Current Affairs Politics

The Emma DeSouza Case: The UK Has Effectively Broken The Good Friday Agreement

A tribunal in Belfast has ruled that the residents of the Six Counties are British subjects, and British subjects alone, because the United Kingdom failed to implement the nationality clauses of the Good Friday Agreement (GFA) into domestic law. That decision came in a shock judgement against Derry-born Emma DeSouza and her husband Jake, who were fighting a challenge by the Home Office in London following an earlier court ruling in their favour. Under the regional and international peace treaty signed in 1998 people born in “Northern Ireland” were given the right to identify as Irish or British, or both, with the government in Dublin passing legislation to explicitly recognise that right. However successive governments in London purposely sought to avoid any reciprocal legislation, preventing the full implementation of the GFA by wilfully misinterpreting the meaning of its birth-right provisions.

People born in the north-eastern corner of this island now find themselves stripped of their legal entitlement to be formally recognised as citizens of Ireland – and the European Union – in their own country through the machinations of Whitehall and Downing Street unless they first renounce their supposed British nationality. This is the gravest breach of the Good Friday Agreement that we have seen in years, representing a fundamental repudiation of one of the key principles of the peace process by Britain. If the rough and tumble of Brexit politics in the UK has bruised the compromise deal that ended the Troubles in the late 1990s, this judgement has delivered an all but fatal final blow.

One thing is clear, there should be no signing of a withdrawal agreement between the European Union and the United Kingdom until the latter party honours its commitments under the Good Friday Agreement. To do otherwise would be to reward the culture of low politics and government illegality that has become the norm in Brexit Britain.

15 comments on “The Emma DeSouza Case: The UK Has Effectively Broken The Good Friday Agreement

  1. The Good Friday Agreement:
    (Thought direct quotes from the Good Friday Agreement voted on by the people on both sides of the borders might be helpful – full text as finally agreed – https://cain.ulster.ac.uk/events/peace/docs/agreement.htm )

    Section 2. Constitutional Issues
    1. The participants endorse the commitment made by the British and Irish Governments that, in a new British-Irish Agreement replacing the Anglo-Irish Agreement, they will:

    ….various items 1(i) to (v) …however this is the relevant section…

    (vi) recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.

    2. The participants also note that the two Governments have accordingly undertaken in the context of this comprehensive political agreement, to propose and support changes in, respectively, the Constitution of Ireland and in British legislation relating to the constitutional status of Northern Ireland.

  2. Marie Kinney

    I was born in Ireland , Ballymoney and am Irish as are my children. Unbelievable 🙁😟

  3. “Brexit brings this into sharp focus because the automatic conferral of British citizenship on Irish citizens is being used as a way to restrict and remove their EU rights and entitlements,” Emma DeSouza

    Isn’t this the Líofa bursary cancellation all over again? With the candid Spotlight series one gets the sense the UK govt is indicating to NI that it is time to leave the Union.

  4. Well you folks would do deals with the Brits. Good faith now trashed by the zbritish.

    Who cares about the GFA, it’s served it’s purpose.

    Truly disappointing political behaviour, but Ireland, and the north especially will dance to a Morris jig. And FG, in whose interests have they acted.

  5. How binding is such a court precedent? I’ve alerts heard that British courts have very little power. That they’ve but recently gotten into the business of being referees in the political system and until not long ago were largely handmaidens of the government rather than having any real influence.

    What of taking this to The British Supreme Court? (Young institutions may be hard to size up!!).

    • Sorry Grace, but you’ve been seriously misinformed. God knows, Britain has many faults but its legal system is not amongst them. British courts certainly make mistakes, but they’re light years removed from the US system where every judge, up to and including members of the Supreme Court, can be identified by her/his political affiliation and, indeed, are often appointed precisely because of political affiliation. As for the UK courts recently being “referees in the political system” this is a strange way to put what happened recently at the UK Supreme Court. Ultimately it’s part of the Supreme Court’s job to rule on disputed interpretations of legal matters, and that’s what it did. To put it simply, politicians make laws and courts/judges interpret and apply them. Which brings us back to the DeSouza case. The fault lies not with the court, but with every British government subsequent to the Good Friday Agreement that failed (disgracefully) to put into British law the parts of the GFA that Ms DeSouza and her partner were citing in their defence. The UK Supreme Court may overturn this interpretation, but it’s unlikely unless some other as-yet-uncovered binding legislation emerges, perhaps of an international nature.

      • Forgot to say, I agree entirely with ASF. The EU should refuse to budge on the withdrawal agreement until the British government fully honours its GFA commitments.

      • I’m afraid you are the one who if not misinformed, has received slightly distorted/sensationalized information.

        The very fact, that you say the government not the court is to blame, would tend to support what I said-That courts in the UK thanks to doctrine of “Parliamentary Sovereignty”, have no real political teeth. The UK Supreme Court mostly a takeover of The House of Lords judicial powers. For example, I understand that the SCOTUK, cannot actually overturn a law passed by Parliament, yes?

        However this particular court has seen fit to directly defy International Law. I also understand that the ROI’s recognition of the ICJ exempts any disputes with the UK over Northern Ireland-that detail makes this much harder to deal with.

        Big question would be that if the ICJ isn’t an option (perhaps that can be changed), who would exactly have the authority of uphold a Treaty here? Is the British Supreme Court a logical option? And how would they likely handle questions related to Northern Ireland.

        I won’t get into all the Trias Politca court reform debates, as it’s rather complicated, but the situation is a lot less sensational than you seem to think.

        • You posited your earlier remarks as a criticism of the UK court system, then followed up with this: “… would tend to support what I said-That courts in the UK thanks to doctrine of “Parliamentary Sovereignty”, have no real political teeth.”
          Er, sorry but I kinda like courts not having any “political teeth”. That’s how it’s supposed to work in any modern liberal democracy worthy of the name. As I pointed out earlier, politicians make laws and courts/judges interpret and apply them. Think of the three strands in a modern democracy across which power is divided: executive, legislative, and judicial. This triple lock helps stop a dictator seizing all power to him- or herself. Except, that is, in the US where an absolute monarchy was replaced with virtually an absolute presidency, the only real difference being that the latter is elected and has a limited lifespan. Well, thus far anyway. Trump might change the limited lifespan, too. And who knows, nominate Ivanka as his successor. 🙂

  6. I agree totally with this: “ One thing is clear, there should be no signing of a withdrawal agreement between the European Union and the United Kingdom until the latter party honours its commitments under the Good Friday Agreement. To do otherwise would be to reward the culture of low politics and government illegality that has become the norm in Brexit Britain.”

  7. If you like courts having no political teeth (not being able to overrule the legislature if they deem a law unconstitutional) you’ve obviously a right to that opinion-although how much power a judiciary should have is a complex debate. In many Republics it’s the job of the Judiciary to strike down laws under certain limited circumstances-usually if they decide the law is Unconstitutional, but some countries have other grounds/parameters under which they can. A lot of British political theorists see high level of judicial power as unDemocratic, while supporters see it as a way to limit the fusion of power.

    The reason it would be relevant here either way is the question of whether that particular court and/or the UKSC actually has the authority to decide that the people of Northern Ireland are “British Subjects” or not. Didn’t they mostly replace the concept of Subjects (Yuck!!) with various other statuses such as “British Citizens”, “British Nationals”, “Protected Persons” and some other categories in the early 80’s?

    The other big question is where else to go if they won’t honor a treaty.

    That said it seems many Britons have some of the same bad information you do. Trump does not have the ability to abolish term limits-that would take 2/3 of Congress and consent of the legislature in 3/4 of all states. I should also note that he can’t make Congress give Brexit Britain a Trade Deal if it doesn’t want to. The Democrats and many Republicans have vowed not to reward Britain if anything Brexit Britain does harms Ireland or The GFA.

  8. Sorry Grace, but in your original post you sneered at the British courts for having “no political teeth” (ie the ability to interfere directly in politics) described them as being “the handmaidens of the government” and said they have “very little power”. You’re thankfully right on the first count, and simply very wrong on the second two. Seriously, what democrat would want the judiciary to be interfering directly in politics? As for them being the handmaidens of the government, that’s a ludicrous claim given how often UK governments fall foul of judicial reviews, not to mention the recent example of the UK Supreme Court declaring a prime minister’s proroguing of parliament unlawful. Very little power? What sort of power do you want them to have beyond interpreting and applying the law? The ability to change the law as they see fit? How democratic would that be?
    To return to the original point, you were wrong to blame the court for its decision on the DeSouza case. The blame lies squarely with successive British governments who failed to put into law the relevant parts of the Good Friday Agreement.
    As for Trump, who has packed the US Supreme Court with right-wing ideologues, I was only (half) joking. Let’s wait and see how that turns out.

    • Sneering? Actually I was raising the question of whether or not British courts can make a decision like this.

      Can that court actually say “The people of Northern Ireland are solely British Subjects” and make that stick? Do they actually have that kind of authority or are they just grandstanding? Or maybe challenging Parliament to make a similar call? Can The (very young!!!) British Supreme Court contest/reinforce this? And if they can would they?

      I’d imagine how much power these British Courts actually have is totally relevant to whether or not they can do something like this. If the court is “blameless” and the government is solely at fault, that would suggest that they ultimately don’t have the authority.

      As for why a Democrat would want more powerful courts? Turns out there are multiple perspectives on how to *do* Democratic Government. A lot of committed Democrats DO want more powerful courts than The British Judiciary currently has.

      I’m in favor of giving courts the power to strike down laws or executive orders that are deemed Unconstitutional and/or other grounds-as in fact most Republics do. Most allow “Unconstitutional” but other possibilities may exist. In the US the main grounds besides “Unconstitutional” would be “Violation of a Treaty”-although it can act with broader discretion for some special jurisdictions. Some countries will allow a Supreme Court to strike down laws or govt actions on grounds such as “human rights” or “violation of community norms”. I personally could go along with “human rights” but would consider “violation of community norms” problematic. They don’t get to decide whatever they want, but have to justify it according to their assigned parameters. As for the question of making Justices less Partisan, there are a bunch of proposals and much debate.

  9. “Can that court actually say “The people of Northern Ireland are solely British Subjects” and make that stick?”
    What the court actually said, Grace, in layperson’s language, is this: “There has been no change in the law re the citizenship question in Northern Ireland, because no British government has bothered its arse to put the relevant parts of the GFA into law.” Once again, courts interpret and apply laws – they do not make them. The court had no other option. It couldn’t pretend that something was law when it wasn’t. On the flip-side, the UK Supreme Court recently interpreted and applied the law when they ruled that Boris Johnson had acted against the constitution and therefore unlawfully when he prorogued parliament.
    Even in the US, up to and including the Supreme Court, courts do not make laws – they interpret and apply them. Trump and his cronies in the Republican Party have packed the Supreme Court with like-minded right-wing ideologues so there will be a majority to INTERPRET laws and the constitution from a right-wing perspective. There is no suggestion that Kavanagh et al will be MAKING laws, but rather they will be (re)interpreting them from a right-wing ideological perspective.

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