In 1801 the Kingdom of Ireland became part of the United Kingdom of Great Britain. In 1922 it withdrew from the Union. The events leading up to 1922 were violent, and the consequences were a traumatic division of Ireland. But the arrangements for Ireland’s exit were orderly and took less than two years. They led to a century of increasing friendship between the people of Ireland and the UK.
The United Kingdom of Great Britain and Northern Ireland is withdrawing from the European Union after 45 years. There is no violence. But the consequences could be a division of the UK, with the possible withdrawal from the UK of Scotland and Northern Ireland.
A White Paper issued in March, legislating for the UK’s withdrawal from the EU, explains that a Great Repeal Bill will repeal the European Communities Act 1972, by which the UK became a member of what was then the Common Market. But far from repealing EU law, the Act will re-enact most of it, to ensure continuity. The Act will in principle return power to the UK. But in practice there will be a long and perhaps indefinite period during which what was EU law will be enforced as UK law, and interpreted by reference to decisions made prior to that Act by the European Court of Justice.
Brexit was foreshadowed by the 1922 equivalent of the Great Repeal Bill. This was the Constitution of the Irish Free State. It was enacted by identical laws passed in Westminster and Dublin. After creating the new state, Article 73 of the constitution provided that the laws in force in Ireland at the time when the Union was dissolved were to “continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of” the new Irish parliament.
The violence between the British and the Irish was ended on December 6, 1921 by the Anglo-Irish Treaty. The British negotiators of that treaty recalled that the law in Ireland had long discriminated against the Catholic majority population of Ireland, who were also a minority of the whole United Kingdom. The Protestants living in the new Irish Free State were about to become a minority. So it was a term of the Treaty of 1921 that the new Irish parliament would not enact any laws that discriminated on grounds of religion.
Article 73 of the new constitution gave the force of law in the Free State to all the common law and statutory rights enjoyed by the people of the UK. But that was not enough to ensure that the Irish parliament would not enact new laws which discriminated on grounds of religion. Under UK law, Parliament is supreme. It can at any time abrogate rights, as it had done in time of war in the UK, and in times of trouble in Ireland and the colonies. It was because British rights were not secure from repeal by Parliament that the Americans had insisted on a Bill of Rights for their constitution after independence. The Irish followed the American model. They made their constitution and their courts supreme, not their parliament.
The British version of the Irish Free State Constitution Act 1922 thus became the first Act of the British Parliament to guarantee human rights in a written constitution. It guaranteed rights which were not included in a British statute applicable to the UK itself until the Human Rights Act 1998. The Irish Constitution of 1922 also foreshadowed the constitutions which the UK gave to Nigeria in 1959, and to other Overseas Territories in subsequent years, most of which were about to become independent states with close ties to the UK.
The White Paper on the UK’s exit from the EU released in February refers to 1922. It explains that after 1922 the Common Travel Area became a special travel zone for the movement of people between the UK, the Republic of Ireland, the Isle of Man and the Channel Islands. This means that the people of Ireland have continued to enjoy freedom of movement of people, goods, services and capital.
The EU today is much more complicated than the United Kingdom of Great Britain and Ireland in 1922. But let us hope for a new treaty with the EU that will allow the British to enjoy in the EU as many of these freedoms as the Irish have enjoyed in the UK, and that the UK will not pay the price of partition, which cost so much to the peoples of Ireland, North and South.
Sir Michael Tugendhat is a retired High Court judge
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