Lessons for Nationalism: “In dreams begin responsibilities”

Tom Kelly draws on past experience and argues that Nationalists must assert practical civic values as well as their vision of a unified all island Republic, which he argues means recognising the right of Unionists to march the streets of Dublin. And he makes good use of a quote from WB Yeats along the way.

For once, Jeffrey Donaldson was right – we can’t talk seriously about getting speaking rights in the Dail if there are those who would prevent unionists speaking outside of it. The organisers of the Love Ulster parade could and should have been welcome to march past not only the historically significant GPO but the statue of that great Irish Protestant Charles Stuart Parnell, and that of Labour leader Jim Larkin who supported the rights of workers in Belfast and Dublin.

They should have been allowed to pass the former home of Grattan’s Parliament, Carson’s birthplace and his alma mater at Trinity, for these things are of their heritage too. Republicanism as spouted by Republican Sinn Féin or Provisionalism as espoused by Sinn Féin falls way short of the inclusiveness of Tone, Parnell and Collins.

For as WB Yeats once wrote: “In dreams begin responsibilities.” The dream died a little last Saturday and the irresponsibility and intolerance of those who used violence to oppose the Love Ulster parade very clearly demonstrated that they don’t even love Ireland.

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  • SlugFest

    “… if we cannot live side-by-side as two legitimate traditions on one island, if we cannot live up to the aspirations of tolerance so implicit in the spirit of true republicanism, if we cannot “cherish all the children of the nation equally” as stated in the proclamation, then we need to take a second look at the symbolism of our national flag – for there is no Ireland if green cannot reconcile with orange.”

    Here, here Mr. Kelly.

  • missfitz

    “The aspiration of a united Ireland will remain just that unless Orange demonstrations are as welcome in Dublin as they are in Ballymena.”

    Does that include Springfield Road, Garvaghy Road…. et al?

  • slug

    All credit to Tom Kelly. He articulates a kind of nationalism that I see as respecting unionism – not treating it as a problem or a malady. Thats really fresh and welcome. With more of HIS type of nationalist, I can happily contemplate a UI. Thats because it seems that he respects the integrity of the unionist position.

  • Cahal

    “With more of HIS type of nationalist, I can happily contemplate a UI. ”

    So if all nationalists would respect the unionist position, then unionists would stop being unionists.

    Sure.

  • slug

    “So if all nationalists would respect the unionist position, then unionists would stop being unionists.”

    Not what I said, was it. I could comtemplate it happily. Doesn’t mean that I would choose it, but if it were to come about I would be happy enough.

    Now MAYBE you don’t care about the quality of the UI, all you want is a UI. On the other hand if you care about the quality of the UI, then this matters. The SDLP say they have a better WAY to a United Ireland. The better way is one which respects the integrity of the unionist position.

    Tom Kelly’s point.

    Hope that clears things up.

  • ok slug,
    I can see a way of courting you towards the UI where your religion and ways are totally respected; but how am I to get you to pull down the Union Jack and hoist up the Tri-colour?

  • Cahal

    Actually, that did clear things up.

    No matter what nationalists do you will never vote for a united ireland.

    I wish unionists would stop saying things like ” ahh now that put a UI back by 20 years”. Let’s be honest – you are never going to vote for a UI no matter what happens, so what is the point in pandering.

    “Now MAYBE you don’t care about the quality of the UI, all you want is a UI. ”

    I’ll take a UI when 50%+1 vote for it. The ‘quality’ (by which I assume you mean peoples rights’ will be determined by a written constitution.

  • fair_deal

    Cahal

    “I wish unionists would stop saying things like “ ahh now that put a UI back by 20 years”. Let’s be honest – you are never going to vote for a UI no matter what happens”

    1. If an event reinforces an attitude or perception then of course it delays something. No one likes to be reminded of the negative impact of a mistake but it doesn’t stop it being so e.g. the disastrous exit of sterling from the ERM put British membership of the Euro back for years as it reinforced public attitudes to Europe.
    2. No one ever changes an opinion if no one tries to persuade them otherwise.
    3. The fact irish nationalism has failed for over a century to persuade is its problems not Unionists. Just as unionism’s failure to gain significant Catholic support is its problem.

  • Mick Fealty

    Cahal,

    Before this goes back down nasty alley again, one good piece advice I heard from a FF supporter was for people to go easy on demonising SF supporters. He argued “They are the people we need to convince of our case”.

    It would appear from what you’ve written above that you see the person and the political cause as one. If that is the way you see things, then how do you envision the mechanics of arriving at a UI without attracting those who currently account themselves as Unionists?

  • fair_deal

    “No one ever changes an opinion if no one tries to persuade them otherwise.”

    Indeed, but you can’t hope to persuade those whose minds are well and truly closed.

  • Cahal

    “If that is the way you see things, then how do you envision the mechanics of arriving at a UI without attracting those who currently account themselves as Unionists”

    For the very reason you just articulated, I dont see a UI happening any time soon.

    IMO, balkanization and the greening of the west leading to a process of rolling repartition is infinitely more likely.

  • The Dubliner

    “…recognising the right of Unionists to march the streets of Dublin.” – Mick

    What right is that, exactly? I must have missed it in the law books. No-one has a ‘right’ to march anywhere. People have a right to apply for a licence to the relevant authority to march, but have no legal right to march anywhere without a licence. In the north, they must apply to The Parades Commission. In the south, they must apply to the relevant County Council and also obtain the permission of the Gardai.

    As you can see, there is no “right” to march – only the right of application to march.

  • The Beach Tree

    Slugfest

    The right to march is enshrined in human rights law, notably the european convention on human rights, and by extension the uk Human Rights Act, as an application of the rights to
    free assembly.

    On the other hand, that right, unlike freedom from torture, say, is not one of the ‘absolute’ rights, and may be abrogated in a proportionate way for the purposes of public morals, public safety and law and order.

    So there is a right to march, but not by any means an absolute one. Both extremes in the argument are therefore wrong.

  • SlugFest

    [posted by Slugfest]

    Slugfest1,

    For the record, I’m not the Slugfest0 poster … there’s something amiss on the site, which i’m sure will be fixed shortly.

    Personally, i’m with you on this one … whoever you are!

  • The Beach Tree

    The 9.07 comment was mine

    The Beach Tree

    p.s You did miss it in the law books; the law book you are looking for is here. Check Article 11.

    Actually, check Articles 9 (freedom of thought) and Article 10(freedom of expression) while you’re about it.

    TBT

  • George

    Slugfest1,
    the right to march, like all rights is not absolute even in the European Convention on Human Rights.

    Article 11 deals with freedom of assembly and association

    Article 1 “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

    But Article qualifies this right:

    “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

    As you can see there are quite number of restrictions on the right to free assembly.

    The Irish constitution, which pre-dates the Convention states gives citizents the right “to assemble peaceably and without arms.”

    However, it also limits the right:

    “Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.”

  • The Beach Tree

    Slugfest 4

    Is that not exactly what I said?

    The Beach Tree

  • The Beach Tree

    And as an aside – you say no rights are absolute in ECHR

    The right to freedom from torture IS absolute – at least in law if not in practice.

    The Beach Tree

  • slug

    I can’t emphasise enough how encouraging I find Tom Kelly’s comments.

  • fair_deal

    I did find this article relatively refreshing. An accomodation could be reached with the likes of Tom Kelly. However, his brand of Irish nationalism is on the wane the majority of northern nationalists have opted for the republican strategy of “Victory by the peace process” as opposed to the “Victory by the provies”.

    fair_deal

  • slug

    Fair deal:

    It was interesting to read the above comments which were to the effect that the only reason to adopt Tom Kellys stance was if unionists were not going to stop being unionists. Thing is that I can only see a civilised NI if both sides respect the integrity of each others position. Likewise a UI would never be a good UI if it lacked this ingredient. The focus is still on the outcome of a UI rather than the right way to a UI. I don’t believe there will be a UI but there is a right way to go about trying.

  • The Dubliner

    “The right to march is enshrined in human rights law, notably the european convention on human rights, and by extension the uk Human Rights Act, as an application of the rights to
    free assembly. ” – Slugfest

    Totally incorrect. Here is the relevant article from the European Convention on Human Rights:

    ARTICLE 11
    Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

    No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

    The right of free assembly is subject to local law. In short, there is no right to march – only the right to apply to match (which will be either accepted or rejected according to local law). Further, the European Convention on Human Rights only applies in countries which have ratified it. The Republic of Ireland has not ratified it. Ergo, it does not apply.

  • pick

    “Posted by SlugFest0 on Feb 28, 2006” on Article 11 is The Dubliner. This useless thread’s software is fucking up the cookies and user names

  • Mick Fealty

    I, for one, am happy to concede that TBT has won that particular point. Any chance we could move on?

  • The Dubliner

    “I did find this article relatively refreshing.” – fairdeal

    It’s nice that your politics are are profund as your taste in soft drinks.

    – The Dubliner

  • pick

    “I, for one, am happy to concede that TBT has won that particular point. Any chance we could move on?” – Mick

    The point that people can march wherever they like without applying for permission to march?

    Then you conceed in error. Article 11 clearly states that it is subject to local law.

    No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

    – The Dubliner

  • Mick Fealty

    Dub: I thought TBT introduced Article 11 to the conversation? I have no problem standing corrected.

    I really must get this problem sorted. I need to get back into Slugger Central and do a small update to the software, which requires the site to be backed up first. I’ve not been in there since last Wednesday, so bear with me please!

  • The Dubliner

    Mick, leave it as it is. Random users names are the new black.

  • The Beach Tree

    slugfest0

    When you’re in a hole, stop digging

    List of states that have ratified the convention, including Ireland : Source, European Court of Human Rights, Council of Europe official site.

    Or better still-

    Human Rights : International Treaty provisons ratified (including date) by the Irish government : source : The Irish Government official website(!)

    you can ‘ergo’, all you like, slugfest, you’re just wrong.

    The law has not been INCORPORATED – i.e. made a part of domestic corpus lex ( a situation we share uniquely with Norway)- but it is law, none the less. It simply means we must go straight to the European Court, rather than through domestic ones.

    And for the record, do some work on your statutory interpretation.

    You quote : No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others

    this is not an alternative condition : it’s an additional condition – any restriction must pass BOTH tests (precribed by law AND Neccesary) or be invalid.

    Jeesh, I’m tired of correcting the bar-room lawyers here.

    sorry, mick, but I couldn’t let it lie.

    The Beach Tree

  • missfitz

    Just for the record, I didnt post that earlier comment at 1004, nor did I use foul language. Pity I couldnt have been ascribed to a more intellectual post……

  • fair_deal

    From fair_deal to Dubliner

    “It’s nice that your politics are are profund as your taste in soft drinks.”

    What part of ball not man do you not understand?

    “People have a right to apply for a licence to the relevant authority to march, but have no legal right to march anywhere without a licence. In the north, they must apply to The Parades Commission.”

    Wrong.

    In the UK no one seeks a licence for a parade. Forms relating to pubic processions are there to inform the authorities not seek their permission – that is why they are called Notification forms and not permission forms.

    Only notifications that the PSNI express concerns about go to the Parades Commission not all notifications.

    As it is a right the state does not grant permission for public processions it can only place restrictions on the right as defined by the ECHR Article.

  • The Beach Tree

    Fair Deal

    Many thanks. That’s more or less exactly right. The right is to assemble, not to apply to. It’s a circumscribed right, but a right none the less.

    The Beach Tree

  • The Dubliner

    “When you’re in a hole, stop digging” – The Beach Tree

    Then why are you still digging?

    “Human Rights : International Treaty provisons ratified (including date) by the Irish government : source : The Irish Government official website(!)” – The Beach Tree

    Hello? Anyone home? They are protocols to the convention, not the convention itself. Do try and learn the fundamental difference. Here is the status of the European Convention of Human Rights, which Ireland has not ratified:

    “All the signatories, with the exception of Ireland and Norway, have incorporated the Convention into their own law. This means that domestic courts take full account of its provisions when considering a grievance. Only when domestic remedies are exhausted can an individual look to Strasbourg for help.”

    Still not understanding the difference? It is not ratified and it is not incorporated into Irish law.

    However, since its drafting nearly 50 years ago, almost all the States which are party to the European Convention on Human Rights have gradually incorporated it into their domestic law in one way or another. Ireland and Norway have not done so, but Ireland has a Bill of Rights which guarantees rights similar to those guaranteed by the Convention and Norway is also in the process of incorporating the Convention. Several other countries with which we have close links and which share the common law tradition, such as Canada and New Zealand, have provided similar protection for human rights in their own legal systems.

    “The law has not been INCORPORATED – i.e. made a part of domestic corpus lex ( a situation we share uniquely with Norway)- but it is law, none the less. It simply means we must go straight to the European Court, rather than through domestic ones.”

    Oh dear. You’re still not getting it, are you? Here it is again: “All the signatories, with the exception of Ireland and Norway, have incorporated the Convention into their own law.

    “this is not an alternative condition : it’s an additional condition – any restriction must pass BOTH tests (precribed by law AND Neccesary) or be invalid.” – The Beach Tree

    Why are you arguing a point that is not in dispute, dolt? The point that is in dispute is that the right to free assembly is b>subject to to local law. Your contention is that you have a right to match that transcends local law. You are wrong. If you want to march, you must apply for a licence from The Parades Commission (local law) and they will either grant of decline your desire to wander up and down a road with your bellicose kinsmen. Ergo, you have the right to apply but no automatic right to march. Get it now? Good.

    See, that is precisely why Orange Order dunderheads congregate at barricades erected by authority which refused them the necessary permission to march. They simply grasp the distinction between that which is conditional and that which is absolute; between that which is a right, and between that which is a granted request.

    “sorry, mick, but I couldn’t let it lie.” – The Beach Tree

    And you didn’t. You showed me to be correct on both of my points which you blunderingly challenged: (1) Ireland has not ratified the ECHR, and (2) You have a right to apply to march, but no right to march.

  • The Dubliner

    “It simply means we must go straight to the European Court, rather than through domestic ones.” – The Beach Tree

    Err, wrong again. It means, in fact, the total opposite is the case.

  • Gerry Lvs Castro

    Sorry folks maybe I’m being totally obtuse here and I’m sure you’ll let me know if I am, but why do marches of any hue HAVE to be through streets and along roads? Why can’t we have a designated ‘marching area’ of a few dozen acres set aside for marches?
    I would suggest for instance Nutts Corner (aptly named perhaps). For non-locals, this is a rather desolate stretch of tarmac used many moons ago as an aerdrome and now better known for a dodgy Sunday market. The rest of the week it’s entirely unused — so why not let the oranges, the AOHs, the SF heritage marchers and anyone else who fancies a synchronised dander use it whenever they want? There are no dwellings within half a mile or so of the place, it’s easy to get to for coaches and they could liase with each other about dates etc. Hey presto — no parades commission, no concerned residents, no traffic hold-ups or police overtime and no beer cans and ‘pavement pizzas’ on your doorstep.
    Maybe the splendid new Maze stadium could be used instead?
    Or is this just too simple for the complicated place that is Northern Ireland / Ulster / The North / The Occupied Six Counties?

    Gerry Lvs Castro.

  • The Beach Tree

    Dubliner, Can you not read?

    Do you not know the difference between RATIFIED and INCORPORATED? They are two clearly different things, and even the site you cite makes that clear. You seem not to understand this.

    Ratification is the signing of the treaty, and the simultaneuos acceptance of it as the law, enforceable through the ECourtHR.

    Incorporation, however, is creating domestic legislation (eg Acts of Parliament) to allow national courts to apply the provisions of the Convention.

    But the ECourtHR can apply the convention whether or not it is INCORPORATED, as long as it is RATIFIED.

    Ireland RATIFIED on 25th February 1953. It has not incorporated it.

    The first column of the table on the COE site (hint, it’s labeled CONVENTION! not PROTOCOL anything) makes that abundently clear, as does the first and second lines of the page cited on the Irish government website.

    You’re plain and simple wrong; you seem unable to understand the difference between ratification and incorporation, or what the legal effect of either actually is. If you’re pride won’t allow you to admit that, well, others can clearly see it and judge you from the evidence.

    The sites are both quite clear – the Convention itself was RATIFIED by IRELAND on 25th February 1953. It IS ratified, but NOT incorporated. End of.

    As a further example, for your education, it was Ratified by the UK on 3rd September 1953 at the latest. But it was INCORPORATED by the Human Rights Act 1998. Two different things.

    and then this nonsense “Your contention is that you have a right to match that transcends local law. You are wrong”

    I contended no such thing. I contended that the right that is set down in the echr is to assemble, in this case to march, but that it is not absolute. I’ve always said it. And that is quite clearly correct.

    Look at the damn words, for jehovah’s sake!

    “Article 11

    Everyone has the right to freedom of peaceful assembly and to freedom
    of association with others”

    The right to freedom of assembly. Not the right to APPLY to assemble. The words could not be clearer.

    That right is not absolute, and is subject to various abrogations, as I have always shown. But the right is to assemble (in this case, to march).

    You seem to be under some bizarre misapprehension that if a right is not ABSOLUTE than it’s not a right. This is pure nonsense. You’re no lawyer, Dubliner.

    The Beach Tree

  • Brian Boru

    I acknowledge the necessity of taking account of Northern Protestant culture and concerns in framing a proposal for a United Ireland that can credibly be put forward beyond the mere principle itself. Under the Anglo-Irish Treaty, the NI govt could either opt to stay in the UK or join a UI. However, the treaty provided that the NI govt and parliament would continue to exist in a UI. The reserve powers held by the UK govt would just be given to Dublin instead. Had that happened, we would ultimately all be better off now, as in 1920, 80% of the industrial output of the island was in the North, and as the entreprueneurship-killing UK state subsidies would not have come into play. So the North would have continued to be a vibrant private-sector driven economy, instead of what’s happening now, with incomes falling every behind those of the South. In particular, the North would have benefited from the low corporation-tax rates of the Republic. Oh well 🙁

    But we need to deal with the world as we find it now. While preferring by far a unitary state, I would accept a federal arrangement. The fact that the South has a written constitution that can only be changed by referendum (unlike the UK) would give firm guarantees of the stability of such an arrangement. We could enshrine devolution for former-Unionist areas in former-NI in our constitution, and assure them that the arrangement could not be scrapped by Dublin by including in the relevant change to the Constitution a provision that a referendum on abolishing the federal arrangement could not be held in future without the consent on a cross-community basis of the Northern assembly. A weighted double majority would be the necessary threshold to go ahead with plans for a referendum on abolition. The Irish language would not be compulsory in the Northern zone’s schools. The 12th of July could remain a public-holiday in the Northern zone.

    However, I would prefer for the Northern zone’s boundaries to differ to a degree from those of the current NI state. The border was drawn in a very ill-considered way, trapped hundreds of thousands on the wrong side of the border. While in the South, there was a 92% Catholic population, the Protestant majority in the Six Counties was only 69:31 according to the 1918 Census. The Northern Unionists allowed their apocalyptic fear of living in an independent UI to cloud their judgement on where the border should be. Had they agreed to draw it in closer correlation to the wishes of the people in the various counties, and thereby created a majority similar in size to that of the Southern majority, they would have enjoyed similar levels of stability as the South. With the exception of a 1 year Civil War (between Nationalists), I think it would be generally agreed – even by Northern Unionists – that the South has been stable since independence. I would realign the North-South border to include South Armagh, South Down, Foyle, and most of Fermanagh and Tyrone in the Southern zone.

    With incomes falling behind the South, and multinational investment miles behind, and with large-scale emigration from NI, clearly something needs to change. A Parliament in which NI has 2% of the seats has no incentive to give a blind bit of notice to the economic and other issues affecting NI. The UK is not just going to agree to lower NI Corporation-Taxes to Southern levels. To do so would harm their mainland British constituents who would lose out as multinationals moved to the Six Counties. A UI would mean the North would no longer lose out in this way.

    You know it makes sense (deep down).

    Brian Boru

  • The Dubliner

    “Dubliner, Can you not read?

    Do you not know the difference between RATIFIED and INCORPORATED?” – The Beach Tree

    If I can’t, why are you typing to me, idiot? Further, if you had read what I wrote you might have saved yourself looking a bigger ass than the one attached to the backside of Anne Widdecome.

    Here it is again: “Still not understanding the difference? It is not ratified and it is not incorporated into Irish law.” – The Dubliner

    Read it again. Go on, knock yourself out. Apart from your parroting my words back at me (which indicates you did read it but simply didn’t understand it), it clearly states that “not ratified and it is not incorporated into Irish law.”

    Now, simpleton, why do you think they were listed as separate events if they were considered to be both the same event?

    As for the rest of your repetitive caterwauling: you earned that comparison to Anne Widdecome. 😉

  • The Beach Tree

    Dubliner

    You are simply wrong. On almost every count.

    You said the convention was neither ratified, nor incorporated by Ireland. I’ve clearly shown that it was ratified (in 1953), though not incorporated.

    As such it is part of irish law, though not the domestic irish statute book. It can be enforced via EcourtHR. Incorporation would mearly allow enforcement in Irish Domestic courts – a very important, but essentially administrative, change.

    You said it was a right to apply to march. I have shown it is clearly a right to march, not to apply for anything. The wording is quite clear.

    A right with limitations, no doubt, as i always claimed. But a right to march none the less.

    You might actually want to get something right before declaring others to be ‘simpletons’ or ‘idiots’ – and maybe spell Ms Widdecombe’s name right would be a start.

    The Beach Tree

  • hovetwo

    “An accomodation could be reached with the likes of Tom Kelly. However, his brand of Irish nationalism is on the wane the majority of northern nationalists have opted for the republican strategy of “Victory by the peace process” as opposed to the “Victory by the provies”.

    fair_deal”

    I sincerely hope fair_deal is wrong about that. The only kind of United Ireland worth working for is an agreed Ireland, based on government by consent and mutual respect.

    Unfortunately some leading political figures have slipped into lazy modes of expression that tend to demonise and stereotype rather than bring people closer together.

    In the aftermath of the riots Mary Harney was quoted as saying the Orange Order was “clearly a sectarian organisation, but they should be allowed to make their protest in a peaceful way.”

    The problem I have with this sort of statement is not that it’s impolite – it’s imprecise. No one doubts that there are sectarian members of the Order, but there is no need to lump every past and present member of the Order together. As an institution, I think the Orange Order needs to work out whether it is primarily a religious, cultural or political organisation, but name-calling and the whataboutery it sustains only makes people close ranks.

  • andy

    “In the aftermath of the riots Mary Harney was quoted as saying the Orange Order was “clearly a sectarian organisation, but they should be allowed to make their protest in a peaceful way.”

    “The problem I have with this sort of statement is not that it’s impolite – it’s imprecise. No one doubts that there are sectarian members of the Order, but there is no need to lump every past and present member of the Order together.”

    I would be more concerned about the strong paramilitary links the order have.

    Some lodges openly commemorate loyalist terrorists and are strongly associated with paramilitary bands.

    Several senior orangemen made statements in support of loyalist paramilitary groups during last years marching season.

    Are these senior members not reflecting the thoughts of grassroot members?.

  • The Dubliner

    I will concede/update slightly on the point about the degree to which Ireland has ‘adopted’ the ECHR by means of the The 2003 Act, in view of a judgement delivered by Mr. Justice Kearns on 12th day of May, 2005:

    However, while the Convention was and is an effective agreement and statement of international law, the Oireachtas did not determine until 2003 that the Convention was to be part of the domestic law of the State. The 2003 Act, to which I will shortly refer in greater detail, does not purport to incorporate the Convention directly into domestic law , but rather imposes an obligation that, when interpreting or applying any statutory provision or rule of law, a court shall, insofar as is possible, and subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions. The 2003 Act also provides that every organ of the State shall, subject to any statutory provision or rule of law, perform its functions in a manner compatible with the State’s obligations under the Convention provisions. A party may also seek from the High or Supreme Court a declaration that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions, and where such a declaration is made certain consequences as detailed in the Act then follow.

    So, Irish judges now have an obligation to render judgements that are “compatible with the State’s obligations under the Convention provisions.” As expressed by Justice Kearns: “Prior to the 2003 Act, the Convention was said to be ‘binding on Ireland, but not in it’.”

    In short, there wasn’t a damn thing that could be done if Ireland was found to be in violation of the ECHR.

    “The Convention was ultimately incorporated in Ireland at a sub-constitutional level in a form of indirect or interpretative incorporation adopted by the 2003 Act.”

    Section 2 of the 2003 Act provides:-

    “(1) In interpreting and applying any statutory provision or rule of law, a Court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.

    (2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”

    (Google is your friend)

  • The Beach Tree

    Dubliner

    You are still not addressing the basic fact and effect of ratification, as opposed to incorporation. DCC v Fennell (for other viewers, it’s the case Dubliner quotes) clearly applies to Incorporation, and its effects.

    As expressed by Justice Kearns: “Prior to the 2003 Act, the Convention was said to be ‘binding on Ireland, but not in it’.”

    In short, there wasn’t a damn thing that could be done if Ireland was found to be in violation of the ECHR.

    Eh, Yes there was. Take your case directly to the European Court of Human Rights. Many did.

    Again, for the slow learners

    Prior to incorporation, Irish citizens could have their rights enforced in the ECHR.

    Money quote : “Since 1953, although the Irish government has been obliged to uphold and respect the rights protected by the European Convention, people living in Ireland could not use the Convention in Ireland but if someone had a complaint that their rights were not respected, they could go to the European Court of Human Rights to have their complaint heard, and their rights enforced.

    The ECHR Act changes this. Now someone who has a complaint can argue that their Convention rights have been violated before the courts in Ireland. They can still go to the European Court of Human Rights in Strasbourg, if they do not feel that they have received an appropriate result in Ireland.”

    Indeed, below is a sample of cases where precisely this happened. All at a time when Dubliner claims “you could do damn all”

    Lawless v Ireland 1961
    Airey v Ireland 1979
    Kearney v Ireland 1986

    and for the record, introducing the word ‘adopted’ only attempts to muddy the waters.

    Adopted is not legally correct, except as a shorthand. The terms are ratification, and incorporation.

    The law became binding upon ratification in 1953. It only became enforcable through Irish courts (partially) in 2003. but it was enforceable through the ECHR, which is a binding court in Irish law, all the way back in 1953.

    I do appreciate your efforts, but honestly, Dubliner, give it up as a bad job. You’ve just got it wrong. Accept it. It’s not a hanging offence.

    The Beach Tree

  • Brian Boru

    The ECHR was used in Britain by an alleged drug-dealer to prevent his assets being seized by the authorities as I recall a few years back. I would be concerned if enshrining the ECHR into Irish Law fully could prevent the Criminal Assets Bureau continuing to confiscate criminal assets.

  • Brian Boru

    pick2 01:28AM is me, Brian Boru.

  • The Dubliner

    “You are still not addressing the basic fact and effect of ratification, as opposed to incorporation. DCC v Fennell (for other viewers, it’s the case Dubliner quotes) clearly applies to Incorporation, and its effects.”- The Beach Tree

    You are not addressing the salient point that the ECHR had no status in Irish domestic law at all until The 2003 Act, despite your completely false claims to the contrary. Indeed, you weren’t even aware of The 2003 Act giving the EHHR the limited status of interpretative incorporation into Irish domestic law via an obligation on judges to render judgements consistent with it in so far a practicable, but not the status of a duty to render judgements that are consistent with it. In short, it is not domestic law that must be enforced, it is obligatory. Get it now? Good lad.

    Your completely erroneous contention is that the ECHR was fully effective in Ireland since the 50s. You are shown to be completely wrong. Indeed, it isn’t even incorporated into Irish domestic via The 2003 Act at all, dolt. What part of Mr. Justice Kearns judgement that The 2003 Act “does not purport to incorporate the Convention directly into domestic law” are you having trouble with? The 2003 Act gave the ECHR the status of “interpretative incorporation.” Grasp the difference?

    “Eh, Yes there was. Take your case directly to the European Court of Human Rights. Many did.”- The Beach Tree

    Here is your incorrect understanding of this: “It simply means we must go straight to the European Court, rather than through domestic ones.” – The Beach Tree

    You have it wrong again. Here is Mr. Justice Kearns: “The Convention was said to be binding on Ireland, but not in it. The bottom line was that those who sought to have Convention Rights vindicated could only do so before the European Court of Human Rights in Strasbourg, with the added requirements that they first exhaust all domestic remedies and then make an application within a strict six month deadline.”

    So they don’t “go straight to the European Court, rather than through domestic ones” as I corrected you about before, do they? “Err, wrong again. It means, in fact, the total opposite is the case.” – The Dubliner

    Further, the judgement of the court is “binding on Ireland, but not in it” so absolutely no change would result in the matter that you took your case to court about. The Irish government could simply refuse to change a law or whatever you objected to and nothing. What part of “binding on Ireland, but not in it” are you having the problem with? Just tell me. I’m always happy to assist the learning disabled.

    “Prior to incorporation, Irish citizens could have their rights enforced in the ECHR.” – The Beach Tree

    Again, totally wrong. They could not. There was no power of “enforcement” at all. See above, dolt.

    “Adopted is not legally correct, except as a shorthand. The terms are ratification, and incorporation.”- The Beach Tree

    Oh, do stop pretending to be a law student, Mr. Google. Your delusion is getting tiresome. What’s keeping you with my fries, anyway?

    “The law became binding upon ratification in 1953. It only became enforcable through Irish courts (partially) in 2003. but it was enforceable through the ECHR, which is a binding court in Irish law, all the way back in 1953.” – The Beach Tree

    Total and utter claptrap. It was never binding in Ireland. And it isn’t even binding in Irish domestic law after The 2003 Act (which I happily enlightened you toward the existence of).

  • The Dubliner

    Yawn… let’s leave the last word to the Minister for Justice, Michael McDowell, who, unlike you, TBT, knows that he is talking about:

    “With effect from the 1st January 2004 the European Convention on Human Rights Act will require every Irish court to interpret every judgement made and statute law in a manner compatible with the provisions of the ECHR. The most interesting implication of this change in our law of interpretation is that long-established rules of common law will fall to be re-interpreted as necessary to make them fully compliant with the ECHR and the jurisprudence of the Strasbourg court. The somewhat different treatment of subjects such as privacy, reputation and freedom of expression which appear in the texts of our Constitution and of the ECHR will have to be reconciled – bearing in mind that the Constitution always takes precedence in Irish law over any international convention.”

    Now, child, notice that he says Ireland paid no heed at all to the ECHR prior to 2004 that the degree that of difference between Irish domestic law and the obligations of the ECHR is so vast that “long-established rules of common law will fall to be re-interpreted.” Notice he says our parts of our constitution and the ECHR with have to be “reconciled.” Why is this the case if Ireland has been implementing the ECHR and not from 1st January 2004?

    “International conventions do not become part of the domestic law of Ireland until they are expressly put into that law. The ECHR is not directly enforceable in Ireland but it will be when the Act comes into effect later this year.

    The Convention does have its own implementation mechanism. You may complain of a breach of the Convention to the European Court of Human Rights in Strasbourg but you must have used all the domestic remedies first. The Court’s judgement is binding on each country that has ratified the Convention but there is no mechanism by which the country can be forced to implement the judgement. The Convention has been ratified by 41 countries. Ireland is the last country to bring the Convention into domestic law.

    Oh, look…there’s that term “binding on” but not “binding in” again. 😉

  • The Dubliner

    One last point: as the Minister for Justice, Michael McDowell points out, the “Constitution always takes precedence in Irish law over any international convention.” Ergo, it is the right of free assembly as defined in the Irish Constitution that is applicable in Ireland, and no the definition in the ECHR. So, the ECHR is utterly irrelevant to the issue of ‘marching’ in the Republic of Ireland.

    Here is actual right of free assembly that applies in the RoI:

    Article 40.6.ii

    The right of the citizens to assemble peaceably and without arms.

    Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.

    It could well be argued that Orange Order marches are illegal under Article 40.6.ii of the Irish Constitution, as they are likely to be “calculated to cause a breach of the peace or to be a danger or nuisance to the general public.”

  • DK

    Cahal said “IMO, balkanization and the greening of the west leading to a process of rolling repartition is infinitely more likely.”

    How exactly does “greening of the west” work when the paramilitaries have been stood down? Surely it has halted?

    DK

  • hovetwo

    “Several senior orangemen made statements in support of loyalist paramilitary groups during last years marching season.

    Are these senior members not reflecting the thoughts of grassroot members?.”

    Not all of them, and not all of the time. That’s the point. They’re playing on the worst fears of some of their members. If we trap ourselves into believing that “the grass roots” are all the same, we play into the hands of extremists.

    On this site I have read postings from all sorts of Unionists – devolutionists, integrationists, 32 County Unionists, unionists, garden centre Prods and long-suffering supporters of the Northern Ireland Football Team. Some Unionists I know had a deep loathing for the Orange Order long before Drumcree kicked off. Others have a strong sense of pride and identity wrapped up in the Order. The common glue is their cultural and political attachment to Britain – that’s what any United Ireland has to accommodate.

    The one thing I learnt on Saturday was that 200 muppets can reinforce prejudices out of all proportion to their numbers, or whether they are in any way representative of my views.

  • Yokel

    There is nt going to be a UI until after everyone posting here is likely to be dead, end of story. No matter what happanes no government is going to make it happen before a majority says so and frankly that won’t exist for a long time. End of story.

  • The Beach Tree

    Dubliner
    ‘child’, ‘dolt’ ‘learning disabled’. Seriously, Dubliner, grow up.

    Anyway…

    “You are not addressing the salient point that the ECHR had no status in Irish domestic law at all until The 2003 Act, despite your completely false claims to the contrary”

    Dubliner, be a good chap and stop trying to change the goalposts. Firstly, I never claimed that the ECHR had status in ‘irish domestic law’ as you so vaguely and meaninglessly put it.

    It has status in irish law. Period. The domestic bit was your insertion, an attempt to back down from your own completely foolish first position that the treaty had never been ratified, and is is frankly wholly irrelevant to the clear and simple argument i have made from the very start.

    I have been clear and consistent, and correct.

    1. The ECHR is an international treaty,which includes Article 11, the right to free assembly
    2. The Irish are a signitory,
    3. They ratified it,
    despite your foolish assertions otherwise, in February 1953.
    4. It importing obligations on the irish government which may be enforced through the ECHR, through the agency of the attached Commission until 1994, and more broadly since; this has been the case since 1953.

    Article 29 of the Irish Constitution makes it clear that international treaties cannot be enforced through the irish courts unless INCORPORATED, i.e. they become, through an Act of the Oireachteas, part the domestic body of statute law, which ab initio they are not. As such treaty rights cannot be enforced in irish domestic courts without incorporation.

    But, and this is the salient bit, not the windmill you tilt at, the ECHR CAN be enforced through the ECourtHR. Because the Irish statute book, or the ‘irish domestic law’ as you put it is NOT the sum total of the irish law. And Article 29 of BnhE operates to limit the vires of irish domestic courts to enforce or interpret, not to limit the force of law itself. Do they teach you legal theory at trinity any more?

    Minister McDowell may well claim precedence for the Irish Constitution, and as a classicist he might have a point, as would all our Parliamentary Sovereignty supporters in the UK. Except it’s certainly never an argument Ireland or the UK (or any other ratifying nation) has ever made to get out of the judgement of the ECHR. I wonder why. Hence we have debacles like the 2 Nice referenda.

    Note the stream of cases where Irish Citizens have successfully enforced their rights under the ECHR against the Irish government, and been awarded damages. These cases, which I listed for your viewing pleasure, and which you have conveniently ignored, prove the point with absolute finality.

    THe law of the ECHR applied to Ireland, and it gave rights to Irish Citizens. The only question was which court had the vires to apply it. In the world of European law (though found more commonly in EU law) it is called the doctrine of direct effect.

    Further, the judgement of the court is “binding on Ireland, but not in it” so absolutely no change would result in the matter that you took your case to court about

    Nonsense. Ireland has been forced to pay damages by the ECHR on several occasions. Paying damages IS a change. The phrase “binding on it, but not in it”, is meaningless in terms of the actual discussion which is very simple.

    Has ireland ratified the treaty : YES, in 1953 – you claimed no. That was wrong. Admit it.

    Is the Irish Government Subject to it : YES Under Article 29, the Irish Government recognises the force of international law and treaties. You claimed not. you were wrong. Admit it.

    Can it be enforced by Irish Citizens against the irish Government : YES in the ECHR You claimed not. you were wrong. Admit it.

    Has this ever happened : YES, on many occasions, including Lawless v Ireland, etc. You claimed this was impossible. you were wrong. Admit it.

    Can it be enforced in the domestic irish courts : NO, or only ina very limited fashion I’ve never claimed otherwise. You try to hide behind an argument I never made.

    Does the fact that the irish courts cannot enforce ECHR mean it is not part of Irish Law : NO. It means that the irish courts are not competetent because they are subject to the restrictions of Article 29 of BnhE, as they are considered a creature of that constituion. The law is clearly enforcable, however, by Irish citizens, against the Irish Government, in the competent court, which is the E Court HR and has been since 1953. : You need to do some study on your own legal system. And maybe not rely so much on Mcdowell speeches as authoratative statemetns of law.
    – Part 1 of 2 –

    The Beach Tree

  • The Beach Tree

    – continued, part 2 of 2 –

    Indeed, you weren’t even aware of The 2003 Act

    I was well aware of it, you can be assured. Indeed, for reasons I’ll not go into, but will forward to Mick Fealty for corroboration if required and with his permission, your supposition is actually slightly absurd. But in terms of whether it affects the questions of either ratification, or incorporation, the questions to which I was clearly speaking, I’ll happily rest my case on the following:

    Kearns in DCC v Ferrell : “The 2003 Act, to which I will shortly refer in greater detail, does not purport to incorporate the Convention directly into domestic law“. QED.

    Oh, do stop pretending to be a law student, Mr. Google. Your delusion is getting tiresome.

    If you knew who and what I am, you’d see the foolishness of this statement. Again, I’m willing to place my credentials before Mick with his permission. Are you? I’ve no interest in a pissing contest, but I promise I would win it.

    I’ll agree with one thing though. I’m not a law student.

    Now, is there any chance of getting back to the actual debate?

  • DK

    Can I call on the moderator for Beech Tree and Dubliner going off topic.

    Maybe they can have their own posting area called something like “debatable side-points of Irish/International Law”

  • The Beach Tree

    dk

    In deference to you, I’m content to leave the matter there, and as i said, return to the original debate.

  • George

    Beach Tree,
    I am afraid to tell you that you are incorrect on this one.

    You state:
    “Prior to incorporation, Irish citizens could have their rights enforced in the ECHR.”

    Not true. The only European court that can enforce judgments on Ireland is the European Court of Justice (given this power under Art. 29 of the Irish constitution).

    The ECHR had and has no such power. International agreements have to be incorporated into Irish law by an Act of the Oireachtas. Otherwise, the convention remains aspirational and persuasive. In other words, it can be ignored.

    That brings us to 2003 and the ECHR 2003 Act, which under section 5 has a “declaration of incompatibility” which in English means that if any part of the convention is incompatitible with Irish law, then the offending statute does not cease to operate if such a declaration is made.

    The cases you mention below:
    Lawless v Ireland 1961
    Airey v Ireland 1979
    Kearney v Ireland 1986

    None of them was binding on the Irish state but were persuasive. Norris is another person who went to the ECHR.

    The Irish state was not obliged to act.

    A perfect example would be:

    Ireland v United Kingdom (1978) when the Irish state won under Article 3 when the ECHR found the UK guilty of inhuman and degrading treatment or punishment of IRA prisoners.

  • The Beach Tree

    George

    In respect of dk and mick I don’t really want to continue the discussion on this forum, but email me and I’m only too happy to discuss my reasoning with reasonable and civil dissenters. You’ve made more sense in one paragraph than dub has in two pages. But, you haven’t convinced me.

    I’m certainly aware that ECHR decisions are only legally ‘presuasive’ in irish courts – the whole point being that irish courts aren’t the competent court for deciding echr cases, unlike, for example, unitary systems like the dutch.

    (I wouldn’t want either to mix up the unique status of ERJ, with the equally unique, but compeletly different status of ECHR, even thouhg both have a doctrine (albeit, not a matching one) of direct effect.)

    I suppose it boils down to whether you accept Bunracht na h’Eireann ‘at it’s own word’ so to speak or follow the broader legal concept that a court accepted as competent is competent. I’m not aware of any occasion where the irish court has refused to follow the ECHR rulings to pay damages, which on first basics is the acid test.

    Almost all EU power for example in the UK arises from the ‘white lie’ that Parliamentary Sovereingty is ‘respected’ by the european Communities Act. THe reality is that both the EU and parliament try to stay out of each others way as to not provoke a crises, but the constitutional theory clealry has a huge hole in it. Similarly, though not identically with Ireland.

    All law is in the final analysis political – will the governmetn obey it? In Ireland, the government has as far as I know almost universally obeyed ECHR rulings given in facvour of its citizens. given that ECHR is not a common law system, I’m not convinced that the Irish interpretation of ‘persuasive’ is actually out of line anyway; ECHR’s rulings are certainly not the formal system of precedent as operated in the Common Law world.

    Anyway, write me and we’ll chew the cud productively.

    The Beach Tree

  • George

    Beach Tree,
    I shall put together what I hope is a watertight legal defence of my position and e-mail it to you.
    Rgds,
    George

  • Grassy Noel

    Just in case everyone hasn’t gotten completely sidetracked/had an attack of narcolepsy after reading all that legalistic invective between TBT/The Dubliner et al, I think Gerry Lvs Castro’s suggestion (page 2 of this thread) about a marcher’s corner/marcher’s park thingy is an excellent one. And I’ve been thinking, maybe we could spice it up a bit…how about a circular, flat escalator-type road(you know the things they have in airports) and the marchers could walk along it, wave their King Billy & Union Jack Flags, bang their drums and play their flutes to their hearts content?

    We could even build a big huge hall also, the biggest ever seen (sure the British taxpayers won’t mind coughing up for it, it’ll be a lot cheaper than the bill for the clean-up after the real marching riots) and we could dim the lights and digitally project images of furious residents hurling abuse being held back by riot police on the walls either side of the marching bands?

  • TAFKABO

    Grassy Noel.

    The cheapest solution of all would be for people to live and let live.

  • Paddy Reilly

    ~~Posted by PADDY REILLY~~

    The debate on the ECHR Freedom of Assembly posted here is, I am sure, very erudite, but the trouble with ECHR rights is that they are asserted in the first clause and taken away again in all the subsequent clauses. (You have the right to life, except when we choose to kill you, by due process of law.) In any case, I think the freedom of assembly covers the sort of assembly proposed at Nutt’s Corner, i.e. one that is held on private ground, by arrangement with the owner. Marches on our sovereign lady the Queen’s/the People’s highway need to be regulated, given that other parties may wish to use them for the same purpose, or for the regular and lawful purpose of driving automobiles at speed. In the instant case, there seems to have been a conflict of interest, the Unified Ulster Victims/Flute bands/UDA supporters having chosen to perambulate the People’s Highway at exactly the same time as the United Skangers/Chavs/Lithuanian Shop-lifters of Dublin were doing the same thing, coming the opposite way. This, in itself, is a powerful argument for regulation. No blame attaches to the Garda Síochana, and a fine time was had by all, this sort of thing being an ancient Ulster custom going back to the time of Burntollet Bridge.

    ~~Posted by PADDY REILLY~~

  • Mick Fealty

    From Mick Fealty:

    I guess you could say it was fascinating in a Lawerly sort of way, so I wasn’t inclined to break up the party. But I suppose there are other challenges more obviously implicit in Tom Kelly’s piece.

    The evocation of Yeats, which I’ve used in the title seems worthy of further unpacking: at least it would do in the spirit of conversation rather than verbal confrontation.

  • Alan

    “I think Gerry Lvs Castro’s suggestion (page 2 of this thread) about a marcher’s corner/marcher’s park thingy is an excellent one. ”

    My good wife suggested this last year – and mentioned the Maze as a possible venue. If we could get them to pay for their pleasure, then we might see the whole thing fly a lot quicker.

    Alan

  • IJP

    I agree, in fact, that no one has the right to march anywhere.

    The problem is more basic. The Agreement means that we accept that a United Ireland may happen – but we also have to accept that it may not. It was evident from Durkan’s farcical performance on H+M two weeks back that Nationalist political leaders have not yet managed that latter.

  • George

    IJP,

    Unionists and “I wish it would all go away” southerners are very much mistaken if they think the constitutional issue has been settled, it hasn’t. Far from it.

    All the Good Friday Agreement did was state the current constitutional status of NI in a manner which is acceptable to the British and Irish governments.

    For Durkan as a leader of an Irish unification party to “accept” the current status would be against the policy of his party.

    I know you may think this strange, downright ridiculous even, but deep down I think unionists know this is the case.

    This is why they want constant reassurances that their “position” isn’t under threat.

    In this netherworld we find ourselves in, Northern Ireland remaining in the “United Kingdom” is as big a “may happen one day” as Northern Ireland joining a “united Ireland”.