Differences in legal systems North and South pose challenges for unification, report says

Differences between the legal systems North and South pose significant challenges for Irish unification, according to a cross-Border research project. Noting there is “remarkably little” cross-reference between lawyers, legislators, policymakers, academics and judges in both jurisdictions, the report of the North South Legal Mapping Project observed: “The legal border in the mind is as significant as the legal border on the ground.”

It urged more coming together of judges, lawyers, academics and people from all sectors of society North and South with a view to broadening knowledge and greater mutual understanding.

An overview of the project’s main findings is set out in a just-published report prepared by legal academics Oran Doyle and David Kenny, of Trinity College Dublin, and Christopher McCrudden and Fionnuala Ní Aoláin, of Queen’s University Belfast, for the shared island unit of the Department of the Taoiseach.

Headed by Prof Oran Doyle of Trinity College Dublin, the project involved legal academics in the Republic and Northern Ireland benchmarking and assessing divergence and convergence in eight legal areas, including administrative, citizenship, land, employment, health and human rights law and law and religion.

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During a webinar on the project this week Prof Doyle stressed that the authors took no position on the constitutional future of our shared island.His personal view was that it seemed there will be unification referendums in the future and “it is good to be prepared for those”.

“Referendums that are not prepared for can have problematic consequences, and that is where we feel there is scope for a project that would look at a number of North-South areas, essentially what it would take to merge two legal systems.”

There is a lot of consideration now about what it would take to merge two political systems and whether devolution continues but “very little consideration” about the nuts and bolts of merging two legal systems and this warrants further focused study, he said.

The report noted while both jurisdictions shared a common starting point in 1922, each has since taken its own path “with little reference to the other”. The potential divergence was lessened by the common requirement for some 50 years to follow EU rules and the practice for all courts here to treat the reasoning of the English courts as persuasive in some areas.

It said as our common EU membership ends, although with continuing issues surrounding the effects of the Northern Ireland protocol and as debates about future North-South and east-west relationships increase, gaps in knowledge and mutual understanding pose significant challenges, intensify the implications of Brexit and make it difficult for those who live and work on a cross-Border basis to plan their affairs.

On health law the report noted the law on clinical negligence is virtually identical North and South, but other areas are “markedly different”, such as the regulation of abortion and capacity.

On land law it noted environmental protection legislation is not included in the Northern Ireland protocol, raising the possibility of divergence and the loss of shared mechanisms for managing river basins.

On human rights law it noted the significant convergence between the two jurisdictions in this area is increasingly under threat due to two significant developments in the UK, broad Euro-scepticism and a growing frustration with judicially-enforced limits on executive power.

According to the research, divergence is more prevalent in areas primarily governed by legislation rather than by common law, reflecting the “open-ended policy choices” open to legislators in contrast to decision-making of judges based on precedent.