The long and winding Irish road?

A winding Irish road – Photo by Seán J Crossan

Could supporters of independence for Scotland succeed in their objective without the need to hold a second independence referendum or IndyRef2? Let me put it another way: could Scottish independence be secured without the need for the U.K. Government and Parliament to grant a Section 30 order under the Scotland Act 1998?

Joanna Cherry, a leading Scottish National Party MP and QC certainly seems to think so and, as a highly competent member of the Scottish Bar, she has a legal precedent to hand.

The precedent in question is the Anglo-Irish Treaty of which led to the creation of the 26 County Irish Free State and the 6 County State of Northern Ireland. Coincidentally, it was actually the 99th anniversary of the Treaty being ratified by the Irish Parliament on 7 January 1922.

A link to an article in The Scotsman about Joanna Cherry’s views on the Anglo-Irish Treaty can be found below:

https://www.scotsman.com/news/politics/scotland-could-skip-referendum-and-follow-irish-route-independence-says-joanna-cherry-3089669?itm_source=parsely-api

As a precedent, the Treaty is not, however, entirely unproblematic: it is an error to believe that a truly, independent Irish Republic was created in 1922 as a result of the Treaty. It was, in fact, not until 1949 that Éamon de Valera, Prime Minister (Taoiseach) of the Irish Free State felt sufficiently confident to break decisively with the United Kingdom. By this point, Britain had lost its position to the United States of America as the leading global power and former British Imperial possessions, such as the Indian Empire (modern day Bangladesh, India, Pakistan and Sri Lanka), had been granted independence.

More controversially, the Treaty was the direct result of Irish Republicans pursuing an armed struggle against the United Kingdom between 1919 and 1921 (the War of Independence) which had forced the British to come to the negotiating table. Although, it has to be conceded that, many members of the United Nations have gained their independence fully or partially as a result of armed struggles.

Arguably, in 1918-19, the United Kingdom was still the pre-eminent global power – it had emerged as a victor in the First World War and with an enlarged Empire.

That said, this situation hid considerable political and economic weaknesses on the part of the British; and Republican commanders, like Michael Collins and Éamon de Valera, recognised this and were determined to take full advantage in order to further Irish independence. The Anglo-Irish Treaty from the British perspective was, therefore, a considerable concession to Irish nationalism.

Where Collins and de Valera parted company was in their reading of where the Treaty might eventually lead in the immediate aftermath of the War of Independence. The Pro-Treaty Republicans (led by Collins) were convinced that this was the best outcome that they could hope to achieve in the current circumstances whereas the Anti-Treaty Republicans (led by de Valera) felt that one more push would secure the Irish Republic for which they yearned.

Michael Collins, de Valera’s comrade and later bitter enemy, made a pragmatic choice to back the Treaty (he had, after all, put his signature to the document).

Collins’ principal argument was that, although the Treaty fell far short of Republican demands, it provided the space to obtain greater freedom for Ireland. His beliefs would ultimately cost him his life, but his Pro-Treaty stance would prevail and would define the Island of Ireland politically and geographically for the next 100 years (the Island of Ireland is still split to this very day).

De Valera and his supporters were outraged because the Treaty represented a humiliation and a betrayal of their purist nationalist vision of a united Republic of Ireland comprising all 32 Counties.

In modern constitutional terms, Collins would be regarded as a gradualist. As a matter of political necessity, de Valera too would be forced to adopt a gradualist approach in his quest for the Holy Grail of Irish independence, but this would only come about following a crushing military defeat of the Anti-Treaty camp at the hands of Free State Forces.

The repentant revolutionary

In 1926, de Valera made a significant decision by abandoning the armed struggle by entering Irish constitutional politics when he established Fianna Fáil. Until that time, de Valera and his Republican supporters had followed a policy of absentionism whereby they refused to take seats in the Irish Parliament. For the nearly the next quarter of a century, de Valera and Fianna Fáil would work towards the creation of an Irish Republic using the constitutional apparatus of the Free State.

This dramatic change of strategy was due, in a large part, to de Valera’s defeat in the Irish Civil War (1922-23) where opposing wings of the Irish Republican Army and Sinn Fein had split and quarrelled (violently) in their response to the Anglo-Irish Treaty.

A constitutional anomaly?

According to the eminent Irish historian, Tim Pat Coogan*, the Irish Free State was something of a constitutional anomaly in the sense that it had an imprecise legal status when compared to the other self-governing Dominions of the British Empire such as Australia, Canada, New Zealand and South Africa.

According to David Lloyd George, Prime Minister of the United Kingdom and one of the signatories of the Anglo-Irish Treaty, the term ‘Dominion’ was “something that has never been defined by Act of Parliament, even in this country, and yet it works perfectly.” (Mansergh, 1934**)

The Irish people would not share Lloyd George’s confident assertion: they knew what the Free State was not i.e. the free and independent Irish Republic for which many of them had fought. Lloyd George and his British co-signatory, Winston Churchill, were fiercely opposed to the creation of anything resembling an Irish Republic.

In any event, whatever its precise legal status, the creation of the Irish State had come about in profoundly different (not to say stark) circumstances from the other Dominions of the British Empire. These other Dominions had come into existence by way of an evolutionary process marked by incremental change. There can be no doubt that the Irish Free State had been created as a result of a violent revolutionary struggle.

The territory of the Free State would initially comprise all 32 Irish Counties, but the 6 Northern Counties with their Protestant and Unionist majorities speedily exercised their right to secede from the new State. The partition of the Island of Ireland, of course, continues to this very day.

Equally distasteful to Republican sentiments was the fact that King George V and his successors would continue to be King in Ireland (the Irish Head of State). Still more galling for Irish Republicans, those elected members of Dáil Éireann (the lower House of the Irish Parliament) and Seanad Éireann (the upper House of Parliament) would have to take a personal oath of allegiance to George V and his successors:

Article 17.

The oath to be taken by members of the Oireachtas [Irish National Parliament] shall be in the following form:—

I _______________ do solemnly swear true faith and allegiance to the Constitution of the Irish Free State as by law established, and that I will be faithful to H. M. King George V., his heirs and successors by law in virtue of the common citizenship of Ireland with Great Britain and her adherence to and membership of the group of nations forming the British Commonwealth of Nations.

Such oath shall be taken and subscribed by every member of the Oireachtas before taking his seat therein before the Representative of the Crown or some other person authorised by him.

The King and his successors would be represented at official functions by a Governor General. It is not an understatement to say that the British Crown was an anathema to Irish Republicans – irrespective of their views on the Treaty.

There would also be a continuing British military presence on Irish Free State territory, namely, the 3 naval bases of Fort Dunree (County Donegal) and Bere and Spike Islands (County Cork). The Free State Government would eventually gain control of these bases in 1938 – a fact which made Winston Churchill, then a backbench Conservative MP, apoplectic. He would argue, not without justification, that these bases would be vitally important for Britain in the event of any future hostilities with Nazi Germany.

Fort Dunree on Lough Swilly, Donegal and its superb, natural anchorage – Photo by Evan McMenamin on Unsplash

All of the above represented significant obstacles to the creation of an independent Irish State and it is often now forgotten that it was the genius of de Valera who used the constitutional architecture of the Treaty to undermine British influence in the 26 Southern Irish Counties.

Conclusion

In 1922, the prospects of the creation of an Irish Republic were by no means certain. The Irish Free State, created by the Anglo-Irish Treaty, was undoubtedly a constitutional anomaly.

Éamon de Valera was forced to make the long journey from revolutionary firebrand to establishment politician. This was due, in a large part, to his defeat in the Irish Civil War (1922-23) where opposing wings of the Irish Republican Army and Sinn Fein had split and quarrelled (violently) in their response to the Anglo-Irish Treaty.

It would take considerable skill and patience on the part of de Valera and his supporters in Fianna Fáil to achieve the goal of an Irish Republic. It should be recalled that it was only in 1949 that an Irish Republic (minus the 6 Northern Counties) came into existence.

These are factors which supporters of Scottish Independence who are attracted to Joanna Cherry’s argument would be well advised to study in detail. Cherry advances an interesting precedent, but it is not without its problems. The Anglo-Irish Treaty of 1921 does not provide a straight road to Scottish independence. There were many twists and turns in this road before a sovereign Irish Republic emerged and, even, then this was a lesser entity due to the decision by the Northern Six Counties to remain part of the U.K.

Further reading:

The Irish Civil War by Tim Pat Coogan and George Morrison (Weidenfeld & Nicolson, 1998)

The Irish Free State: Its Government and its Politics by Nicholas Mansergh (George Allen & Unwin, 1934). Available at:

https://archive.org/stream/irishfreestate032460mbp/irishfreestate032460mbp_djvu.txt

A link to the Free State Constitution can be found below:

http://www.irishstatutebook.ie/eli/1922/act/1/enacted/en/print

Related Blog articles

https://seancrossansscotslaw.com/2019/12/15/law-or-high-politics/

https://seancrossansscotslaw.com/2019/04/26/bring-it-on-or-indyref2/

https://seancrossansscotslaw.com/2019/06/02/a-step-closer-indyref2/

Copyright Seán J Crossan, 18 January 2021

Law or high politics?

Photo by Element5 Digital on Unsplash

Both is the answer to the question posed by the above Blog title.

And to what does the question refer? The British General Election results of Thursday 12 December 2019.

But before I venture some thoughts about what last Thursday’s results might mean for IndyRef2, I’d like to go back to the UK General Election of 1992. It may be instructive to remember the words of Jim Sillars, a then prominent Scottish Nationalist politician and Westminster Parliamentarian:

We have not yet resolved the paradox of when Scotland votes for the Labour Party and England votes for the Tories [the Conservative Party].’

Returning to the events of the General Election just past, Sillars’ remarks can be easily updated to read what happens when Scotland votes for the Scottish Nationalist Party, but England votes for the Conservatives?

Like all good questions, there is no easy answer to it. Yes, Boris Johnson MP is now the Prime Minister of a Conservative Party majority UK Government. Brexit will now almost get done (excuse the poor English – not mine).

And yet, there may be trouble ahead.

As predicted, the UK Government has restated its opposition to Indyref2.

Yesterday, during Sophy Ridge’s Show on Sky News, Michael Gove MP, a senior UK Cabinet Minister, rejected the idea of a second independence referendum (please see the link below):

http://news.sky.com/story/michael-gove-absolutely-rules-out-second-scottish-independence-referendum-11887189

Nicola Sturgeon MSP, First Minister of Scotland quickly responded by stating that Scotland ‘cannot be imprisoned’ within the UK:

https://www.bbc.co.uk/news/av/election-2019-50801743/nicola-sturgeon-scotland-cannot-be-imprisoned-in-uk

So this is where law and high politics collide.

Firstly, what’s the legal position?

The last Referendum on the question of Scottish Independence (held on Thursday 18 September 2014) too place because the then UK Government and Parliament gave their consent. This constitutional arrangement became known as the Edinburgh (St Andrew’s) Agreement of 15 October 2012 and operated under the auspices of Section 30 of the Scotland Act 1998.

Secondly, what’s the political position and where does the Scottish Government go from here?

This is about the political long game and the Scottish Government is attempting to shame the UK Government into giving it the right to hold a second referendum.

Scotland’s First Minister is pointing to her democratic mandate from the Scottish electorate after the SNP increased its share of Westminster parliamentary seats from 35 to 48. Any refusal on part the UK Government to approve another referendum can and will be portrayed as a deliberate denial of the Scottish people’s fundamental democratic rights.

I often have to remind my students that when we elect a Parliament, we are appointing legislators (law makers) – as well as politicians.

Mr Johnson is clearly political master of all he surveys …

… for now at least.

Both Governments are clearly playing to their respective constituencies and it will be interesting to see if a greater impetus for Scottish independence begins to build north of the border.

The next Scottish parliamentary elections in May 2021 will provide some idea of the strength (or weakness) of the pro-independence cause.

Currently, despite the SNP’s electoral successes last Thursday night, Nicola Sturgeon and her Government certainly have the weaker hand, but in a political poker game of high stakes (the survival or dissolution of the 300 year old union between Scotland and England), high politics may well yet overcome dry, legal arguments.

As the German statesman, Otto von Bismarck noted:

Politics is the art of the possible.’

The old statesman also remarked:

Politics is not a science, as the professors are apt to suppose. It is an art.’

Who will be the more artful politician: Nicola Sturgeon or Boris Johnson? Time will tell.

Related Blog articles:

A step closer? Indyref2?

https://seancrossansscotslaw.com/2019/06/02/a-step-closer-indyref2/

Bring it on! (or Indeyref2?)

https://seancrossansscotslaw.com/2019/04/26/bring-it-on-or-indyref2/

Copyright Seán J Crossan, 16 December 2019