The system of law that has existed throughout Ireland since the seventeenth century is called the common law system, though it is important to note that this is only one sense in which the expression “common law” can be used. The most fundamental feature of the common law system is the doctrine of binding precedent, once judges have made a ruling on a particular point of law, that ruling must be applied whenever judges in lower courts are dealing with the same point in subsequent cases. The ruling is said to have become a “binding legal authority” or a “precedent”. Today many more laws are created by Parliament than was the case a century or so ago, so there are not so many matters which are regulated by judge-made law alone, but the doctrine of precedent still operates whenever judges have to decide exactly what the words used in legislation actually mean. The doctrine of precedent does not operate in so rigid a fashion in countries such as France and Germany, where a so-called “civil law” system exists.
Following the re-conquest of Ireland by England in the sixteenth and seventeenth centuries, the law in Ireland and England developed along much the same lines until the early twentieth century. The countries were administered differently, but the actual content of the law was almost identical. Some significant differences were created during the nineteenth century in an attempt to solve the intractable land problem in Ireland, and the two jurisdictions got out of step regarding family law and some other matters, but generally the laws remained very similar. Even since the partition of Ireland in 1921 the law throughout the two islands (with the exemption of Scotland, where the legal system is more of a mixture of common law and civil law) has been based on the same fundamental common law concepts. The creation of separate Parliaments, through, and the adoption of a written Constitution in the Republic of Ireland, have inevitably caused some divergences.
Just as the Parliament in England developed out of the King’s Council, a Parliament in Ireland evolved, during the 13th century, out of the jurisdiction of the Justiciar, the King’s official representative in Ireland. For two centuries there were Parliaments in both England and Ireland, each claiming the power to make laws fore Ireland, and not until 1495 was it declared at a gathering at Drogheda that only legalisation approved by the English Council could not be passed by the Parliament in Ireland. The Irish Parliament continued to exist until 1800 and it did make some unapproved laws. Between 1782 and 1800m, when it was known as Grattan’s Parliament, it even regained some of its former pre-eminence, because most of Poynings’ Law was repealed by Yelverton’s Law in 1781.
From the Act of Union in 1800, the act that joined Great Britain with Ireland to form the United Kingdom, and until 1921, the only legislative body for Ireland was the Parliament of the United Kingdom, sitting in London. But, while a lot of the legislation enacted for England and Wales also extended to Ireland, not all of it did so: some Acts were applied to Ireland only at a later date or in an amended version, some where not extended to Ireland at all and some were specifically enacted for Ireland and never applied in England.
Stormont is the seat of devolved government in Northern Ireland. The name derives from the location of the parliament buildings where the parliament and the government of Northern Ireland sat until they were suspended by Westminster in March 1972. Located six miles east of Belfast, Stormont is a large edifice built of Portland stone on a plinth of Mourne granite. It was designed in the Official Classical style by Sir Arnold Thornley and opened by the Prince of Wales in 1932.
In Northern Ireland some scope for legal development distinct from that occurring in England was created by the transfer to a new local Parliament of the right to enact legislation “for peace, order and good government” of the province.
The Government of Ireland Act of 1920 had provided for the setting up of separate parliaments in Belfast and Dublin, but the southern parliament never functioned and was replaced by Dáil Éireann. King George V opened the first parliament on 22 June 1921 in Belfast City Hall. It sat at the Presbyterian Church's Union Theological College near Queen's University in Belfast until Stormont was completed in 1932. The matters that were “transferred” to the Parliament included law and order, local government, health and social services, education, planning, internal trade, industrial development and agriculture. Excepted matters were those that were of imperial or national concern, for which it was felt to be undesirable to enact local to enact local variations. They included the armed forces, external trade, weights and measures and copyright law. Reserved matters were those, which were to be the preserve of the proposed Council of Ireland (which in fact was never created) and included postal services, the registration of deeds, some taxes (not road tax or stamp duty) and the Supreme Court of Northern Ireland.
The Unionist parliament at Stormont, which had governed Northern Ireland since the foundation of the State in 1921, sat for the last time on Tuesday 28 March 1972. Conservative Prime Minster Edward Heath had decided to strip the parliament of its power and introduce direct rule from Westminster. He was responding to the worsening security situation that was aggravated when paratroopers, deployed by the Stormont government, shot dead 13 unarmed civilians during a civil rights march in Derry. Two days later an angry crowd burned down the British Embassy in Dublin and in February an Official IRA bomb at the Aldershot HQ of the Parachute Regiment killed three civilians. This was followed by an assassination attempt on a Northern Ireland government minister.
Since direct rule was re-established in the spring of 1974, successive attempts to devolve powers to a representative Northern Ireland body have bailed because agreement could not be reached on how those powers should be exercised. The present proposals are flexible and provide a framework within which an acceptable arrangement may be developed: an Assembly, involved in the conduct of current public business from the day it first meets, will be able to choose between full or partial devolution. These arrangements provide an opportunity to establish a stable and durable system of government acceptable to both sides of the community.
The Northern Ireland Office supports the Northern Ireland Secretary in securing a lasting peace, based on the Good Friday Agreement, which fully respects and safeguards the rights and identities of all traditions in Northern Ireland enabling a safe, stable, just, open and tolerant society to thrive and prosper. While powers are devolved to the Northern Ireland Executive, the Secretary of State retains responsibility for constitutional and security issues in Northern Ireland. These include law and order, political affairs, policing and criminal justice. Victims' issues are handled by the NIO's Victims Liaison Unit. The NIO also has responsibility for matters relating to the licensing and legislation of firearms and explosives.
The Privy Council goes back to the earliest days of the Monarchy, when it comprised those appointed by the King or Queen to advise on matters of state. As the constitution developed into today's constitutional monarchy, under which The Sovereign acts on the advice of Ministers, so the Privy Council adapted. Its day to day business is transacted by those of Her Majesty's Ministers who are Privy Counsellors, that is all Cabinet Ministers and a number of junior Ministers. Membership of the Privy Council brings with it the right to be called "Right Honourable".
The Privy Council is one of the oldest parts of Government, but it has, over time, adapted to reflect the fact that the United Kingdom is a constitutional monarchy. Appointment to the Privy Council is for life, but only Ministers of the democratically elected Government of the day participate in its policy work.
The Ministerial head of the Privy Council Office is the President of the Council. The Privy Council Office provides Secretariat services for the Privy Council (that part of Her Majesty's Government which advises on the exercise of prerogative powers and certain functions assigned to The Queen and the Council by Act of Parliament). Much of the day-to-day work of the Privy Council Office is concerned with the affairs of Chartered Bodies, the 400 or so institutions, charities and companies who are incorporated by Royal Charter. The Privy Council also has an important part to play in respect of certain statutory regulatory bodies covering a number of professions and in the world of higher education.
Another major function of the Privy Council, exercised through its Judicial Committee, is the provision of a final Court of Appeal for a number of Commonwealth countries who have chosen to retain it. The Judicial Committee also deals with appeals from medical and veterinary disciplinary bodies and in certain ecclesiastical cases. The Committee consists of Lords Justices of Appeal and some senior commonwealth judges. The Judicial Committee is also responsible for considering devolution issues (that is questions of whether acts of the devolved administrations in Scotland, Wales and Northern Ireland are fully in accordance with the legislation which set them up).
The constitutional arrangements for devolution in Northern Ireland are more contested than elsewhere in the UK. They look back to undoing problems of the past as well as laying foundations for the future and they are provisional, uncertain in scope and subject to revision. In such situations it is typical for the courts to play a significant role in filling out the detail of the new settlement, providing a forum for redressing problems of the past and developing the values, which will guide the future. The courts in Northern Ireland were already playing this kind of role before the 1998 Agreement. The onset of devolution has accentuated this trend. In addition, a change in the role of the judiciary is observable throughout the UK in the wake of devolution in the form of a ‘legalisation of politics’. Courts seem increasingly willing to deal with issues once regarded as exclusively the province of the legislative and executive branches. An outcome of both Northern Ireland-specific and UK-wide developments is a growing public interest in who the judiciary are, what their powers are and how they are selected. Nowhere is such concern as intense as in Northern Ireland.
Bibliography
Brice Dickson, 2001, The Legal System Of Northern Ireland, fourth edition, SLS Legal Publications (NI), School of Law, Queen’s University, Belfast.
Lecture Notes
Northern Ireland Legal Quarterly [Vol. 43, No.3]
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