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Northern Ireland and the Irish Constitution: Pragmatism Or Principle?:The Mcgimpsey Case

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Northern Ireland and the Irish Constitution: Pragmatism Or Principle?:The Mcgimpsey Case Technological University Dublin ARROW@TU Dublin Dissertations Social Sciences 2010-05-10 Northern Ireland And The Irish Constitution: Pragmatism Or Principle?:the McGimpsey Case Rory McGimpsey Technological University Dublin Follow this and additional works at: https://arrow.tudublin.ie/aaschssldis Part of the Law Commons, and the Social and Behavioral Sciences Commons Recommended Citation McGimpsey, Rory: Northern Ireland And The Irish Constitution: Pragmatism Or Principle?-The McGimpsey Case. Masters Dissertation. Dublin, DIT, May 2010. This Dissertation is brought to you for free and open access by the Social Sciences at ARROW@TU Dublin. It has been accepted for inclusion in Dissertations by an authorized administrator of ARROW@TU Dublin. For more information, please contact [email protected], [email protected]. This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 4.0 License R.W McGimpsey NORTHERN IRELAND AND THE IRISH CONSTITUTION: PRAGMATISM OR PRINCIPLE?-THEMCGIMPSEY CASE M.A in Law-DLT567/1 By R.W. McGimpsey B.A, M.A, P.G. Dip. Student No: D09118099 Supervisor: Dr. Fergus Ryan Date of Submission: 10/05/2010 R.W McGimpsey Front cover illustration courtesy of Google Images. www.google.com/GoodFridayAgreement R.W McGimpsey Contents CONTENTS: Statement Declaration Abstract List of Cases Acknowledgements CHAPTER 1: PREFACE-HISTORICAL PERSPECTIVE ON ARTICLES 2 AND 3 AND THE POSITION RELATING TO NORTHERN IRELAND. (BACKGOUND TO MCGIMPSEY) CHAPTER 2: CASE LAW RELATING TO ARTICLES 2 AND 3. (CONTEXT OF MCGIMPSEY) CHAPTER 3: MCGIMPSEY V. IRELAND. Conclusion Bibliography R.W McGimpsey Statement STATEMENT: This thesis is submitted in part-fulfilment of the requirements of the M.A. in Law of the Dublin Institute of Technology. R.W McGimpsey Declaration I submit that this thesis is solely my work and has not been published or submitted in fulfilment or part-fulfilment of the requirements of another academic programme. All external sources have been cited and are fully referenced in the footnotes and Bibliography. R.W McGimpsey Abstract ABSTRACT: The central theme of my thesis concerns the case of McGimpsey v. Ireland [1990] I.R. 110 and its wider significance. All discussion in the thesis can be traced back to this seminal case. On a wider level, the thesis discusses Articles 2 and 3 of the Constitution, tracing their history from their ideologically irredentist origins through to their amendment following the Good Friday Agreement, with its pluralist, inclusive re- definition of nationality. In essence, the thesis attempts to analyse the relationship between the two jurisdictions in Ireland, and how it evolved over time. I have endeavoured to explain how the 1937 Constitution re-defined these relationships, creating problems for the 26 County State and its courts. The thesis discusses how the State reconciled the existence of a legal claim over Northern Ireland with the reality provided by a partitioned island. I argue that the State has adopted an essentially pragmatic position in its attempts to reconcile Articles 2 and 3 with the de facto political reality on the ground. I discuss how this fundamentally pragmatic position has co-existed alongside rigid Republican dogma and ideology. In charting the political journey of Articles 2 and 3, I discuss how pragmatic considerations have tended to weigh more heavily than idealistic rhetoric. While acknowledging the radical re-definition of Irish nationality prescribed by the Good Friday Agreement, I argue that conciliation and accommodation has always characterised the Irish State’s relationship with Northern Ireland. It was through such pragmatism that the State was able to reconcile the existence of the legal claim with the reality of partition. The McGimpsey case forms the foundation of my argument, serving to illustrate the plethora of problems created by the former Articles 2 and 3. My interview with Chris McGimpsey (a plaintiff in McGimpsey v. Ireland) permits a deeper analysis of the subject, revealing his personal perspective on the wider constitutional issue. The case demonstrates how, (on a political level) the main traditions on this island were able to find a way to compromise, enabling the realisation of a workable accommodation. I explain my belief that the amendment of Articles 2 and 3 contributed in a small, but significant way to the delivery of this new dispensation. The essential theme of my thesis, however, is that such spirit of accommodation has always been inherent in Irish political thought. R.W McGimpsey List of Cases LIST OF CASES: Boland v. An Taoiseach [1974] I.R. 338. State (Devine) v. Larkin [1977] I.R. 24. Re Article 26 and the Criminal Law (Jurisdiction) Bill 1975 [1977] I.R. 129. State (Gilsenan) v. McMorrow [1978] I.R. 360. Crotty v. An Taoiseach [1987] I.R. 713. Russell v. Fanning [1988] I.R. 505. Finucane v. McMahon [1988] I.R. 165. McGimpsey v. Ireland [1988] I.R. 567. McGlinchey v. Ireland [1990] I.R 220. McGimpsey v. Ireland [1990] 1 I.R 110 R.W McGimpsey Acknowledgements ACKNOWLEDGEMENTS: The composition of a thesis on such a substantial topic has been an arduous and in-depth exercise. Articles 2 and 3 are not easy material to tackle, given the magnitude of their effect and the relative lack of writing on the subject. Even deciding on how best to approach the thesis became fraught with difficulty. As a History graduate, my dilemma concerned how best to write an informed and relevant thesis in Law. Should I attempt to focus primarily on the legal significance, or explain the wider context of the issue by incorporating historical and political elements? My answer was to attempt to write a comprehensive thesis, discussing the historical and political significance of Articles 2 and 3, whilst still firmly grounded in the legal context. This approach has been extremely rewarding, helping me attain a detailed appreciation of my subject matter. It has, however, been quite a demanding and taxing experience. The writing of this thesis has constituted a considerable commitment, but has proved especially time consuming alongside my full-time work obligations. As such, it would be remiss of me not to acknowledge my employer, Creation Finance, who has been extremely helpful in providing time off to study. The final thesis owes much to the distinguished history of jurisprudence and writing on the Irish Constitution. Without such authority, I would have been unable to tackle such a complex and detailed topic. I am, though, particularly indebted to several individuals. In particular, I would like to thank Dr. Christopher McGimpsey for his time. Chris has been extremely helpful, providing me with a voluminous collection of documents which would have taken me years to read in full! As an authority on Articles 2 and 3, Dr. McGimpsey is prodigious and my thesis owes much to his advice. I also express sincere gratitude to my supervisor, Dr. Fergus Ryan. Dr. Ryan has been very generous with his time, providing essential advice and encouragement. Dr. Ryan’s legal expertise has been invaluable, and I am especially thankful for his scholarly and academic influence. The thesis owes much to this authoritative knowledge. Needless to say, any errors are my own. In addition, I would like to thank my parents, Peter and Alison McGimpsey whose generosity has made this enterprise possible. Finally, I want to thank my fiancée, Siobhán, without whose patience and support this thesis would not have been concluded. R.W. McGimpsey 28/04/2010 R.W. McGimpsey Historical Perspective on 1 Articles 2 and 3 NORTHERN IRELAND AND THE IRISH CONSTITUTION: PRAGMATISM OR PRINCIPLE?-THE MCGIMPSEY CASE CHAPTER 1: PREFACE-HISTORICAL PERSPECTIVE ON ARTICLES 2 AND 3 AND THE POSITION RELATING TO NORTHERN IRELAND INTRODUCTION: Article 2: “The national territory consists of the whole island of Ireland, its islands and its territorial seas. Article 3: Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.”1 “Ireland cannot shift her frontiers. The Almighty traced them beyond the cunning of man to modify” (Arthur Griffith).2 Both the original text of the old Articles and the views expressed by the founder of Sinn Féin, reflect the manner in which Irish nationalism traditionally interpreted the national territory. The nation was defined almost entirely in terms of geography and territory, comprising the island, its islands and territorial seas. The definition is problematic, being at once exclusive and restrictive. The clear emphasis is to apply the concept of the Irish nation exclusively to those inhabiting the island and its locality, with little scope being given for a wider, more inclusive form of Irishness. For example, in the founding fathers‟ limited definition of the Irish nation there appears to be little room for those of Irish 1 Bunreacht na hÉireann (1937): The original Articles, prior to Nineteenth Amendment. For the purposes of simplicity, all references to “Articles 2 and 3” in this thesis are acknowledging the former Articles 2 and 3, unless otherwise stated. 2 Quoted from a speech delivered by Dr C.D. McGimpsey to the Philosophical Society, University College, Cork: 15 December 1990, p.1. R.W. McGimpsey Historical Perspective on 2 Articles 2 and 3 origin living abroad. It should be remembered that the State was created at a time when the island had experienced extensive emigration due to the economic hardship experienced in the latter half of the 19th and early 20th centuries. The traditionally nationalist conceit of the Irish nation is derived from the idea that the island was bequeathed to the people by God, that the territory is held by divine benefaction.
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