Democracy, Sovereignty and Europe

Fifty years after Ireland and UK joined the EEC together in January 1973, the two states find themselves on radically different European trajectories. Ireland is deeply integrated within the EU, with popular approval. Similarly, Irish adherence to the ECHR is politically uncontentious – with the Irish government recently celebrating the rights protective role of the Strasbourg Court in unequivocally positive terms. The UK, in contrast, has Brexited. Furthermore, not content with merely leaving the EU, the British government is proceeding with its quixotic attempt to cleanse UK law of any taint of ‘retained EU law’. It remains signed up to the ECHR, but with some senior government ministers openly advocate denunciation of the Convention.

All this makes for a stark contrast between these two island states on the north-west fringe of the European continent. Both are common law countries with shared traditions of parliamentary governance and strong cultural links to the wider Anglosphere. However, in Ireland there is broad elite and popular support for maintaining alignment with the requirements of EU and ECHR law – while, in the UK, such European influences trigger a sharp allergic reaction. What explains this dramatic divergence? The answer perhaps lies partially in the differing ‘constitutional imaginaries’ of Ireland and the UK, and how EU and ECHR alignment is understood to impact on the exercise of popular sovereignty in both states.

Explaining the Divergence

Openness to Europe (including the ECHR) has accelerated the radical economic, political and social transformation of Irish society over the last half century. It has also helped Ireland escape the gravitational pull of British dominance. A commitment to Europe has thus marched hand in hand with the Irish state-building project, helping it to attract support across the political spectrum.

In contrast, in the UK, as Martin Loughlin has argued, elite support for Europe – often motivated by a desire to cement together the post-imperial British state – has historically struggled to attract wide public support. This has left European alignment vulnerable to political attack, whether it comes in the form of EU law or ECHR requirements. Sceptics have consistently portrayed such external influences as alien to, and corrosive of, the British way of doing politics, law and democracy. Even as buyers’ remorse palpably sets in after Brexit, such sceptical arguments still retain plenty of appeal – as illustrated by the political attacks on the ECHR.

European Alignment and the ‘Constitutional Imaginaries’ of Ireland and the UK

These diverging political dynamics have impacted on how European alignment is conceptualised in constitutional terms in both states. Significant differences now exist between how ‘Europe’ fits within the constitutional imaginary of Ireland and the UK, i.e. the values, doctrines and institutional ways of functioning that shape the collective constitutional culture of both states. In turn, these differences affect how the rhetoric of democracy and sovereignty are deployed in debates about European alignment.

In this respect, a cliched narrative is sometimes trotted out, which suggests that the UK clings to a hypertropic concept of national sovereignty that prevents it embracing European alignment – whereas Ireland, along with other European states, adopts a much more mature, nuanced and grown-up approach to the whole business. I think it is important to dig a little deeper in comparing Ireland and the UK in this way. More is going on than this simplistic picture would suggest.

European Alignment and Irish Popular Sovereignty: Formal Tensions, Substantive Congruence

To start with, it is worth noting that national sovereignty – or, to be more precise, a commitment to respecting the popular sovereignty of the Irish people taken as a unitary whole – has always been central to Irish constitutional narratives. Famously, in introducing the 1937 Constitution, Éamon De Valera, the Irish Taoiseach of the time, commented that ‘[i]f there is one thing more than another that is clear and shining through this whole Constitution, it is the fact that the people are the masters’ (67 Dáil Debates Col.40, May 11, 1937). Since then, paramount importance has been assigned to popular sovereignty in the constitutional scheme of values – and the Irish courts have been jealous in protecting this value.

Thus, in the famous case of Crotty v An Taoiseach [1987] IR 713, the Irish Supreme Court concluded that the executive’s power to conduct foreign relations under Article 29(4) of the 1937 Constitution could not be used to ratify the Single European Act (SEA), as the SEA’s provisions would generate a ‘diminution of Ireland’s sovereignty which is declared in unqualified terms in the Irish Constitution’ (Henchy J). Such an erosion of state sovereignty would only permissible if explicitly endorsed in a referendum by the Irish people, the ultimate arbiters of how state power could be exercised. Since then, popular approval via a referendum vote has been required for every EU treaty change involving an expansion of competence.

More recently, the majority of the Irish Supreme Court in Costello v Government of Ireland [2022] IESC 44 ruled that Ireland could not ratify the EU-Canada Comprehensive Economic and Trade Agreement (CETA) under the current state of Irish law, as it would breach the ‘judicial sovereignty’ of the Irish state by permitting an international arbitration tribunal to make binding decisions enforceable in Irish law without intervening supervision by Irish courts. Such a state of affairs was deemed to cross the national/popular sovereignty line, as it was not to be read as authorised by any existing constitutional provision approved by the people.

Furthermore, in passing, several judges of the Court discussed whether the binding status of Strasbourg Court judgments in international law came close to crossing this ‘sovereignty line’. (Ireland’s ECHR membership has never been put to a referendum – or even been the subject of a court challenge on this point.) The majority of the Court took the view that the fact that Strasbourg judgments were not directly enforceable in national law distinguished the ECHR from the CETA arbitration mechanism. But it is notable that one judge in particular, Hogan J., thought Ireland’s membership of the ECHR was best thought of as a once-off exception to the sovereignty principle: he viewed it as a de facto conferral of sovereign power on an external court, that could only be justified on the basis of the particular value of the Convention as a tool of rights protection.

Thus, Ireland is formally wedded to a robust understanding of popular sovereignty, which is hardwired into constitutional doctrine. This potentially casts a shadow over both EU and ECHR alignment. However, this shadow has not in practice substantially impeded European alignment.

Irish governments have always been able (eventually) to put together broad coalitions of popular support for continued full EU alignment, as tested through the referendum process. Neither political elites or the general public have been particularly possessive about national sovereignty in this regard, viewing the enabling advantages of EU membership as more than compensating for any nominal loss of state-centred self-determination. And these positive referendum results insulate the requirements of EU law from legal or political challenges invoking national sovereignty. (In Costello, the Supreme Court were at pains to note that CETA ratification was not required by EU law.)

In contrast, as already mentioned, Irish ratification of the ECHR has not been subject to a referendum vote. But there is widespread support and enthusiasm for the ECHR. The Convention is seen as a crucial instrument for protecting rights across Europe, while the Good Friday Agreement recognises it as an essential ‘safeguard’ of the Northern Irish peace process. As such, irrespective of whether it presents a formal threat to sovereignty, ECHR alignment is in practice viewed as constitutionally legitimate. This is illustrated by Hogan J’s judgment in Costello, as discussed above. While he raised doubts about the Convention’s formal compatibility with sovereignty, Hogan J. in a remarkable passage made it clear he thought ECHR membership was entirely compatible with the value system of Irish constitutionalism – describing it as a ‘favourite of the law and our constitutional order’. (Author’s italics.)

In other words, European alignment in both its EU and ECHR aspects fits well with the Irish constitutional imaginary. The forms of international co-operation they involve chime with other core values of the Irish constitutional system, and advance important national objectives. Furthermore, the ‘external’ delegation of power to European institutions – whether political or judicial in character – is in some respects comparable to how popular sovereignty is ‘internally’ delegated to the political and judicial organs of the Irish state. Taken together, this all helps to explain why the formal challenge European alignment presents to Irish popular sovereignty has not become a substantive sticking point in Irish law or politics – as yet, anyway.

European Alignment and UK Parliamentary Sovereignty: Formal Congruence, Substantive Tensions

The situation is interestingly different in the UK. There, another form of sovereignty is in play – parliamentary sovereignty. This core norm of the unwritten UK constitutional order treats the Westminster Parliament as the ultimate source of law-making authority. In some ways, it can be viewed as the functional equivalent of the popular sovereignty principle in the Irish constitutional order. But its influence on the framing of European alignment within the British constitutional imaginary has been quite different.

Often seen as part of the UK’s problem with Europe, parliamentary sovereignty actually smoothed the way for UK alignment with EU law when it was still a member state – at least at the level of legal doctrine. After Parliament enacted the European Communities Act in 1972, the UK courts interpreted this legislation as requiring them to give full and faithful effect to EU law. In the famous case of R (Factortame Ltd) v Secretary of State for Transport (No 2) [1991] 1 AC 603, this resulted in the courts suspending the application of another Act of Parliament which conflicted with EU law. Similarly, enactment of the Human Rights Act 1998 (HRA) incorporated ECHR rights into national law, and opened the way for British courts to take into account Strasbourg jurisprudence. The UK courts only recognised the existence of ‘sovereignist’ doctrinal limits to European alignment in one case pre-Brexit, namely R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 – which concerned the very specific jurisdictional question of whether British courts could review the conduct of parliamentary proceedings.

So, unlike in Ireland, sovereignist concerns have not generated doctrinal obstacles to alignment. But the doctrine of parliamentary sovereignty is closely bound up with the view that political decision-making as channelled through the Westminster Parliament should have the final say as to what is law in Britain. And this belief is in turn linked with the idea that any delegation of this law-making authority to other political or judicial bodies, whether national or European/international in character, is intrinsically problematic, as it dilutes the core constitutional value of democratic self-government. This is an important element of the British constitutional imaginary, often encapsulated in the concept of the ‘political constitution’. The persisting strength of this attachment to the political constitution lies at the heart of much British hostility to the requirements of European alignment.

Conclusion – Future Convergence?

Thus, in Ireland, sovereignty concerns present doctrinal obstacles to European alignment, but are overcome by the substantive congruence of the EU and ECHR with national constitutional values. Whereas, in the UK, sovereignty concerns have not generated much of the way of doctrinal obstacles to European alignment – but the delegated and judicialised character of much of EU and ECHR law does not sit comfortably with the emphasis on political constitutionalism that forms an important part of the UK constitutional imaginary. This has given sceptics considerable leverage to challenge both EU and ECHR alignment.

As a conclusion, it is worth asking whether the contrasting European trajectories of Ireland and the UK might begin to converge in the future. In Ireland, might the substantive congruence between European alignment and national constitutional values begin to fray – perhaps due to the democratic deficits of important elements of EU decision-making? This could well lead to the emergence of new strands of Irish political constitutionalism with a more eurosceptic edge, prefigured perhaps by some of e.g. Sinn Féin’s political rhetoric following the economic crisis of 2008. The critical work of UK legal scholars writing on Europe from a political constitutionalist perspective, like Mike Wilkinson, could have some intellectual influence in this regard.

However, Brexit has exposed the limitations of forms of political constitutionalism that are overly nationalistic in focus, and incapable of accommodating the need for systemic inter-state co-ordination in the European space. (More generally, much of the currently fashionable academic literature demanding a ‘re-politicisation’ of Europe is hopelessly vague on this latter point, and lacking in specificity.) Furthermore, the way political constitutionalism has been used in Britain as a cosh to attack international human rights frameworks such as the ECHR also sours its appeal. Thus, as the UK emerges from the morass of Brexit, it is possible that Irish and British attitudes towards European alignment may over time converge a little more than they do at present – but the place of Europe within their constitutional imaginaries is likely to remain very distinct.