Why judges need to get Ireland's name right…

The principle of one voice is a fundamental constitutional axiom that the recognition and cognizance of foreign States is a matter solely for our Sovereign (see, eg, Duff Dev’t v Gov’t of Kelantan [1924] AC 797, 813 (HL), per the Viscount Finlay, or, for the locus classicus, The Arantzazu Mendi [1939] AC 256, 264 (HL), per the Lord Atkin). The rôle of the judiciary is to follow in all respects this decision insofar as it is applicable (although this does not preclude certain limited exceptions; see, eg, the recent excellent consideration in MM v NA (Decl’n as to Marital Status) [2020] EWHC 93 (Fam), per Roberts J). Regrettably, in the recent case of Bullman v High Court In Dublin (Ireland) [2022] EWHC 194, it is submitted that Chamberlain J substituted His Lordship’s own misunderstandings for the clear voice of Her Majesty’s Government.

The Charge Sheet

Bullman is an extradition case, arising out of very serious allegations made by the Irish authorities against the appellant. However, as is always the case with this publication, the actual substance of the case is entirely irrelevant to this discussion. For our purposes, the only pertinent extracts from the judgment of Chamberlain J are as follows:

[1]   […] The judge ordered the appellant’s extradition to the Republic of Ireland under a European arrest warrant (EAW) issued on 16 March 2020 seeking his surrender for trial on an indictment containing three counts of rape[…]
[4]   […] The legislature of the Republic of Ireland has done the same for proceedings in Ireland in s. 7(1) of the Criminal Law (Rape) Act 1981 (the Irish Act of 1981), subject to a power to lift the restrictions in limited circumstances[…]
[7]   On the basis of Mr Hyman’s submissions, made on instructions from the Director of Public Prosecutions in Ireland, it appears that Irish law accords anonymity not only to complainants but also to persons accused of rape and sexual offences, subject again to a power to lift the anonymity in limited circumstances: s. 8 of the Irish Act of 1981. In this respect, the law of Ireland differs from that of England and Wales[…]
[64]   […] Even allowing for the cumulative effect of the appellant’s constellation of mental health problems, there was nothing to rebut the presumption that, as an ECHR contracting state, the Republic of Ireland would be willing and able to provide appropriate medical care for these conditions.

The problem, in brief

The problematic phrase repeatedly used by Chamberlain J was Republic of Ireland. The reason this phrase is incorrect, and has been for some decades, is probably well known to many readers, but I shall set it out concisely here.

Following the Anglo-Irish Treaty, the State consisting of 26 of Ireland’s counties was called the Irish Free State (Saorstát Éireann). Following constitutional change spearheaded by the government of Éamon de Valera, a new constitution (Bunreacht na hÉireann) was adopted in 1937, which states very clearly in art 4 that the name of the country is in Irish Éire and in English Ireland.

From the perspective of Ireland, this constitutional provision is, for all purposes, conclusive, because it is a definitive statement in the supreme law of the State. However, for English courts, a few decades of muddling were to follow. This was because the British government were of the view that the name Ireland was inseparable from the irredentist scheme of the original Irish constitution, which asserted that the State’s territory encompassed the entirety of the island of Ireland. As (obviously) British policy was and continues to be that Northern Ireland is an integral part of the United Kingdom, the name Ireland was thus viewed as unacceptable. (The Irish also viewed the name of the British State—the United Kingdom of Great Britain and Northern Ireland—as unacceptable for similar reasons). As a result, the government passed the Eire (Confirmation of Agreements) Act 1938, which set in law the official British name for the Irish state as Eire (lacking the síneadh fada).

In keeping with de Valera’s idea of external association with the Commonwealth, the 1937 Constitution allowed for the continuation of the highly limited rôle in connection with foreign relations for the common King of Great Britain, Ireland and other Dominions. It is an interesting academic point as to whether Ireland was a republic following the 1937 Constitution, but not one on which I am qualified to opine. Any ambiguity was clarified when de Valera’s successor as Taoiseach, John Costello, repealed these residual rôles with the Republic of Ireland Act 1948 (Ir). The second section of that act provides as follows:

s 2   It is hereby declared that the description of the State shall be the Republic of Ireland.

As an ordinary Act of the Oireachtas, it is obvious constitutional law that nothing in the Republic of Ireland Act could override the superior norms of the Constitution, and therefore, from an Irish perspective, it is inarguable that this Act did not and could not change the name of the State. Instead, it merely altered its official description; ie, if asked to describe the nature of the State called Ireland, one would say that it was the Republic constituted by the people of Ireland. However, we are concerned here with the British perspective, and things become a bit more complicated there. The declaration of republic status necessitated (at the time, prior the London Declaration) the exit of Ireland from the Commonwealth, and required some legislative housekeeping to be done by Westminster. Slipped into that housekeeping bill—the Ireland Act 1949—was a little provision in s 1 which stated:

s 1(3)   The part of Ireland referred to in subsection (1) of this section is hereafter in this Act referred to, and may in any Act, enactment or instrument passed or made after the passing of this Act be referred to, by the name attributed thereto by the law thereof, that is to say, as the Republic of Ireland.

This provision is a wilful misunderstanding of the law of Ireland it purports to give effect to, since the name given to Ireland in Irish law was definitely Ireland. However, as an Act of Parliament, however mistaken, this was, for a long time, the conclusive word for English courts as to the name of their closest neighbour. The Irish sovereign authority stated the name was conclusively Ireland, and the British sovereign authority stated the name was conclusively the Republic of Ireland. It is an interesting point as to whether British accession to the European Communities, which recognised Ireland under its constitutional name, slyly incorporated situations under the now deceased European Communities Act 1972 where the constitutional name would prevail due to primacy, but that question is entirely academic and seemed to have never come up as a matter of practical law.

Happily, in the 1990s, as part of the ongoing peace process in Northern Ireland, the British and Irish governments saw sense and decided to resile from their very silly practice of refusing to refer to each other by their constitutional names. The intergovernmental part of the Belfast/Good Friday Agreements in 1998 were conducted between the properly named Government of the United Kingdom of Great Britain and Northern Ireland the Government of Ireland, and since the turn of the millennium, the Foreign Office and the Government generally have, with a few occasional exceptions, referred to Ireland as Ireland. For those who would point out, rightly, that HM Government cannot overturn the Ireland Act 1949, it is worth noting that subsequent primary legislation (the Disqualifications Act 2000) has used the term Ireland without qualification, indicating an implied repeal of the 1949 Act’s provisions regarding nomenclature. Our Sovereign, then has spoken.

The problem, and the simple solution

By repeatedly referring to Ireland as the Republic of Ireland, Chamberlain J has breached the one voice principle, and gone against our Sovereign's clear decision as to the name of this neighbouring State. This also goes against the principle of comity, as it is disrespectful to foreign courts to, when considering their requests for extradition, misstate the name of the country in which they are situated. I am sure that Chamberlain J was not purposeful in this use of language; the old name used by the British government has a long history, and old habits die hard. However, in future, proper care must be taken to ensure that the courts speak with the same voice as our Sovereign, and that we do not by impoliteness breach the principle of comity.