ICON-S British and Irish Chapter – Activities Report for 2016–2017

Overview

Following preliminary approval from the co-chairs of ICON-S, three academics in Trinity College Dublin (Oran Doyle, David Kenny and David Fennelly) took steps to establish a British-Irish chapter. The chapter is committed to the global mission of ICON-S, facilitating public law scholarship in its broadest sense. However, a regional chapter (rather than two separate national chapters) also provides a unique forum in which the distinctive constitutional relationships both within and between Britain and Ireland can be considered. As the United Kingdom prepares to leave the EU, with a consequent recalibration of nationalist sentiment in both Scotland and Northern Ireland, these constitutional relationships are in a state of flux. It is more important than ever that scholars engage with the constitutional traditions and dilemmas of their neighbouring jurisdictions. In addition to the general mission of ICON-S, therefore, this regional chapter aims to facilitate that engagement. We have styled the chapter as ‘British-Irish’ rather than ‘United Kingdom – Irish’ in a gesture towards these constitutional ambiguities.

A particular challenge for this chapter is to ensure representation across the two jurisdictions and four legal systems of these islands. Given its origins in Trinity College Dublin, this means drawing in academics from Northern Ireland, Scotland, and England and Wales. In our first year, we have organised and planned two events that will develop the networks that enable this growth. In autumn 2016, we convened a symposium on constitutional silence. In autumn 2017, we will hold a general conference for the chapter. These events are described below.

Attached to this report are the proposed rules of the chapter. These are similar to the rules of the Mexican and Israeli chapters. Oran Doyle has agreed to be one of the co-chairs of the chapter. We propose to establish the advisory board before the conference in autumn 2017. After the conference, the advisory board will then select the other co-chair who must be an academic based at a British institution.

 

Constitutional silence symposium

The British Irish Chapter of ICON-S, supported by Trinity College Dublin and Boston College, held its first symposium on 31 August and 1 September 2016. The theme of the symposium was constitutional silence. Constitutional text is never comprehensive or complete; some matters of constitutional relevance will always be unaddressed or significantly underdetermined by a master-text constitution. Constitutional silences pose various challenges for constitutional designers, courts, and politicians. The symposium invited scholars with different interests in constitutional and public law to discuss the theme of constitutional silence broadly defined, in order to explore the issue in different substantive contexts and see what common themes and issues emerged. Richard Albert and David Kenny convened the symposium. Papers were prepared by Laurence Claus, Oran Doyle, Mohammad Fadel, Gabor Halmai, Aileen Kavanagh, Martin Loughlin, Aileen McHarg, Anna Anna Sledzinska-Simon. The papers were presented by the following discussants: Nick Barber, Tom Hickey, Conor O’Mahony, Andrea Pin, David Prendergast, Julien Sterck, Ioanna Tourkochoriti and Rachael Walsh.

The papers illustrated both the diversity of topics and the commonality and coherence in the theme. One element that emerged from the papers is that constitutional silence illustrates the inevitable and irreducible role of conventions and culture in constitutional law. This follows from the reality that no text can be comprehensive. Therefore, even when constitutional text is supposed to render many issues more explicit than conventional or tacit understanding, conventional understandings or cultural suppositions and practices will necessarily have to step in to explicate the text in the many places where the text leaves silences, gaps, and abeyances. This theme was explored through a consideration of territory (Doyle) and federalism (Claus).

Other papers considered the utility of constitutional silence. Loughlin argued that part of the functioning and success of constitutions comes from the gaps and abeyance left in them, and that successful constitutionalism may need to embrace the reality of constitutional silence and not always seek to fill gaps. Fadel, exploring recent constitutional history in Egypt, suggested that silences enable pragmatism, inviting deliberation and compromise, whereas a comprehensive view of the constitution invites crisis, despotism, and instability. McHarg explored the constitutional silences surrounding the Brexit vote and its aftermath. In a constitutional system with no constitutional text, where reliance on convention is even greater, novel constitutional situations (which will often be constitutional crises) may throw up even more obstacles of underdetermined constitutional questions, and there may be fewer pointers for their resolution.

Halmai explored the doctrine of the invisible constitution in Hungary, developed by Judge László Sólyom during his tenure as head of the Hungarian Constitutional Court in the 1990s. In the silences of the constitution, a vibrant culture of judicial creativity emerged that significantly increased the scope and power of the constitution. Kavanagh examined the effects of courts striking down legislation, asking if the legislature is being silenced, or if this should be seen as an invitation to speak again. Sledzinska-Simon argued that constitution, like marriage, implies mutual trust and confidence which are necessary to ensure efficacy of the original commitment. Drawing inspiration from contract law, she developed a concept of implied constitutional terms as a response to constitutional silence.

Many of the authors submitted redrafts of their papers for publication. These will, subject to peer review, be published in ICON later this year.

 

Annual conference

The first annual conference of the British-Irish chapter will be held on 4 and 5 September 2017 in Trinity College Dublin. The theme of the conference is Constitutional Relationships after Brexit, but there is an open call for panels and papers. Prof Deirdre Curtin (EUI) will deliver the keynote address, ‘‘The Constitutional Structure of EU-27: A Europe of Bits and Pieces?’ Profs Peter Leyland (SOAS), Aileen McHarg (Strathclyde) and Colm O’Cinneide (UCL) will participate in a plenary panel that will focus on constitutional relationships in Britain and Ireland after Brexit. A full account will be included in next year’s annual report.