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 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 in any case 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 were convinced that this was the best outcome that they could hope to achieve in the current circumstances whereas the Anti-Treaty Republicans 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).

As we shall see, 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.

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

Sometimes you have to break the law to change it?

Photo by John Cameron on Unsplash

A question I have been pondering quite a lot recently amounts to the following:

Is it ever ok or acceptable to break the law in order to change it?’

All sorts of fanatics and the downright criminal will often portray their behaviour as serving a higher purpose when what they mean is that it is entirely self-serving on their part.

The question is extremely contentious (not to say highly subjective), but not as off the wall or leftfield as you might first think.

Why?

Current events that’s why. Pressure groups like Extinction Rebellion, with its programme of environmental activism, are sincerely committed in their beliefs and they have the weight of scientific evidence on their side regarding the threat of climate change. However, it is highly debatable to what extent the public will support their tactics which involve a range of public order offences e.g. blocking major roads and disrupting the transport system. The activists argue that climate change is such an existential threat that any and all means are necessary to give the wider public the necessary wake up call which will swing the pendulum firmly in favour of more sustainable and environmentally friendly approaches to the way in which society is organised.

Taking the law into your own hands?

We have been here before, in fairly recent times, with groups such as the Campaign for Nuclear Disarmament (CND); animal rights activists; and campaigners against GM food taking direct (and often unlawful) action against the objects of their ire.

A case I remember very well where this sort of direct action occurred was Lord Advocate’s Reference Number 1 of 2000 [2001] Scot HC 15 (30th March, 2001).

In this case, three anti-nuclear weapons protesters (part of the Ploughshares movement) were accused of illegal entry to a ship (‘Maytime’) which was anchored on Loch Goil in June 1999. The ship had a support role in relation to Royal Navy submarines carrying Trident missiles.

The protesters faced criminal damage and theft charges in relation to equipment which was on the ship. In their defence, the protesters claimed that their actions were justified because they were attempting to draw attention to the British Government’s continued possession of nuclear weapons – a situation which the protesters argued was a crime under international law. Now, there is some merit to this argument as the American led invasion of Iraq in March 2003 was based on the premise that the then Iraqi regime of Saddam Hussein was in possession of weapons of mass destruction (which were never found and doubtless never existed).

At the trial at Greenock Sheriff Court, Sheriff, Margaret Gimblet, directed the jury to return a not guilty verdict in relation to several of the charges. As for the remainder of the charges, the jury found the protesters not guilty. The Sheriff Gimblet was extensively criticised for the way in she had directed the jury to return not guilty verdicts. It was felt that this judgement would give the green light to other peace protesters to carry out similar acts as part of their ongoing nuclear disarmament campaign.

The Lord Advocate, therefore, felt it necessary to refer the case to the High Court for clarification where it was held that the protesters were not justified in their actions.

A link to the opinion of the Appeal Court can be found below:

http://tridentploughshares.org/lar-opinion-of-the-court/

The three Loch Goil anti-nuclear protesters had some recent inspiration for their actions from their colleagues. In January 1996, four protestors (part of the Ploughshares group) had broken into a British Aerospace facility and destroyed the controls of a Hawk Jet which was bound for Indonesia. The Indonesians, at this time, ruled East Timor (now an independent state) and were engaged in a bitter armed struggle with East Timor liberation groups.

The protestors claimed that the jet would almost certainly have been used by the Indonesian military as part of their operations in East Timor. By wrecking the jet’s controls with a sledgehammer, the protestors were committing an act of criminal damage (worth an estimated £1.5 million) undoubtedly, but they had done so in order to save lives. They argued that their actions were justified in terms of the UK Genocide Act 1969 (since repealed).

The four women had deliberately filmed the incident and waited at the scene of the crime to be apprehended. You would be forgiven for thinking open and shut case …

… The jury at Liverpool Crown Court acquitted the four protestors of all charges in July 1996 finding that their actions had been reasonable in terms of the Genocide Act.

A video made by the Ploughshares Group about the incident can be found below:

A link to an article The Independent’s website about the conclusion of the protestors’ trial on can be found below:

https://www.independent.co.uk/news/pounds-15m-hawk-attack-women-freed-1331285.html

History almost repeating itself

Interestingly, almost 21 years later, Sam Walton, a Quaker pacifist was suspected of attempting to disarm a Typhoon fighter jet at a British Aerospace facility which he believed was for the Saudi Arabian Air Force. Walton’s argument was, again, very similar to previous examples of direct action: he was trying to save lives. He argued that there was a high probability that the jet would be used in Saudi military operations in the vicious conflict in the neighbouring country of Yemen.

A link to an article in The Independent about Sam Walton can be found below:

https://www.independent.co.uk/news/uk/home-news/british-quaker-activist-sam-walton-pacifist-disarm-saudi-arabia-fighter-jet-bae-uk-yemen-a7555246.html

Historical perspectives

Breaking the law to change it has a long pedigree and the current debate about the tactics of Extinction Rebellion inspired me to review historical situations where people had broken the prevailing law of the land only later to be held up as champions of freedom and progress.

In the last few days, I finally got around to viewing a German film called 13 Minutes (released a few years ago) which was about an attempt on the life of Adolf Hitler on 8 November 1939 in Munich. No spoilers intended (or needed), but the plot failed.

Hitler left the Munich Beer Hall 13 minutes before a bomb, planted in the building by Georg Elser, detonated. People were killed, but not Hitler and the question has persisted as to what would have happened if the assassination had succeeded?

In my humble opinion, I don’t think it would really have mattered as there were plenty of fanatics within the Nazi regime (e.g. Heinrich Himmler and Reinhard Heydrich) who were more than capable of replacing Hitler and furthering his goals.

I did know that the would be assassin, Elser, had been caught in the aftermath of his failed attempt. What I didn’t know was that Elser survived as a special prisoner in Dachau Concentration Camp until April 1945 when he was murdered (he had, in fact, never been tried by the Nazis). Ironically, he outlived one of his interrogators, SS Police General, Artur Nebe, who was executed in March 1945 for involvement in the Plot to assassinate Hitler in July of the previous year.

Clearly, by the prevailing laws of the Third Reich, Elser was a traitor as he had attempted to kill the then German Head of State. History, however, has been much kinder to Elser and he is now viewed as an anti-Nazi resistance fighter of great courage – not an opportunist as Artur Nebe clearly was.

Chartists and Suffragettes

This led me to think about other situations in the past where people fought for their beliefs by breaking the law e.g. the Chartists in the 19th Century who fought for greater democracy in the UK; and the Suffragettes in the late 19th and early 20th Centuries who campaigned for women to be given the right to vote. Nowadays, the Suffragettes particularly are held up as an example of a group of highly principled and determined people who wanted to overcome a glaring injustice.

It’s often forgotten that the Suffragettes moved quickly from peaceful protests to downright terrorist acts e.g. in 1913, the bombing of a house being built for Lloyd George MP, then Chancellor of the Exchequer (or UK Finance Minister). This was followed by bombs being planted at the Bank of England and in St. Paul’s Cathedral.

According to the historian Lucy Worsley, in 1913 alone, there were 168 arson attempts and bomb attacks carried out by Suffragettes across Britain and Ireland. Worsley estimates that the cost of this damage was £56 million in today’s prices. By February 1914, 1,241 prison sentences had been served by Suffragettes and 165 women who had been on hunger strike had been forcibly fed while in prison.

Did these acts of violence lead to votes for women? This is very contentious and historians, such as Worsley, point more to the transformative impact of World War I as the real catalyst for social (and legal) change. How so? Very simply, the need to recruit women into areas of the economy which previously had been the almost exclusive preserve of men (who, of course, were away at the Front fighting the War).

Conclusion

So, I suppose the answer to my original question is it ever acceptable to break the law to change it depends on which side of history you end up: whether you’re ultimately a winner or a loser.

It also depends on the methods used to achieve legal change. Figures such as Mahatma Gandhi who worked towards the end of British rule in India are held up as exemplars because they used peaceful methods. Other figures such as Eamon de Valera and Michael Collins of the IRA are still, to this day, regarded as extremely controversial in their pursuit of armed struggle against the British Empire in order to obtain independence for what would eventually become the Republic of Ireland.

In 2016, the centenary of the Easter Rising was marked by the Irish Government in Dublin. The Rising is regarded as one of the corner stones of the modern Irish Republic, but how do you mark or ‘celebrate’ what was undoubtedly a violent event? With great sensitivity is the answer and the Irish Government was widely praised for unveiling a memorial which listed everyone (including Irish Republicans and British Army personnel) who lost their lives as a result of the events of Easter Week 1916.

This image has an empty alt attribute; its file name is 161587273_1462271605.jpg

As for Extinction Rebellion? Well, history will be the judge …

Copyright Seán J Crossan, 11 March 2020