Dr Derek O'Brien
Reader in Law
School of Law and Social Sciences
Role
Dr Derek O’Brien studied English and Philosophy at Leeds University before converting to law by studying for the Common Professional Examination and Solicitors Finals Examination at the College of Law. He qualified as a solicitor in 1985 and worked for a number of years as a solicitor in private practice before taking up a lecturing position at the University of Westminster in 1992. After a sabbatical at the Cayman Islands Law School he joined the Law Department at Oxford Brookes in 2002. His main research area is the constitutional law of the Commonwealth Caribbean and the constitutional implication of economic integration within this region. In addition he is interested in the operation of legal systems within small jurisdictions and is one of the founding members of the small jurisdictions project at Oxford Brookes.
Teaching and supervision
Modules taught
- Public Law
Publications
Journal articles
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O'Brien D, 'The Judicial Committee of the Privy Council, constitutional interpretation and the right to same sex marriage'
International Journal of Constitutional Law [online first] (2024)
ISSN: 1474-2640 eISSN: 1474-2659AbstractPublished here Open Access on RADARThe recent judgments of the Judicial Committee of the Privy Council (JCPC) in Day and Another v The Government of the Cayman Islands, and Attorney General for Bermuda v Ferguson and others , upholding the constitutionality of laws limiting marriage to opposite sex couples in Bermuda and the Cayman Islands respectively, have disrupted a consensus that had been emerging amongst constitutional courts in the common law world that such laws were unconstitutional. This article critiques the JCPC’s justifications for distancing itself from this consensus and instead aligning itself with the much-criticised jurisprudence of the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UNHRC) on the issue of same sex marriage. It will be argued that the JCPC’s decisions were based on a narrowly textual interpretation of the respective constitutions and failed to take account of the impact of the ban on same sex marriage on the gay and lesbian communities in each jurisdiction. It will further be argued that the JCPC relied too heavily on the jurisprudence of the ECtHR and UNHRC at the expense of foundational principles such as liberty and equality. The article also considers the consequences of these decisions for the other countries over which the JCPC continues to exercise jurisdiction and which prohibit same sex marriage, as well as for the other countries whose courts continue to be influenced by the jurisprudence of the JCPC even though it is no longer their final appellate court.
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O'Brien D, 'The principle of responsible government in the Commonwealth Caribbean: Prorogation and motions of no confidence'
Commonwealth and Comparative Politics 60 (1) (2022) pp.27-49
ISSN: 1466-2043 eISSN: 1743-9094AbstractPublished here Open Access on RADARThis paper seeks to fill a gap in the scholarly literature by examining the operation of the principle of responsible government in the Commonwealth Caribbean both in relation to the prorogation of parliament and parliament’s ability to hold the government to account by means of a motion of no confidence. It identifies a number of instances of the prorogation of parliament that have occurred in the post-independence era which were incompatible with the principle of responsible government because they were intended to avoid the government being held to account by parliament. It also examines they ways in which an incumbent government might seek to frustrate motions of no confidence and how the courts and other key constitutional actors should respond in such circumstances.
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O'Brien D, 'Bicameralism in small states: the experience of the Commonwealth Caribbean'
The Journal of Imperial and Commonwealth History 47 (3) (2018) pp.591-617
ISSN: 0308-6534 eISSN: 1743-9329AbstractAlmost half of the bicameral legislatures in the Commonwealth are located in the Commonwealth Caribbean. Why so many bicameral legislatures are located in a relatively small geographic region, which is composed of countries that manifest characteristics more usually associated with unicameralism – small size, a unitary state, and homogeneity – is puzzling. Scholars have offered two possible explanations. The first concerns the presumed wish of the region’s political leaders upon independence to replicate the values and institutions of their colonial mentor, Britain. The second concerns the presumed need to prevent one-party dominance by guaranteeing the representation of opposition parties in the second chamber. This paper challenges both these explanations. By examining the origins of bicameralism in the region with the arrival of the first settlers in the seventeenth century, its demise during the era of crown colony rule in the nineteenth century, its renaissance in the 1950s and 1960s, and its survival in the post-independence era this paper will offer a more multi-layered explanation This entails taking account of the complex relationship between these former colonies and their imperial past, the wide range of views expressed both locally and within the Colonial Office about the suitability of bicameralism in the debates that accompanied the transition from colonial rule to independence, and, finally, the very distinctive nature of Caribbean bicameralism.Published here Open Access on RADAR -
O'Brien D, 'The post-colonial constitutional order of the Commonwealth Caribbean: the endurance of the Crown and the Judicial committee of the Privy Council'
The Journal of Imperial and Commonwealth History 46 (5) (2018) pp.958-983
ISSN: 0308-6534 eISSN: 1743-9329AbstractAmongst Britain’s former colonies the independent countries of the Commonwealth Caribbean represent something of an anomaly in so far as the majority of them remain constitutional monarchies and continue to retain the Judicial Committee of the Privy Council (JCPC) as their final appellate court, even though the region has had its own final appellate court – the Caribbean Court of Justice – since 2006. This is in marked contrast to Britain’s former colonies in Africa and South Asia, the majority of which switched to republicanism soon after independence and at the same time abolished rights of appeal to the JCPC. This paper seeks to uncover the reasons for this anomaly by examining how the path that led to independence was shaped by a particular conception of Dominion status and by the willingness of nationalist leaders to embrace a dual identity: equal parts West Indian nationalist and Empire loyalist. It will also examine the phenomenon of the ‘postcolony’; being the persistence of the colonial order following the acquisition of constitutional independence. The paper has three aims. Firstly, to contribute to a better understanding of the impact of Dominion status and all that it symbolised in a region which is often overlooked in the scholarly literature on this topic. Secondly, better to understand the competing political forces that led three countries in the region to adopt republicanism, but inhibited its adoption elsewhere in the region. Thirdly, and finally, to enhance discussion of the complex nexus between republicanism and the abolition of rights of appeal to the JCPC where political and juridical considerations do not neatly align.Published here Open Access on RADAR -
O'Brien DA, 'The Right of Free Movement Within CARICOM: A Step Towards Caribbean "Citizenship"? Lessons from the European Union'
Legal Issues of Economic Integration 42 (3) (2015) pp.233-256
ISSN: 1566-6573AbstractPublished hereFreedom of movement has generally been regarded as one of the defining characteristics of a common market, of which the European Union is probably the best known example; expanding from a right of free movement for workers into a right of European ‘citizenship’. By contrast, the Caribbean Community and Common Market (CARICOM) originally made no provision for freedom of movement for its nationals and has only latterly introduced a limited right to free movement. It would be wrong, however, to infer that the right of free movement within CARICOM will evolve into a right of Caribbean ‘citizenship’ for two interconnected reasons. The first derives from the absence of any desire on the part of the Heads of Government of CARICOM to use freedom of movement as a stepping-stone towards a political union. The second is linked to the institutional and legal infrastructure underpinning CARICOM, which makes it difficult for a right of Caribbean citizenship to evolve without the support of the Heads of Government.
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O'Brien D, Wheatle S, 'Post-independence constitutional reform in the Commonwealth Caribbean and a new charter of fundamental rights and freedoms for Jamaica'
Public Law 2012 (Oct) (2012) pp.683-702
ISSN: 0033-3565 -
O'Brien D A, 'CARICOM: regional integration in a post-colonial world'
European Law Journal: Review of European Law in Context 17 (5) (2011) pp.630-648
ISSN: 1351-5993AbstractPublished hereThis article argues that the distinctive form of economic integration within the Commonwealth Caribbean can best be understood if account is taken of the imprint of colonial rule both upon relations between these former colonies and upon the political consciousness of the region's leaders. The legacy of colonial rule, including the abortive attempt at a West Indies Federation, resulted not only in a profound mistrust of any form of political union but also established the ideal of island self-government as the centre of the region's political culture. This is clearly manifest in the institutional structure and governance of the Caribbean Community and Common Market (CARICOM), which is based on the principles of intergovernmentalism. Notwithstanding some recent changes to that institutional structure, such as the introduction of the Caribbean Court of Justice, Member States remain firmly committed to the pursuit of regional integration through cooperation and association without any transfer of their sovereign decision-making powers. It will be argued, however, that this will not only make it increasingly difficult to achieve the economic objectives of CARICOM, but will also make it increasingly difficult to maintain the fragile sense of regional unity, originally forged in the crucible of colonial rule, in a post-colonial world as new alliances both within and without the region begin to emerge.
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O'Brien D, Leslie J, 'Something rotten in the Turks and Caicos? Britain and its Caribbean overseas territories'
Public Law 2 (-) (2010) pp.231-240
ISSN: 0033-3565AbstractExplores the constitutional framework of the Turks and Caicos Islands (TCI), as a British overseas territory, and the history of British governance. Identifies the areas in which the TCI government, legislature and public officers have been alleged to have acted corruptly and refers to the findings and recommendations of the Turks and Caicos Islands Commission of Inquiry 2008-2009 final report. Examines the challenge brought against the UK's power to intervene in the governance of the TCI in the Administrative Court ruling in R. (on the application of Misick) v Secretary of State for Foreign and Commonwealth Affairs, which questioned the removal of the right to jury trial. -
O'Brien D, Morano-Foadi S, 'The Caribbean Court of Justice and Legal Integration within CARICOM: Some Lessons from the European Community'
Law and Practice of International Courts and Tribunals 8 (3) (2009) pp.399-429
ISSN: 1569-1853AbstractPublished hereCARICOM, established under the Treaty of Chaguaramas, in 1973, has since its inception suffered from the repeated failure of member states to implement at the national level decisions taken by the Heads of Government at the regional level. The Caribbean Court of Justice (CCJ,) which has been vested with a compulsory and exclusive jurisdiction to interpret and apply the Revised Treaty of Chaguaramas, is intended to bridge this implementation gap. This has aroused expectations that the CCJ will play a role similar to that played by the ECJ in promoting legal integration. However, it is important to recognise that the ECJ has functioned within a particular jurisdictional framework and has benefited from the contribution of a diverse range of actors within the wider European legal community. It cannot, therefore, be assumed that the CCJ will be able to replicate the role played by the ECJ. The aim of this article is, accordingly, to review the jurisdictional framework within which the CCJ will function; to explore how this is likely to affect its relationship with the wider legal community within CARICOM; and, finally, to consider how this will impact upon legal integration within the region generally.
Books
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, The Oxford Handbook of Caribbean Constitutions, Oxford University Press (2020)
ISBN: 9780198793045AbstractThe Oxford Handbook of Caribbean Constitutions offers a detailed and analytical view of the constitutions of the Caribbean region, examining the constitutional development of its diverse countries. The Handbook explains the features of the region's constitutions and examines themes emerging from the Caribbean's experience with constitutional interpretation and reform.
Beginning with a Foreword from the former President of the Caribbean Court of Justice and an Introduction by the lead editor, Richard Albert, the remainder of the book is divided into four parts. Part I, 'Caribbean Constitutions in the World', highlights what is distinctive about the constitutions of the Caribbean. Part II covers the constitutions of the Caribbean in detail, offering a rich analysis of the constitutional history, design, controversies, and future challenges in each country or group of countries. Each chapter in this section addresses topics such as the impact of key historical and political events on the constitutional landscape for the jurisdiction, a systematic account of the interaction between the legislature and the executive, the civil service, the electoral system, and the independence of the judiciary.
Part III addresses fundamental rights debates and developments in the region, including the death penalty and socio-economic rights. Finally, Part IV features critical reflections on the challenges and prospects for the region, including the work of the Caribbean Court of Justice and the future of constitutional reform.
This is the first book of its kind, bringing together in a single volume a comprehensive review of the constitutional development of the entire Caribbean region, from the Bahamas in the north to Guyana and Suriname in South America, and all the islands in between. While written in English, the book embraces the linguistic and cultural diversity of the region, and covers the Anglophone Caribbean as well as the Spanish-, French-, and Dutch-speaking Caribbean countries.
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O'Brien DA, The Constitutional Systems of the Commonwealth Caribbean, Hart Publishing Ltd (2014)
ISBN: 9781849461528 eISBN: 9781782253952AbstractThe Commonwealth Caribbean comprises a group of countries (mainly islands) lying in an arc between Florida in the north and Venezuela in the south. Varying widely in terms of their size, population, ethnic composition and economic wealth, these countries are, nevertheless, linked by their shared experience of colonial rule under the British Empire and their decision, upon attaining independence, to adopt a constitutional system of government based on the so-called 'Westminster model'. Since independence these countries have, in the main, enjoyed a sustained period of relative political stability, which is in marked contrast to the experience of former British colonies in Africa and Asia. This book seeks to explore how much of this is due to their constitutional arrangements by examining the constitutional systems of these countries in their context and questioning how well the Westminster model of democracy has successfully adapted to its transplantation to the Commonwealth Caribbean. While taking due account of the region's colonial past and its imprint on postcolonial constitutionalism, the book also considers notable developments that have occurred since independence. These include the transformation of Guyana from a parliamentary democracy to a Cooperative Republic with an executive president; the creation of a Caribbean Single Market and Economy and its implications for national sovereignty; and the replacement of the Judicial Committee of the Privy Council by the Caribbean Court of Justice as the final court of appeal for a number of countries in the region. The book also addresses the resurgence of interest in constitutional reform across the region in the last two decades, which has culminated in demands for radical reforms of the Westminster model of government and the severance of all remaining links with colonial rule.Published here
Book chapters
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O'Brien D, 'The Interpretation of Commonwealth Caribbean Constitutions: Does Text Matter?' in Richard Albert, Derek O'Brien and Se-shauna Wheatle (ed.), The Oxford Handbook of Caribbean Constitutions, Oxford University Press (2020)
ISBN: 9780198793045AbstractPublished here Open Access on RADARThis chapter focuses on the differing approaches of the Judicial Committee of the Privy Council and the Caribbean Court of Justice towards the interpretation of the independence Constitutions of the Commonwealth Caribbean. Critiquing the lack of autochthony and the lack of meaningful public participation in the drafting of the region’s independence Constitutions, a number of influential Caribbean constitutional scholars have advocated a much more judicially creative approach to the interpretation of the region’s constitutions than the more conservative approach that has dominated the JCPC’s more recent jurisprudence. I call the approach advocated by these scholars the holistic approach because it treats the constitution as a whole as greater than the sum of its parts. The Caribbean Court of Justice in two recent judgments on appeals from Barbados and Guyana respectively has now adopted this approach. Notwithstanding its undoubted attraction in terms of resolving some of the deficiencies and flaws in the region’s independence Constitutions, it will be argued that the holistic approach risks undermining not only the whole interpretive process, but also the whole constitutional order.
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O'Brien D, 'Small States, Colonial Rule and Democracy' in Petra Butler and Caroline Morris (ed.), Small States in a Legal World, Springer International Publishing (2017)
ISBN: 9783319393650 eISBN: 9783319393667AbstractPublished here Open Access on RADARThe Commonwealth Caribbean is often singled out by scholars as one of the most democratic regions in the developing world. The region is also notable for the number of small countries that it includes: whether measured by reference to population size or land mass, these are amongst the smallest countries in the world. Based on the statistical link that has been drawn by scholars between small size and democracy, it is tempting to conclude that the democratic character of the region is, therefore, largely a function of the small size of the majority of its countries.
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O'Brien D, 'Formal amendment rules and constitutional endurance: The strange case of the Commonwealth Caribbean' in Richard Albert, Xenophon Contiades and Alkemene Fotiadou (ed.), The Foundations and Traditions of Constitutional Amendment, Hart Publishing (2017)
ISBN: 978-1-50990-825-7 eISBN: 978-1-50990-828-8Published here Open Access on RADAR -
O'Brien D A, 'Magna Carta, the "sugar colonies" and "fantasies of empire"' in Magna Carta and its Modern Legacy, Cambridge University Press (2015)
ISBN: 9781107533103 eISBN: 9781316355701AbstractPublished hereWhen British public lawyers proclaim Magna Carta's influence in Britain's colonies around the world, they generally do so, even if obliquely, as a way of reconciling Britain's colonial past with its liberal-democratic and multicultural present. A narrative is thus constructed in which Magna Carta is presented as a symbol of a tradition of ‘English liberty’, which Englishmen took with them when they went abroad to settle these colonies and which endures to this day. English liberty, thus conceived, includes the right to personal liberty, the right to personal security, freedom from imprisonment without just cause, and the free use and enjoyment and disposal of all property. To this list could be added the right to representative government.
In this chapter, I wish to challenge the foregoing account of a tradition of English liberty, as symbolised by Magna Carta, which England bequeathed to its former colonies, insofar as it relates to the so-called ‘sugar colonies’ of the Commonwealth Caribbean. In particular, I wish to argue that the version of English liberty that was exported to the West Indies in the seventeenth and eighteenth centuries by the first English settlers is not adequate to the task of reconciling Britain's colonial past with modern conceptions of democracy or multiculturalism. More than this, I wish to argue that the legacy of English liberty in the Commonwealth Caribbean is no mere matter of historical interest, but continues to be deeply problematic because of its lingering influence on contemporary human rights jurisprudence in the region.
I will begin by linking the transmission of Magna Carta, and the other bundle of rights associated with the concept of English liberty, to the arrival of the first settlers in the region who were determined to claim English liberty as part of their ‘colonial birthright’ as Englishmen. I will proceed to examine how these settlers succeeded in claiming the rights and privileges associated with English liberty for themselves while at the same time denying these rights and privileges to the West Africans transported to the region to work as slaves on their sugar plantations, who were subject to a set of brutal and oppressive Slave Code laws.
Other publications
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O'Brien D, 'Westminster in the Caribbean: The Problem of Prime Ministerial Patronage [blog post]', (2015)
AbstractBlog of the International Journal of Constitutional Law and Constitution Making.orgPublished here
Professional information
Conferences
- September 2014 ‘Commonwealth Caribbean Parliaments: the Least Dangerous and Weakest Branch of Government?’ at Beyond Westminster in the Caribbean: Critiques, Challenges and Reform, University of the West Indies, Mona, Jamaica. Conference organised by the Institute for the Student of the Americas, (University College London), in Kingston, Jamaica.
- June 2014 ‘Magna Carta, the Sugar Colonies and Fantasies of Empire’ at Influence of Magna Carta Workshop, School of Public Policy, University College London
- November 2012, Confederation in Small Jurisdictions. Paper presented at Jersey and Guernsey Law Annual Law Review, St Peter’s Port, Guernsey.
- August 2012, ‘Post-independence Constitutional Reform in the Commonwealth Caribbean.’ Paper presented to the 50/50 Conference at the University of the West Indies, Kingston, Jamaica.
- December 2010, ‘Constitutional Implications of Regional Integration in the Commonwealth Caribbean.’ Paper presented at VIth Annual Conference of the International Association of Constitutional Lawyers, Mexico City.
- July 2010, ‘The Head of State in the contemporary Commonwealth Caribbean.’ Paper presented at the 2010 WG Hart Legal Workshop at the Institute of Advanced Legal Studies, London.
- March 2010, ‘Regional Integration within CARICOM and the role of the Caribbean Court of Justice.’ Paper presented to the Irish Society of Comparative Law at its annual conference at the University of Limerick.