Comparing UK and Irish law: A special relationship?

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School) and former President of the British Association of Comparative Law.

The British Association of Comparative Law (BACL) held its annual seminar, jointly with the Irish Society of Comparative Law, at University College, Dublin on 5 September 2017. The joint seminar was chaired and organised by Professor Paula Giliker. To celebrate BACL’s first annual seminar in Ireland, the seminar reflected on the relationship between UK and Irish law in the fields of land law, banking regulation, language legislation and consumer law.  The seminar was sponsored by publishers, Intersentia.

The seminar sought to examine different features of the relationship between Irish and UK law: the tensions of the past, the similar problems faced by two common law jurisdictions in the light of a global banking crisis, linguistic diversity and demands for consumer law reform and the future, with one jurisdiction remaining within the European Union and the other deciding to leave. 

The paper of Professor Lorna Fox O’Mahony (Essex) on ‘Land law ideologies and the British-Irish question, from the famine to post-Brexit’ highlighted the importance of history in our understanding of contemporary land law and the tensions which exist between approaches to property based on a right to exclude and those based on a more socio-economic perception of shared rights over land.  She also examined the impact of EU law in introducing civilian influences into the land law of both jurisdictions.  Using the case study of mortgage repossessions, Professor Fox O’Mahony threw fresh light on parallel legal developments in Britain and Ireland and the legacy of the Irish independence movement in the formation of modern Irish land law.

For Professor Blanaid Clarke (Trinity College Dublin), however, more up-to-date concerns need examination, notably the consequences of the banking crisis from 2008 onwards.  In a lively talk on ‘Enforcement against Individuals for Failings in Banks’, she drew on the prosecution (or lack thereof) of key figures in the banking crisis across the US, UK and Ireland and considered to what extent these systems have been able to respond against individuals for failings in banks.  How do we ensure accountability: by criminal measures, deductions from earnings, regulation or by private law measures?  The impact of the financial crisis in identifying regulatory gaps in all these jurisdictions was highlighted in a thought-provoking paper.

Professor Daithi Mac Sithigh (Queen’s Belfast) introduced a different aspect of the UK/Irish relationship – how to deal with language diversity? – in a paper entitled ‘Reversing the polarity of the neutron flow: Legislation on languages in the UK and Ireland’.   While Ireland has legislated on the use of Irish, for the UK, legislation has been introduced in relation to the use of Welsh and Scots Gaelic, but has yet to address further minority languages such as Cornish or, as the audience suggested, the changing make-up of the United Kingdom, for example, with an influx of inhabitants from Eastern Europe.  Indeed, the issue of an Irish Language Act is currently causing problems in Northern Ireland with Sinn Féin insisting that it will not go back into a power-sharing government with the DUP unless a stand-alone Irish Language Act, which would put the Irish language on an equal par in law to English, is agreed during talks aimed at restoring devolution.  Such issues are also not cost-neutral and raise real questions as to how we respect the values of the community and ensure mutual respect for citizens.

The final paper by Dr Cliona Kelly (University College Dublin), entitled ‘Consumer Rights Reform in the UK and Ireland – A case study in Legal Transplants’, compared the development of consumer rights legislation in the UK and Ireland, noting commonalities (the Sale of Goods Act 1893 and EU Directives) and differences (there is no Irish equivalent of the UK Unfair Contract Terms Act 1977 nor legislation on third party rights).  While Ireland had intended to follow in the steps of the UK Consumer Rights Act 2015 with its own Consumer Rights Bill (which Dr Kelly had been involved in drafting), changes at EU level have led to its suspension for the time being.  With Brexit, therefore, and the continuing influence of EU directives on Irish law, there is a clear prospect of future differences between UK and Irish consumer law.  Dr Kelly’s paper therefore casts light on the potential for divergence between two closely related common law systems as a result of the UK’s decision to leave the EU.

In such changing times, with the European Union (Withdrawal) Bill going through Parliament and UK and Irish lawyers now contemplating with nervousness the impact of Brexit on both law and legal practice, this seminar was timely.  The relationship of the UK and Ireland, of course, predates the foundation of the European Union, but, as fellow common lawyers within the EU, the UK and Ireland share a common perspective on the distinctive nature of EU law and concerns as to the ease with which EU law can be transplanted easily into a common law system.  With the withdrawal of the UK, this relationship enters a new phase and it becomes even more important to reflect on how we can maintain a relationship – which has not always been an easy one – despite the changes ahead.  It is hoped, therefore, that this seminar will encourage these discussions and highlight the many different areas in which UK-Irish comparisons will prove both of interest, but also of real importance in terms of legal development.

For those unable to attend the seminar, the papers will be published in a special edition of the Common Law World Review (a University of Bristol-based journal) which is scheduled for publication in March 2018.  For further inquiries, please contact Paula Giliker (

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