Ireland in 1922 and Brexit in 2017

In 1922 most of the people of Ireland left the larger UK, but the Irish were divided. The UK today is leaving the larger European Union. The comparison gives grounds both for hope and for fear. The hope is for a speedy negotiation ending in agreed terms meeting the needs of the UK as the leaving state. The fear is for a secession of Scotland from England and Wales, similar to the secession of Ulster from the Irish Free State.

The Kingdoms of Ireland and Great Britain were united in 1801 by Acts of the Irish and British Parliaments. The Anglo-Irish Treaty of 6 December 1921, negotiated since the truce in July 1921, marked the start of the secession of Ireland – the nearest equivalent of Art 50 today.

The Irish Free State Constitution Act 1922 passed in Westminster on 5 December 1922, and the corresponding statute in Ireland, marked the formal legal separation of one state into two. The separation was completed in less than two years.

The Irish Free State Constitution Act 1922 foreshadowed the Great Repeal Bill contemplated by the UK Government’s White Paper of March 2017Legislating for the UK’s withdrawal from the European Union (CM 9446). It returned power to Irish politicians and institutions, it preserved UK law in Ireland where it stood at the moment before the Irish Free State left the UK of Great Britain and Ireland, and it made some changes to Irish law. Article 73 of the Irish Constitution of 1922 simply stated 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the Union was dissolved were to “continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas” (the new Irish Parliament). As explained in the White Paper at para 2.5, the Great Repeal Bill will be similar in principle, but more complicated in practice. It will not only enable people to rely on rights in the EU treaties which can now be relied on directly, and convert directly-applicable EU law into UK law. It will also preserve all the laws made in the UK to implement EU obligations, and provide that historic case law of the Court of Justice of the EU shall have the status of binding precedents.

The British and Irish also took care to protect the reciprocal treatment of each other’s nationals, and to share public debt and pension liabilities. The UK did not use the occasion to punish Ireland for leaving the UK, nor to deter other peoples of the British Empire from seeking independence.

The White Paper The United Kingdom’s exit from and new partnership with the European Union of February 2017 (Cm 9417) refers to 1922, explaining that the Common Travel Area (CTA) was linked to the establishment of the Irish Free State. The CTA is a special travel zone for the movement of people between the UK, Ireland, the Isle of Man and the Channel Islands. The effect of the arrangements between the UK and Ireland in 1922 is that, since then, the people of Ireland, both the Free State and the Republic, have enjoyed the freedoms of movement which are central to the EU: people, goods and services, and capital have generally moved freely between the UK and Ireland since 1922.

The British sought protection of fundamental rights for the minority in the new Irish Free State. Art 73 of the Constitution extended to the Irish Free State all the existing rights of individuals under UK law. But since UK law did not guarantee rights by means of a written constitution, the British feared that the Protestants might suffer discrimination under future Irish laws of the kind which the Irish Catholics had suffered under British legislation in the past.

So, the Treaty of 1921 included that the Irish Free State would not enact any law discriminating on grounds of religion. The Irish Constitution of 1922 not only gave a constitutional guarantee to freedom of religion, but also to other British fundamental rights dating back to Magna Carta. They included rights to personal liberty, inviolability of the home, freedom of expression, freedom of assembly and more.

The agreement between the UK and Ireland in 1922 foreshadowed the post War enthronement of human rights. This facilitated the peaceful transfer of power to many British Overseas Territories, and a continuing, but different, close relationship between them and the UK. In 1950 the UK adhered to the European Convention on Human Rights. And from 1959 UK governments included guarantees of fundamental rights in the constitutions of Nigeria and other British Overseas Territories, most of which were to become independent, the latest being Hong Kong. Relations between the UK and the Republic of Ireland are exceptionally close to this day. Although the world is more complicated now, the arrangements made in 1922 should be a model for the UK’s future relationship with the EU.

There is a real fear of secession by Scotland. But, happily, there is not, between England and Scotland, the recent history of internal divisions, of coercion by the UK Government, and of the violent measures adopted in Ireland, that prevailed in 1922.

Featured image credit: “Giants causeway, Belfast” by llee_wu. CC BY-2.0 via Flickr.