SEPARATION AND DEVOLUTION

UNDER THE AGREEMENT reached in the Multi-Party Negotiations in Belfast on Good Friday, 10 April 1998 (the Good Friday Agreement) the parties established the British- Irish Council with the aim of promoting the harmonious and mutu­ally beneficial development of the totality of relationships among the peoples of the Islands.

The idea of a legal forum to consult and exchange information among the judges and lawyers of the Isles, with a view to airing issues of mutual interest and seeking to promote harmony and par­allel development of the legal systems of the respective jurisdic­tions, would appear to provide an independent but useful auxiliary to the British-Irish Council. To that end, there should be set up by the heads of the judiciaries a Legal Forum of the Isles, to match the representation of the British-Irish Council, including the Channel Islands and Isle of Man judiciary and leading legal practitioners in the four jurisdictions.

To date, members of the British-Irish Council have agreed practi­cal co- operation in areas as diverse as the misuse of drugs; environ­mental issues; indigenous, minority and lesser-used languages; social inclusion; and knowledge economy issues, with work con­tinuing in other sections, including tourism and transport. In two of these areas, on the misuse of drugs and transport, the Council has been considering issues of particular practical importance - namely, the confiscation of criminal assets, and mutual recognition of driv­ing disqualifications (in February 2006 there was an exchange of letters between Ireland and Britain on a proposed bilateral agree­ment on the mutual recognition of driving disqualifications).

At its first summit meeting in 1999 the British-Irish Council had added a number of topics, including specifically prison and proba­tion issues. At its eighth summit meeting on 2 June 2006 the Council approved the proposal to add demography as a new work area, con­centrating initially on ageing and migration. Some at least of these topics currently under review involve issues of legal topicality, even of potential law reform. But there is a host of topics which lend themselves to comparative study within the four jurisdictional systems. One that immediately springs to mind is the review of the law of murder; the Law Commission has completed the review by a report to the Home Office.^[49] Since 2007 the Ministry of Justice has stated that there is no prospect of any review of the law and penalty for murder. The topic was discussed at the meeting in Northern Ireland (at which judges and lawyers from each of the four jurisdic­tions attended on May 12-14, 2006). Other topics for that weekend were substantive legitimate expectation and the prosecution of sex offenders. That meeting provided some indication of what might be expected of a permanent body overseeing contemporary legal issues. Other issues that could usefully be considered are asylum and immigration; anti-terrorist legislation; litigants in person; modes of criminal trial; judicial standards, training and discipline; and judicial independence.

The suggestion is that the secretariat for the Legal Forum of the Isles should not be based in England but in one or other of the three jurisdictions. The venue should be determined at the first inaugural meeting of the four Chief Justices.

It might be wise, initially at least, to limit the membership of the Forum to the higher judiciary of the four jurisdictions and possibly the chairmen of the respective Bar Associations, and/or treasurers of the Inns of Court, the Dean of the Faculty of Advocates and the representative of King’s Inn, Dublin. While recognising the heritage of the English common law, the promoters of the Legal Forum of the Isles will wish to demonstrate that the fissiparous development that has taken place in the separate jurisdictions over the last hundred years has been left behind as archival interest, and to foresee a future of harmonious development of the legal systems of these Islands. The referendum in Scotland in September 2014 might be an occasion for examining the peripheral issue of legal relation­ships in the UK. With the prospect of developing devolved powers within the UK, the legal implications begin to evolve, perhaps even to federalism. Law, even constitutionally, never stands still.

Postscript:

In the wake of the referendum on Scottish independence on 18 September 2014, the idea of a legal forum should become part of any future extension of devolved powers. What about a third Scottish judge as a permanent Justice of the UK Supreme Court?