A new Constitutional Settlement for Northern Ireland: Queries from International Law

287px-Uk_map_home_nations (1)This post was jointly written by regular contributor Aoife O’Donoghue and Ben Warwick. Ben is a Graduate Teaching Assistant and PhD candidate at Durham Law School. His research centres on resource constraints and the implementation of economic and social rights. 

The starting gun has been fired on constitutional debate in the UK. The prospect of Scottish independence, potentially increased powers for devolved governments, a new English Assembly, a re-formed relationship with human rights and a reformulation of the relationship with the EU, are all being more or less vigorously discussed. Whilst there has been some public debate about the constitutional issues facing the UK, there remain a number of covert agendas. Each of these agendas represents both threats and opportunities for Northern Ireland. The tendency to define constitutional changes by reference to internal factors is a misguided one. Such an approach neglects the significant external implications of internal debates. Rather, changes to the UK’s constitutional settlement must be situated in the broader regional and international political and economic context. The realities of modern globalisation and commerce, mean that external bodies and countries are both influenced by, and influencers of, ‘internal’ debates and thus cannot be ignored.

For England, and the UK, the electoral fortunes of the Conservative party lurk beneath the surface. Under threat from UKIP, and in arguably long-term decline, the Tories have sought to both capitalise and stave off threats from the Right. The party have undoubtedly seen an opportunity to separate unpopularity in Scotland (the party has just one MP out of 59 potential seats and in contrast to Labour), from relative success in England. Significant devolution to an English Assembly would likely leave the Conservatives (or at least the right of British politics) with a majority. This opportunism can explain changes of heart on devolution.

In Scotland, the covert agendas belong(ed) to the markets. Dominant economic actors vocally campaign(ed) against independence on the basis that it would harm jobs and the prosperity of Scots. This was an important consideration for many, but for the Boards of Directors and CEOs making the threats it was not the primary motivation. Rather, the continued profitability and favourable tax regime for corporations were the unspoken motivation for such a fight against Scottish independence. Companies were concerned, not with the general welfare of the Scots, but with the potential disruption to their healthy profits.

As ever for Northern Ireland, much remains unsaid. There is fear of covert and/or incremental changes that erode cultural identities and (Unionist/Nationalist) identity politics remain an on-going and dominating factor in debates. Besides the internal ‘blockages’, there are also external implications including repercussions for Northern Ireland’s voice in debates on human rights, economic powers, and the division of power in the UK. This is crucial, as a strong voice within the UK affects the province’s capacity to deal with the issues of austerity, social security, rural and urban poverty, policing and employment.

At the Conservative Party Conference in October there was a clearly voiced intention to introduce changes to the UK Human Rights Act (HRA) and the relationship with the European Convention on Human Rights and the associated European Court of Human Rights. It was stated that if changes to that relationship could not be made, a Conservative Government would withdraw from the Convention. As has been noted elsewhere this is a particularly pertinent issue for Northern Ireland as the Good Friday Agreement places the introduction of the HRA as central to its settlement.  Under the settlement the UK agreed to:

complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention,  including power for the courts to overrule Assembly legislation on grounds of inconsistency.

The Irish Government, in return, agreed to incorporate the ECHR into its law and there is no suggestion of a change. The Good Friday Agreement is partially a bilateral agreement between the UK and Ireland, the Conservative proposals would, if enacted, violate international law. Besides legality, courtesy would require the UK to consult with Ireland about such changes, perhaps with a view to releasing Ireland from its obligations. Given that there was a vote in both the Republic and Northern Ireland on the Good Friday Agreement, it is perhaps democratically questionable to change its terms without consulting both constituencies again.

Bordering on the EU

Of further consideration is the potential of the UK leaving the EU and its impact. As the Republic is outside Schengen there is little problem with the open status of the Ireland-UK border. Without wishing to ape the rather ridiculous depictions of what a border with an independent Scotland would look like, should the UK leave the EU and Ireland enters Schengen, it would make the open border problematic. In particular with a dominant aim of UK political actors being to stop inward migration, the border could not be as porous.  Whilst the Irish are (legally) not to be treated as ‘foreigners’ under the Ireland Act 1949 other EU citizens entitled to continue to come to Ireland may pose practical and political difficulties. Further, the entitlement of those born in Northern Ireland to dual citizenship is problematic. If an individual chose to register for an Irish passport they would be able to maintain their EU citizenship even if the UK left. This would be in stark contrast to other UK passport holders in Scotland, England or Wales.

Leaving the EU would also impact upon the Transatlantic Trade and Investment Agreement currently being negotiated with the USA. While there is not space here to discuss the many problematic elements of this trade deal, a UK that sat outside of the EU would leave Northern Ireland without preferential access to the USA. Leaving the EU would also put the UK in an entirely different position within the World Trade Organisation. While currently the UK is an individual member, all of its negotiations are conducted as one EU block. Therefore while the UK would stay as a member of the WTO, it would negotiate as a standalone state rather than part of the world’s biggest market. Again, as the Republic would remain part of the EU’s block in the WTO, it would maintain the many and varied benefits that the EU maintains due to its global economic power.

Goodbye Good Friday

A further indication of the external nuances of the UK’s current constitutional soul-searching lies with border polls. Whilst there has been much talk of a border poll in Northern Ireland, this has largely neglected the voice of the Republic. The Good Friday Agreement mandated a right to self-determination for the people of the Republic in the following terms:

it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.

It is by no means certain that a vote in the Republic on the matter of unification would bring about a majority of yes voters. No vote took place when East Germany rejoined West Germany, partly because the German Constitution never gave up its claim to all of its territory. The Irish situation differs as a result of the changes to Articles 2 & 3 of the Irish Constitution. Further, it was by no means certain that the West Germans would vote to integrate their East German neighbours. The requirement of self-determination for North and South would mean that even if Northern Ireland voted for a unification of Ireland, there would be no certainty of a united Ireland

There are undoubtedly significant international effects that flow from a renegotiation of the UK’s constitutional position(s). Yet the current internalised approach to considering the constitutional issues is masking the broader effects. From human rights, to the EU, to the TTIP and the Good Friday Agreement, there are significant ramifications that urgently need discussed. Having these debates by reference to the Conservative Party’s self-interest, economic hegemonies, or identity politics can only lead to a transient conclusion to the international issues.

Taxes, juries and emergency powers: Murphy v Ireland

In a resolutely formalistic judgment, the Supreme Court yesterday rejected a constitutional challenge to the hearing of “ordinary” cases in the Special Criminal Court. Thomas Murphy had been charged with failing to make his tax returns — an indictable offence that is tried usually in the “ordinary courts” —  but the DPP certified that such courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Thomas Murphy”.

Before trial, Murphy issued a plenary summons seeking declaratory relief, claiming, inter alia, that the DPP’s power of certification fails to guarantee his right to equality and his right to a fair trial in due course of law before a jury of his peers, and it does not permit the plaintiff argument to be heard before the issue of the certificate, or dispute it afterwards. Moreover, it was claimed that that the exercise of the DPP’s powers could be predicated on false or inaccurate reasons, but there is no means of ensuring disclosure of such reasons, and that review is possible only where mala fides is demonstrated.

The Supreme Court dismissed Murphy’s claims, allowing trial to proceed. Continue reading Taxes, juries and emergency powers: Murphy v Ireland

The Rich Legacy of Ronald Dworkin: 1931-2013

We welcome this guest post from Dr. Tom Hickey a lecturer in the School of Law at NUI Galway.  In this guest post Dr. Hickey reflects on the work of Ronald Dworkin.  Dr. Hickey lectures in the areas of constitutional law, jurisprudence and administrative law at NUI Galway.

The passing last week of Ronald Dworkin, Professor of Law at New York University and Professor of Jurisprudence at University College London, will have struck a chord with many in the academic human rights community. With contributions such as Taking Rights Seriously (1977), Law’s Empire (1986) and Sovereign Virtue: The Theory and Practice of Equality (1996), Dworkin stands amongst the most influential legal philosophers of the past few centuries. The scope of his work is considerable, but his most enduring legacy is likely to be his theory of adjudication: his account of how judges decide “hard cases.” On this question Dworkin challenged his great 20th century rival H.L.A. Hart (and Legal Positivism generally) by insisting that there is a necessary connection between law and morality. This connection, Dworkin argued, is attributable to the fact that in engaging in the process of adjudication judges necessarily draw on moral considerations. They do so not because of some irresistable impulse on their parts to change the law so that it better fits with their own moral or political tastes but rather because drawing on evaluative considerations is an unavoidable part of any interpretive enterprise, whether it be interpreting a piece of literature or art, a particular social practice, or a set of legal provisions.

Dworkin was a master of the punchy phrase or analogy. He used the image of a right as a “trump card” that automatically defeats cards from other suits as a means of explaining his account of rights as special claims that defeat ordinary political claims based on utilitarian calculations.  Similarly in respect of his argument concerning “constructive interpretation” and how judges decide cases: he frequently used productions of great plays as an illustration.

And so how do we interpret social practices or texts? Imagine you are a music teacher in a secondary school tasked with putting on a version of West Side Story. You must interpret that musical. This is quite a task, given that it is based on a book written by an author, with music written by someone else, lyrics by another, and choreogrpahy by yet another!

You would probably begin by familiarising yourself with the text and the music. You could not reasonably claim that yours was a production of West Side Story if you had instructed your actors to act lines from The Sound of Music. As well as using the text, you will probably consider previous productions of West Side Story. In fact these previous productions will heavily influence your decisions – both consciously and otherwise – as you set about your task. In other words, in putting on the production you will have fidelity to the text and music as well as to previous interpretations. Continue reading The Rich Legacy of Ronald Dworkin: 1931-2013

PhD Studentships at Durham: Dividing Political Power among People(s)

The Law School at Durham University is pleased to invite applications for two three-year doctoral studentship, fully funded (fees and maintenance grant) as part of the ERC – funded project entitled “Dividing Political Power among People(s): A New Federal Theory for the 21st Century”.

The project aims to explore international and national phenomena that have challenged the idea of the sovereign state, and will explore these developments through the lens of federal theory.

Durham is looking for candidates who are interested in pursuing doctoral research in one of three broad areas:

(1) the United Kingdom and the “British Empire”;

(2) American federalism – Old or New; or

(3) German federalism – Old or New.

Applicants should be outstanding law graduates, with a particular interest in constitutional or comparative law. They will be part of a research team lead by Professor Schütze. Further details, including how to apply are available here.

Several other postgraduate funding opportunities are also currently available at Durham Law School, the details are available here.

Blog Carnival: The Children's Referendum

Aoife Nolan is Professor of International Human Rights Law in University of Nottingham. Liam Thornton is a lecturer in law and director of clinical legal education in University College Dublin. Aoife and Liam are organising Human Rights in Ireland’s contribution to the debate on Article 42A, the Children’s Amendment.

On November 10th 2012, a referendum will take place where people will have an opportunity to amend the Irish constitution to provide specific recognition of the constitutional rights of children in the constitution. Over the coming weeks, Human Rights in Ireland will provide expert analysis on the background to the introduction of the children’s amendment, an accessible legal analysis of each of the provisions of proposed Article 42A, and expert analysis and commentary on the children’s amendment. By offering accessible and concise information on the children’s amendment, Human Rights in Ireland seeks to contribute to, and demystify, the debate surrounding the children’s amendment. The provisional schedule for these posts are as follows:

On Wednesday, 17th October posts on the background to the children’s amendment; an explanation of what precisely a referendum is and an analysis of the Oireachtas debates (to date) on the Thirty-First Amendment of the Constitution Bill 2012

On Tuesday 23rd October a number of experts on constitutional law, drawn from regular authors to this blog and guest posts, will explain in an accessible manner each of the provisions of the proposed amendment: Article 42A.

On Friday 26th October, Human Rights in Ireland will be hosting a number of posts that will analyse various aspects of the children’s constitutional amendment, offering expert insight and opinion on the role and value of the proposed Article 42A.

The Thirty-First Amendment of the Constitution Bill 2012 proposes to delete Continue reading Blog Carnival: The Children's Referendum

Damache and Constitutional Retrospectivity

In February of this year a most significant decision was handed down by the Supreme Court in the area of criminal procedure. This decision, Damache v DPP [2012] IESC 11 (discussed here), found that s.29(1) of the Offences Against the State Act 1939, which had been in operation for the past 36 years having been inserted by s.5 of the Criminal Law Act 1976, was contrary to the Constitution. The provision allowed for a member of the Garda Síochana not below the rank of superintendent, to issue a search warrant in certain specified circumstances. It did not, however, specify that such warrants should only be issued by members of appropriate rank who were independent of the relevant investigation. It was with this omission that the Supreme Court found fault. Indeed, this omission, and the Garda practice of having superintendents who were directly involved in an investigation issue warrants under s.29(1) had previously been criticised by Justice Morris in the “Burnfoot Module” of the Morris Tribunal Report (2008). In para 6.22 of that Module the learned Chairperson of the Tribunal observed that

The danger exists that a warrant would be issued automatically and without proper investigation of the matter by the superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a section 29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself.

The Supreme Court in Damache held that the issuing of search warrants is an administrative act but it must be exercised judicially. Accordingly, independence is necessary in the exercise of the act. This, along with the importance of the constitutional protection of the inviolability of the dwelling, under Art 40.5, led the Court to find that s.29(1) was repugnant to the Constitution given that it did not insist on independence in the garda issuing of the relevant search warrants.

An obvious question which arose in the aftermath of the Damache decision is what impact this finding would have on other previously-decided cases. Is a finding of unconstitutionality retrospective or not? Continue reading Damache and Constitutional Retrospectivity

New Resource on UK and Comparative Constitutional Law

Rory O’Connell of Queen’s University Belfast Law School has set up a website which will be of interest to people teaching UK or comparative constitutional law. The website includes a chronology of events and sources relevant to constitutional law. The resource focuses on evens in UK constitutional history though also includes references to Irish, European, International and comparative developments.

The chronology is intended to help students in a number of ways. Continue reading New Resource on UK and Comparative Constitutional Law

Guest Post: Who's Breaching Whose Peace?: R (Moos & Mclure) v Commissioner of the Police

Human Rights in Ireland is delighted to welcome this guest post by Gilbert Leung, kindly reposted from Critical Legal Thinking.

On 14 April 2011, the High Court of England and Wales ruled, in R (on the application of Joshua Moos and Hannah McClure) v The Commissioner of the Police of the Metropolis, that the police had acted unlawfully in “containing” (aka kettling) certain G20 protestors on 1 April 2009. It made clear that the police must be in reasonable apprehension of an “imminent breach of the peace” before taking “preventative action”. Preventative action includes kettling, but only “as a last resort catering for situations about to descend into violence”. That the police cannot arbitrarily kettle protestors can be seen as good news for political activists. The bad news, for those who see kettling as an always unjustifiably brutal form of collective punishment, is that the High Court affirmed its legality under the conditions stated above. And with these conditions, there is always room for interpretation.

For example, in defining the word “imminence”, the judges said that it simply meant a breach of the peace was “likely to happen”. At the same time, they admitted that any determination of likelihood “may be applied with a degree of flexibility” by the police. Add to this the necessity for reasonable apprehension (what is reasonable?), it becomes clear that you don’t have to look too far to see that significant discretion is still retained by the police. How this bears out in practice is yet to be seen, but certain signs point towards a state of peace––officially the Queen’s peace––that is constitutively haunted by a violence that is sometimes latent, hidden and silently simmering, and at other times overt, furious and bloody.
Continue reading Guest Post: Who's Breaching Whose Peace?: R (Moos & Mclure) v Commissioner of the Police

Weekend Reading: Sir Igor Judge on the Role of the Courts

In August the Lord Chief Justice of England and Wales, the appropriately named Sir Igor Judge (pictured left), gave a speech to the 2010 Bench & Bar Conference in Colorado. When British judges speak in the United States, it is almost obligatory that they flag up the shared constitutional history of  both nations. What makes Sir Igor Judge’s speech different is that, having dispensed with a lengthy discussion of the role of Middle Temple Barristers in the founding of the United States, he develops an interesting thesis regarding the constitutional role of the judiciary in both countries. Continue reading Weekend Reading: Sir Igor Judge on the Role of the Courts

A Twilight of Sovereignty: Eastern Europe's Constitutional Courts, the IMF and Government Austerity Programmes

Events in Eastern Europe have yielded some sharp practice relating to the interaction of IMF requested austerity measures and national Constitutional Courts. While these decisions belong to distinct constitutional traditions, they embody underlying debates surrounding the judicial role, the influence of the IMF and the diminution of sovereignty in a global age.

The Latvian Constitutional Court State Pensions case of the 21st December 2009 considered the constitutional implications of government pension taken while under International Monetary Fund financing. The case originated in a constitutional complaint from over 9,000 pensioners against a law which decreased the amount received by current pensioners by 10% and that by future pensioners who were currently employed by 70%. The Government relied upon the emergency nature the measure as signaled by the involvement of the IMF. The applicants relied upon inter alia, the right to property under Article 105 of the Latvian Constitution (“…property rights may be restricted only in accordance with law. Expropriation of property for public purposes shall be allowed only in exceptional cases on the basis of a specific law and in return for fair compensation”), and Article 109, which provided for a right to social security in old age. Continue reading A Twilight of Sovereignty: Eastern Europe's Constitutional Courts, the IMF and Government Austerity Programmes