I might not be rising on the Adjournment this evening if the Taoiseach had been more forthcoming in replying to a very direct question, No. 3, as it appears on today's Order Paper. This does not concern the European Convention on Human Rights and Fundamental Freedoms but is a matter concerning the sovereignty of this State, the sovereignty of Britain and the non-existence of any sovereignty in Northern Ireland: and the legislative and executive jurisdiction of Northern Ireland. The Taoiseach endeavoured in his reply to behave in the same manner as he has generally behaved in handling all the affairs of this country. Instead of honestly dealing with a direct question he tried to waffle his way out of it by pretending that the issue in Question No. 3, which is perfectly clear to him as a lawyer, was one which could be confused with the protests which have already been made to the European Commission of Human Rights. Once again we see the Taoiseach and his Government are serving all the people of this country particularly badly in these difficult times. He is particularly failing the suffering and much wronged people of Northern Ireland by failing to prosecute before every available international court and body with sufficient efficiency, expedition and conviction the many cases of serious breaches by Britain of fundamental international law, constitutional principles and human rights.
The presence of the Maidstone and the prisoners upon it in Belfast Lough is a travesty of international constitutional law. That our Government have failed so far to protest against this travesty of justice clearly indicates the critical extent to which we are letting our people down. The presence of so many people on board the Maidstone against the law certainly creates the suspicion, or perhaps gives further ground for suspecting, that the international and legal obligations of Britain are considered to be secondary to British convenience. Those who seek to direct the people of no property and the persecuted people of Ireland and elsewhere to obey the rule of law should themselves, first of all, show respect for the rule of law. Britain is knowingly in contempt of law and our Government are, by their silence, acquiescing in this contempt.
This raises most serious consequences for this country. To tolerate a breach of law is to help to make that breach legitimate. By failing to protest to the International Court of Justice and to every other agency available to it, the Government are generally acquiescing in the breach by Britain of her clear obligations. This absence of protest here, as in the past in other countries, gives historic title in derogation of international law. In the short time that is available I hope to make clear the serious extent to which Britain is in conflict with her international obligations and her bi-lateral agreements with this country. But as a matter of principle, just to indicate the danger of this country tolerating the continuance of the presence of the Maidstone in Belfast Lough, I should like to refer to Professor D.P. O'Connell's treatise on “International Law.” Professor O'Connell is the Professor of international law at Oxford, and he refers on page 421 of the second edition of his treatise to this fact:
As the International Court of Justice said in the Anglo-Norwegian fisheries case, historic title justifies a situation which would otherwise be in conflict with international law. In essence the title is validated only by the creation of a specific custom which is an expression of universal or almost universal consent. Absence of protest is the key to the legal reality of the title.
Unless we protest forthwith there is the danger that what is occurring against the law in Belfast Lough may yet be accepted by our acquiescence and by usage as a valid practice. What is the origin of modern responsibility for the waters around our island? What is the title deed which clearly expresses the jurisdiction of the Northern Ireland Parliament and Execuitve? It is the Government of Ireland Act, 1920, a piece of legislation of the British Parliament, and it states most specifically that:
Northern Ireland shall consist of the parliamentary counties of Antrim, Armagh, Down, Fermanagh, Londonderry and Tyrone and the parliamentary boroughs of Belfast and Londonderry, and Southern Ireland shall consist of so much of Ireland as is not comprised within the said parliamentary counties and boroughs.
Clearly the definition of territorial jurisdiction of Northern Ireland is the parliamentary counties and the parliamentary boroughs. Belfast Lough, where the Maidstone is at present located, is outside the parliamentary counties or the parliamentary boroughs, and the executive jurisdiction of Northern Ireland may extend only as far as the territory defined in the Government of Ireland Act, 1920, and may not extend one inch further. The Ordnance Survey maps for 1920 indicate that the highwater mark is the boundary between the parliamentary counties and the parliamentary borough referred to and the remainder of the United Kingdom. That is the situation as of 1920, that that is the limit, and therefore the Special Powers Act may not extend beyond that.
Section 8 of the same Act clearly defines the executive power of Northern Ireland as operative only within that section which also confines the parliamentary power. The courts of Northern Ireland have themselves accepted the limit of their jurisdiction as confined to the parliamentary counties and boroughs. I refer to the Treatise on the Constitution of Northern Ireland by their own parliamentary draftsman, Sir Arthur Quekett, and he refers at page 194 of part 3 to the case of Rex (Alexander) v. the Ministry of Agriculture for Northern Ireland in the course of which it is stated that the basis of the decision was that, having regard to the territorial limitations upon the powers of the Northern Ireland Parliament the duty of the Ministry to grant producers' licences was limited to granting them to those who produced their milk on premises in Northern Ireland as defined by the 1920 Act. Therefore it could not extend one inch beyond that. This was supported by a further decision in the Northern courts under section 8 of the same Act which defined Irish executive services. I refer to the case of James v. Cowan which stated that "Irish services" made the executive power coterminus with that of the legislature. The Constitution, the court said, was not to be mocked by substituting executive for legislative interference with freedom.
That is the law of the courts of Northern Ireland. That is the statutory definition of the territorial jurisdiction of Northern Ireland. In the face of that Britain is clearly in breach of her own legislation and the rulings of her own court in permitting the operation of the Special Powers Act beyond the parliamentary county boundaries of the counties and boroughs of Northern Ireland.
We can now come to the articles of agreement for the Treaty between Great Britain and Ireland of 1921. This is also very interesting in that it is quite clear from it that full Irish sovereignty extends over the whole island of Ireland unless a resolution is passed by both Houses of Parliament of Northern Ireland within a month of the coming into operation of the Act which confirms the Treaty in question. We know that, unfortunately, the two Houses of Parliament in Northern Ireland did resolve not to participate in the Government of Ireland, as a consequence of which they retained whatever powers were given to them by the 1920 Act. But those powers are again under the Act of 1920 and the Treaty of 1921, and are thereby confined to the parliamentary counties and to the parliamentary boroughs all of which are above highwater mark.
It is argued, and I suspect from what the Taoiseach said today in the course of his reply to me that he was supporting this argument, that there was an accidental omission from the Treaty of 1921 and that really it was intended to bring the coastal waters of the Six County area within the ambit of the jurisdiction of the Northern Ireland Parliament. That is not sustainable, for a very clear reason. If there was no mention of any part of the waters surrounding Northern Ireland in the 1921 Treaty then it might be valid to say: "Yes, there has been a genuine omission." But there is a specific mention of the very place where the Maidstone is located, and that is contained in the annexe to the Treaty which says in relation to Belfast Lough that the harhour defences are to remain in charge of British care and maintenance parties.
The 1938 Agreement between Ireland and Britain repealed that annexe but that is not all that it did. It used language which again clearly indicated that there was a view in the minds of the British parties to that Treaty, and unfortunately accepted by the Irish signatories to the Agreement of 1938, who were Mr. Eamon de Valera, Mr. Seán Lemass, Mr. Seán MacEntee and Mr. Séamus Ó Riain, that the United Kingdom Government could retain its control over Belfast Lough. While the annexe was repealed it was provided that the Government of the United Kingdom would transfer to the Government of Éire the Admiralty property and rights at Berehaven and the harbour defences at Berehaven, Cobh, and Lough Swilly but it did not provide in the 1938 Treaty that the installations and waters of Belfast Lough would be transferred to the Éire Government.
We are not disputing here whether or not the waters around Northern Ireland are part of the sovereign territory of the Republic of Ireland or part of the territorial waters of the United Kingdom. We can clearly prove, as I have proved on other occasions in this House, that these waters are, in fact, part of our sovereign territory and that they are not part of the United Kingdom. We will leave that aside for the moment. All that is necessary in order to prove the invalidity of the presence and operation of the Maidstone prison ship under the Northern Ireland Special Powers Act is that it is located outside Northern Ireland as defined by British legislation and by international agreement. Quite cleary by withholding in the 1938 Agreement all mention of Belfast Lough, Britain was either claiming that it was within the jurisdiction directly of the Westminister Parliament or certainly that it was by operation of law and by operation of the 1921 Treaty part and parcel of the territorial waters of this county.
There can be no dispute, whatever base you take, about the reality of the contention that the place where the Maidstone floats does not form part of Northern Ireland. Apart from the fact that the Ordnance Survey maps clearly indicate the limitations of the parliamentary counties and the parliamentary boroughs in Northern Ireland, there is a case in our own courts which has now been accepted as international law and is referred to by Professor O'Connell in the treatise to which I previously made reference, a case in which I had the privilege of being professionally involved, that of Ralph Smyth and Berthram Fordham against against the Dún Laoghaire Borough Corporation and the County Council of Dublin.
Our own Supreme Court, by a decision of the then Chief Justice, Mr. Justice Conor Maguire, Mr. Justice Lavery, Mr. Justice Ó Dálaigh, now Chief Justice, and Justice Martin Maguire against the minority opinion of Mr. Justice Kingsmill Moore, rejected the contention of the applicants of that time that Dún Laoghaire harbour was part and parcel of County Dublin. The facts of that case were that a pleasure boat called the Merry Golden Hind was maliciously sunk in Dún Laoghaire harbour in 1951 while it was attached by mooring ropes to the dolphins on the East Pier. It was argued that, because it was attached to the dolphins by mooring ropes and because it did not sink on the first attempt—it was partly submerged but did not sink entirely—because the ropes held fast on one end of the boat, it remained so much a part of the territory of County Dublin and Dún Laoghaire Borough Corporation that the local authority in question should be obliged to pay malicious injury compensation.
Our Supreme Court by a four to one verdict, which as I have mentioned has had its decision confirmed subsequently in a number of jurisdictions, held that the ship in question was outside the jurisdiction of the parliamentary county of Dublin or Dún Laoghaire Borough Corporation because it was beyond the lowwater mark or the highwater mark. A boat which is floating is necessarily below the highwater mark or the lowwater mark if the tide happens to be out. The Maidstone, considering that it is there from one end of the day to the other must at least twice a day be beyond lowwater mark.
