While strongly opposing the adoption of the Amsterdam Treaty, I have no similar problem with the referendum relating to the problems of Northern Ireland, and hope that it will be supported.

Many people in this part of the island of Ireland are uneasy because they sense that the proposed amendment, if adopted, would amount to the surrender of some legal right - derived from the 1937 Constitution or otherwise - to exercise jurisdiction and powers of government over the six counties of Northern Ireland.

This impression is based on the wording of Articles 2 and 3 of the Constitution as interpreted - in my opinion, incorrectly - by the Supreme Court in the McGimpsey case.

Articles 1, 2 and 3 of the Constitution come under the heading of "The Nation"; Articles 4 to 11 (inclusive) refer to "The State". These are two very different concepts. I do not think it could be contended that Scottish nationhood or Welsh nationhood ceased to exist when Scotland and Wales were assimilated into Great Britain and came under rule from Westminster.

I believe the great majority of the people of Northern Ireland, both Catholic and Protestant, if questioned at any time about their nationality, would take pride in asserting that they were Irish, and in doing so they would not be taken for a moment as acknowledging any particular right vested in Dublin (or Westminster) to exercise the powers of government over that part of the land of Ireland in which they resided.

I find much more convincing than the judgement in the McGimpsey case the previous judgement to the contrary delivered by the Supreme Court in the case of The Criminal Law Jurisdiction Bill, 1975, (1977) I.R. 129, and the later judgement of Mr Justice Barrington, sitting as a judge of the High Court, in the McGimpsey case, which was later overruled on appeal to the Supreme Court. It is a pity that we are not concerned only with the niceties of legal theory, but in this particular case a judgement of the Supreme Court which I believe to be erroneous and ill-founded appears to have been a major contributory factor in the exacerbation of hostility between nationalist and unionist in Northern Ireland ever since.

The judgement of the Supreme Court in relation to the Criminal Law (Jurisdiction) Bill, 1975, was delivered by Chief Justice O'Higgins, and contains a careful analysis of the historical context in which the Constitution of 1937 came to be enacted. This is of considerable significance in analysing the meaning which should be attributed to the Articles in the Constitution referring to "The Nation", but is not found in the later judgement which rejected the conclusion reached by the same court only a few years before.

Another feature of the McGimpsey case which I find astonishing and which drew a sharp rebuke from Mr Justice Barrington in the course of his judgement in the High Court is that no attempt was made by or on behalf of the Attorney General in legal argument to refute the construction which the McGimpsey brothers sought to put on the relevant Articles in the Irish Constitution. The judge was thereby deprived of the assistance of counsel to put forward both sides of the argument. Mr Justice Barrington nevertheless concluded that the earlier decision of the Supreme Court was well founded, and that the references in the Articles under the heading "The Nation" were to be taken as expressions of aspirations in the political field and not as assertions of legal right on the part of the parliament and government established by that Constitution to exercise jurisdiction over the whole of what was referred to as "the national territory".

I find the judgement of the Supreme Court which overruled that decision of Mr Justice Barrington unsatisfactory for its failure to analyse the historical background to the Constitution. The key to interpreting Articles 1, 2 and 3 is to be found in the Articles of Agreement for the Treaty of December 6th, 1921, which was enshrined in the Irish Free State (Agreement) Act, 1922.

The key articles of the Treaty are Articles 11 and 12, which read as follows:

11. Until the expiration of one month from the passing of the Act of Parliament for the ratification of this instrument, the powers of the Parliament and Government of the Irish Free State shall not be exercisable as respects Northern Ireland, and the provisions of the Government of Ireland Act, 1920, shall, so far as they relate to Northern Ireland, remain of full force and effect, and no election shall be held for the return of members to serve in the Parliament of the Irish Free State for constituencies in Northern Ireland, unless a resolution is passed by both Houses of Parliament of Northern Ireland in favour of the holding of such elections before the end of the said month.

12. If, before the end of the said month, an address is presented to His Majesty by both Houses of the Parliament of Northern Ireland to that effect, the powers of the Parliament and Government of the Irish Free State shall no longer extend to Northern Ireland, and the provision of the Government of Ireland Act, 1920, (including those relating to the Council of Ireland), shall, so far as they relate to Northern Ireland, continue to be of full force and effect, and this instrument shall have effect subject to the necessary modifications.

What was anticipated in those provisions took place. The Treaty was ratified by the Irish Free State (Constitution) Act, 1922, and Northern Ireland immediately withdrew.

That Treaty has never been denounced or repudiated by the Irish people or by an Irish government, and Articles 1 to 3 of the 1937 Constitution must be interpreted in a manner which recognises that the Treaty has never been repudiated by the new Irish State or its people, and in a manner consistent with the existence side by side of the new Constitution of 1937 and the Treaty of 1921. The Treaty did not preclude political aspirations towards a united Ireland and a single government for the whole island, but until denounced and repudiated the Treaty did, in my opinion, make it impossible for us to assert an entitlement to government over Northern Ireland as a matter of legal right.

The royal assent was still required for our legislation until the 27th Amendment of the Irish Free State Constitution in 1936, and even after the enactment of the 1937 Constitution we continued to retain our Commonwealth status and a link with the Crown, buried away in Article 29.4.2 of the new Constitution, in the field of external relations.

This continued until the enactment of the Republic of Ireland Act, 1948. This would appear to preclude any argument that the Treaty could be regarded as having been denounced and repudiated by the enactment of the Constitution of 1937.

I interpret Article 3 of the Constitution as meaning that we look forward eagerly to the reunification of Ireland under an Irish government, and if and when that ambition has been realised, it will not be necessary to abandon the Constitution of 1937, but this Constitution can continue in operation, with a parliament and government to be established for the whole of Ireland.

To speak of a parliament and government appointed under the Constitution exercising jurisdiction over the whole of what we describe as the national territory, before integration has taken place by consent, is simply inconceivable. The Constitution was enacted by a small enough majority with a rather disappointing turn-out of voters, in 26 out of the 32 counties which make up the island of Ireland. To claim that a parliament and government thereby established had a legal right to exercise jurisdiction over the whole of the 32-county area, including the six-county area where a clear majority would not tolerate the imposition of such jurisdiction, and where the population had no input whatever in the election of parliament or appointment of government is in my view, and always has been, simply unstateable.

What we are engaged upon, in the forthcoming referendum, is an exercise to restore their true character of political aspirations, and nothing more, to Articles 1, 2 and 3 of the Constitution, on the basis that if ever reintegration of the national territory takes place by consent, the Constitution may continue to serve us well in the future as it has done in the past.

The proposed amendment is deserving of support. It appears to hold out the best hope for a peaceful solution of our differences in the future: the encouragement of cross-Border co-operation and the development of mutual trust and fair dealing between the communities on both sides of the Border.

Rory O'Hanlon is a former judge of the High Court, and a former president of the Law Reform Commission

Concluded