Tuesday, 27th September, 1994
St. Columban’s College, Dalgan Park, Navan, Co. Meath
Gerard Hogan, B.C.L, LL.M., M.A. (Lecturer in law, Trinity College Dublin)
Cllr. Brid Rogers (SDLP constituency representative for Upper Bann)
Ken Maginnis, MP (UUP security spokesman)
John Bruton, TD (Leader of Fine Gael)
Dermot Ahern, TD (Fianna Fail, Co-Chair, British-Irish Parliamentary Body)
Chaired by John Clancy (Meath Peace Group)
Introduction and Editor’s Note: – Text of Articles 2 and 3; context and background to the talk; summary of main points from the speeches
Extracts from the speeches
1. Gerard Hogan – Legal/constitutional issues
2. Brid Rogers
3. Ken Maginnis, MP
4. John Bruton, TD
5. Dermot Ahern, TD
Introduction and Editor’s Note:
Text of Articles 2 and 3:
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 Saorstat Eireann and the like extra-territorial effect.”
Context and background to Meath Peace Group symposium: Articles 2 and 3 of the Constitution of Ireland, 1937, have long been a source of controversy and division, with unionist politicians consistently calling for their removal or amendment, and nationalists opposing any unilateral change.
Unionist position: Many unionists see the Articles as evidence of the desire and intention of the Irish Government to “subsume them into a united Ireland without their consent” and the demand for their removal has gathered momentum following the interpretation given the Articles by the Supreme Court judgment in the McGimpsey case (1990). The Articles are also cited by unionists as a barrier to co-operation between North and South: In September, 1994, when informing his constituents of his belief that the IRA ceasefire was “for real” Mr. John Taylor, the Ulster Unionist MP for Strangford, also asserted that as long as Articles 2 and 3 of the Irish Constitution remained in place, “there could be “no real co-operation within our island”. At the UUP conference in October, 1994, the Republic’s territorial claim was described as a “serious obstacle to political progress and the normalisation of relations”. Also at that conference the delegates unanimously endorsed a motion calling on the Irish Government to demonstrate its commitment to the right of the people of Northern Ireland to remain within the United Kingdom, “by indicating that it has no selfish, strategic or economic claims upon this part of the kingdom and by removing Articles 2 and 3 from its current Constitution.”
Nationalist position: Nationalists in Northern Ireland have always opposed the removal or unilateral amendment of the Articles, seeing them as their “birthright” and as a means of protecting their right to a sense of Irish identity and allegiance.
Despite the obvious importance of the Articles, there has been surprisingly little open and informed debate on the subject. We believe that many people in the Republic have only a vague notion as to what the Articles are about, and most of those who are aware of them see them as aspirational only. Furthermore, most people, it is suggested, are unaware of the implications of the new interpretation given the Articles by the Supreme Court in the McGimpsey case in 1990. The Meath Peace Group organised the present discussion both to inform the public as to the legal implications of the Articles and the current political thinking in the aftermath of the Downing St. Declaration, and also to give an opportunity to ordinary people to contribute to the wider debate. The talk took place a few weeks after the announcement of the IRA ceasefire, and the interest and concern of local people was shown in the large number who attended (c. 200, most coming from Meath, but with many from adjoining counties, and also a few from Northern Ireland). The talk was not fully recorded but extensive notes were taken. Some of the speakers were interviewed by local radio (LMFM).
SUMMARIES OF MAIN POINTS FROM THE SPEAKERS
While each speaker had differing views on the Articles in question, the meeting was very positive, and there were many points of agreement – these included:
• That there was no doubt that at some time the Articles would have to be changed. They were a product of the era in which they were written and therefore were outmoded in today’s circumstances.
• That there could be no going back to a pre-1969 type situation in Northern Ireland.
• That there was need for respect, tolerance and parity of esteem and that there must be compromise on all sides.
Gerard Hogan – summary of main points:
1: Articles 2 and 3 had always been seen as a political, rather than a legal right. In the McGimpsey case in 1990, the Supreme Court ruled the Articles were a “constitutional imperative” which obliged the Government to seek the re-integration of the “national territory” by peaceful means and that Article 2 constituted a “claim of legal right”, rather than a purely political right;
2. The Articles “will have to be replaced or modified”, but the task of finding a formula of words which will supplant them will not be easy. Any such formula will have to be agreed in the context of “balanced agreement“.
Brid Rogers – summary of main points:
1. For most people the Articles are symbolic and their approach is entirely emotional.
2. The debate around the Articles is but a symptom of the underlying problem, – “the failure to accommodate in a secure and durable way, the conflicting allegiance of nationalists and unionists on this island. The real challenge to all of us is to extend our energies and bend our minds to the task of finding the accommodation.”
Ken Maginnis – summary of main points:
1. Unionist fears derived from the underlying feeling of insecurity arising out of the enshrinement of the claim to the territory of N.I. in the Constitution.
2. With all the talk about moving towards greater understanding, he “didn’t believe there was any great desire to give the people of N.I. a chance to work together.”
John Bruton, TD – summary of main points:
1. The 1937 Constitution was a product of its era. We must now move “towards a new form of constitutional theory, which recognises the concept of multiple allegiances”
2. The resolutions adopted by Sinn Fein at Letterkenny showed that their thinking hadn’t changed – they still thought in terms of territorial unity. “We must break out of the thinking of the 1930s if we are ever to have peace”.
Dermot Ahern, TD – summary of main points:
1. The dilution or removal of Articles 2 and 3, rather than furthering the cause of peace, would have the opposite effect. “Had we listened to the clamour for their unilateral amendment or removal, we would not have reached the stage we are now at in the peace process.”
2. The Articles are a “powerful form of reassurance for the nationalist community in N.I. and a reminder to the citizens of the Republic of our responsibility to the people of Northern Ireland as a whole.”
Extracts from speeches:
1. Gerard Hogan (lecturer in law, TCD): Legal and Constitutional Issues
Historical background: Mr. Hogan explained that the enactment by plebiscite of the Irish Constitution in July 1937 marked the end of the Irish Free State and “a conscious repudiation” by the Irish side of those features – such as the oath of allegiance to the Crown, the right of appeal to the Privy Council and the Governor-General – of the Anglo-Irish settlement of 1921-1922 which they had found unpalatable. “These aspects of the 1921 Treaty and 1922 Constitution had been abolished one by one throughout the 1930s. This was done by ordinary legislation, since that Constitution did not require to be amended by referendum.
“The 1937 Constitution represented the culmination of this process. That Constitution was republican in character and the Crown survived only in hidden form – like a face camouflaged by foliage in a children’s puzzle – with the result that the last severing of formal links between the United Kingdom and Ireland upon the latter leaving the Commonwealth in 1949 was a simple formality.”
Articles 2 and 3: Mr. Hogan quoted the text of the Articles, observing “While these provisions may strike some as having a distinctly revanchist tone, it is only proper to observe that by Article 29 of the Constitution, Ireland accepted the generally recognised principles of international law and pledged itself to the “principle of the pacific settlement of international disputes”. Moreover, as the Irish Supreme Court was strongly to imply in the 1990 McGimpsey decision, Article 29 precluded the State from achieving the “reintegration of the national territory” in a manner which was not consistent with international law.”
Failure of Boundary Commission: “In essence, Articles 2 and 3 constituted a repudiation of the 1925 Treaty Agreement whereby the Irish Free State implicity acknowledged the present border with Northern Ireland following the collapse of the Boundary Commission. …. Articles 2 and 3must be seen as a response to the failure of the Boundary Commission’s report“.
[Editor’s Note: The Boundary Commission had been provided for by Article XII of the 1921 Treaty and its terms of reference were to determine “in accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions, the boundaries between Northern Ireland and the rest of Ireland”.]
Political theory behind the Articles: Mr. Hogan illustrated the thinking underlying Articles 2 and 3 as summed up by the Supreme Court in 1975 when it said that the Articles reflected the political theory that:
“the Irish people living in what is now called the Republic of Ireland and in Northern Ireland together formed the Irish Nation; that a nation has a right to unity of territory in some form… and that the Government of Ireland Act, 1920, though legally binding, was a violation of that natural right to unity which was superior to positive law.”
Despite this, Mr. Hogan pointed out that, even at that time, these provisions were controversial. The Secretary of the Department of Finance in a briefing document in April 1937, described the Articles as a “fiction” and “one which will give offence to neighbouring countries with whom we are constantly protesting our desire to live on terms of friendship. In addition, of course, “the Northern Unionist community found these provisions to be objectionable.”
1967 All-Party Committee on the Constitution: Continuing the historical outline, Mr. Hogan discussed the work of the All-Party Committee on the Constitution in 1967 which recommended a re-formulation of the provisions to make it clear that any territorial change could only come about by consent.
“No action was taken on foot of that recommendation, mainly because the issue became more sensitive with the advent of civil strife in Northern Ireland…These provisions can only be changed by way of referendum – ordinary legislation will not suffice – and genuine fears have been consistently expressed that a unilateral repeal or even modification of these clauses would be either defeated or would give extremist groups a platform.”
McGimpsey v. Ireland – Supreme Court judgment (1990): Up to 1990, the claim expressed in the Articles had always been seen as a political, rather than a legal right. In that year, however, the Supreme Court ruled in the McGimpsey case that the Articles were a “constitutional imperative” which obliged the Government to seek the re-integration of the “national territory” by peaceful means, and that Article 2 constituted a “claim of legal right”, rather than a purely political right.
The Court went on to uphold the constitutionality of the Anglo-Irish Agreement on the ground that the Agreement’s recognition 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” was simply a de facto recognition of political realities and did not amount to a waiver of the Republic’s legal claim of right….“..the McGimpsey case meant that Articles 2 and 3 could not be ignored or dismissed, as the Republic’s political establishment had wished.”
Birthright and citizenship: “It is sometimes suggested that a modification of Articles 2 and 3 would deprive the northern nationalist community of its legal birthright. Whatever the political merits of this argument, it has no legal validity. The jurisdiction to award citizenship is not at all dependent on the persons concerned being resident within the State or the national territory… As far as international law is concerned, there are practically no limits on a State’s ability to extend citizenship to those persons who desire such protection.”
Replacement or modification of the Articles: It is against this legal and constitutional background that the present talks are taking place. “While it is widely acknowledged that Articles 2 and 3 will have to be replaced or modified, since – irrespective of what the Supreme Court may say – they are at odds with the spirit of understanding reflected in both the Anglo-Irish Agreement and the Downing St. Declaration, the task of finding a formula of words which will supplant them will not be easy. Any such formula will have to be agreed in the context of “balanced agreement” … and must satisfy the conflicting aims and aspirations of both communities in Northern Ireland, as well as subsequently obtaining the support of a majority of the Republic’s voters following a referendum.”
2. Cllr. Brid Rogers (SDLP spokesperson on women’s issues and Constituency Representative for Upper Bann)
Brid Rodgers thanked the Meath Peace Group for holding such an important debate on what had always been a “political bone of contention” in Northern Ireland. She outlined the background to the demand from unionist polticians for the removal of the Articles, which, she said, often “stridently ignored the basic fact that an amendment to the Irish Constitution is not in the gift of any Irish Government and can only be brought about by the will of the people voting in a referendum. “
“I firmly believe that any attempt to unilaterally remove or change Articles 2 and 3 in theabsence of an overall satisfactory settlement would fail. It would certainly be opposed tooth and nail by the northern nationalists who deeply resent the purported generosity of unionist politicians who proclaim their acceptance of the right of nationalists to their aspiration to Irish unity provided of course it is expressed with due regard for unionist sensitivities and provided that nothing is done to change the status quo in Northern Ireland.”
“The failure of such a referendum would constitute a setback for those unionists who genuinely wish to see the Articles removed or modified. For those unionist politicians whose demands for the removal of Articles 2 and 3 amount to a propaganda weapon, a stick with which to beat the Irish Government and other means of increasing and exploiting the real fears and insecurities of the Protestant population, it would be a godsend, a reprieve, another excuse not to deal with the real issue, the challenge of recognising and accommodating the rights of nationalists.”
Approach of most people: Ms. Rogers stated that for most people the Articles are symbolic and their approach is entirely emotional: “for nationalists they are seen as the means of protecting their right to a sense of Irish identity and allegiance.” For unionists …they are regarded as proof positive of the desire and intention of the Irish government to subsume them into a united Ireland without their consent.”
“Any change to the Government of Ireland Act, 1920, would be vehemently opposed by unionists as it would be supported by nationalists on the same basis.”
Realities: If it were possible to take a dispassionate view of the realities, two things would become very clear:
Firstly, since the foundation of Northern Ireland, nationalists have suffered severe discrimination in all aspects of their lives. But, “the existence of Articles 2 and 3 provided them with no protection against the worst excesses of the Stormont regime.”
Secondly, the Government of Ireland Act, which is the basis on which Northern Ireland was established, “specifically for the benefit and accommodation of unionists”, “has provided them with neither security nor stability. “In other words the protection for both communities has been symbolic rather than real.”
Underlying problem: Ms. Rogers stated that, in her view, the debate around Articles 2 and 3 was but a symptom of the underlying problem, that is the “failure to accommodate in a secure and durable way, the conflicting allegiance of nationalists and unionists on this island. …The real challenge to all of us is to extend our energies and bend our minds to the task of finding the accommodation. ”
Finding the accommodation: The task of building structures which will recognise and accommodate the legitimate aspirations of nationalists and unionists on this island will be fraught with difficulty and will require imagination and courage from all political leaders, she said. It will never be accomplished by harping and dwelling on the various symptoms of our problems nor by demands that these be dealt with in piecemeal fashion. “It will only be achieved when all parties sit down together with everything on the table to work out by agreement how we live in peace together on this small piece of earth.”
Real peace: Ms. Rogers concluded: “The real peace has yet to be won and and winning of it is the challenge facing all of us. It can only be achieved by building structures within which nationalist, unionist, Catholic, Protestant and Dissenter can feel comfortable, secure and unthreatened … It is clear that such structures will require, not merely changes to Articles 2 and 3, but the drawing up of an entirely new constitution – a constitution for an Agreed Ireland.”
3. Ken Maginnis (Ulster Unionist MP for Fermanagh-South Tyrone and spokesperson on security)
Mr. Maginnis welcomed the invitation to talk, stating that he was “glad to see the hall filled by people with a genuine interest in the welfare of the people of Northern Ireland”. He went on to outline the problems he and other unionists had with the Articles, especially since the McGimpsey case and the Supreme Court judgment in 1990. He stated that all the fears derived from: “the underlying feeling of insecurity arising out of the enshrinement of the claim to the territory of Northern Ireland in the Constitution.”
Realities: “We cannot re-write history. Northern Ireland is a fact. It has been a separate political entity for over 70 years and will not change unless by consent, or by terrorism and armed aggression.”
Referring to the terrorism of the last 25 years, Mr. Maginnis felt that the Articles could be seen as giving justification to IRA violence. The Articles made it a “constitutional imperative” for the people of the Republic to achieve a united Ireland, he said, and he outlined some of the practical problems arising from the McGimpsey judgment, particularly in the area of extradition.
As to the past, Mr. Maginnis said that he was not going to argue about discrimination – it did occur but checks and balances have been brought in, and he believed there was little point in harking back to past practices now.
Consent: With all the talk about moving towards greater understanding, Mr. Maginnis didn’t believe there was any great desire to give the people of Northern Ireland a chance to work together. While the principle of consent was acknowledged by the Irish Government in the Downing St. Declaration, he felt it meant absolutely nothing more than a “statement of intent by Albert Reynolds and that depends on Reynold being a man of honour”.
“This quibble [about consent] is the rock on which Gerry Adams is building his case – he hasn’t agreed to the consent element in any final solution.”
Mr Maginnis doubted the permanency of the IRA ceasefire when they still held on to their huge stockpile of weapons.
Mr Maginnis questioned the sincerity of talking about consent while the Republic’s government wanted an executive role in the government of Northern Ireland. Unionists were opposed to an executive role for Dublin – they want to govern impartially with people such as the SDLP, and cooperate as much as possible with the South.
4. John Bruton, TD (leader of Fine Gael):
“We must achieve a society in which everybody living in any part of Ireland feels comfortable. Articles 2 and 3 assert that, under a Constitution adopted by the 26 counties only, we have a right to govern Northern Ireland, regardless of the wishes of the majority living in Northern Ireland. That assertion has exactly the same effect psychologically on the majority unionist community in N.I. as, in a sense, everything in Northern Ireland from 1922 to 1969 had on the nationalists. It makes them [the unionists] feel that, in our eyes, they don’t count and that their views can be overriden by the assertion in our Constitution, and makes them feel foreigners in their own land. In Northern Ireland (and even prior to its foundation), people with nationalist beliefs felt that in a sense they were foreigners in their own land, that in a sense they did not really belong, they were to be tolerated. This is the reality which bred the resentment which eventually led to violence.”
Constitution a product of its era: In Mr. Bruton’s view, the 1937 Constitution was a product of its era, and the political theories of the time when it was enacted. It was based on the concept of territorial nationalism – “one-nation, one-State” – which was a neat concept but did not work in practice, as history has shown. Mr. Bruton said that we know better now and must move “towards a new form of constitutional theory, which recognises the concept of multiple allegiances“.
Two allegiances: It was possible for 2 allegiances to co-exist in one State, as evidenced in Spain and other European countries, he said. Furthermore, the nation-state “no longer calls the shots”. No State now has complete sovereignty – in this country laws can be struck down if they are contrary to EC law; in effect, the Dail is no longer sovereign, and, with regard to Northern Ireland, Westminster is no longer sovereign. “Ireland, because of Articles 2 and 3, is now the only State in Europe with a constitutional territorial claim.”
Identity: Mr. Bruton pointed out that there are two types of Irish people:
“Irish people who feel they are Irish and European”, and “Irish people who feel British, and feel allegiance to the Crown, but also feel European.”
Need for change: We must find a way of re-ordering our Constitution to allow for respect for multiple allegiances, Mr. Bruton said. We must create a constitutional order in which all people can feel comfortable. Articles 2 and 3 don’t allow that for unionists, just as the Government of Ireland Act doesn’t allow it for nationalists.
There has to be change, but the tragedy of the last 74 years has been that “the strong have always been waiting for the weak to make the first concession“. We must change the Articles, but we can’t do it in a way that would make the nationalists feel abandoned. Public debate is essential.
Downing Street Declaration : Answering Ken Maginnis, Mr. Bruton said that the Declaration was not a treaty, but it was stronger than Mr. Maginnis supposed. It did not depend on Albert Reynolds – all parties in the Dail had accepted the principles, and any future government would support them.
Cross-border dimension: All parties have accepted that the problem has 3 dimensions – “the problem does have a cross-border dimension, but there must be a cross-border solution also. There has to be a British solution also.”
IRA ceasefire: Mr. Bruton stated that part of the worry about the permanency of the IRA ceasefire stemmed from the resolutions adopted by Sinn Fein at Letterkenny. While Sinn Fein tactics may have changed, their thinking hadn’t changed – they still thought in terms of territorial unity. “If Sinn Fein accepts the rights of unionists, then they must accept their right to be British”, but they hadn’t done that if they are still talking about a “unionist veto“.
Multiple allegiances: “In the modern world we’ve got to have multiple allegiances with multiple expressions of those allegiances, where different sovereignties co-exist within the same territory, not as one sovereignty – one territory.”
“The old-fashioned notion of territorial unity is out of date. “We must break out of the thinking of the 1930s if we are ever to have peace … We must create a constitutional order in which all people can feel comfortable.”
5. Dermot Ahern, TD (Fianna Fail; Co-chair, British-Irish Parliamentary Body)
Mr. Ahern described Articles 2 and 3 as a “stabilising force”. Previous campaigns, North and South, to unilaterally delete or amend Articles 2 and 3, were profoundly misguided, he said: “Their dilution or removal, rather than furthering the cause of peace, would have the opposite effect …Had we listened to the clamour for their unilateral amendment or removal, we would not have reached the stage we are now at in the peace process. …To have unilaterally amended or removed Articles 2 and 3 would have served to alienate the nationalist community, created a vacuum which the paramilitaries would have attempted to fill, had the effect of confirming a Unionist veto, and diluted initiatives to allow the Irish Government to have a legitimate say in the affairs of Northern Ireland.”
“Articles 2 and 3 are a powerful form of reassurance for the nationalist community in Northern Ireland and a reminder to the citizens of the Republic of our responsibility to the people of Northern Ireland as a whole.”
Constitutional change: Mr. Ahern stated the Fianna Fail position which is, that in the event of an overall political settlement between both parts of the island, balanced consitutional change would be required.
Road to an enduring peace: Mr. Ahern outlined the steps on the road to an enduring peace: “beginning the work of the Forum for Peace and Reconciliation, reaping the benefits of the peace dividend, re-opening of border roads, building cross-border links in every possible sector” …culminating the period of intensive bridge-building with an overall constitutional settlement based on the principle of consent, involving the creation of cross-border bodies.
Internal solution: Mr. Ahern rejected the notion of a purely internal solution, but said “there must be compromise and most people agree with this. It was necessary to keep the peace process moving, he said, and he would welcome the participation of unionists in the Forum for Peace and Reconciliation.
Editor’s note: There were many questions from the floor, but unfortunately these were not recorded.
Meath Peace Group Report: October 1994.Compiled and edited by Julitta Clancy
Biographical notes on speakers:
1. Gerard Hogan: Fellow of Trinity College Dublin and Lecturer in law, TCD. Specialist in constitutional law and administrative law; author of many legal articles and publications, including the major work on Administrative Law in Ireland. His most recent publication was as co-author of the 3rd edition of Kelly’s The Irish Constitution (Butterworths 1994)
2. Brid Rogers: SDLP spokesperson on women’s issues and the Party’s constituency representative for Upper Bann constituency. Native of Gweedore Gaeltacht, living in Lurgan, Co. Armagh, since 1960. Was actively involved in Civil Rights movement. Elected to chair of SDLP in 1978 – First woman chairperson of an Irish political party. Served as member of Seanad Eireann 1983-87 (nominated by Garret Fitzgerald). Leader of SDLP group in Craigavon District Council 1984-92.
3. Ken Maginnis, MP (Fermanagh-South Tyrone), UUP spokesperson on security: Late entry into public life. In 1981 he was elected to Dungannon District Council, and in 1982 to the Northern Ireland Assembly. He was elected to Westminster in June, 1983, and has served as UUP spokesperson on Defence, Security, Employment, and Local Government. Apart from security matters, he has also taken a keen interest in environmental issues since his election to Westminster.
4. John Bruton, TD (Fine Gael, Meath; Leader of Fine Gael) Farmer. First elected to the Dail in 1969, becoming the youngest member of the 19th Dail. Served as spokesperson for Fine Gael in many areas, and has at various times in the 1980s been Minister for – Finance, Industry and Commerce, Industry and Energy, Public Service. Deputy leader of the Party 1987-1990; elected leader in November 1990. President, Irish Council of the European Movement, November 1990 to date. Member, British-Irish Parliamentary Body 1993 to date. Member of the Parliamentary Assembly of the Council of Europe, December 1989-Jan. 1991.
5. Dermot Ahern, TD (Fianna Fail, Louth): Solicitor. Elected to Dail in 1987. Since his election has been a member of several Oireachtas and Dail committees, and is currently co-chair of the British-Irish Parliamentary Body, since May 1993. Formerly held posts as Minister of State at the Department of the Taoiseach and Department of Defence, and former Government Chief Whip. Member of Louth County Council from 1979-1991 and also was a member of Louth VEC and other local authority bodies. Currently a member of Fianna Fail Review Commission and Fianna Fail National Executive.
Meath Peace Group Report: October 1994
©Meath Peace Group
Contact names 1994: Anne Nolan, Gernonstown, Slane, Co. Meath; Susan Devane, Slane, Co. Meath; Julitta Clancy, Parsonstown, Batterstown, Co. Meath;
Pauline Ryan, Navan; Philomena Boylan-Stewart, Longwood; Felicity Cuthbert, Kilcloon