Constitutional background to and aspects of the Good Friday Agreement
A Republic of Ireland perspective
I think that on rereading this Judgement, it struck me how differently one reads Judgements as a practitioner than as a law student. Counsel for the State, was the late T> K> Liston, SC and the cat and mouse exercise described here would, I think, have made fascinating viewing. Mr Liston's position was not simply obtuse; it was instead, I think, a careful and intelligent tactic. This was a matter of enormous political sensitivity. Faced with an unpredictable court, anything said could have had unforeseen consequences. The only sensible course was to circle the wagons and wait for the storm to blow itself out. There is, I think a hint of judicial frustration in the next sentence where Mr Justice O'Keefe expresses his own view -
'An acknowledgement that the Government of the State does not claim to be entitled as of right to jurisdiction over Northern Ireland, would, in my opinion, be clearly not within the competence of the Government having regard to the terms of the Constitution.'
It is not so much the content of this sentence but rather the fact that it was delivered at all, with its hint that the Government might be about to make such acknowledgements that contains. I think, an element of republican moralism revisited.
However, a significantly different view was expressed by the Supreme Court in an Article 26 reference, on the terms of The Criminal Law (Jurisdiction) Bill 1975 8 which was enacted in order to give effect to part of the Sunningdale Agreement. The argument of Counsel assigned by the court (Colm Condon SC, Donal Barrington SC and Hugh o'Flaherty BL) was ingenious. The state could not legislate for offences occurring in Northern Ireland because, although it had asserted a general right under Article 3, it had expressly withdrawn from that right by the terms of Article 3 'pending the reintegration of the national territory'. Counsel for the Bill, the then Attorney General, Declan Costello SC, Rory O'Hanlon, SC and John Cooke BL (as they all then were) implicitly accepted this argument, but contended that the right to legislate came, not from the second Clause of Article 3, but from the final clause that the laws enacted by the Parliament would have the like extra-territorial effect, as the laws of Saorstat Eireann. If it was possible for Saorstat Eireann to legislate with extra-territorial effect then it was also possible for the Dail. This argument was accepted but the Supreme Court, 9, also took the opportunity of advancing a subtle interpretation of Articles 2 and 3 in a passage commencing with the words:
'Articles 2 and 3 can only be understood if their background of law and political theory is appreciated.'
The court went on:
'One of the theories held in 1937 by a substantial number of citizens was that a nation, as distinct from a state, had rights; that the Irish people living in, what is now called the Republic of Ireland and in Northern Ireland, together form the Irish Nation; that a nation has the right to unity of territory in some form, be that as a unitary or federal state; and that the Government of Ireland Act, 1920, though legally binding was a violation of that national unity which was superior to positive law'.
Significantly in my view the Supreme Court went on then to state:
'The National claim to unity exists not in the legal but in the political order and is one of the rights which are envisaged in Article 2; it is expressly saved by Article 3 which states the area to which the laws enacted by the Parliament established by the Constitution apply. The effect of Article 3, is that, until the division of the Island of Ireland has ended, the laws enacted by the Parliament established by the Constitution are to apply to the same area and have the same effect of application as the laws of Saorstat Eireann had. The area to which the laws of Saorstat Eireann applied was, having regard to the Articles of Agreement of 1921 and the Act of 1925 is unquestionably the area now known as the Republic of Ireland.'
The significant sentence there, was the one which identified the national claim to unity as existing 'not in the legal but in the political order'. This was a theme taken up by a member of that Court, speaking extra judicially, when delivering the McDermott Lecture in Queens University, Belfast on the 9th of November 1978.10. Mr Justice Kenny's topic was the advantages of a written Constitution incorporating a bill of rights, but he also took the opportunity of expressing his views on what he described as a controversial matter. He stated that to understand Articles 2 and 3, it was necessary to deal with the 'political (but not legal) concept of a nation and a political doctrines of Irish Nationalism.' He described nationalism as:
'Essentially a doctrine of the heart and not of the intellect. Those who
hold it brush aside all intellectual arguments against it. Because it is
a doctrine of the heart and is therefore passionately held, adherents do
not think it is important that they find considerable difficulty in answering
questions as to how one becomes a member of the nation and how when one
ceases to do so.' |
