Attorney General for England and Wales, Sir Peter Rawlinson, introduced a Bill: to declare the law as to the legislative powers of the Parliament of Northern Ireland under Section 4(1) of the Government of Ireland Act, 1920, so far as relates to Her Majesty’s Forces and in

664 See NCCL, Report of a Commission of Inquiry appointed to examine the purpose and effect of the Civil Authorities (Special Powers) Acts (Northern Ireland), 1922 & 1933, London: National Council for Civil Liberties, 1936 (reprinted 1972). 665 Paul O’Higgins, “The Northern Ireland Act 1972”, The Modern Law Review 35:3, May 1972, pp295-98. 666 See R (Hume & Others) v Londonderry Justices [1972] NI 91 667 Mr Justice Ackner held that the Special Powers Act was not a law in respect of any military matter, but rather a law for the peace, order and good government of Northern Ireland. In essence, the two courts differed as to the true legal construction of the words “in respect of”. 668 Brendan O’Leary, p189. 135 Commons Library Briefing, 21 December 2020

particular to the conferment of powers, authorities, privileges or immunities on them.669 The Northern Ireland Act 1972 received Royal Assent on 24 February 1972.670

8.15 “Turning point” Brian Faulkner later considered “Bloody Sunday” to be a “turning point”. Relations between the UK and Northern Ireland governments had broken down over the deteriorating security situation and during February and March the UK Cabinet deliberated over what action it would take. At one meeting on 4 February 1972, Edward Heath asked Faulkner to consider “reserving places” in the Northern Ireland Cabinet for “representatives of minority opinion”; a periodic referendum or plebiscite “considering the transfer to the Irish Republic of any areas adjacent to the Border in which there was a majority in favour of incorporation in that country”; and the possible transfer of responsibility for law and order to Westminster. The Northern Ireland Cabinet responded formally on 16 February and 1 March. It opposed Cabinet positions for minority representatives but agreed to a referendum if there were at least five years between ballots. It rejected, however, any “piecemeal transfer” of territory and responsibility for law and order. The Government of Northern Ireland’s own (final) proposals were: • a “” constitutionally, in which Northern Ireland’s right to self-determination would be recognised by a Treaty; • a “common law enforcement area” across the whole island of Ireland; • a Joint Irish Inter-Governmental Council with equal membership from the two governments to discuss matters of mutual interest; • expansion of the Northern Ireland Commons and a new Senate part elected and part nominated; and • a revision of the 1920 Act to re-enact safeguards against religious discrimination “with greater precision as a Bill of Rights”. In its letter of 1 March, the Northern Ireland Cabinet requested a response from the UK government before any further meeting, but this was not forthcoming.671 On 6 April 1971, the Labour leader Harold Wilson had referred in the UK House of Commons to the “alternative of direct rule; the alternative of last resort”:

669 HC Debs 23 February 1972 Vol 831 cc1363-65 670 Later in 1972, Martin Meehan, charged with escaping from lawful custody, also successfully argued that under the Special Powers Act a British soldier had no power of arrest and as such he had the legal right to escape. He was awarded £800 for having been illegally detained for 23 days. 671 Government of Northern Ireland, Political Settlement, Cmnd 568, Belfast: HSMO, . 136 Parliament and Northern Ireland, 1921-2021

It is right that the House should know that, in consideration of this matter, the former Government drafted a Bill, in case of necessity, to impose direct rule, and that Bill is now in the possession of the present Government. I pray, as they do, that it will not be needed. However, if constitutional government in Northern Ireland were to perish as a result of atavistic pressures and prejudices, this House must not shrink from imposing this unpalatable solution.672 By early 1972, ministers in London were increasingly inclined to make use of the draft Bill to which Wilson referred.673 On 17 February 1972, Reginald Maudling met Ulster Unionist MPs at Westminster to sound them out on what he called “government by commission” for Northern Ireland.674 By 1 March, draft legislation was prepared which would have preserved but curtailed the Parliament of Northern Ireland. Faulkner was due to address an Ulster Unionist Council gathering in Belfast and asked Heath about rumours of Direct Rule so he could offer reassurances in his speech. Heath provided a statement, which included the ambiguous line that talk of Direct Rule was “pure speculation”.675 On 14 March the UK Cabinet decided that responsibility for law and order ought to be transferred from Stormont to the UK Parliament. The critical meeting took place at Downing Street on 22 March 1972, when Heath put this plan to Faulkner. Faulkner and his de facto deputy, Senator Jack Andrews, regarded this as an unacceptable concession to their opponents, and argued that the transfer of law and order would “leave the Government of Northern Ireland bereft of any real influence and authority by removing the most fundamental power of any Government”. It would breach the 1920 Act, they added, which had vested responsibility for the “peace, order and good government” of Northern Ireland in its devolved government. On 23 March, the Government of Northern Ireland presented counter proposals, but these were rejected by the UK Cabinet. The Prime Minister of Northern Ireland returned to Downing Street, where Heath reiterated the UK Cabinet’s unanimous view. Faulkner said he “knew then without any doubt that we must resign, and that direct rule had arrived”. He agreed to remain in office, however, until legislation was passed at Westminster, so that Northern Ireland should not, “even for a few days, be without a lawful government”.676

672 HC Debs 6 April 1971 Vol 815 cc277-78 673 It later emerged that Kenneth Bloomfield, Faulkner’s private secretary, had in December 1971 – on his own initiative – recommended to Sir Howard Smith, the UK Representative, that London intervene because Faulkner was unlikely to succeed on his own, something Smith passed on to the Home Office (Robert Ramsay, pp106- 07). 674 Alvin Jackson, p472. 675 Robert Ramsay, p101. 676 Brian Faulkner, Memoirs of a Statesman, London: Weidenfeld & Nicolson, 1978, pp152-55. 137 Commons Library Briefing, 21 December 2020

8.16 Direct rule is announced On Friday 24 March 1972, the Prime Minister informed the House of Commons that the Northern Ireland Government’s decision to resign left the UK government with: no alternative to assuming full and direct responsibility for the administration of Northern Ireland until a political solution to the problems of the Province can be worked out in consultation with all those concerned. The UK Parliament, continued Heath, would therefore be invited to pass a Measure: transferring all legislative and executive powers now vested in the Northern Ireland Parliament and Government to the United Kingdom Parliament and a United Kingdom Minister. This provision will expire after one year unless this Parliament resolves otherwise. The Parliament of Northern Ireland would stand prorogued but would not be dissolved. The “increased burden” this transfer of responsibilities entailed meant it would no longer be possible for the Home Secretary to discharge duties in relation to Northern Ireland: A new Office of Secretary of State for Northern Ireland is, therefore, being created. My right hon. Friend the Lord President [William Whitelaw] is to be appointed to this office, together with the necessary junior Ministers.677 Harold Wilson, the Leader of the Opposition, said in response that Direct Rule had always been: regarded by […] both of us in Opposition, as the very last resort, not an objective to be sought for itself, and we have all of us maintained this. But the fact that that last resort was there and that in the last resort neither of the Governments that have been concerned with this would have flinched from it has, I believe, been a central element in the strength of this House and of Her Majesty’s Government in dealing with the problem.678 In a press statement on 24 March, Brian Faulkner lamented that “three years of the most strenuous efforts to reform our society” had not “earned the right to the confidence and support of the United Kingdom Government”. He feared that “many people will draw a sinister and depressing message from these events – that violence can pay; that violence does pay”.679 Members of the Northern Ireland Parliament at Stormont debated and passed an adjournment motion on 28 March 1972.680 John Brooke, a junior minister and son of Sir Basil, a former Prime Minister, quoted from Rudyard Kipling’s poem “Ulster 1912”. Written in response to the Third Home Rule Act its stanzas, which included the line “we are the sacrifice”, were the last words entered in the Stormont .

677 HC Debs 24 March 1972 Vol 833 cc1860-61 678 HC Debs 24 March 1972 Vol 833 cc1864 679 Kenneth Bloomfield, 2007, p28. 680 NI HC Debs 28 March 1972 Vol 84 cc1585-86 138 Parliament and Northern Ireland, 1921-2021

As members of the Privy Council of Northern Ireland, Government of Northern Ireland ministers then met the Governor, Lord Grey, at Hillsborough Castle.681 Brian Faulkner also addressed an enormous rally organised by William Craig’s Ulster Vanguard movement from the balcony of Stormont. Northern Ireland was not, he protested, “a coconut colony”.682 Also on 28 March, the UK House of Commons considered the second reading of the Northern Ireland (Temporary Provisions) Bill.683 This did not repeal the Government of Ireland Act 1920 but superimposed certain temporary provisions: • Prorogation but not dissolution of the Parliament of Northern Ireland; • Power for Westminster to legislate for Northern Ireland via Orders in Council; • A new office of Secretary of State for Northern Ireland to take over the executive functions of the Government and Governor of Northern Ireland; • Provision for the Attorney General for England and Wales to become also the Attorney General for Northern Ireland;684 • Appointment of a representative commission to advise the Secretary of State in the exercise of his functions (the Northern Ireland Advisory Commission). The Bill passed its second reading by 483 votes to 18. Both moderate and hard-line Ulster Unionist MPs voted against, as did the republican MPs Bernadette Devlin and Frank McManus. It was unopposed in the House of Lords. As the future Northern Ireland Secretary recalled in his memoirs, Direct Rule “went through Parliament without serious problems”.685 To the Stormont civil servant Patrick Shea, the “massive all-party vote was clearly an expression of no-confidence in the parliamentary structure established under the Act of 1920”.686

681 Kenneth Bloomfield, 1994, p166. 682 Irish Times, 29 March 1972. 683 HC Debs 28 March 1972 Vol 834 cc238-368 684 The Attorney General for England and Wales remained Attorney General for Northern Ireland until 2010, when John Larkin QC was appointed to the politically independent post. Since 2010, the Attorney General for England and Wales has also acted as the Advocate General for Northern Ireland. 685 Merlyn Rees, Northern Ireland: A Personal Perspective, London: Methuen, 1985, p17. 686 Patrick Shea, p190. 139 Commons Library Briefing, 21 December 2020

9. Direct Rule, 1972-79

The Northern Ireland (Temporary Provisions) Act 1972 (“the 1972 Act”) received Royal Assent on 30 March 1972 and the Parliament of Northern Ireland was prorogued the same day. William Whitelaw, until that point Northern Ireland Secretary-designate, also collected his seals of office, therefore assuming the functions hitherto exercised by the Government and Governor of Northern Ireland.687 At this stage, Direct Rule was intended as a short-term response, providing a stable institutional context within which a political solution could evolve. It was to become more permanent as ongoing sectarian violence made it impossible for politicians in Northern Ireland to reach agreement. Attacks also began to occur in parts of what was referred to as the “mainland” (Great Britain). Operation Banner in Northern Ireland was the longest continuous deployment of Armed Forces personnel in British military history. Between August 1969 and July 2007, 1,441 military personnel died as a result of operations in Northern Ireland. 722 of those personnel were killed in paramilitary attacks. During the same period the British military was responsible for the deaths of 301 individuals, over half of whom were civilians. In total, it is estimated that 3,520 individuals lost their lives during the Troubles.688 This section examines attempts by the UK Parliament and government to restore devolved government to Northern Ireland against this challenging backdrop, as well as looking at how Direct Rule worked in practice.

9.1 Direct Rule Phase I: 1972-73 The 1972 Act required that legislation on subjects formerly within the competence of Stormont would be laid before the UK Parliament in the form of Orders in Council. Draft Orders had to be approved by both Houses of Parliament before they could be made. “Made affirmative” Orders not approved by both Houses within 40 days ceased to have effect.689 Orders could not be amended, so provision was made to enable local interests to influence proposed legislation. As the Northern Ireland- based academic Professor Derek Birrell explained: Initially, a draft Order originating from a Northern Ireland Department would first be considered by a Policy Co-Ordinating Committee of senior civil servants, approved by Ministers and then made available to local interest via the Northern Ireland

687 Brian Faulkner had come to believe that the Governor’s title “smacked of colonialism and damaged rather than strengthened [Northern Ireland’s position] within the United Kingdom” (Faulkner, p191). 688 See Commons Library Briefing Paper CBP-8352, Investigation of Former Armed Forces Personnel Who Served in Northern Ireland, 1 April 2020. 689 See Commons Library Briefing Paper CBP6509, Statutory Instruments, 15 December 2016. This 40-day period excluded days when both Houses were dissolved, prorogued or adjourned for more than four days. 140 Parliament and Northern Ireland, 1921-2021

Advisory Commission. It would also be circulated to interested parties and made available to the public in printed form through the Stationary Office (HMSO). The draft Order was then scrutinised by the Commission at a meeting chaired by the Secretary of State with the responsible Minister and senior departmental officials present. Thereafter the Order was laid in draft at Westminster and referred to the Joint Committee on Statutory Instruments before being debated.690 This legislative process for Direct Rule applied between 30 March 1972 and 1 January 1974. The Northern Ireland Advisory Commission was terminated in 1973, in expectation that devolution would be restored and therefore scrutiny of legislation would be transferred to a new Northern Ireland legislature. The Commission was never revived.

9.2 Border Poll Speaking in the UK House of Commons on 24 March 1972, Prime Minister Edward Heath had mentioned: a system of regular plebiscites in Northern Ireland about the Border, the first to be held as soon as practicable in the near future and others at intervals of a substantial period of years thereafter. In effect, Heath was proposing to transfer the principle of “consent” from the prorogued Parliament of Northern Ireland (enshrined in the Ireland Act 1949) to its people.691 The Prime Minister hoped periodic plebiscites, “while leaving open the possibility of a change in the status of the Province if the majority so wish”, would provide “a greater measure of stability in the political life of Northern Ireland”. The Labour leader Harold Wilson expressed “doubt” on this point, believing it could “be extremely dangerous to stir up passion on all sides”. A Green Paper, The future of Northern Ireland: A paper for discussion, published by the new Northern Ireland Office (NIO) followed in October 1972. Paragraph 82 stated that the “wishes of the people of Northern Ireland on their relationship to the United Kingdom and to the Republic will be ascertained by a plebiscite early in the New Year”. Debate in Parliament The Northern Ireland (Border Poll) Bill received its second reading in the Commons on 21 November 1972. This provided that the referendum would be conducted and funded as if it were a UK general election, and on the franchise used for Stormont elections. The Schedule also set out two questions, next to one of which voters would be invited to place a cross: Do you want Northern Ireland to remain part of the United Kingdom?

690 Derek Birrell, Direct Rule and the Governance of Northern Ireland, Manchester: Manchester University Press, 2009, p59. 691 The Ulster Unionist MP William Stratton Mills had asked the Prime Minister to consider a referendum in November 1971 in order to “remove this matter from politics for a generation or more”. Heath declined. 141 Commons Library Briefing, 21 December 2020

Do you want Northern Ireland to be joined with the Republic of Ireland outside the United Kingdom? William Whitelaw, the Secretary of State for Northern Ireland, explained that the UK government’s aim “was to take the border out of the day- to-day political scene”: There can be no change in the constitutional position of Northern Ireland as part of the United Kingdom unless by the will of the majority. But equally, if the majority of the people in Northern Ireland were to opt for a united Ireland, no British Government would stand in the way. Kevin McNamara, a Labour MP, believed the proposed border poll possessed even greater significance: We are introducing into our constitutional life the idea of a plebiscite or referendum whereby a part of the people of the United Kingdom of Great Britain and Northern Ireland are to say of themselves and by themselves, without reference to the remainder of the population whether they should remain within the United Kingdom, irrespective of whether the rest of the United Kingdom wishes them to be in it. Debating Irish unity at the , meanwhile, the Irish Taoiseach Jack Lynch said such a plebiscite, “conducted on the basis of questions as stark as those which are proposed, can contribute nothing, is completely predictable, and can only widen the rift between the two communities”.692 The House of Lords considered the Northern Ireland (Border Poll) Bill in December 1972. It received Royal Assent on 7 December. The Order The Northern Ireland (Border Poll) Act 1972 provided that the referendum date and regulations be fixed by Order, subject to the negative resolution procedure. This was laid before Parliament on 14 December and set the polling date as 8 March 1973, two months later than originally planned. MPs debated the Order on 23 January 1973. The SDLP leader Gerry Fitt warned that the referendum would cause “mischief and great danger in Northern Ireland”. He added: “I know that many moderate people in Northern Ireland will have to boycott it and advise those whom they represent to do the same, because we already know the result.” Fitt’s SDLP, the Nationalist Party and the Republican Labour Party had opposed a referendum from the outset, arguing that the whole of Ireland ought to decide. They urged their supporters not to take part.693 The referendum The Border Poll took place on 8 March 1973. 98.9% of those who voted supported Northern Ireland remaining part of the UK, while 1.1% wanted it “to be joined with” the Republic of Ireland. Turnout was

692 The Times, 24 November 1972. 693 Sinn Féin was at this point a proscribed organisation. 142 Parliament and Northern Ireland, 1921-2021

58.6%, but it was clear that most Nationalists had boycotted the referendum. The BBC reported that only 1% of Catholics had taken part, while Brian Faulkner claimed (first in a letter to The Times and subsequently in his memoirs) that “some 20 to 25 per cent of the Catholic community”, or “in excess of 71,000 Catholics”, had voted “for the British link in spite of the boycott campaign”.694

9.3 Constitutional proposals Twelve days after the Border Poll, the UK government published a White Paper, Northern Ireland Constitutional Proposals. Among them were a 78-member Northern Ireland Assembly, a power-sharing Executive headed by a “Chief Executive” and a revival of the Government of Ireland Act 1920’s provision for a cross-border Council of Ireland. The future of Northern Ireland Green Paper had signalled this shift away from the nomenclature of the past: It is argued that the title and the adoption of elaborate Westminster procedures have not only been out of proportion to the real functions independently performed and to the size of population covered by them, so that these arrangements have led to what may be described as ‘over-government’, but also have promoted a false view of ‘Stormont sovereignty’ which has been positively harmful. Only the Ulster Unionist Party had proposed retaining “parliament” rather than “Assembly”, though it agreed with the other parties that it should only have one chamber.695 The Northern Ireland Assembly Act 1973, debated by MPs in April 1973,696 made provision for Assembly elections, while the Northern Ireland Constitution Bill, which received its second reading on 24 May 1973,697 set out a new constitutional settlement for Northern Ireland. The 1973 Bill retained the 1920 Act’s tripartite division of powers for the new Northern Ireland Assembly. These were: • Excepted matters, over which Westminster was to retain permanent control, i.e. the Crown, elections, international relations, fiscal matters, the Armed Forces, nationality and the appointment of judges; • Reserved matters, areas over which Westminster was to retain responsibility, but which could be exercised by the Assembly with the consent of the Secretary of State, including policing, public order, criminal law and courts, firearms and explosives, foreign trade, navigation and broadcasting. • Transferred matters, which covered everything else, for example, education, transport, health and agriculture.

694 Brian Faulkner, p185. 695 Northern Ireland Office, The future of Northern Ireland, Belfast: HMSO, October 1972, para 52. 696 HC Debs 16 April 1973 Vol 855 cc31-131 697 HC Debs 24 May 1973 Vol 857 cc680-802 143 Commons Library Briefing, 21 December 2020

To the 1920 Act’s list of excepted matters had been added areas of controversy from the previous 50 years (elections, special powers, etc). The number of transferred (or devolved matters), therefore, were fewer than those for which the Parliament of Northern Ireland had previously been responsible. Strikingly, the Assembly was not to have power over law and order. Ministries were also to be renamed departments, as they had been pre-1946. Northern Ireland Constitution Act 1973 Assembly elections were held on 28 June 1973 under the single transferable vote, and Royal Assent was granted to the Northern Ireland Constitution Act 1973 (“the 1973 Act”) on 18 July 1973. The Parliament of Northern Ireland, prorogued the previous year, was abolished the same day, as was the office of Governor. The 1973 Act repealed Section 1(2) of the Ireland Act 1949, and instead declared that Northern Ireland: remains part of Her Majesty’s dominions and of the United Kingdom, and it is hereby affirmed that in no event will Northern Ireland or any part of it cease to be part of Her Majesty’s dominions and of the United Kingdom without the consent of the majority of the people of Northern Ireland voting in a poll held for the purposes of this section […] Section 4(4) echoed Section 75 of the 1920 Act by making clear the UK Parliament’s legislative supremacy. Executive power continued to be vested in the Queen, with the Secretary of State for Northern Ireland (rather than a Governor) exercising the monarch’s prerogative in respect of transferred matters. The Secretary of State was also to appoint members of the Executive largely (but not exclusively) from among those elected to the Assembly. Members of the Legislative Assembly (MLAs) met for the first time on 31 July 1973 in Stormont’s Great Hall. They took the following oath: I swear by Almighty God that I will uphold the laws of Northern Ireland and conscientiously fulfil, as a member of the Northern Ireland Executive, my duties under the Constitution Act 1973 in the interests of Northern Ireland and its people.698 In due course, the Commons chamber at Stormont was converted from a Westminster rectangle into a continental hemisphere. But, as Kenneth Bloomfield observed, the “new Assembly was to be disfigured by vulgar exchanges and, as time went on, by even less acceptable behaviour”.699 On 5 December 1973, for example, police officers entered the chamber to eject MLAs who had refused to accept its standing orders.700 Sunningdale Agreement Disagreement over the cross-border Council of Ireland, meanwhile, delayed the formation of a power-sharing Executive.

698 Kenneth Bloomfield, 1994, pp180-81. 699 Kenneth Bloomfield, 1994, p181. 700 Kenneth Bloomfield, 1994, p185. 144 Parliament and Northern Ireland, 1921-2021

In December 1973, tripartite talks were held between the leaders of Northern Ireland parties in the interim “Executive Designate” and ministers from the governments of the UK and the Republic of Ireland. After three days of talks at Sunningdale Park (which housed the then Civil Service College), it was agreed that the Council of Ireland should comprise 7 Ministers from the Republic and 7 Members of the Northern Ireland Executive, a consultative assembly and a secretariat. Clause 5 of a communique also stated that the UK government’s policy remained “to support the wishes of the majority of the people of Northern Ireland” regarding its constitutional status, while the Irish Government: fully accepted and solemnly declared that there could be no change in the status of Northern Ireland until a majority of the people of Northern Ireland desired a change in that status. The Chief Executive-Designate, Brian Faulkner, also hoped the Irish Government would alter its 1937 constitution (with its territorial claim to Northern Ireland) as a quid pro quo for its role in the Council of Ireland.701 The Sunningdale Agreement was signed on 9 December 1973, which allowed an Executive to be formed. Executive is formed On 31 December 1973, members of the Northern Ireland Executive and Administration were sworn in before the Lord Chief Justice of Northern Ireland (Sir Robert Lowry) and received their Royal Warrants of Appointment from the new Secretary of State for Northern Ireland, . The Executive took over the government of Northern Ireland on 1 January 1974, ending almost two years of Direct Rule from Westminster. As the Stormont civil servant John Oliver recalled in his memoirs: “Again it fell to us to help operate a new constitution with a new and in some ways strange set of rules.”702 It had been our duty to submit certain documents to the Governor for signature; one day he disappeared. Certain types of legislative orders had to be approved by the Privy Council; one day it too disappeared. Where we had a parliament we found ourselves working to an Assembly; and where we had had two legislative chambers we found we had but one. Bills and acts of parliament, the very pith and substance of so much of our work, gave way to Measures. Hansard became merely the Official Report. Cabinet became the Executive, prime minister the Chief Executive Member […] Ministers became heads of departments, parliamentary questions became questions, hon members became assemblymen, MPs MLAs.703

701 Henry Patterson, p241. The Irish government’s declaration was challenged in Ireland’s Supreme Court as “repugnant” to the Irish constitution (Boland v An Taoiseach). Taoiseach Patrick Cosgrave later told the Dáil that “The factual position of Northern Ireland is that it is within the United Kingdom and my Government accepts this as a fact” (Kenneth Bloomfield, 1994, p204). 702 John Oliver, 1978, p100. 703 John Oliver, 1978, p154. 145 Commons Library Briefing, 21 December 2020

Despite this new nomenclature, Kenneth Bloomfield recalled that he and his colleagues “rapidly fell back upon the traditional titles of , Deputy Chief Minister and Minister”.704 Executive meetings were now held at Stormont rather than Stormont Castle, which was now occupied by the Secretary of State. Measures dealing solely with transferred matters were to be submitted directly to the Privy Council by the Secretary of State, while any Measure dealing with excepted or reserved matters had first to be laid before the UK Parliament. While the right of the UK Parliament to legislate on any matter remained under Section 4(4) of the 1973 Act, it was “intended that, when the scheme is working smoothly, Parliament should in practice legislate for Northern Ireland on transferred matters without the agreement of the Northern Ireland Executive only in rare and exceptional circumstances”.705 This followed a constitutional convention in place between 1922 and 1972, and again after 1999. The Northern Ireland Assembly existed for only a few months. At the February 1974 UK general election, the United Ulster Unionist Council, a coalition of Unionists opposed to the power-sharing arrangements, won 11 out of 12 seats, defeating Brian Faulkner’s pro-Assembly Unionists.706 On 15 May, a Loyalist general strike began which led to the Executive’s collapse two weeks later.707 Brian Faulkner resigned as Chief Executive on 28 May 1974. “Although in theory the system survived,” he reflected in his memoirs, ”I knew it would be impossible to find a replacement Executive that would meet the necessary test of widespread and cross-community support.”708 Faulkner made a farewell statement outside Stormont: “We believe that Northern Ireland can only be maintained as a part of the United Kingdom on the basis of co-operation between Protestants and Roman Catholics.”709

9.4 Direct Rule Phase II: 1974-79 Section 27 of the Northern Ireland Constitution Act 1973 had made provision for the UK government to dissolve the Northern Ireland Assembly by Order in Council. Once again Prime Minister, Harold Wilson expressed his frustration by accusing striking Loyalists of “sponging from Westminster”. According to his adviser Bernard Donoughue, Wilson had earlier contemplated a “Doomsday scenario” under which the UK would withdraw from Northern Ireland while offering it the sort of Dominion status some Unionists were once again demanding. This would have involved

704 Kenneth Bloomfield, 1994, p199. 705 Royal Commission on the Constitution, paras 1319-20. 706 Brian Faulkner resigned as leader of the Ulster Unionist Party in January 1974 but remained Chief Executive. 707 See , The Fall of the N.I. Executive, Belfast: The Kerryman, 1975. 708 Kenneth Bloomfield, 1994, p220. 709 Kenneth Bloomfield, 1994, p221. 146 Parliament and Northern Ireland, 1921-2021

constitutional guarantees for the Catholic minority and a Governor- General representing the Queen.710 Instead, Wilson’s government passed the Northern Ireland Act 1974, which prorogued the Assembly and transferred its legislative powers to the Queen in Council (or Privy Council), subject to the direction of the Secretary of State. This meant a return to the system of Direct Rule first introduced by the Northern Ireland (Temporary Provisions) Act 1972. The 1974 Act was intended to be temporary, thus a provision for the Secretary of State to make annual Orders extending its duration. In fact, it was to remain in place for 25 years and would provide the legal framework – in conjunction with the Northern Ireland Constitution Act 1973 – for the first long-term phase of Direct Rule. This meant that excepted matters (listed in Schedule 2 to the 1973 Act) were still the subject of primary legislation at Westminster, while Orders in Council could be made on certain reserved matters (listed in Schedule 3) and all transferred matters. Despite the retention of these categories, Northern Ireland was now governed via administrative rather than legislative devolution, a system similar to that in place for Scotland (since 1885) and Wales (since 1964- 65). All three had territorial departments (the Scottish, Welsh and Northern Ireland Offices) and Secretaries of State who attended the UK Cabinet. Orders in Council After 1974, Orders in Council were laid before Parliament under the affirmative procedure included in Schedule 1 to the 1974 Act. As in the Northern Ireland (Temporary Provisions) Act 1972, either draft or made affirmative Orders could be laid before the UK Parliament but not amended. Once approved, they were published as Northern Ireland statutes, a continuation of pre-1972 Acts of the Parliament of Northern Ireland. This meant, as Robert Ramsay recalled, that “many pieces of Westminster legislation which could have been extended to apply in Northern Ireland did not do so; instead the provisions concerned were dealt with as statutory rules and orders (NI)”: The excuse was that, instead of being intertwined with GB legislation, this separate NI legislation could be added to the stand-alone Stormont statute book, as though that body of law had the intrinsic merits of a Mosaic torah. The real reason was to hold Northern Ireland at arm’s length.711 Professor Derek Birrell explained that: Orders-in-council were originally laid before Parliament as a draft order representing the government’s definitive legislative intent. In

710 Bernard Donoughue, Prime Minister: The Conduct of Policy Under Harold Wilson & James Callaghan, London: Jonathan Cape, 1987, pp128-29. There is anecdotal evidence that senior Conservatives like William Whitelaw and Sir Alec Douglas-Home believed a united Ireland was the only long-term solution to the Northern Ireland question (see Paul Bew et al, p161). 711 Robert Ramsay, p155. 147 Commons Library Briefing, 21 December 2020

the case of the vast majority of draft orders the next stage was the approval of the order by both Houses of Parliament within forty sitting days of the draft order being laid. The normal gap was two or three weeks. An exception to this process was if a draft order was required to come into effect for urgent and emergency reasons. In such cases the order was made and came into effect immediately and the order remained in force only if approved by both Houses within forty sitting days of its being laid.712 A Northern Ireland Examiner of Statutory Rules was appointed to monitor Northern Ireland Orders.713 Professor , an expert on constitutional affairs and devolution, calculated that between 1972 and 1997, 557 Orders in Council relating to Northern Ireland were laid at Westminster.714 In 1976, the UK government provided for extended debates on draft Orders and agreed to transmit legislative proposals to Northern Ireland’s major political parties before their introduction to Parliament.715 Policy making under Direct Rule Professor Birrell has referred to the post-1974 period of Direct Rule as “integration by statute”, a general trend towards convergence (in transferred areas) between Northern Ireland and Great Britain or, more accurately, England, given that Scotland (and often Wales) already possessed distinct legislation.716 In May 1976, the then Northern Ireland Secretary Merlyn Rees argued that to remain acceptable Direct Rule needed to be seen as “positive”, emphasising “good government” over “constitutional aspirations and hobgoblins”.717 The “parity principle”, under which it was assumed that citizens in Northern Ireland would enjoy similar welfare provision to those in Great Britain, continued, while in other areas a tradition of divergence remained unaltered by Direct Rule. Birrell categorised these as: • ethical/cultural issues; • administrative differences; and • strongly held policy ideas. Birrell gave abortion (which remained illegal in Northern Ireland, other than to protect a mother’s life) as an example of the first, the centralised Housing Executive of the second and academically-selective grammar schools of the third.718 In 1976, for example, Merlyn Rees

712 Derek Birrell, p41. 713 Derek Birrell, p45. 714 Vernon Bogdanor, Devolution in the United Kingdom, Oxford: Oxford University Press, 1999. 715 For a fuller critique of the use of Orders in Council to legislate for Northern Ireland during Direct Rule, see Brigid Hadfield, “Direct Rule, Delegated Legislation and the Role of Parliament” in Jon Hayes and Paul O’Higgins (eds), Lessons from Northern Ireland, Belfast: SLS, 1990. 716 Vernon Bogdanor, pp230-31. 717 Quoted in S. C. Aveyard, No Solution: The Labour Government and the Northern Ireland Conflict, 1974-79, Manchester: Manchester University Press, 2020, p173. 718 Derek Birrell, p235. 148 Parliament and Northern Ireland, 1921-2021

withdrew proposals to decriminalise homosexuality in Northern Ireland following a backlash.719 A number of specific Northern Ireland-only measures were introduced between 1972 and 1999, but mainly in reserved and excepted areas and usually relating to the security situation, the constitution or equality matters. The Fair Employment (Northern Ireland) Act 1976 was passed as primary legislation and not as an Order in Council (employment was a transferred matter), an indication of how significant the UK government considered it to be in its efforts to address discrimination.720 According to Vernon Bogdanor, between 1972 and 1997 the UK Parliament passed 33 pieces of primary legislation which applied wholly or mainly to Northern Ireland.721 These were often fast tracked. The Northern Ireland Office Responsibility for both primary (Acts of Parliament) and secondary legislation (Orders in Council) rested with the Northern Ireland Office (NIO), which had been established on 1 April 1972. This was based at Stormont Castle in Belfast – previously home to the Government of Northern Ireland – and at HM Treasury in Whitehall. Initially, the NIO took over responsibility for law-and-order functions from the former Ministry of Home Affairs, and then most of its other responsibilities when that ceased to exist on 1 January 1974. Only in a few cases did a UK government department assume functions previously exercised by a Northern Ireland department, for example estate and stamp duties were transferred from the Ministry of Finance to the Inland Revenue. Legally, junior ministers at the NIO acted on behalf of the Secretary of State and did not themselves discharge the functions of Northern Ireland departments, although this meant little in practice.722 John Oliver refers to a “British practice of including one Catholic Minister in each Direct Rule team after 1972”.723 NIO ministers also answered Parliamentary Questions (PQs) on all Northern Ireland matters either orally or in writing. Oral Questions took place in the House of Commons once a month. Direct Rule meant a large increase in Northern Ireland-related PQs, as the Speaker’s ruling from 1923 had previously prohibited discussion of transferred matters at Westminster. Northern Ireland Civil Service The Northern Ireland Office had its own officials either drawn from the Home Civil Service (HCS) or transferred in from the separate Northern Ireland Civil Service (NICS) in Belfast, which had been established to

719 Derek Birrell, p235. The law on homosexuality in Northern Ireland was eventually changed in 1982, following a challenge under the European Convention on Human Rights. 720 Derek Birrell, p233. 721 Vernon Bogdanor, p236. 722 Derek Birrell, p25. 723 John Oliver, 1994, p120. The legality of this arrangement with respect to the exercise of certain statutory functions was questioned following the UK Supreme Court’s decision in R v Adams [2020] UKSC 19 149 Commons Library Briefing, 21 December 2020

support the Government of Northern Ireland in 1921. Although independent, the NICS followed HCS practice quite closely. Direct Rule left much of the NICS unchanged. Maurice Hayes, a long- standing official in Northern Ireland, “was struck by the ease with which the Civil Service machine [in Northern Ireland] adapted to direct rule”.724 The NICS had never experienced a change in government and now found itself supporting ministers of Conservative and Labour governments at Westminster rather than Ulster Unionist governments at Stormont.725 During the 1973-74 period of devolved government, senior civil servants and SDLP ministers appeared to enjoy a good working relationship.726 In 1976, the head of the NICS was made the 2nd permanent under- secretary (PUS) at the Northern Ireland Office, thus filling the post of Cabinet Secretary which had been abolished upon the introduction of Direct Rule in 1972. The 2nd PUS was based in Belfast and supported by the NIO Central Secretariat but invited to weekly meetings of Whitehall permanent secretaries in London.727 Westminster committees and Direct Rule The Northern Ireland Civil Service also became accountable to UK Parliamentary committees, which played a role in Direct Rule. After 1974, there was pressure in the UK Parliament for pre-legislative scrutiny of Orders in Council. A Northern Ireland Committee was therefore established in 1975, one function of which was discussion of draft Orders. Fiscal matters and funding A June 1972 White Paper, Northern Ireland-Financial Arrangements and Legislation, had estimated “a net inflow of £133 million to Northern Ireland for […] social, industrial, welfare and agricultural support purposes”.728 An annual “subvention” from Great Britain to Northern Ireland had risen from £52 million in 1966/67 to £313m in 1973/74. This was generally assumed to be unsustainable. The Northern Ireland Constitution Act 1973 abolished most special forms of assistance and replaced them with general grant-in-aid from the Secretary of State for Northern Ireland to the Northern Ireland Consolidated Fund, which remained in place. This was similar to the “” system which funded the Scottish and responsibilities. The Imperial Contribution and Joint Exchequer Board – both features of the 1920 Act – were abolished. The 1973 Act also gave the Treasury the power “to make a deduction towards the cost of excepted and reserved matters form the Northern Ireland share of United Kingdom taxation for retention in the United

724 Maurice Hayes, Minority Verdict: Experiences of a Catholic Public Servant, 1995, Belfast: Blackstaff Press, p163. 725 Derek Birrell, p98. 726 See Derek Birrell and Alan Murie, p151. 727 Paul Carmichael, pp29-31. The head of the NICS ceased to be 2nd PUS at the NIO with the of devolution in 1999. 728 HC Debs 17 November 1972 Vol 846 cc779-80 150 Parliament and Northern Ireland, 1921-2021

Kingdom Consolidated Fund”. But, as a 1974 discussion paper observed: “This has not been invoked; nor is it likely to be in present circumstances.”729 Thereafter Northern Ireland’s revenue came from three sources: • An attributed share of UK taxes minus reductions for reserved services; • Non-tax revenue; and • Grant-in-aid approved by the Treasury. According to Derek Birrell, under Direct Rule this grant-in-aid – and thus public expenditure generally – increased.730 The UK government anticipated that the block grant system would enable a restored power- sharing Executive to determine its own priorities at some point in the future. Local government Only local government, reform of which had coincided with Direct Rule, raised revenue locally via rates. Until 1973, Northern Ireland had been divided into six administrative counties (subdivided into urban and rural districts) and two county boroughs, Belfast and Derry/Londonderry. This system had been established by the Local Government (Ireland) Act 1898 and had been left undisturbed by the 1920 Act. The Macrory Report of June 1970 had recommended radical reforms, although it assumed the continued existence of the Parliament of Northern Ireland as a regional-level authority. Macrory’s proposal to replace the 1898 settlement with 26 new local authorities was implemented by the Local Government Boundaries Act (Northern Ireland) 1971 and the Local Government Act (Northern Ireland) 1972, one of the pieces of legislation passed by the Parliament of Northern Ireland. Elections were due to take place on 6 December 1972. The Local Government (Postponement of Elections and Reorganisation) (Northern Ireland) Order 1972, approved by the UK Parliament following prorogation of Stormont, delayed these until May 1973. Not only did these elections mark the reintroduction of STV for local government, abolished in 1922, but the franchise was widened to encompass universal adult suffrage, thus removing the rate payers’ franchise and the company vote (see Section 6.1). Many allegations of discrimination against Catholics in Northern Ireland had concerned the actions of Ulster Unionist-dominated local authorities. This had an impact on the reform proposals. Not only did the creation of a Housing Executive remove responsibility for housing from councils, but services such as education, social services and roads were also either brought under central government control or allocated

729 Northern Ireland Office, Northern Ireland: Finance and the economy, Discussion paper 1, September 1974, London: HMSO, p19. 730 Derek Birrell, p165. 151 Commons Library Briefing, 21 December 2020

to arms-length bodies. The latter had political representation but no overall control. Northern Ireland’s 26 new councils were, therefore, left with far less significant responsibilities. This represented a significant departure from the pattern and development of local government in Great Britain. Together with Direct Rule, this gave rise to complaints of a “democratic deficit” in Northern Ireland.

9.5 Northern Ireland Constitutional Convention The July 1974 UK government White Paper, The Northern Ireland Constitution, had proposed an elected Northern Ireland Constitutional Convention (NICC), for which the Northern Ireland Act 1974 included provision. The White Paper had set out three “basic realities” for the NICC to consider: • The need for some form of power sharing and partnership in any new form of government; • The need to find a pattern of government acceptable to the people of the UK as a whole; and • The need to take account of the which exists between Northern Ireland and the Republic of Ireland. Robert Ramsay said the White Paper’s intention was “to wean the public and the local body politic off the deeply ingrained notion that democracy was the Westminster model and vice versa”.731 Elections were held under STV on 1 May 1975. The United Ulster Unionist Coalition (comprising the Official Unionists, the Vanguard Unionist Party, the Democratic Unionist Party and other Loyalists) won 47 of the Convention’s 78 seats. The NICC met for the first time on 8 May in the former House of Commons chamber at Stormont. Its chairman was Sir Robert Lowry, the Lord Chief Justice of Northern Ireland. But the Convention, judged John Oliver, “like its members, was the captive of a political situation from which it could not escape”.732 It failed to reach a cross-community consensus, its final report instead proposing a return to majority rule.733 Merlyn Rees, the Secretary of State for Northern Ireland, reconvened the NICC on 3 February 1976, but it once again failed to reach agreement. It was dissolved by Order in Council on 6 March 1976.734 On 3 May 1977, the United Ulster Action Council called for a strike in support of their demand for implementation of the Convention's report

731 Robert Ramsay, p132. 732 John Oliver, 1994, p121. 733 Northern Ireland Office, Northern Ireland Constitutional Convention Report, Together with the Proceedings of the Convention and other Appendices, 20 November 1975, London: HMSO. 734 Direct Rule thus became the only operative provision of the 1974 Act. 152 Parliament and Northern Ireland, 1921-2021

and an end to Direct Rule. The strike was called off 10 days later, having failed to win significant support.

9.6 Representation at Westminster Following the introduction of Direct Rule, the question of Northern Ireland’s under-representation at Westminster arose. The rationale until 1972 had been the existence of a devolved parliament and government which no longer existed. The 1973 Royal Commission on the Constitution had recommended an increase from 12 to 17 seats. The Third General Review of parliamentary constituencies took place in 1976, while in July 1977 the Speaker of the UK House of Commons agreed to preside over a Speakers Conference on Electoral Law. This reported in February 1978 and concurred with the Royal Commission in recommending an increase to 17 constituencies, although the Boundary Commission for Northern Ireland was also empowered to opt for a minimum of 16 or a maximum of 18. These proposals were given statutory effect in the House of Commons (Redistribution of Seats Act 1979 but did not take effect until the general election of 1983. 153 Commons Library Briefing, 21 December 2020

10. Northern Ireland, 1979-99

The election of a Conservative government led by in May 1979 precipitated a new phase in the constitutional history of Northern Ireland. The Government of Ireland Act 1920 remained on the statute book, as did related Acts from 1973 intended to restore devolved government. Sectarian violence associated with the “Troubles” continued. , the then Shadow Northern Ireland Secretary, was killed shortly before the 1979 general election. The Provisional IRA also killed Lord Mountbatten, a relative of the Queen, and, on 27 August 1979, 18 British soldiers. Later, it attempted to assassinate the Prime Minister and other senior members of the UK government during the 1984 Conservative Party conference. The early 1980s also saw several “hunger strikes” take place in Northern Ireland’s prisons. One was led by in H-Block at the Maze Prison. On 9 April 1981 he defeated , a former Ulster Unionist leader, to become the Anti H-Block/Armagh Political Prisoner MP for Fermanagh and South Tyrone. He died in prison less a month later, having not taken his seat in the UK House of Commons.735 Unlike her Labour predecessors, Mrs Thatcher strongly identified as a “Unionist”. During a parliamentary speech in November 1981, she declared that “Northern Ireland is part of the United Kingdom; as much as my constituency is”. This was commonly paraphrased and misquoted as “Northern Ireland is a British as ”. All of this informed UK government policy. This section looks at renewed attempts to restore devolved institutions in Northern Ireland, as well as the UK government’s growing engagement with the Republic of Ireland in an attempt to bring the Troubles to an end.

10.1 Party talks In the absence of devolution, the Conservative Party manifesto had proposed establishing “one or more elected regional councils with a wide range of powers over local services”.736 This reflected input from James Molyneaux, who became leader of the Ulster Unionist Party in September 1979. In November 1979, the new Secretary of State for Northern Ireland, , proposed a conference of the four main political parties to consider ways in which an elected Assembly could be given some measure of responsibility for governing Northern Ireland.737 Three parties accepted, the Democratic Unionist Party (DUP), the Alliance Party of Northern Ireland and the Social Democratic and Labour

735 Following Bobby Sands’ election, the UK Parliament passed the Representation of the People Act 1981. This prevented prisoners serving terms of more than one year from being nominated as candidates in UK elections. 736 See Paul Bew et al, pp196-97. 737 Northern Ireland Office, The Government of Northern Ireland: A Working Paper for a Conference, Cmnd 7763, London: HMSO, 20 November 1979. 154 Parliament and Northern Ireland, 1921-2021

Party (SDLP). In the light of their discussions, the UK government published a White Paper on 2 July 1980, The Government of Northern Ireland: Proposals for Further Discussion.738 This acknowledged that discussions had not led to a negotiated agreement for the future pattern of government. The White Paper instead outlined the considerations the UK government felt should be acknowledged in any new arrangements, and proposed areas for future consultations. No agreement was reached at subsequent gatherings.

10.2 Direct Rule Professor Derek Birrell observed that Direct Rule: resulted in extra pressure on the Westminster timetable with the increased workload from orders-in-council, statutory instruments, Northern Ireland bills, debates, ministerial statements, parliamentary questions and the work of committees.739 The main criticism was lack of scrutiny. Many Orders were debated early in the morning or late at night and for no more than 90 minutes, even on controversial subjects such as electricity privatisation. , Secretary of State for Northern Ireland between 1981 and 1984, considered scrutiny of Northern Ireland affairs at Westminster to be “lamentable”: the usual ration, year-in, year-out, was monthly forty-five minute on the floor of the Commons, a few poorly attended debates usually held late at night, and the occasional statement to the House following some particularly awful atrocity. In his memoirs, Prior also claimed Direct Rule gave political parties in Northern Ireland “all the advantages of political activity with none of the disadvantages of responsibility”, and that it denied “elected representatives in Northern Ireland virtually any say in running their own affairs”. He was: disturbed that direct rule from Westminster was coming to be seen as permanent. It had brought fair, impartial government to Northern Ireland, and was broadly acceptable to the majority of both communities. It was in fact everyone’s second choice, although in a sense there was some virtue in this since everyone’s first choice was totally unacceptable to someone else.740 One alternative, supported by the Ulster Unionist MP Enoch Powell, the DUP’s Ian Paisley and several Conservative MPs, was a policy of “integration”. This approach would have abandoned any attempt to restore devolution in Northern Ireland and instead pass more power to local government.741 Speaking in the Commons in 1982, Powell said: There is no remedy for direct rule other than getting rid of direct rule altogether […] but there is only one way within the United Kingdom of getting rid of direct rule altogether—I will pronounce

738 Cmnd. 7950, London: HMSO, 2 July 1980. 739 Derek Birrell, p67. 740 Jim Prior, A Balance of Power, London: Hamish Hamilton, pp190-91. 741 Vernon Bogdanor, p101. 155 Commons Library Briefing, 21 December 2020

it in as low and hushed a tone as I can manage […]—and that is integration.742

10.3 “Rolling devolution” In April 1982, the UK government published another White Paper, Northern Ireland: A Framework for Devolution. This stated that: Direct rule has served Northern Ireland well. It has won a measure of acceptance from all parts of the community and it is recognised to be impartial. It is, however, generally and rightly regarded as an unsatisfactory long-term arrangement – a view shared by all the major political parties in Northern Ireland […] The direct rule arrangements rely upon Westminster to provide democratic safeguards on executive authority. They provide no other opportunity for Northern Ireland politicians to play a major part in the decisions affecting the Province.743 The White Paper therefore proposed a new 78-member Northern Ireland Assembly, again elected by the single transferable vote. The Assembly was to establish committees to monitor the policies and activities of each Northern Ireland department. It would also report to the Secretary of State for Northern Ireland with proposals for devolution of certain powers provided they were agreed by 70% of Members. If the UK Parliament approved such a report, the powers were to be devolved. These powers could encompass full or only partial devolution. If the devolved powers lost their 70% support then they could be “rolled back” to Westminster until fresh proposals were agreed. On achieving full devolution, the Secretary of State would appoint an Executive, and provided the Executive retained its support within the Assembly, elections would be held every four years. The civil servant Kenneth Bloomfield believed the idea for “rolling devolution” had come from , a Belfast-born Conservative MP who was active in his party’s backbench Northern Ireland Committee.744 The Republic of Ireland expressed disapproval at not having been consulted in advance of the UK government’s proposals. The White Paper’s proposals were given effect by the Northern Ireland Act 1982. Sections 1 and 2 enabled the Assembly to submit to the Secretary of State proposals to resume some or all of legislative and executive devolution under the Northern Ireland Constitution Act 1973. Further provisions granted the Assembly deliberative powers via scrutiny committees.745 Northern Ireland Assembly, 1982-86 All of Northern Ireland’s political parties contested elections to the Northern Ireland Assembly on 20 October 1982. This used the existing

742 HC Deb 9 June 1982 Vol 25 cc342-43 743 Northern Ireland: A Framework for Devolution, Cmnd 8541, London: HMSO, April 1982, p3. 744 Kenneth Bloomfield, 2007, p55. 745 These scrutiny committees did not have a formal power to summon ministers or officials or have access as of right to departmental papers. 156 Parliament and Northern Ireland, 1921-2021

12 Westminster constituencies rather than the 17 due to take effect at the next UK general election. SDLP Members declined to take their seats on the grounds that the 1982 Act envisaged an interim Northern Ireland solution, with no formal “Irish dimension”. Sinn Féin Members also said they would not participate in Assembly proceedings. The Ulster Unionists withdrew from the Assembly in November 1983 in protest at security policy following a terrorist attack on a Pentecostal church in in which three people were killed. They returned to the Assembly in May 1984. As a result of these boycotts the Assembly was not able to assume all the powers envisaged by the 1982 Act, although it did carry out its consultative functions. On 16 May 1984 the Assembly set up a Devolution Report Committee to examine proposals for various forms of devolution. The UK government made it clear these had to be likely to command widespread acceptance Northern Ireland. The Committee recognised this in its interim reports of October 1984 and February 1985.746 Between 1982 and 1986, Northern Ireland Office ministers introduced debates or conveyed information to the Assembly at Stormont, something Derek Birrell called a “potential hybrid model of direct rule”.747 The Assembly’s committees also previewed planned Orders in Council (on matters transferred to Northern Ireland) before they were laid at Westminster. The Northern Ireland Assembly was dissolved on 23 June 1986 by the Northern Ireland Assembly (Dissolution) Order 1986 before any devolution of functions had taken place. Thereafter, the 1973 and 1982 Acts remained in force, leaving open the possibility of a new Assembly being elected. Schedule 1 of the 1973 Act had provided for the Secretary of State to hold another Border Poll in 1983, ten years after that in March 1973, a power Prior chose not to exercise. While attempting to restore devolved institutions in Northern Ireland, Mrs Thatcher’s governments remained opposed to granting similar autonomy to Scotland and Wales. It was argued that Northern Ireland was a “special case”. In 1979, Patrick Buckland had concluded his critical study of devolved government in Northern Ireland between 1921 and 1939 (The Factory of Grievances) with the observation that parliamentary devolution could not “be a permanent settlement of the political and constitutional problems of the United Kingdom. There really is no half-way house between union and complete separation.”748

746 For a full consideration, see Cornelius O’Leary, Sydney Elliot and Rick Wilford, The Northern Ireland Assembly 1982-1986: A Constitutional Experiment, London: C. Hurst & Company, 1988. 747 Derek Birrell, p32. 748 Patrick Buckland, 1979, p280. 157 Commons Library Briefing, 21 December 2020

10.4 British-Irish relations A summit meeting between Margaret Thatcher and the Irish Taoiseach in May 1980 concluded with a decision to hold “Regular meetings on a continuing basis”. At a Dublin “summit” meeting on 8 December 1980, Thatcher and Haughey commissioned joint studies on citizenship rights, security matters, economic co-operation, possible new institutional structures and measures to encourage mutual understanding. At another summit meeting in London on 6 November 1981 an Anglo-Irish Intergovernmental Council was also established.749 On 30 May 1983 the was launched in Dublin by the Irish government with the aim of exploring options for political development in both parts of Ireland. This was open to all political parties in Ireland but only Nationalists took part. The Forum made three proposals: 1. Joint sovereignty between the UK and the Irish Republic over Northern Ireland; 2. Federation, with subsidiary regional parliaments in Belfast and Dublin; 3. A , with a revised and liberalised constitution. The Forum’s final report leaned heavily towards the last option, recommending the establishment by consent of a new united Ireland embodying constitutional safeguards for Unionists in Northern Ireland. Thatcher rejected all three options when she met Haughey’s successor as Taoiseach, Garrett FitzGerald, at a Chequers summit in November 1984. Unionist parties in Northern Ireland also rejected the recommendations and published their own proposals, The Way Forward. These focused on administrative devolution (the Northern Ireland Office) and a Bill of Rights while restating opposition to any constitutional “Irish dimension”.

10.5 Anglo-Irish Agreement Privately, British-Irish negotiations (with the aim of ending the Troubles) continued and, on 15 November 1985, the Anglo-Irish Agreement was signed at Hillsborough Castle, the former residence of the Governor of Northern Ireland.750 Article 1 of the Agreement attracted considerable attention: The two Governments (a) affirm that any change in the status of Northern Ireland would only come about with the consent of a majority of the people of Northern Ireland,

749 During the 1980s, the Taoiseach often appointed people from Northern Ireland to Seanad Éireann (the Irish Senate). For example the SDLP’s (1982-83) and Brid Rodgers (1983-87). 750 Since Direct Rule, Hillsborough Castle had become the occasional residence of the Secretary of State for Northern Ireland as well as members of the Royal Family. 158 Parliament and Northern Ireland, 1921-2021

(b) recognise that the present wish of a majority of the people of Northern Ireland is for no change in the status of Northern Ireland; (c) declare that, if in the future a majority of the people of Northern Ireland clearly wish for and formally consent to the establishment of a united Ireland, they will introduce and support in the respective Parliaments legislation to give effect to that wish.751 Article 2 established an Anglo-Irish Intergovernmental Conference “concerned with Northern Ireland and with relations between the two parts of the island of Ireland”. The UK government accepted: that the Irish Government will put forward views and proposals on matters relating to Northern Ireland within the field of activity of the Conference in so far as those matters are not the responsibility of a devolved administration in Northern Ireland. Article 2 also made clear there would be: no derogation from the sovereignty of either the United Kingdom Government or the Irish Government, and each retains responsibility for the decisions and administration of government within its own jurisdiction. Reactions to the Agreement Although Article 1 restated (in an international treaty) the principle of consent that had existed since the 1973 Act,752 Unionists in Northern Ireland noted that it began by referring to a “change” in the constitutional status quo. They also objected to the “Irish dimension”, that for the first time the Republic of Ireland was to be offered (via Article 2) a forum in which it could express its views on excepted and reserved matters in Northern Ireland, as administered by the UK government under Direct Rule. In November 1985 the Anglo-Irish Agreement was approved in the UK House of Commons by 437 votes to 47 and in the Irish Dáil by 88 to 75. It was then registered with the United Nations as an international treaty governed by the ordinary rules of international law. The following month, all 15 Ulster Unionist MPs resigned their seats in the House of Commons in protest at the Agreement. , a Treasury minister, also resigned from the UK government to express his opposition. At the subsequent by-elections on 23 January 1986, all but one of the Ulster Unionists were returned with marginally increased majorities.753 The long-standing arrangement under which Ulster Unionist MPs took the Conservative whip at Westminster, meanwhile, came to an end.

751 The constitutionality of Article 1 was challenged by two Northern Ireland Unionists. In McGimpsey v Ireland and An Taoiseach the Irish Supreme Court ruled that Articles 2 and 3 of the Irish Constitution reflected a claim as a matter of legal right to the entire national territory, and that Article 1 of the Agreement could only be construed as constituting a recognition of the de facto situation in Northern Ireland which did not involve abandoning the claim to re-integration of the whole territory. The case led to renewed calls for the repeal of Articles 2 and 3 from Unionists. 752 And, in other forms, since 1921 (as restated in 1949). 753 The SDLP gained Newry and South Armagh from the Ulster Unionists. 159 Commons Library Briefing, 21 December 2020

The Agreement was also repudiated by the Northern Ireland Assembly’s Unionist majority, which hastened its demise (see Section 10.5 above). At the UK general election in June 1987, Unionists said they might offer “consent” to a new Conservative government in return for the suspension of the Agreement.754 In February 1990 the first meeting of the British-Irish Inter-Parliamentary Body took place. This had been planned in the early 1980s but was given new momentum by the Anglo-Irish Agreement. The meeting was boycotted by Ulster Unionists. Thatcher, like Heath before her, explored other options. The then Cabinet Secretary Robin Butler recalled “an absurd discussion about moving the border”, for the Prime Minister tended to regard the Ireland/Northern Ireland border “purely in terms of what would be best for security”, forgetting, as her biographer Charles Moore observed, “that any reshaping of Northern Ireland’s boundaries would be impossibly controversial”.755 By the 1990s, however, a consensus had emerged among British political parties. The academics Michael Kenny and Jack Sheldon identified its key aspects as: • a growing acceptance that the legitimacy of UK rule was conditional upon the principle of the consent of those living in Northern Ireland; • a commitment to re-establish a functioning and legitimate system of devolved government; • a recognition, from the mid-1980s onwards, that the Irish government had a legitimate role to play in Northern Irish affairs; and • gradual acceptance of the notion of the British state as an arbiter or “honest broker” in Northern Ireland and between its political parties.756

10.6 Downing Street Declaration On 20 March 1991 Peter Brooke, the Secretary of State for Northern Ireland, launched three-strand talks on Northern Ireland. Strand One concerned the restoration of devolved institutions; Strand Two relationships in the whole of Ireland; and Strand Three possible inter- governmental arrangements. These continued when Sir succeeded Brooke at the Northern Ireland Office. The talks were over-shadowed by the Downing Street Declaration, a joint declaration issued by the UK Prime Minister and the Irish Taoiseach Albert Reynolds, which was published on 15 December 1993. The Prime Minister said:

754 Enoch Powell was the only sitting Northern Ireland MP not to be re-elected. 755 Charles Moore, Margaret Thatcher The Authorized Biography Volume Three: Herself Alone, London: Allen Lane, 2019, p269. 756 Michael Kenny and Jack Sheldon, “‘A place apart’, or integral to ‘our precious Union’? Understanding the nature and implications of Conservative Party thinking about Northern Ireland, 2010–19”, Irish Political Studies. 160 Parliament and Northern Ireland, 1921-2021

What is in the declaration is a renewed commitment by the British Government to Northern Ireland’s constitutional guarantee; an acknowledgement by the Taoiseach that a united Ireland could only be brought about with the consent of a majority of the people in Northern Ireland; a willingness on the Taoiseach’s part to make changes in the Irish constitution if an overall settlement can be reached; and a confirmation that if Sinn Fein renounces violence, it will be able to participate in future democratic discussions. What is not in the declaration is any suggestion that the British Government should join the ranks of persuaders of the "value" or "legitimacy" of a united Ireland; that is not there. Nor is there any suggestion that the future status of Northern Ireland should be decided by a single act of self-determination by the people of Ireland as a whole; that is not there either. Nor is there any timetable for constitutional change, or any arrangement for joint authority over Northern Ireland. In sum, the declaration provides that it is, as it must be, for the people of Northern Ireland to determine their own future.757 John Major also restated (in paragraph 4) that the UK government had “no selfish strategic or economic interest in Northern Ireland”. On 31 August 1994, following intense negotiations between and pressure from the British and Irish governments (with additional encouragement from the United States government), the IRA announced a ceasefire, as did Loyalist paramilitary organisations on 13 October. On 16 September, Major announced that the outcome of the three-strand talks would be put to a referendum in Northern Ireland.758 The commitment by the Republic of Ireland to revise Articles 2 and 3 of its constitution was significant. It was understood that a quid pro quo would be revision or repeal of the Government of Ireland Act 1920, although this had been significantly amended by the Northern Ireland Constitution Act 1973.

10.7 Framework Agreement On 22 February 1995 the Framework Documents were published. Part I, A Framework for Accountable Government in Northern Ireland, was produced by the UK government; Part II, A New Framework for Agreement, was a joint paper by the UK and Irish governments which offered proposals for relationships within the island of Ireland and between the two governments. Part I proposed a unicameral Northern Ireland Assembly of about 90 members elected for a fixed 4- or 5-year term; elections by a form of proportional representation; a system of Assembly committees to oversee the work of the Northern Ireland departments; and legislative and executive responsibility over as wide a range of subjects as in 1973

757 HC Debs 15 December 1993 c1073 758 Also in 1994 the Northern Ireland Committee (established in 1975) became the Northern Ireland (NIGC), comprising all Northern Ireland MPs and not more than 25 other Members. A Northern Ireland Affairs Committee was finally created the same year (see David Torrance and Adam Evans, “The Territorial Select Committees, 40 Years On”, Parliamentary Affairs 72:4, October 2019, pp860–78). 161 Commons Library Briefing, 21 December 2020

with scope for further transfers. Contentious legislation, meanwhile, would require a form of weighted majority or threshold approval. Part II committed the UK and Irish governments and political parties to agreeing “interlocking and mutually supportive institutions” including “North/South institutions” and “East-West structures”. The UK government also affirmed that the Government of Ireland Act 1920 would be amended or replaced (para 20) while the Irish government repeated its intention to amend its constitution.759 All-party talks began later that year. On 8 September 1995, was elected leader of the Ulster Unionist Party following the retirement of James Molyneaux. On 21 March 1996, John Major made a statement on arrangements for all-party negotiations.760 Northern Ireland Forum These were now to have an elected element. Schedule 1 of the Northern Ireland (Entry to Negotiations, etc) Act 1996 (“the 1996 Act”) provided for five “delegates” to be elected from each of the 18 new Northern Ireland Westminster constituencies,761 plus an extra 20 delegates for Northern Ireland as a whole (two from each of the ten parties with the largest aggregate vote). Under s2 the Secretary of State for Northern Ireland was to invite the nominating representative of each party with delegates to select a team; the participation of Sinn Féin was dependent upon the “unequivocal restoration of the ceasefire of August 1994”. Section 3 and Schedule 2 provided for a deliberative forum made up of the elected delegates, although s3(3) made clear this would not have any “power to determine the conduct, course or outcome of the negotiations”. Section 4 gave the Secretary of State the power to hold referendums by statutory instrument. An Order in Council would state the question to be asked and the franchise to be used. These referendums were to be “for the purpose of obtaining the views of the people of Northern Ireland on any matter relating to Northern Ireland”. This power, however, would not extend to the holding of a poll on the status of Northern Ireland under the 1973 Northern Ireland Constitution Act. The multi-party talks began on 10 June 1996 following elections on 30 May. Ten political parties were successful but not all took part. On 19 July 1997 the IRA announced the restoration of its ceasefire and on 29 August the new Secretary of State, , invited Sinn Féin to enter the talks process since they now met the requirements of the 1996 Act. The DUP, meanwhile, withdrew.

759 During the negotiations that followed, Sinn Féin stressed the significance of the 1920 Act and pressed for its repeal. 760 Northern Ireland Office, The Framework for a broadly acceptable elective process leading to all-party negotiations, March 1996. 761 This increase was due to take effect at the 1997 general election. 162 Parliament and Northern Ireland, 1921-2021

10.8 Belfast/Good Friday Agreement The multi-party negotiations lasted for nearly two years and culminated with the Belfast Agreement (also known as the Good Friday Agreement) on 10 April 1998.762 This provided for: • a new Northern Ireland Assembly, Executive and consultative Civic Forum (Strand 1);763 a North-South Ministerial Council (Strand 2); and a British-Irish Council (Strand 3); • amendment of Articles 2 and 3 of the 1937 Irish Constitution;764 • a commitment to decommissioning weapons held by paramilitary groups and a programme for the accelerated release of paramilitary prisoners; • the creation of a Northern Ireland Human Rights Commission and an Equality Commission for Northern Ireland; • an independent commission to make recommendations for future policing arrangements in Northern Ireland, and a review of criminal justice. The purpose of the Belfast/Good Friday Agreement was to reach a compromise between Northern Ireland’s two dominant communities; the cross-border institutions set out in Strand 2 hinted at a united Ireland, while the removal of territorial claims from the Irish constitution made clear UK sovereignty. Also key to the Agreement was the “principle of consent”, with Article 1(ii) recognising: that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland. As a result, the Ulster Unionist leader David Trimble and Sinn Féin president told specially convened party conferences, in Belfast and Dublin respectively, that the Agreement had, according to Unionists, preserved the Union and, in the view of Sinn Féin, begun the transition to a united Ireland.765

762 The Belfast/Good Friday Agreement comprised a Multi-Party Agreement and a British-Irish Agreement between the UK and Irish governments; the latter was registered at the United Nations as an international treaty. 763 The Civic Forum met for the first time in October 2000 but was suspended along with the Northern Ireland Assembly in 2002. In 2015, Sinn Féin and the DUP decided that instead of reconvening the Forum, they would establish a small civic advisory panel (see Paul Nolan & Robin Wilson, Dialogue and engagement: lessons from the Northern Ireland Civic Forum, Joseph Rowntree Charitable Trust, December 2015). 764 The resulting amendment removed Ireland’s de jure claim to Northern Ireland and its territorial waters. 765 Rick Wilford & Robin Wilson, “A ‘Bare Knuckle Ride’: Northern Ireland”, in Robert Hazell (ed), The State and the Nations: The First Year of Devolution in the United Kingdom, Exeter: Imprint Academic, 2000, p81. 163 Commons Library Briefing, 21 December 2020

The Agreement was endorsed in a referendum on 22 May 1998.766 Most members of the Ulster Unionist Party, the SDLP and Sinn Féin campaigned for a Yes vote, while the DUP and Republican splinter groups campaigned for No. As in 1973, votes were counted on a Northern Ireland-wide basis. The question was: Do you support the Agreement reached at the Multi-Party Talks in Northern Ireland and set out in Command Paper 3883? A copy of Command Paper 3883 had been sent to every household in Northern Ireland. 71.1% voted Yes and 28.9% No. The turnout was 81%.767 At a special ard fheis (conference) on 10 May, Sinn Féin delegates voted overwhelmingly for the party to take up its seats in the new Assembly, overturning its long-standing policy of (although this was to continue at Westminster). On 25 June 1998, elections were held to the Northern Ireland Assembly under the terms of the Northern Ireland (Elections) Act 1998. It was to be called the “New Northern Ireland Assembly” or “Shadow Assembly” to distinguish it from the Northern Ireland Assembly for which legislative provision remained under the Northern Ireland Constitution Act 1973. The Shadow Assembly met for the first time on 1 July at ,768 where David Trimble was elected First Minister (designate) and the SDLP deputy leader Seamus Mallon deputy First Minister (designate). The then Secretary of State, Mo Mowlam, appointed Lord Alderdice as the “Initial” Presiding Officer.769 The Shadow Assembly met for a second time on 14 September 1998, this time at the refurbished Parliament Buildings.

10.9 Northern Ireland Act 1998 Following the successful referendum, the Northern Ireland Bill was introduced to the UK Parliament to give (partial) legal force to the Belfast/Good Friday Agreement. It sought to repeal the 1920 and 1973 Acts and transfer legislative functions to the “new” Northern Ireland Assembly, and executive functions to the First Minister and deputy First Minister, once negotiations were completed. The Northern Ireland Act 1998 received Royal Assent on 19 November 1998. Section 1 and Schedule 1 gave the Secretary of State for Northern Ireland the power to call for a referendum:

766 An Order was laid for the referendum under the 1996 Act, the Northern Ireland Negotiations (Order) 1998. 767 Commons Library Research Paper 99/30, Referendums: Recent Developments, 16 March 1999, p49. A referendum in the Republic of Ireland also endorsed the Belfast/Good Friday Agreement with 94% voting Yes (on a 56% turnout), as well as related changes to Articles 2 and 3 of the Irish constitution. 768 The Parliament Buildings were being refurbished at the time. 769 It had been intended that the Assembly would elect its own presiding officer, but in the event Lord Alderdice was confirmed in office in late 1999. The Assembly’s Standing Orders provided for him to be addressed as “Speaker”. 164 Parliament and Northern Ireland, 1921-2021

if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.770 As several academics have observed, the 1998 Act is vague as to how this likelihood ought to be assessed.771 At its third meeting on 18 January 1999, the Northern Ireland Assembly approved new departmental structures, which formed the basis of the present Northern Ireland departments. On 30 November 1999, the Secretary of State made the Northern Ireland Act 1998 (Commencement Order No 5). On 2 December 1999, the Departments (Transfer and Assignment of Functions) Order (Northern Ireland) 1999 and Departments (Northern Ireland) Order 1999 were laid at Westminster and thus “finalised the replacement of direct rule”.772 The Government of Ireland Act 1920 was repealed the same day. Later, Lord Bingham, then a Lord of Appeal in Ordinary, referred to the Northern Ireland Act 1998 as “in effect a constitution”,773 just as the 1920 Act had once been described.

770 Commons Library Research Paper 98/76, The Northern Ireland Bill: Implementing the Belfast Agreement, 20 July 1998. See also Commons Library Research Paper 98/77, The Northern Ireland Bill: Some Legislative and Operational Aspects of the Assembly, 17 July 1998. 771 For a full analysis, see The Constitution Unit, Working Group on Unification Referendums on the Island of Ireland: Interim Report, November 2020, pp109-33. 772 Derek Birrell, p17. 773 Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 165 Commons Library Briefing, 21 December 2020

11. Northern Ireland, 1999-2021

Devolution and political developments in Northern Ireland since 1999 have been well covered, not least in the House of Commons Library’s own publications.774 This section does not rehearse these in as much depth as previous chapters, but instead examines the Northern Ireland Act 1998 in the context of the Government of Ireland Act 1920 and the Northern Ireland Constitution Act 1973. It also highlights constitutional developments after 1999 and concludes by looking at the centenary of Northern Ireland in 2021.

11.1 The 1920, 1973 and 1998 Acts compared In terms of nomenclature, the 1998 Act owed more to the 1973 Act than 1920. The legislature – as in 1973-74 and 1982-86 – was called the Northern Ireland Assembly (rather than the Parliament of Northern Ireland) and the executive – as in 1973-74 – the Northern Ireland Executive (rather than the Government of Northern Ireland). Instead of a Prime Minister (1921-72) or Chief Executive (1973-74), the head of that Executive was to be called First Minister (as in Scotland and, later, Wales),775 while another important break with the 1920 Act was a co-equal deputy First Minister, which reflected the power-sharing nature of the Executive. The Assembly, as in 1973-74, was to be unicameral and elected (as in 1921-29 and 1973-74) by the single transferable vote. Rather than Members of Parliament (as in 1921-72) those elected were to be known as Members of the Legislative Assembly (MLAs), as they had been in 1973-74. Stormont remained the main link to the past. The Assembly continued to meet in the refurbished House of Commons chamber (it had been destroyed by a fire in 1995) at the Parliament Buildings in Belfast. This had been opened as a permanent home for the Parliament of Northern Ireland in 1932. The redundant Senate chamber was used by Assembly committees and by the Renewable Heat Incentive Inquiry between 2017 and 2020. Unlike in 1921-72, there was no state opening or Queen’s Speech in Stormont’s Great Hall.776 But, as before, “Stormont” did become a metonym for Northern Ireland’s devolved institutions. A Secretary of State for Northern Ireland continued to exercise some powers once held by the Governor and Government and of Northern

774 See, for example, Commons Library Briefing Paper CBP 8439, Devolution in Northern Ireland 1998-2020, 4 February 2020. 775 Until October 2000, the leader of the Welsh Assembly Government was known as the “First Secretary”. 776 The Great Hall instead became a setting for televised press statements. The silver maces used in the former Commons and Senate, as well as Black Rod’s Wand, are in storage at Parliament Buildings. All are now the property of the Northern Ireland Assembly. 166 Parliament and Northern Ireland, 1921-2021

Ireland.777 The Great Seal of Northern Ireland, unlike its Scottish and Welsh equivalents, remained in the possession of the Secretary of State rather than passing to the First and deputy First Minister of Northern Ireland.778 While the Belfast/Good Friday Agreement had envisaged that the Assembly would be “the prime source of authority” and would exercise “full legislative and executive authority”, s23(1) of the 1998 Act provided that executive power in Northern Ireland would continue to be vested in Her Majesty, just as it had (via the Governor) under the 1920 Act (as amended).779 Division of powers Although the 1920 Act was repealed on 2 December 1999, the 1998 Act replicated its tripartite division of powers: excepted, reserved and transferred. The 1973 Act had also retained these categories, although the distribution of powers differed between the three Acts. When fully functioning, the Northern Ireland Assembly can make primary and subordinate legislation on transferred matters; on reserved matters with the consent of the Secretary of State for Northern Ireland and, in limited circumstances, on excepted matters. Initially, the Assembly differed from the and National Assembly for Wales (now Cymru/Welsh Parliament) – both established following referendums in 1999780 – in that its responsibilities included welfare. This acknowledged the Parliament of Northern Ireland’s previous responsibility for social security. Section 88(3) of the 1998 Act enabled transfers to be made between the Great Britain and Northern Ireland National Insurance Funds in order to maintain parity of balances, continuing similar arrangements in place since 1926 (see Section 4.4).781 The 1998 Act also put the long-standing “parity principle” on a statutory basis for the first time. Section 87(1) states that: The Secretary of State and the Northern Ireland Minister having responsibility for social security (“the Northern Ireland Minister”) shall from time to time consult one another with a view to securing that, to the extent agreed between them, the legislation to which this section applies provides single systems of social security, child support and pensions for the United Kingdom.

777 The Privy Council of Northern Ireland was not revived, although it still exists. 778 The Secretary of State also has responsibility for political stability, relations with the Northern Ireland Executive and forwarding Northern Ireland Assembly Bills for Royal Assent (as well as rejecting Bills deemed incompatible with the Assembly’s legislative competence). 779 The author is indebted to Conor McCormick for this observation. 780 Discourse around devolution to Scotland and Wales in 1997-99 often highlighted its “unprecedented” nature, which illustrated the extent to which the Northern Ireland settlement of 1921-72 had faded from the public consciousness. 781 Section 141(2) of the Social Security Administration (Northern Ireland) Act 1992 (as amended) had moved management of the Northern Ireland National Insurance Fund from the Department of Health and Social Services for Northern Ireland to the Inland Revenue (later HMRC). 167 Commons Library Briefing, 21 December 2020

As with the first devolution settlement in Northern Ireland (1921-72), after 1999 there were extensions of the Assembly’s legislative power via primary legislation at Westminster. Responsibility for justice (or law and order) was transferred to the Assembly in April 2010, while the Corporation Tax (Northern Ireland) Act 2015 provided for the Assembly to set corporation tax in respect of certain trading profits, although it has yet to be enacted. Assembly procedure Procedure in the Northern Ireland Assembly purposefully guarded against single-party domination, as had been the case between 1921 and 1972. MLAs designate themselves “Nationalist”, “Unionist” or “other” at the first meeting of an Assembly following an election and can only change their community designation between elections if they have changed their party-political affiliation.782 The Assembly is chaired by a Speaker and three deputies. Most decisions of the Assembly are taken by a simple majority vote (as in 1921-72).783 However, certain “key decisions”, such as approval for a budget, must have cross-community support, either: • Parallel consent, where more than 50% of MLAs agreed to the motion, including more than 50% of designated Nationalists and more than 50% of designated Unionists; • A weighted majority, which requires the support of 60% of those voting, including 40% Unionist and 40% Nationalist support.784 Another important aspect of Assembly voting is called a Petition of Concern. If, in accordance with s42(1) of the 1998 Act, 30 MLAs: petition the Assembly expressing their concern about a matter which is to be voted on by the Assembly, the vote on that matter shall require cross-community support. Measures agreed under the 2006 also mean that 30 MLAs can petition the Assembly to refer a ministerial decision back to the Executive for review.785 The Petition of Concern is to be further reformed as part of the 2020 New Decade, New Approach agreement (see below). Following the 2014 Agreement, an official opposition can be formed in the Assembly consisting of any party which is entitled to a seat in the Executive but has declined to take it up.786 In 2016-17,

782 Before 2006, MLAs could change their designation without a change of party membership, something several did so to facilitate David Trimble’s re-election as First Minister in November 2001. 783 The academic Jonathan Tonge has calculated that between December 1999 and October 2020, 81% of Assembly votes were taken by simple majority and only 6% under the parallel consent mechanism. 784 Colin Knox, Devolution and the governance of Northern Ireland, Manchester: Manchester University Press, 2010, p19. 785 Derek Birrell and Cathy Gormley-Heenan, Multi-Level Governance and Northern Ireland, Basingstoke: Palgrave Macmillan, 2015, p58. 786 For its legislative basis (and benefits), see the Executive Reform (Assembly Opposition) Act (Northern Ireland) 2016. 168 Parliament and Northern Ireland, 1921-2021

the Ulster Unionist Party and SDLP formed the opposition, but after January 2020 all eligible parties formed part of the Executive. Executive Committee The Northern Ireland Executive Committee (or simply Executive) comprises the First Minister, deputy First Minister and eight (initially eleven) departmental ministers. Executive ministers are nominated by the political parties in the Northern Ireland Assembly. The number nominated by each party is determined under the d’Hondt formula according to its share of seats in the Assembly.787 The only exception is the Minister for Justice, which after the devolution of policing and justice in 2010 has been appointed following a cross-community vote in the Assembly. In keeping with the previous devolution settlement (1921-72), statutory St Andrews powers are vested in individually constituted Executive departments led Agreement, 2006 by their own permanent secretary. Each minister thus has executive The St Andrews authority effectively independent of the others although they must Agreement operate within the terms of the when it comes to their followed talks obligations to the Executive. between the UK and Irish This means that judicial review is usually directed at individual governments and departments rather than “Northern Ireland Ministers” collectively, as in Northern Ireland’s Scotland and Wales. It also means that one department/minister can political parties. Key judicially review the actions of another. elements of the Initially, the First and deputy First Minister (who jointly head the Agreement included full Executive Office) were elected by the Assembly, but under the 2006 St acceptance of the Andrews Agreement and subsequent legislation, they are now Police Service of nominated, respectively, by the largest party within the largest political Northern Ireland by designation and the largest party within the second-largest political Sinn Fein, designation. If one resigns, the other automatically ceases to hold office restoration of the and both vacant offices must be filled within a period of seven days. Northern Ireland Assembly and This form of power-sharing government is often known as 788 acceptance by the consociation, and represents another deliberate departure from the DUP that it would system of majority rule in place between 1921 and 1972. share power with Financial arrangements Republicans in the Northern Ireland Like those in Scotland and Wales, the devolved Northern Ireland Executive. administration is funded by a combination of a “block grant” from Westminster, changes to which are governed by the non-statutory Barnett formula, and locally-raised revenue via taxation.789 The Assembly has fewer powers in this respect than the Scottish and Welsh Parliaments, controlling only the “regional rate” for domestic and non‐domestic property, a local government responsibility in other parts

787 The d’Hondt method is also used to determine membership of the Scottish Parliament and National Assembly for Wales. 788 See Arend Lijphart, “The Northern Ireland Problem: Cases, Theories and Solutions”, British Journal of Political Science 5:1, pp83-106. 789 It has been argued that the introduction of the Barnett formula in 1978 was a consequence of Westminster’s previous financial relations with Stormont (see David King and David Eiser, “Reform of the Barnett Formula with Needs Assessment: Can the Challenges be Overcome?”, Regional Studies 50:5, 2016, pp790-804). 169 Commons Library Briefing, 21 December 2020

of the UK.790 This is perhaps the major difference between the 1998 and 1920 Acts, in that the latter transferred some fiscal powers to the former Parliament of Northern Ireland. The Public Income and Expenditure Accounts of Northern Ireland remains a legacy publication from the 1920 Act.791 It is laid before the Northern Ireland Assembly by the Department of Finance under s2(2) of the Exchequer and Financial Provisions Act (Northern Ireland) 1950, as amended by Article 3 of the Financial Provisions (Northern Ireland) Order 1998. The January 2020 New Decade, New Approach agreement included additional financial support from the UK government, to be overseen by a new UK Government-Northern Ireland Executive Joint Board.792 This will conduct quarterly reviews of the additional funding as well as implementation of other aspects of the agreement. The Joint Board met for the first time on 22 July 2020. Sovereignty and legislative consent Section 1(1) of the 1998 Act echoes similar provisions in the Ireland Act 1949 and the 1973 Act in declaring that Northern Ireland: in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1. However s1(2) goes further in stating that: if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland. Having restated the principle of consent, the 1998 Act echoes Section 75 of the 1920 Act by making clear that the UK Parliament – as in Wales and Scotland – remains sovereign (or legislatively supreme) in relation to UK law and retains the right to legislate, should it wish to do so, in all areas relating to Northern Ireland. Section 5(6) states that “the power of the Parliament of the United Kingdom to make laws for Northern Ireland” was unaffected. As under the 1920 Act, an Act of the Assembly “may modify any provision made by or under an Act of Parliament in so far as it is part of the ”, in other words in an area transferred to the Assembly.

790 After 1999, local government in Northern Ireland remained weaker than that in Great Britain. The 26 councils established in 1972 were reduced to 11 in 2015. 791 The 1998 Act also repealed (in their entirety) the Northern Ireland (Temporary Provisions) Act 1972, the Northern Ireland Assembly Act 1973, the Northern Ireland Act 1974, the Northern Ireland Act 1982, and sections of the Northern Ireland Act 1947 (see Schedule 15). 792 Unlike the Joint Exchequer Board (1921-72), this will not be a statutory body. 170 Parliament and Northern Ireland, 1921-2021

Devolution in Northern Ireland, 2000-07 The early years of the Northern Ireland Assembly proved unstable. Section 1 of the Northern Ireland Act 2000 had provided a mechanism for a return to Direct Rule, as well as the subsequent restoration of devolved institutions. The UK government used these provisions to impose Direct Rule and resume devolution on a number of occasions between 2000 and 2007:793 • 11 February-30 May 2000; • 10 August 2001 (24-hour suspension); • 22 September 2001 (24-hour suspension); • 14 October 2002-7 May 2007 On the first and last occasions, many of the procedures associated with Direct Rule between 1972 and 1999 once again applied.794 As part of the St Andrews Agreement, which paved the way for the restoration of devolved government in 2007, it was agreed that the 2000 Act would be repealed. This meant that any future reversion to Direct Rule would require fresh primary legislation. Devolution in Northern Ireland, 2017-20 The UK government decided not to legislate for Direct Rule following the collapse of the Northern Ireland Executive in January 2017. From then until January 2020, when the Executive was reformed, devolved institutions were not fully functioning.795 This has been called “indirect rule”.796 The UK government passed several pieces of legislation during this period, including the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018. This permitted the Northern Ireland Civil Service to take certain decisions in the public interest and within guidance published by the Secretary of State. The New Decade, New Approach agreement proposed further reforms, the intention of which are to avoid another long period without an Executive being formed. There was controversy in 2019 when the UK Parliament chose to legislate in two areas transferred to the Assembly. Backbench amendments to what became the Northern Ireland (Executive Formation) Act 2019 obliged the UK government to lay regulations which changed the law in Northern Ireland relating to abortion and same-sex marriage.797 This was justified on the basis that at that time the Assembly was not fully functioning. The Assembly can, if it chooses to, repeal or amend both policies.

793 The devolved institutions were suspended but never removed. 794 See Commons Library Briefing Paper CBP-8638, Northern Ireland: Direct Rule, 18 December 2019. 795 See Commons Library Briefing Paper CBP-8607, Northern Ireland (Executive Formation) Bill 2017-19, 4 July 2019. 796 See Adam Evans, “Northern Ireland, 2017-20: An Experiment in indirect rule”, Public Law, December 2020. 797 See Commons Library Briefing Papers CBP-8909, Abortion in Northern Ireland: recent changes to the legal framework, 26 June 2020, and CBP-8646, Marriage of same sex couples: Northern Ireland, 8 January 2020. 171 Commons Library Briefing, 21 December 2020

The Sewel Convention A convention in place between 1922 and 1972 under which the UK Parliament did not legislate in transferred areas was revived. During debates on what became the , Lord Sewel said he expected a legislative consent convention to apply to the Scottish Parliament “as happened in Northern Ireland earlier in the century”.798 This became known as the Sewel Convention, under which Westminster does “not normally” pass laws on devolved areas without first obtaining the consent of the relevant devolved legislature.799 Although framed in relation to the Scottish Parliament, it came to apply also to the Welsh Parliament and Northern Ireland Assembly. Unlike the previous convention, however, this one required a formal vote in the Northern Ireland Assembly. Legislative consent under Sewel was refused for the UK Enterprise Bill in 2015,800 and several times between 2018 and 2020 in relation to Brexit legislation (see below). Speaker’s ruling The Speaker’s ruling of 1923 – which restricted discussion of transferred matters in the UK House of Commons – was not revived after 1999. Instead, following a report from the Procedure Committee,801 the Commons passed a resolution on 25 October 1999 to which Erskine May refers: Questions on matters which have been devolved to the National Assembly for Wales, the Northern Ireland Assembly or the Scottish Parliament relating to the details of policy or expenditure are not in order. However, under the Resolution of 25 October 1999 such questions may be asked if they seek information which the United Kingdom Government is empowered to require of the devolved executive, relate to legislative proposals in the United Kingdom Parliament, refer to the operation of agreements between devolved institutions and central government, or relate to matters in which United Kingdom Ministers have taken an official interest. During periods when the Executive and Assembly in Northern Ireland were suspended (or not fully functioning), this resolution’s restrictions were not applied. Erskine May, however, also observes that the saving for matters which UK government ministers “have taken an official interest in” has encouraged “a degree of flexibility” in the interpretation of this resolution, with the Speaker taking “a generally permissive approach to references to devolved matters”.

11.2 Intergovernmental relations Unlike previous attempts to establish a cross-border “Council of Ireland” in 1920-26 and 1973-74, the Belfast/Good Friday Agreement

798 HL Deb 21 Jul 1998 Vol 592 c791 799 See Adam Evans, “A Tale as Old as (Devolved) Time? Sewel, Stormont and the Legislative Consent Convention”, Political Quarterly. 800 See Commons Library Briefing Paper CBP8274, Brexit: Devolution and legislative consent, 29 March 2018. 801 Procedure Committee, Fourth Report of Session 1998–99, The Procedural Consequences of Devolution, HC 185. 172 Parliament and Northern Ireland, 1921-2021

succeeded in creating two statutory forums in which the Republic of Ireland and Northern Ireland Executive are represented, as well as other administrations in the British Isles. North-South Ministerial Council Strand Two of the Agreement provided that at least 12 subject areas would be identified for co-operation and implementation for mutual benefit under the aegis of the North South Ministerial Council (NSMC). British-Irish Council The Agreement also established the British-Irish Council (BIC) as an east- west counterpart to the NSMC, with a secretariat based (since 2012) in Edinburgh. According to the BIC’s website, its purpose is “exchange information, discuss, consult and use best endeavours to reach agreement” on matters of mutual interest. It consists of the UK Government, Irish Government, Northern Ireland Executive, , , Isle of Man Government, States of and the States of . It meets twice a year in heads-of-government plenary and is supported by workstreams on matters of common interest.802 British-Irish Intergovernmental Conference A third body established under the Agreement was the British-Irish Intergovernmental Conference (BIIGC), which subsumed the Anglo-Irish Intergovernmental Council and Intergovernmental Conference established under the 1985 Anglo-Irish Agreement. The BIIGC grants the Irish government a say in areas of bilateral cooperation and on non-devolved matters. It has a joint secretariat comprising officials from the UK and Irish governments.803 Joint Ministerial Committee Although not a creation of the Agreement or the 1998 Act, the Joint Ministerial Committee (JMC) is an important forum for discussions (and for resolving disputes) between the UK government and devolved administrations in Scotland, Wales and Northern Ireland. It was established under a Memorandum of Understanding initially agreed in 1999 and subsequently revised. United Kingdom Supreme Court Until 2009, “devolution issues” relating to Northern Ireland were considered by the Appellate Committee of the House of Lords, which had also considered challenges to Northern Ireland statute (alongside the Judicial Committee of the Privy Council) between 1921 and 1972. After 2009, the Supreme Court of the United Kingdom (UKSC) fulfilled this role, with the UKSC able to rule (under s11 of the 1998 Act) that primary legislation made by the Northern Ireland Assembly was outside of competence.804

802 The statutory Ministerial Code also covers the Executive’s role in the NSMC and BIC. 803 Acting together, the First Minister and deputy First Minister nominate ministers to attend the NSMC, BIC and BIIC. All such arrangements require Assembly approval. 804 See Commons Library Briefing Paper 07670, The Supreme Court on Devolution, 27 July 2016. 173 Commons Library Briefing, 21 December 2020

Box 1: Attorney General for Northern Ireland The Attorney General for Northern Ireland (AGNI) is the chief legal adviser to the Northern Ireland Executive for matters within the devolved powers of the Northern Ireland Assembly.805 An Attorney General existed in Northern Ireland between 1921 and 1972 and the position was always held by an Ulster Unionist Party MP. Following the prorogation of Stormont in 1972, the Attorney General for England and Wales also became Attorney General for Northern Ireland and was either a UK MP or a peer. Although the Justice (Northern Ireland) Act 2002 set out the role and powers of the Attorney General, responsibility for justice was not transferred to the Assembly until April 2010, at which point the Attorney General for England and Wales (and Northern Ireland) instead became Advocate General for Northern Ireland, a UK law officer. The AGNI can participate in proceedings of the Assembly but not vote. They are politically independent and can represent Northern Ireland even when there is no functioning Assembly or Executive. This occurred during a UKSC hearing regarding a dispute between the UK and Scottish governments. The Attorney General for Northern Ireland has the power to refer any Assembly legislation, where there is doubt as to its legality, to the UKSC. See Commons Library Briefing Paper, The Law Officers: a Constitutional and Functional Overview, for more details of the AGNI and other UK law officers.

11.3 Northern Ireland and Brexit Intergovernmental relations came under pressure following the UK’s decision to leave the (EU) in 2016. Subsequent negotiations between the UK government and the EU highlighted the status of the Northern Ireland border, created by the 1920 Act and de- securitized following the 1998 Belfast/Good Friday Agreement.806 There were debates within the Conservative Party – which in 2017-19 relied upon a confidence-and-supply arrangement with the DUP – regarding the desirability of divergence between Great Britain and Northern Ireland. In February 2018, the then Prime Minister rejected a “backstop” arrangement on the basis that it would “threaten the constitutional integrity of the UK”.807 Others feared a return to violence if the border once again became “hard”. A Northern Ireland Protocol was finally agreed in October 2019 as part of the Withdrawal Agreement which saw the UK leave the EU on 31 January 2020. This made provision for Northern Ireland to continue to enforce the EU’s customs rules and follow rules arising from its single market on goods. A consequence will be new checks and controls on some goods as they enter Northern Ireland from Great Britain, something that has been called an . The Protocol came into force on 1 January 2021 and is subject to a Democratic Consent Mechanism exercised by the Northern Ireland Assembly or, if the Assembly is not in operation, by MLAs.808

805 Attorney General for Northern Ireland website, “About Us”. 806 In its judgment on the Miller I case, the Supreme Court erroneously stated that “Northern Ireland joined the United Kingdom pursuant to the in Britain and Ireland”. In its brief constitutional history of the UK, it also omitted any key dates relating to the constitutional development of Northern Ireland. 807 HC Debs 28 February 2018 Vol 636 c823 808 A UK statutory instrument inserted the democratic consent process into domestic law by amending the Northern Ireland Act 1998. 174 Parliament and Northern Ireland, 1921-2021

11.4 Centenary of Northern Ireland The January 2020 New Decade, New Approach agreement included a commitment from the UK government to work alongside the restored Executive: to mark the centenary of Northern Ireland in 2021 in a spirit of mutual respect, inclusiveness and reconciliation in line with the principles for remembering. This approach to the centenary will provide an opportunity to reflect on the past as well as to build for the future, within [Northern Ireland], across the UK, across the island of Ireland and internationally.809 Speaking in the Northern Ireland Assembly on 2 March 2020, First Minister said that while “there are a lot of us who will want to mark the centenary in a meaningful way; in a celebratory way”, she accepted that “there are others who will take a different view”: It is important that we use this centenary in a very meaningful way, that we do not allow it to divide us, but actually to unite us and to look to the next period in time in Northern Ireland when I hope we can build a stronger Northern Ireland economically, moving forward for all of our people.810 In a lecture marking the centenary, Sinn Féin deputy leader Michelle O’Neill said: Unionism will choose to mark these events in a way in which they see fit. And, unsurprisingly, the British government has proposed it should be an occasion for celebration. Nationalism, however, will see it differently. For Irish republicans and nationalists, there will be no celebration of the partition of our country. On a visit to Northern Ireland on 13 August 2020, Prime Minister announced plans to establish a Northern Ireland Centenary Forum and a Centenary Historical Advisory Panel to help mark 100 years since the creation of Northern Ireland “and the formation of the United Kingdom as we know it today”.811 On 14 December, the Secretary of State for Northern Ireland, , announced the branding to be used for centenary events: Our Story in the Making: NI Beyond 100. It was initial unclear which date was to be considered the centenary of Northern Ireland. In 1971, it was taken to be 22 June, the date on which George V had opened the Parliament of Northern Ireland in 1921. The historian Lord Bew (a member of the Centenary Historical Advisory Panel) thought this a strong contender in 2021.812 On 30 April 2021, the Panel decided that 3 May 2021 was to be considered the centenary. The Northern Ireland Assembly concurred.813

809 Northern Ireland Office, New Decade, New Approach, 9 January 2020. 810 Northern Ireland Assembly Official Report, 2 March 2020 811 The Centenary Forum met for the first time via video call on 4 September 2020, and again on 9 October. The SDLP and Sinn Féin declined to nominate representatives. 812 See Sam McBride, “King’s 1921 speech key moment for Northern Ireland’s centenary commemorations, says historian Lord Bew”, News Letter, 15 August 2020. 813 Mark Simpson, “NI 100: Historians declare 3 May as Northern Ireland birthdate”, BBC News online, 30 April 2021. 175 Commons Library Briefing, 21 December 2020

Appendix 1: Government of Ireland Act 1920 timeline

23 December 1920 Government of Ireland Act 1920 receives Royal Assent 3 May 1921 Northern Ireland and its border established 22 June 1921 Parliament of Northern Ireland opened by George V 6 December 1921 Anglo-Irish Treaty signed 31 March 1922 Irish Free State (Agreement) Act 1922 5 December 1922 Irish Free State (Consequential Provisions) Act 1922 6-7 December 1922 Irish Free State constituted; Northern Ireland “opts out” 3 December 1925 Tripartite Boundary Agreement 12 April 1927 Royal and Parliamentary Titles Act 1927 3 August 1928 Northern Ireland (Miscellaneous Provisions) Act 1928 17 March 1932 Northern Ireland (Miscellaneous Provisions) Act 1932 7 March 1945 Northern Ireland (Miscellaneous Provisions) Act 1945 31 July 1947 Northern Ireland Act 1947 2 June 1949 Ireland Act 1949 1952 Northern Ireland (Foyle Fisheries) Act 1952 1955 Northern Ireland Act 1955 3 July 1962 Northern Ireland Act 1962 30 March 1972 Northern Ireland (Temporary Provisions) Act 1972 18 July 1973 Northern Ireland Constitution Act 1973 17 July 1974 Northern Ireland Act 1974 23 July 1982 Northern Ireland Act 1982 15 November 1985 Anglo-Irish Agreement 15 December 1993 Downing Street Declaration 22 February 1995 Framework Documents 10 April 1998 Belfast/Good Friday Agreement 2 December 1999 Repeal of the 1920 Act 23 December 2020 Centenary of the 1920 Act 3 May 2021 Centenary of Northern Ireland 176 Parliament and Northern Ireland, 1921-2021

Appendix 2: Political leaders in Northern Ireland

11.5 Lords Lieutenant of Ireland Viscount French (9 – 30 April 1921) Viscount FitzAlan of Derwent (27 April 1921 – 6 December 1922)

11.6 Chief Secretaries for Ireland Sir Hamar Greenwood Bt MP (2 April 1920 – 19 October 1922)

11.7 Governors of Northern Ireland Duke of Abercorn (12 December 1922 – 6 September 1945) (7 September 1945 – 1 December 1952) Lord Wakehurst (1 December 1952 – 1 December 1964) Lord Erskine of Rerrick (1 December 1964 – 27 November 1968) Lord Grey of Naunton (27 November 1968 – 26 June 1973)

11.8 Prime Ministers of Northern Ireland Sir James Craig MP (7 June 1921 – 24 November 1940) John Miller Andrews MP (27 November 1940 – 1 May 1943) Sir Basil Brooke MP (1 May 1943 – 25 March 1963) Terence O’Neill MP (25 March 1963 – 1 May 1969) James Chichester-Clark MP (1 May 1969 – 23 March 1971) Brian Faulkner MP (23 March 1971 – 30 March 1972)

11.9 Chief Executive of Northern Ireland Brian Faulkner MLA (1 January 1974 – 28 May 1974)

11.10 Secretaries of State for Northern Ireland William Whitelaw MP (30 March 1972 – 2 December 1973) Francis Pym MP (2 December 1973 – 4 March 1974) Merlyn Rees MP (5 March 1974 – 10 September 1976) MP (10 September 1976 – 4 May 1979) Humphrey Atkins MP (5 May 1979 – 14 September 1981) Jim Prior MP (14 September 1981 – 11 September 1984) MP (11 September 1984 – 3 September 1985) Tom King MP (3 September 1985 – 24 July 1989) 177 Commons Library Briefing, 21 December 2020

Peter Brooke MP (24 July 1989 – 10 April 1992) Sir Patrick Mayhew MP (10 April 1992 – 2 May 1997) Mo Mowlam MP (3 May 1997 – 11 October 1999) MP (11 October – 24 January 2001) John Reid MP (25 January 2001 – 24 October 2002) Paul Murphy MP (24 October 2002 – 6 May 2005) MP (6 May 2005 – 27 June 2007) MP (28 June 2007 – 11 May 2010) MP (12 May 2010 – 4 September 2012) MP (4 September 2012 – 14 July 2016) MP (14 July 2016 – 8 January 2018) MP (8 January 2018 – 24 July 2019) Julian Smith MP (24 July 2019 – 13 February 2020) Brandon Lewis MP (13 February 2020 – )

11.11 First Ministers of Northern Ireland David Trimble MLA (UUP) (1 July 1998 – 1 July 2001, 6 November 2001 – 14 October 2002)814 Ian Paisley MLA (DUP) (8 May 2007 – 5 June 2008) Peter Robinson MLA (DUP) (5 June 2008 – 11 January 2010, 3 February 2010 – 10 September 2015, 20 October 2015 – 11 January 2016)815 Arlene Foster MLA (DUP) (11 January 2016 – 9 January 2017; 11 January 2020 – June 2021)

11.12 Deputy First Ministers of Northern Ireland Seamus Mallon MLA (SDLP) (1 July 1998 – 6 November 2001) MLA (SDLP) (6 November 2001 – 14 October 2002) Martin McGuinness MLA (Sinn Féin) (8 May 2007 – 20 September 2011, 31 October 2011 – 9 January 2017)816 Michelle O’Neill MLA (Sinn Féin) (11 January 2020 – )

11.13 Speakers of the House of Commons of Northern Ireland Sir Hugh O’Neill Bt MP (1921 – 1929)

814 In 1998, Ulster Unionist MLA Sir served as Acting First Minister. David Trimble joined the House of Lords in 2006 and left the Ulster Unionist Party a year later to become a member of the Conservative Party. 815 In 2007 and 2011, DUP MLA Arlene Forster was Acting First Minister. 816 During 2011, Sinn Féin MLA John O’Dowd served as acting Deputy First Minister. 178 Parliament and Northern Ireland, 1921-2021

Sir Henry Mulholland Bt MP (1929 – 1945) Sir Norman Stronge Bt MP (1945 – 1956) William F. McCoy MP (1956) Sir Norman Stronge Bt MP (1956 – 1969)817 MP (1969 – 1972)

11.14 Speakers of the Senate of Northern Ireland 3rd Marquess of Dufferin and Ava (1921 – 1930) 6th (1930 – 1950) Sir Roland Nugent (1950 – 1961) Sir Alexander Gordon (1961 – 1964) 2nd Baron Glentoran (1964 – 1972)

11.15 Speakers of the Northern Ireland Assembly Lord Alderdice MLA (Alliance) (1 July 1998 – 29 February 2004) MLA (Alliance) (8 May 2007) William Hay MLA (DUP) (8 May 2007 – 13 October 2014) Mitchel McLaughlin MLA (Sinn Féin) (12 January 2015 – 12 May 2016) MLA (DUP) (12 May 2016 – 11 January 2020) MLA (Sinn Féin) (11 January 2020 – )

817 Sir Norman Stronge was shot and killed by the Provisional IRA in 1981. 179 Commons Library Briefing, 21 December 2020

Appendix 3: Selected bibliography

Stuart C. Aveyard, No Solution: The Labour Government and the Northern Ireland Conflict, 1974-79, Manchester: Manchester University Press, 2016 Paul Bew, Peter Gibbon and Henry Patterson, Northern Ireland 1921/2001: Political Forces and Social Classes, London: Serif, 2002. Derek Birrell, Direct Rule and the Governance of Northern Ireland, Manchester: Manchester University Press, 2009 Derek Birrell and Alan Murie, Policy and Government in Northern Ireland: Lessons of Devolution, Dublin: Gill and Macmillan, 1980 J. W. Blake, Northern Ireland in the Second World War, Belfast: HMSO, 1956 Kenneth Bloomfield, Stormont in Crisis: A Memoir, Belfast: Blackstaff Press, 1994 Kenneth Bloomfield, A Tragedy of Errors: The Government and Misgovernment of Northern Ireland, Liverpool: Liverpool University Press, 2007 Patrick Buckland, The Factory of Grievances: Devolved Government in Northern Ireland 1921-39, Dublin: Gill and Macmillan, 1979 John Coakley and Jennifer Todd, Negotiating a Settlement in Northern Ireland, 1969-2019, Oxford: Oxford University Press, 2020 James A. Cousins, Without a Dog’s Chance: The Nationalists of Northern Ireland and the Irish Boundary Commission, 1920-25, Newbridge: Irish Academic Press, 2020 Noel Dorr, Sunningdale: the search for peace in Northern Ireland, Dublin: Royal Irish Academy, 2017 Ronan Fanning, Fatal Path: British Government and Irish Revolution 1910-1922, London: Faber & Faber, 2013 , The SDLP: The Struggle for Agreement in Northern Ireland, 1970-2000, Dublin: Press, 2010 Brian Faulkner, Memoirs of a Statesman, London: Weidenfeld & Nicolson, 1978 Siobhán Fenton, The Good Friday Agreement, London: Biteback, 2018 Robert Fisk, In Time of War: Ireland, Ulster and the Price of Neutrality 1939-45, London: Andre Deutsch, 1983 Ivan Gibbons, Partition: How and Why Ireland Was Divided, London: Haus, 2020 Alan Greer, “Sir James Craig and the construction of Parliament Buildings at Stormont”, Irish Historical Studies 31:123, May 1999 Brigid Hadfield, The Constitution of Northern Ireland, Belfast: SLS, 1989 180 Parliament and Northern Ireland, 1921-2021

Thomas Hennessey, Máire Braniff, James W. McAuley, Jonathan Tonge and Sophie A. Whiting, The Ulster Unionist Party: Country Before Party?, Oxford: Oxford University Press, 2019 Michael Laffan, The Partition of Ireland 1911-1925, Dublin: Historical Association of Ireland, 1993 Lord Longford, Peace by Ordeal: The Negotiation of the Anglo-Irish Treaty, 1921, London: Sidgwick & Jackson, 1972 Donal Lowry, “A ‘Supreme and Permanent Symbol of Executive Authority’: The Crown and the Governorship of Northern Ireland in an Age of ‘Troubles’”, in Harshan Kumarasingham (ed), Viceregalism: The Crown and its Representatives in Post-War Crises, Basingstoke: Palgrave, 2020 Robert Lynch, The Partition of Ireland 1918-1925, Cambridge: Cambridge University Press, 2019 John McColgan, British Policy and the Irish Administration 1920–22, London: HarperCollins, 1983 David McKittrick & David McVea, Making Sense of the Troubles: A History of the Northern Ireland Conflict, London: Penguin, 2012 Nicholas Mansergh, The Government of Northern Ireland: A Study in Devolution, London: George Allen and Unwin, 1936 Nicholas Mansergh, The Unresolved Question: The Anglo-Irish Settlement and Its Undoing 1912-72, New Haven & London: Yale University Press, 1991 Cormac Moore, Birth of the Border: The Impact of Partition in Ireland, Dublin: Merrion Press, 2019 Desmond G. Neill, “Some Consequences” in D. G. Neill (ed), Devolution of Government: The Experiment in Northern Ireland, 1953 Brendan O’Leary, A Treatise on Northern Ireland Volume 1: Colonialism, Oxford: Oxford University Press, 2019 Brendan O’Leary, A Treatise on Northern Ireland Volume 2: Control, Oxford: Oxford University Press, 2019 Brendan O’Leary, A Treatise on Northern Ireland Volume 3: Consociation and Confederation, Oxford: Oxford University Press, 2019 John Oliver, Working at Stormont: Memoirs, Dublin: Institute of Public Administration, 1978 Alan F. Parkinson, A Difficult Birth: The Early Years of Northern Ireland, 1920-25, Dublin: Eastwood, 2020 Éamon Phoenix, Northern Nationalism: Nationalist Politics, Partition and the Catholic Minority in Northern Ireland, 1890-1940, Ulster Historical Foundation, 1994 Sir Arthur S. Quekett, The Constitution of Northern Ireland Part 1: The origin and development of the Constitution, Belfast: HMSO, 1928 181 Commons Library Briefing, 21 December 2020

Sir Arthur S. Quekett, The Constitution of Northern Ireland Part 2: The Government of Ireland Act, 1920, and subsequent enactments, Belfast: HMSO, 1933 Sir Arthur S. Quekett, The Constitution of Northern Ireland Part 3: A review of operations under the Government of Ireland Act, 1920, Belfast: HMSO, 1945 Robert Ramsay, Ringside Seats: An Insider’s View of the Crisis in Northern Ireland, Dublin: Irish Academic Press, 2009 Edwin Rhodes (ed), Public Administration in Northern Ireland, Londonderry: Magee University College, 1967 P. J. Roche and B. Barton (eds), The Northern Ireland Question: Perspectives on Nationalism and Unionism, Wordzworth, 2020 Richard Rose, Governing without Consensus: An Irish Perspective, London: Faber and Faber, 1971 Patrick Shea, Voices and the Sound of Drums: An Irish Autobiography, Belfast: Blackstaff Press, 1981 Hugh Shearman, How Northern Ireland Is Governed, Belfast: HMSO, 1963 Hugh Shearman, Northern Ireland 1921-1971, Belfast: HMSO, 1971 Jonathan Tonge, Máire Braniff, Thomas Hennessey, James W. McAuley and Sophie A. Whiting, The Democratic Unionist Party: From Protest to Power, Oxford: Oxford University Press, 2014 , Partition: Ireland Divided, 1885-1925, London: Allen Lane, 2021 HM Treasury, Northern Ireland, the Channel Islands and the Isle of Man: A Treasury Paper, December 1953 Graham Walker, A History of the Ulster Unionist Party: Protest, Pragmatism and Pessimism, Manchester: Manchester University Press, 2012 Martin Wallace, Northern Ireland: 50 Years of Self Government, Newton Abbot: David & Charles, 1971 Nigel Watson, Robin Chichester-Clark: A Passionate Moderate, Profile Books, 2020 Other sources CAIN Web Service – Conflict and Politics in Northern Ireland: http://cain.ulst.ac.uk/ Queen’s University Belfast: Reflections on the Centenary of the Government of Ireland Act Embassy of Ireland in London: Centenary Conversation NI 100: BBC News NI marks a milestone in Irish history - BBC News NI 100: The new state emerges from a tumultuous decade - BBC News NI 100: Who were the major players in 1920? - BBC News

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