Northern Irish legal education after Brexit

ABSTRACT

In this article we argue that the impact of Brexit on the law schools in Northern Ireland is tied to the “unique circumstances” of legal education in this part of the world. Legal education in Northern Ireland is likely to develop to become even more distinctive than that in other parts of the UK. Although there are two distinct jurisdictions on the island, they are deeply entangled by shared history and geographical proximity that make cross-border practice a daily reality. These circumstances seem likely to drive the trajectory of the development of legal education in Northern Ireland. Indeed, EU law is likely to remain a component of the Northern Irish qualifying law degree. The potential for the development of law specific to Northern Ireland under backstop arrangements is another significant driver for the future orientation of legal education in this jurisdiction. Legal education in Northern Ireland is, therefore, likely to become noticeably more “European” than that in other parts of the UK.     

中国语境下的法律信仰：涵义、对象、载体与表征

法律信仰是人们出于对法律的依赖感而生产的心理感受，在行为上则体现为对法律过程的参与。在当下的中国语境中，似可把法律信仰的对象归纳为自由、平等、秩序、安全等法律价值，实在法是法律信仰的载体。在通常意义上，对法律价值作出权威性界定的法官即是法律信仰的表征者。在终极意义上，法律解释要合乎宪法，法律信仰可归结为宪法信仰，法律信仰最终要由违宪审查者来表征。     

Human Rights: Changing the Culture

The Human Rights Act 1998 is likely to come into force early year next year. It unquestionably has the potential for being one of the most fundamental constitutional enactments since the Bill of Rights over 300 years ago. While so much constitutional change in the United Kingdom has been achieved without resort to legislation, this is a deliberate part of a programme of constitutional change by legislation. The legislation has to be seen in the context of the government's wider programme of constitutional reform: the reform of the House of Lords, the promised Freedom of Information Act, devolution to Scotland, Wales, and Northern Ireland, and elected mayors. Any evaluation of a change in the way in which the constitution is perceived and imagined in the United Kingdom cannot ignore the interrelationship of these reforms. The scope of this collection of essays is, however, narrower. It is to consider what changes have brought about this particular constitutional reform and its potential for creating a 'human rights culture'.     

What’s Inside and Outside the Law?

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.     

The Law Commission Consultative Report on Company Security Interests: An Irreverent Riposte

I was once at a sermon by a well-known Northern Ireland politician and minister of religion in which, talking about the fall from grace of a British minister following a sex scandal, he commented that while the will of God worked slowly it also worked surely. Be that as it may, one might comment that the process of law reform, whatever about working surely, can certainly work slowly. Back in July 2002 the Law Commission produced with some haste a consultation paper on Registration of Security Interests . ¹ There was a bit of a fanfare, a short consultation period and talk of imminent legislative change. Things went quiet for a while. More than 2 years later the Law Commission came back in September 2004 with a further consultation paper only this time called a "consultative report" ² with the promise of a Final Report in July 2005. In this article I will look at the consultative report and ask whether it is going to be the harbinger of legislative transformation.     

A breed apart? Northern Ireland's MPs at Westminster

This article examines the marginal role played by Northern Ireland (NI)'s MPs in Parliament. Sectarian conflict, party fragmentation, and regional administrative reorganisation over the last 25 years have heightened the local visibility of NI MPs, with the result that most place a low priority on active participation at Westminster. While Northern Ireland's future constitutional status dominates the political agenda, differences among the province's major parties on this issue have had little effect on how MPs approach constituent matters, intercede with government agencies, or define their representational role. Northern Ireland's MPs tend to have a particularistic perspective, a clientelist orientation, and little practical experience in consensus‐building across communal divisions.     

The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland

British constitutional legal discourse is structurally limited in its capacity to capture the complexity of the Good Friday Agreement. Rather than assessing the Agreement in narrow devolutionary terms, it should be seen as a hybrid domestic and international law instrument, making an important contribution to accepted international law norms in relation to self-determination. The Agreement transforms and partly transcends the Northern Ireland conflict by substituting political contestation for violent conflict, and by defining the modalities of conducting that contestation. This analysis complements classical international law perspectives, and opens up the application of legal discourses associated with 'transitional justice' to the legal and political transformation in Northern Ireland. These discourses focus on the problem of reconciling the demands of peace with the imperatives of justice. The Agreement sits squarely in this terrain with its provisions on 'dealing with the past' and 'institutional legacies'. The insights gained here challenge orthodox thinking about conflict-management and the ongoing political process.     

The Politics of Rule of Law Reform: From Delegation to Autonomy

How can we understand the delegation of power and authority – for example, from a polity to an administrator - in a world of fragmented governance? In this paper, I introduce the practices of contemporary ‘rule of law’ and ‘governance’ reform, which reframe this question in politically powerful ways. These practices are increasingly important in development contexts, and beyond. Practitioners begin with the assumption that some sort of administration occurs in the development contexts in which they work. They then focus on how to convene a political community in which to embed – and potentially legitimate - that administration. They thereby reconfigure the question of delegation into one of autonomy – or managing the extent to and ways in which the administrative legal system self-produces. In doing so, I argue that contemporary rule of law practitioners wield constitutional power under the rubric of workaday administrative reform. At the same time, they efface their political accountability.     

Balance y perspectivas de la reforma constitucional penal en méxico a cinco años de su publicación

The criminal constitutional reform in Mexico means cultural and epistemological rupture directed and supported by the realism and the legal guarantism. After the publication of the criminal constitutional reform on June 18, 2008, more than four years have passed, however, less than the 30 percent of the 31 States of the Republic and a Federal District, observe and apply this reform in a comprehensive way. Unfortunately, the obstacles are identified in: reluctance to change legal paradigms, i.e., conservation of the formalistic legal exegetical tradition through the mixed inquisitional criminal system; Lack of infrastructure, human and material; Absence of harmonization of laws, proposes the creation of a unique code of criminal procedure to see how effective and efficient the procedural criminal accusatory system oral and alternative means for dispute resolution, which guarantees the principles: presumption of innocence, due process of law, immediacy, advertising, contradiction and equality.     

谈现代科技的发展与宪法(学)的关系

现代科技发展十分迅猛,对宪法和宪法学都带来了深刻的影响。文章两位作者就现代科技发展对宪法(学)发展的贡献,现代科技发展对宪法(学)的冲击和挑战,特别是器官移植与生命权、克隆人与宪法价值、基因检测与公民的平等权、信息传播与公民的隐私权、因特网技术与宪政体制和基本权利等问题展开了讨论。宪法(学)也不是消极地应对科技的发展,而是积极地回应,一方面给现代科技的发展提供支持,另一方面也为限制现代科技发展的负面效应提出有效的对策。现代科技的发展应该回归到宪法的价值体制之内。     

Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court

This article focuses on the relationship between the United Kingdom Supreme Court and Northern Ireland over the course of a constitutionally significant period of time, namely the first decade of the Court's existence. It does this by exploring what difference the Court has made to the law of Northern Ireland, what significance the cases from Northern Ireland have had for the law in other parts of the United Kingdom, and what part has been played in the Court's work by the sole Justice from Northern Ireland, Lord Kerr of Tonaghmore, and by the Attorney General for Northern Ireland, John Larkin QC. It concludes that the Court has established itself as an indispensable component of the legal system of Northern Ireland.     

Gender Equality, Citizenship, and the EU's Constitutional Future

Abstract:  While gender equality has been a matter of some concern for EU law and policy makers over the past half century, this concern has tended, at least historically, to focus upon equal treatment in employment and has not yet materialised into the delivery of a broader package of civil, political, and social rights for women. Taking the concept of EU citizenship as a framework within which to view the promotion of gender equality, this article assesses the debate on the constitutional future of the EU. This is with a view to examining the possible amelioration of women's social position through the exploitation of opportunities that the constitutionalisation of EU law presents. Looking at women's citizenship through the lens of political rights to participate in the debate on the EU's future, together with examining substantive aspects of the Constitutional Treaty for their gender equality content, the article suggests that a more comprehensive endeavour by all institutional actors to engage in gender mainstreaming is needed in order to give effect to a broader form of equality between women and men.     

Standing and the Northern Ireland Human Rights Commission

On 7 June 2018, the UK Supreme Court held that the Northern Ireland Human Rights Commission (NIHRC) did not have standing under the Northern Ireland Act 1998 (NIA) and Human Rights Act 1998 (HRA) to challenge the legality of abortion law in Northern Ireland. This case note argues that while a literal reading of the NIA exposes its inconsistencies, a purposive reading of both the NIA and HRA indicates that the NIHRC should have had standing. The note seeks to highlight the unique democratic function of the NIHRC in a consociational setting in protecting rights that are not represented along ethno‐national lines. It also considers the negative ramifications that the judgment will have on women who have been victims of the legislative regime and seek to challenge the compatibility of Northern Irish abortion law with the HRA in the future.     

UK Abortion Law: Reform Proposals,Private Members’ Bills,Devolution and the Role of the Courts

UK abortion law remains unsettled, and subject to on‐going controversy and reform. This article offers a comprehensive critique of all reforms implemented or proposed since 2016. It examines reforms proposed in both Houses of Parliament and contextualises them within a public law analysis, showing both that the complex parliamentary processes relating to Private Members’ Bills have frustrated reform attempts, and that these attempts have been contradictory in their aims between the two Houses. Secondly, it examines the unique positions of Northern Ireland, Scotland and Wales to show the extent to which devolutionary settlements have influenced both reforms and executive involvement. Finally, it examines the potential impact of the courts on abortion law following Re Northern Ireland Human Rights Commission's Application for Judicial Review, showing that the Supreme Court's reframing of the debate in human rights terms is likely to affect abortion law, not only in Northern Ireland, but in the whole of the UK.     

Strasbourg,the House of Lords or Elected Politicians: Who decides about rights after Re P?

In Re P , the House of Lords decided that art 14 of the Adoption (Northern Ireland) Order 1987 which prohibited unmarried couples from being eligible to adopt, violated articles 8 and 14 of the European Convention on Human Rights. Apart from its significance for adoption law and anti-discrimination law, Re P is also important in understanding the constitutional role of the courts under the Human Rights Act 1998 (HRA). Re P recognizes that if Strasbourg has determined that an issue falls within states' margin of appreciation, this does not prevent municipal courts from enforcing those rights. This comment will discuss the meaning and scope of the courts' obligation under section 2 of the HRA, the status of the rights protected by the HRA and the appropriate role of the courts in a rights dispute which is subject to moral, social, religious or political controversy.     

对宪法修正案的若干私法解读

按照宪法作为最高效力的法规范 ,私法所规定的财产关系和人身关系都要遵守宪法的内容 ,尤其是充分体现基于主体自由和主体平等的宪法原理。私法主体平等和给与平等主体的财产权以对等的尊重是私法对宪法提出的基本要求。     

Problems in the pathways to judicial success: women in the legal profession in Northern Ireland

ABSTRACT

This paper considers women’s representation in the under-explored context of the judiciary in Northern Ireland. Previous research into the experiences of women practitioners in the legal profession in Northern Ireland has indicated that women are discouraged from pursuing judicial careers for a variety of reasons associated with their gender. Further research into the gendered barriers these women practitioners face is required in order to assess the extent to which the same may impede their career progression. This paper uses a critical, social constructionist feminist approach to explore some of the gendered barriers influencing women’s under-representation in Northern Ireland’s judiciary. It is contended that representation can only be improved when women’s retention and progression through the ranks of the legal profession is addressed. Employing gender as a lens, this paper will analyse potential difficulties faced by the women solicitors and barristers in Northern Ireland in order to assess future judicial gender parity prospects in this jurisdiction as it is these women solicitors and barristers who form the female “talent pool” from which future members of the judiciary will be selected.     

论农民宪法权利平等保护目标——实质平等

农民宪法权利平等保护是尊重和保障人权的内在要求。农民宪法权利要受到与市民平等地对待和保护,这种平等应当不仅是形式上的而且是实质上的。农民宪法权利平等保护存在诸多的现实困境与认识误区,制约了农民宪法权利的真正实现。农民宪法权利平等保护目标应是建立在形式平等基础之上的实质平等。这一目标的提出具有正当性和现实性,也契合平等理论、人权理论及其普遍实践的趋势。农民宪法权利实质平等的保护目标及其路径选择是改变城乡二元结构,构建社会主义新农村,解决三农问题的实现之道。     

Law,language, and the power of ‘invisible threats’ of violence against women

Violence, and the threat of violence, is a pervasive feature of women's lives. From high-profile threats in politics to everyday harms such as domestic abuse, violence, threat, and intimidation control women's behaviour and silence their voices. Yet in many cases the pernicious and harmful effect of threat is not captured by the law. Drawing on the work of sociologist Pierre Bourdieu and empirical research undertaken in Northern Ireland, this article analyses the ways in which both objective and ‘incorporated’ social structures generate invisible forces of fear and threat that the law does not see, but that women feel and structure their lives around. The article develops the novel conceptual tool of ‘invisible threats’ to capture threat as harm, to show the relation between threat and gendered (in)securities, and to challenge institutions of the law to respond better to invisible threats as perceived and articulated by women.     

取消农业税合乎平等原则吗——兼论对优惠措施的合宪性审查

2005年12月29日,第十届全国人民代表大会常务委员会第十九次会议决定废止《中华人民共和国农业税条例》。此后,农业生产者的纳税义务即被免除。其实这种取消农业税的措施,在宪法理论上可以被称为"优惠措施"。如果从宪法学的角度看,作为一项抽象性的立法决定,取消农业税的惠农措施并不一定具有合宪性;因为作为一项针对特定主体的优惠,对于其他主体可能会产生不平等,从而有违宪法上的平等原则。但是否违反平等原则,却是需要通过宪法上特定的审查标准;只有通过这种检验,优惠措施才能获得那种可通过违宪审查的宪法正当性。