Constitutional background to and aspects of the Good Friday Agreement
A Republic of Ireland perspective
by DONAL O'DONNELL S.C
As luck would have it, the matter was heard in the High Court by none other than Mr Justice Barrington. As bad luck would have it, both sides contended that Articles 2 and 3 amounted to a claim as of legal right to jurisdiction to legislate with effect for Northern Ireland. Mr Justice Barrington, however, took the opportunity of advancing the analysis developed in his lecture and that of Mr Justice Kenny and derived ultimately from the decision in the Criminal Law Jurisdiction Bill, 1977, and which after all, was the then authoritative view of the Supreme Court. He rejected the Plaintiff's claim and the matter was appealed to the Supreme Court. Before the Supreme Court appeal was heard, Mr Justice Costello decided McGlinchey v Ireland and the AG (no2)13 and repeated and endorsed the construction of the Articles first advanced in the Criminal Law Jurisdiction Bill case observing - 'this claim to unity exists in the political and not in the legal order'. There was thus an impressive line of authority on this point by the time the Supreme Court decided the appeal in McGimpsey.
The Supreme Court 14, upheld the decision of the High Court but adopted a significantly different analysis. The Judgement of Mr Justice Finlay was joined by Walsh, Griffin and Hederman JJ. In one sense the simple answer to this aspect of the case was that given by both Mr Justice Barrington and Mr Justice Finlay in their respective Judgements, ie. That an agreement recognising that the change in the status of Northern Ireland was something that require the consent of the majority of the people of Northern Ireland, was not only not inconsistent with the Constitution but was compatible with the obligations undertaken by the State in Article 29, Sections 1 and 2, whereby Ireland affirmed its adherence to the principles of pacific settlement of international disputes.
However Mr Justice Finlay went on to deal with the theoretical argument as to the status of the claim to unity. He stated at page 119 -
'I am not satisfied that the statement that this national claim to unity exists not in the legal, but political order and is one of the rights which are envisaged in Article 2, necessarily means that the claim to the entire national territory is not a claim of legal right.'
He declined to follow the decision in the Criminal Law Jurisdiction Bill case and set out that the true interpretation of the Constitutional provisions was as follows -
(i) The reintegration of the national territory is a constitutional imperative quoting Hederman J's (dissenting Judgement in Russell v Fanning 15
(ii) Article 2 of the Constitution consists of a Declaration of the extent of the national territory as a claim of legal right.
(iii) Article 3 of the Constitution prohibits, pending the reintegration of the national territory, the enactment of laws of any greater extent than that of the laws of Saorstat Eireann;
(iv) The restriction imposed by Article 3 in no way derogates from the claim as a legal right to the entire national territory.
The arguments so carefully elaborated from the decision of the Supreme Court in the Criminal Law Jurisdiction Bill is here dismantled quite peremptorily. It is possible, I think, to suggest that the McGimpsey Judgement in this regard, is an example of the weakness that I have referred to earlier. The Constitution is treated as a purely legal document. I understand, I think, the argument that since Article 3 refers to the 'right' of Parliament to exercise jurisdiction, that that right must be a 'legal right' since the Constitution is a 'law'. Equally, I think it can be said that it does not really matter whether it is a claim of 'legal' or 'political' right, since it is probably as offensive to those who wish to be offended however it is characterised. Nevertheless, it is, I think, important to look closely at the question raised and apparently determined in McGimpsey, as to the nature of the claim made in Articles 2 and 3.
The phrases 'constitutional imperative' and 'claim of legal right' are impressive
rhetorical soundbites, but it is not entirely clear what they mean, particularly,
as a matter of law. What is a 'claim of legal right' and to what court or
tribunal is that claim directed? The Constitution is not a pleading, nor
is it indeed a document of international law. There is in the phrase, a
sense that the claim to national unity is something that some hypothetical
court might grant. |
