50 Years On
Divergent Paths of British and Irish Membership of the EU
In 1973 and on the third attempt, Ireland and the United Kingdom (UK) with Denmark acceded to the European Communities, while Norway opted not to join following a referendum. For Ireland and the UK, the half-century since has brought about remarkable social, economic, demographic, political, and legal changes in both states leading to the UK leaving the EU in 2020 and Ireland remaining a Member State. Given the shared anniversary and divergent responses to EU membership in the context of strong (if complex) ties between the two states and a shared common law tradition, a reflection on the 50th anniversary of their accession to what is now the European Union (EU) is timely.
In fact, 2023 marks several inter-related anniversaries: 50 years since Ireland’s and UK’s accession to the EU, seven years since the Brexit referendum and three years since the UK withdrew from the EU. This year also marks 25 years since the UK ‘brought rights home’ through the domestic implementation of the European Convention on Human Rights through the Human Rights Act 1998, and 20 years ago Ireland enacted the European Convention on Human Rights Act 2003. Most significantly for UK-Ireland relations, 2023 marks 25 years since the Belfast/Good Friday Agreement and the shared commitment of the UK, Republic of Ireland and Northern Irish parties to peace. And, while not yet an anniversary, the Windsor Framework was very recently agreed between the EU and the UK to resolve ongoing differences over the Protocol on Ireland and Northern Ireland in the EU/UK Withdrawal Agreement that leaves the land border open between the UK (Northern Ireland) and Ireland on the island of Ireland for the purposes of trade in goods.
Bringing together academics from British and Irish universities and led by academics in the Sutherland School of Law at University College Dublin and UK in a Changing Europe at King’s College London, this symposium reflects on the constitutional evolution brought about by EU membership and withdrawal, and the changing nature of the relationship between these states and with the EU. It gives insight on the nature of EU membership through the convergence, divergence, integration, and disintegration of a current and former member state.
Commentators show how the shared history and broad similarities of common law systems belie far deeper constitutional distinctions between Ireland and the UK. The UK has an uncodified constitution grounded in common law principles and bounded by leading statutes, decisions and conventions – the single most defining feature of which is ‘parliamentary sovereignty’ or the principle that Parliament can make or unmake any law, except to bind future parliaments. In contrast, Ireland’s 1937 constitution gave constitutional expression to ‘popular sovereignty’, enumerated rights and gave provision for the courts to strike down unconstitutional laws, fifteen years after independence from the UK.
There are common questions, however. Whether it is an absolute authority and a resistance to external decision-making; or a constitutive power, an expression of popular and collective will; or a statement of the purpose of a state, a guarantee to seek the best interests of its citizens; whether it is legal, popular, political or parliamentary – grappling with what ‘sovereignty’ for a state means in a Union echoes throughout the Symposium.
‘National sovereignty’ and the contested and contentious concept of ‘constitutional identity’, notably brought to the stage by the Lisbon judgment of the Bundesverfassungsgericht and given a spotlight by Hungary and Poland among others, is played out in the settings of both the British and Irish courts. Ireland’s own Supreme Court decisions grappling with conflict between constitutional norms, are contrasted with whether the EU membership ‘softened’ British parliamentary sovereignty by leading the courts to introduce the concept of ‘constitutional statutes’, and the interpretive principle that later statutes could not impliedly repeal EU laws or fundamental rights.
In the recognition and protection of rights is perhaps the strongest expression of how EU membership has changed the law and lives of people in Ireland and the UK. Free movement of people, goods, capital and services are the foundational freedoms of EU membership, but the scope of EU law has now embraced voting: the enfranchisement of EU citizens in host member states, as well as socio-economic and family rights. Commentators show the transformational character of EU membership – highlighting the radial social shift in attitudes to women’s rights and abortion in Ireland under its influence. But they note that such radical socio-legal shifts are not inevitable, nor are they linear. Ireland’s embrace of European rights-rhetoric contrasts starkly with the UK’s increasing rejection of it, encapsulated in the calls to repeal the Human Rights Act 1998 and to withdraw from the ECHR.
Commentators explore the contrasting perspectives on what it means to be an EU member state, exploring UK scepticism on the deepening integration of areas beyond the single market, including citizenship, and contrasting it with the choice of Ireland to join the Eurozone, and tie closer through Economic and Monetary Union. Different ‘types’ of membership are explored too through an analysis of ‘differentiated integration’ within the context of asylum policy.
Even where EU membership has embedded and cleaved deep within British and Irish constitutionalism, commentators examine the influence of both states on the EU. EU adaptation to the language of common law constitutionalism, and both states as drivers of case law before the Court of Justice in areas such as equality evidences mutual dialogue and co-development. In one study, Ireland’s long history of intervention in support of UK-led or UK-related action against the Commission before EU courts is examined, along with its intervention in technical fields of EU law.
Commentators explore the constitutional changes made and mediated by referenda. There is a stark contrast between the UK’s 2016 Brexit Referendum, with the Irish second referenda following both the Lisbon and Nice Treaties. The Irish Supreme Court decision in Crotty which set the constitutional mandate for all EU Treaty changes to be subject to a referendum is analysed for its subsequent impact. While the 2016 Brexit referendum was a political choice, commentators highlight how referenda are now integrated within the UK’s devolution settlement: the devolved governments of Scotland and Wales can only be dissolved on the basis of a referendum in either country. The UK is legally obliged to respect the result of a referendum in Northern Ireland on the decision of whether to leave the UK and join Ireland.
The position of Northern Ireland is also examined, as it now holds a unique place ‘between’, with access to both the EU single market and the UK single market, it is between Ireland and the UK, and between the EU and the UK. Its unique post-conflict governance arrangements are analysed, examining the role of EU membership in facilitating the minimisation of barriers across Ireland, Northern Ireland and the UK, and questioning how this can be replicated or replaced in a post-Brexit environment of regulatory divergence.
Commentators take stock of the UK within and now without the EU. They examine how Brexit has been a catalyst for constitutional change, most notably in the balance of power by first shifting towards parliament in the unprecedented level of review of an international treaty with the Withdrawal Agreement, and then away in subsequent legislation which delegates broad and sweeping powers to government to change, alter, and amend law consequent to the Brexit process. Following nearly fifty years of convergence and integration, commentators interrogate the challenges of divergence to the UK, Ireland and the EU.
We invite you, reader, to join us in examining the half-century since the beginnings of Irish and UK membership of the EU, reflecting not only the making of history but pathways that lie ahead for both states within and outwith the European Union.
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