Does a Pregnant Woman Have a Right to Die a Natural Death in Ireland?

Dr Conor O’Mahony

Last night, reports emerged of a clinically dead pregnant woman (in her second trimester) being kept alive in an Irish hospital, against the wishes of her parents, to preserve the life of the unborn child. It has been suggested that a legal challenge may ensue. If it does, this has the potential to be an especially emotive and complex constitutional dispute, in which a court would be called on to adjudicate between two competing arguments that enjoy support not just in sectors of the public, but in the case law on the conflicting rights in question: the right to die a natural death and the right to life of the unborn.

The right to die a natural death

On one side of the argument lies In Re a Ward of Court (No. 2) [1996] 2 IR 79. This case concerned a woman left in a near-persistent vegetative state following surgery. Because she showed some minimal response, the hospital was unwilling want to discontinue artificial nutrition and hydration, and so she remained in this condition for 20 years. Ultimately, her family applied to have her declared a ward of court, and the Supreme Court held that she may be allowed to die. Different judges couched their decisions differently. Hamilton CJ stated: “As the process of dying is part, and an ultimate inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerns so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means, which have no curative effect and which is intended merely to prolong life.” Denham J (as she then was) stated that “invasive medical treatment … results in a loss of bodily integrity and dignity’, and that ‘[a] constituent of the right of privacy is the right to die naturally, with dignity and with minimum suffering”.

Re a Ward of Court implies that a person should not be kept alive, where there is no hope of recovery, against their wishes. If the person in question is not in a position to express their wishes, the Court may decide that it is in that person’s best interests to be allowed to die naturally. To do so in the present case would also result in the unborn dying, but this would also be nature taking its course; there would be no question of a deliberate acceleration of the death of the unborn, and thus, no conflict with principles set down in Re a Ward of Court itself. The case of Baby O v Minister for Justice [2002] 2 IR 169 differentiated between deliberate terminations and decisions which merely expose the unborn to a higher risk of a natural death.

All of the above may be qualified by the fact that unlike the mother, the life of the unborn is not beyond rescue. The treatment would not merely prolong life; it would save it.

The right to life of the unborn

On the other side of the argument in this case lies the right to life of the unborn child, as protected by the Eighth Amendment to the Constitution (Article 40.3.3°). In Re a Ward of Court, the right to life was described by Denham J as the “pre-eminent personal right”. In Attorney General v X [1992] 1 IR 1, it was held that the right to life of the unborn would take priority over lesser personal rights of the mother (in that case, the right to travel). Of course, the Supreme Court ultimately held that the mother – a suicidal 14-year old rape victim – may have an abortion because her life was in danger. However, even this conclusion may support the argument for the unborn in the present case. If the unborn may be required to entirely forfeit the “pre-eminent personal right” (the right to life) where necessary to save the right to life of the mother, might the mother be required to merely delay the exercise of a lesser right (the right to die a natural death) to save the life of the unborn?

All of the above may be qualified by the fact that the Eighth Amendment only requires the State to defend and vindicate unborn life “as far as practicable”. The courts have not expanded upon the meaning of this phrase, but it is arguable that keeping a clinically dead woman alive for several months to maintain a pregnancy goes beyond what the provision requires.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork.

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The Demise of the One Judgment Rule

Dr Laura Cahillane

CourtofAppealLast Tuesday witnessed a historic occasion, when the new Court of Appeal was established. Media coverage has centred on the new judges appointed to that Court and on the reduction in the backlog of cases to the Supreme Court. However, one significant change has not been focused on. Tuesday 28th October, 2014 was also the day when the ‘one judgment rule’ was officially removed.

This rule, previously located in Article 34.4.5 of the Constitution, meant that when the Supreme Court was considering whether or not a law was compatible with the Constitution, the decision of the Court had to issue as a single unanimous judgment; it was not revealed as to whether any of the judges dissented.

The rule was not originally included in the Constitution in 1937 but was added in 1941 during the transitional period when the Oireachtas could amend the Constitution without holding a referendum. It was inserted into the Constitution by the Second Amendment of the Constitution Act 1941, in response to the judgment of the Supreme Court in the case of Re Article 26 and the Offences Against the State (Amendment) Bill 1940. The Bill conferred a power on a Minister to order detention of a person if of the opinion that the person was “engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State.” The constitutionality of the Bill was upheld, but when giving judgment for the Court, Chief Justice O’Sullivan announced that it was the judgment of a majority of the judges, implying that there had not been a consensus.

This evidently did not go down well with members of the Government, who felt that the decision caused speculation as to whether and how many judges had disagreed with the decision. For reasons of clarity and to obtain a definitive decision, it was then decided that any such judgment should have the appearance of unanimity, in order to provide certainty in the law. De Valera noted, during Dáil debates on the matter, that the rule had originally been included in early drafts of the Constitution and he was at a loss to figure out “how it got out”. Thus, the Constitution was amended to include the one judgment rule in Article 34 and also in Article 26.

Last October, the Irish public voted to remove the one judgment rule from Article 34. (The amendment was included in the proposal to establish the Court of Appeal.) The rule persists in Article 26.2.2. This means that when the President sends a Bill to the Supreme Court for a decision on its constitutionality before it is promulgated, a single judgment must still be issued. However, for cases involving the validity of a law generally, judges will now be entitled to issue a dissenting opinion, if they so wish.

Scalia-TalkingIn certain other jurisdictions, such as the United States, dissenting opinions are considered a valuable resource. Oliver Wendell Holmes, a famous US Supreme Court Justice is admirably known as “the great dissenter”. Supreme Court Justice Ruth Bader Ginsberg has pointed out that an impressive dissent can often lead the majority to refine and clarify their initial opinions, which in turn, leads to more measured judgments. Another esteemed member of that institution, Justice Antonin Scalia, has argued that dissents “augment rather than diminish the prestige of the Court”. He added that “when history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting … to look back and realise that at least some of the justices saw the danger clearly and gave voice, often eloquent voice, to their concern.” We could make similar arguments about Irish constitutional jurisprudence – if the one judgment rule had applied to the Norris Case, described recently by Mr Justice Hogan as a “wrong turning” on the part of the Supreme Court, we would not now have the outstanding dissents of Justices Henchy and McCarthy. In fact, some of our most famous judgments, such as that issued by Chief Justice Kennedy in the case of The State (Ryan) v Lennon, have come from a dissentient.

It has been argued that dissent can cause uncertainty and confusion, but forcing judges into a false consensus is potentially more dangerous and the removal of the rule should be celebrated as giving more independence to the judiciary in exercising their decision-making power.

I was recently told that the late Professor J.M. Kelly, author of the authoritative text on the Irish Constitution, once remarked that if he could change one thing about the Irish Constitution he would have removed the one judgment rule – a surprising choice perhaps, given the lack of attention generally accorded to the rule. It will certainly be interesting to look back in years to come, in order to assess what the impact of the change has been.

Dr Laura Cahillane is a lecturer in law at the University of Limerick.

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Subsidiarity of ECHR and O’Keeffe v Ireland: A Response to Hardiman

Dr Conor O’Mahony

Yesterday’s conference on Judges, Politics and the Irish Constitution, hosted by DCU School of Law and Government, was a superb event with a stellar array of speakers. It started with a bang at the first plenary session, when Mr Justice Hardiman of the Supreme Court gave a characteristically forthright assessment of the decision of the European Court of Human Rights (ECtHR) in O’Keeffe v Ireland concerning State liability for abuse perpetrated by a teacher at a Catholic denominational school.

Hardiman J argued that the ECtHR had departed from its own principle that the ECHR was subsidiary to national law, and that the Court would only hear cases where all domestic remedies had first been exhausted. In the case of Louise O’Keeffe, he argued, this had not occurred; the Supreme Court appeal had related to the vicarious liability of the State for the teacher’s actions in abusing her. The claim of direct liability of the State for its own inactions, which had been the focus of the Strasbourg litigation, had been raised in the High Court but not appealed to the Supreme Court. Thus, Hardiman J argued that this particular claim had been “abandoned” and domestic remedies had not been exhausted. The decision of the ECtHR to hear the case nonetheless appeared to him “to amount to an attempted amendment of the charter” and had changed the Court’s powers in a “radical and indeed a revolutionary way”.

Hardiman J relied extensively on the dissenting opinion of Judge Charleton in the O’Keeffe case. However, his spirited contribution singularly failed to engage with the reasoning of the majority opinion on admissibility and exhaustion of domestic remedies, giving the impression that the ECtHR had either ignored the point or failed to appreciate that there was live controversy here. In fact, the exhaustion of domestic remedies had been the main focus of the State’s defence, both in written submissions and in oral argument, and the Court addressed the issue directly first in the Chamber judgment and subsequently in paragraphs 98-121 and 175-186 of the Grand Chamber judgment.

David Holland SC presenting the oral argument before the Grand Chamber of the ECtHR in O’Keeffe v Ireland

The argument advanced on behalf of Louise O’Keeffe, and accepted by the ECtHR, was that there was no point in appealing the High Court’s dismissal of the direct liability claim. While the principle that domestic remedies must be exhausted before applying to Strasbourg is well established, it is equally well established that an applicant is not required to exhaust remedies that would be futile. This is why the applicants in the well-known case of A, B and C v Ireland were allowed to take their case directly to Strasbourg; it was clear that there was no possibility that they would be granted abortions under Irish law, as their lives were not at risk.

In Louise O’Keeffe’s case, there were three reasons why an appeal on the direct liability claim would have been futile. First, the High Court had non-suited it; it is essentially unheard of for the Supreme Court to reverse a decision made on this basis. Second, it did not fit into any pre-existing and recognised cause of action in Irish law. Success on this claim would have required the Irish courts to fashion a novel remedy, and as the Court observed, the Government had not been able to demonstrate, with relevant case law, how this might occur. Third (and most notably in the context of yesterday’s conference address), Hardiman J himself had actually addressed the direct liability claim in the final paragraphs of his Supreme Court decision (notwithstanding the failure to appeal it), and had summarily dismissed its possibility of success. These obiter remarks did not escape the attention of the ECtHR (see paragraphs 40 and 186).

In responding to questions after his address, Hardiman J argued that it was not for the ECtHR to assess the likelihood of success of a claim in domestic law. However, it would seem that he wants to have it both ways, in that the Strasbourg court’s conclusion on this point was based on the assessment that he had made in the course of the domestic proceedings. Clearly, Hardiman J fails to appreciate the inherent contradiction between his obiter remarks in his Supreme Court judgment and his extra-judicial remarks at yesterday’s conference, and his criticisms of the ECtHR judgment in the Louise O’Keeffe case should be read in this light.

In the ECtHR after oral arguments: Ernest Cantillon solicitor, Alan Keating BL, David Holland SC, Louise O’Keeffe, Dr Conor O’Mahony, Mary Scriven solicitor, Professor Ursula Kilkelly

 

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork, and along with Professor Ursula Kilkelly and the UCC Child Law Clinic, collaborated with Louise O’Keeffe’s legal team in the preparation of the case before the European Court of Human Rights.

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Misplaced Certainties in Abortion Case Controversy

Dr Conor O’Mahony

Here we are again: another tragic story involving a vulnerable young woman being denied an abortion in Ireland. 2013 may have seen an Irish government pass legislation regulating abortion for the first time, but clearly, the more things change, the more they remain the same.

The precise details of the case that came to light last week are sketchy. Media reports are incomplete and, at times, contradictory. What we do know is that a young woman sought an abortion on the basis that she was suicidal. She was assessed by a panel of two psychiatrists and one obstetrician established under the new legislation. The panel found that she was suicidal, but that at 25 weeks, the baby was viable and should be delivered.

When refused an abortion, the woman began to refuse food and fluids. A court order was obtained allowing the HSE to administer fluids and another was sought to authorise a caesarean section. Before the latter was granted, the woman consented to this procedure; the baby was delivered and placed in the care of the State while the mother receives psychiatric treatment.

A complicating factor in the case was the woman’s immigration status, which prevented her from circumventing the restrictive Irish regime by travelling abroad for an abortion, as thousands do every year. In addition, reports suggest that the pregnancy resulted from a rape.

Women’s rights and pro-choice advocates have universally decried the disregard shown for the woman’s right to autonomy over her own body. They point to a vulnerable woman being forced to carry a baby she does not want; being force-fed to maintain that pregnancy; and being brought to a point where it seemed likely that she would be forced to undergo invasive surgery to deliver the baby. Many cite the UN Human Rights Committee’s recent comment that Irish law treats pregnant women as a mere vessel.

Meanwhile, with equal horror, pro-life advocates have repeated their mantra that there is no medical evidence to support the notion that terminating a pregnancy is a treatment for suicide. While an abortion did not take place here, they have nonetheless questioned why a baby would be intentionally delivered prematurely when there was no medical reason why the pregnancy could not continue. Moreover, they have argued that the panel might easily have authorised the abortion, and that this demonstrates the flawed nature of the new laws.

The Protection of Life in Pregnancy Act 2013 was designed as an imperfect compromise between two positions that share no common ground. Certainly, there are question marks around delays in the case, and if substantiated, they would be very serious. However, the HSE has stated that it did not become aware of the case until the pregnancy was over 20 weeks advanced, and it is therefore unclear for now whether the case could have been dealt with more quickly. If delay was not a factor, the Act seems to have otherwise operated almost exactly as intended here. Neither side may have gotten what they wanted, but ultimately, the lives of both mother and child were saved, in circumstances where it was plausible one or both might be lost.

The reason for having an obstetrician on the assessment panel is now somewhat clearer. The two psychiatrists assess the risk of suicide (which was found to be present here). The obstetrician examines the other question in the legislation – namely, whether the only way to avert that risk is to end the life of the unborn. If the unborn is viable, then it can be delivered and both lives can be saved, in accordance with the constitutional obligation to defend and vindicate the equal right to life of mother and unborn child.

In truth, both sides of this debate have legitimate points to make, and while no one seems satisfied with the outcome, everyone should pause to reflect.  Pro-life advocates should ask themselves just what exactly they would be willing to do to a suicidal pregnant woman, who may be a rape victim, to maintain the pregnancy. There are surely limits here. Should she be force-fed and kept on permanent suicide watch for a period of several months?

Equally (and on the basis that delay has not been proven), pro-choice advocates should ask themselves whether a viable foetus, who could be delivered alive quickly and safely through a routine medical procedure, should be aborted. Again, there are surely limits here. A c-section can be performed in a matter of minutes; if the baby is capable of coming through unscathed, why possibly choose to abort instead?

Both sides agree on just one thing: that there should be another referendum on abortion. The problem is, they want to hold different referendums. Pro-choice advocates want to repeal the Eighth Amendment and liberalise Irish abortion laws. Pro-life advocates want to reverse the X case ruling allowing for abortion in cases of risk of suicide, thus making Irish abortion laws even more restrictive.

Our referendum system only allows for a binary choice. A single proposal is put forward, and voters have to choose between Yes and No. The system is not capable at present of giving multiple choices (as seen in the Seanad referendum, where the possibility of a reformed Seanad was not on the table). Faced with incompatible demands for constitutional reform, the most likely outcome is a familiar one (and has already been hinted at): the Government will do nothing. The present controversy will subside – until the next tragedy.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw

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Cabinet Confidentiality and the Banking Inquiry

Dr Conor O’Mahony

As the Oireachtas Inquiry into the banking collapse of 2008 gets underway, attention has recently focused on the question of whether the Inquiry will be able to access information surrounding the cabinet meeting at which the Government approved the infamous bank guarantee scheme; and if so, how much and what types of that information will be available. This raises difficult questions of constitutional law surrounding cabinet confidentiality.

Article 28.4.3° of the Constitution states as follows:

The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter –

i in the interests of the administration of justice by a Court, or

ii by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.

This provision was inserted by referendum in 1997 in the aftermath of Attorney General v Hamilton (No. 1) [1993] 2 IR 250. In that case, the Beef Tribunal had sought to sought to question former Minister Ray Burke about Cabinet discussions surrounding the allocation of export credit insurance to beef exporters. The Attorney General objected, arguing that these discussions were confidential under the Constitution. The Constitution did not clearly state this at the time, but in a 3-2 decision, the Supreme Court held that the confidentiality of cabinet discussions was a necessary corollary of the doctrine of the collective responsibility of the Government (which was expressly provided for in Article 28.4.2°). The key point of controversy that generated the split in the Court was whether this rule was absolute, with the majority holding that it was.

The 1997 amendment partly reinforced the Hamilton decision and partly reversed it. Article 28.4.3° expressly states the rule that discussions at cabinet meetings are confidential, but makes it subject to two exceptions under which it may be lifted by the High Court. The first, on the administration of justice, refers to court proceedings; the second refers to applications made by tribunals of inquiry.

The problem for the Banking Inquiry is that it is neither a court proceeding nor a tribunal. Accordingly, it does not fall within the exceptions to the rule, and any evidence of discussions at the relevant cabinet meeting (whether by way of minutes or oral testimony from one of the members of Government at the time) is clearly not available to it.

In some ways, this is of relatively little consequence in itself, as we know that the Government approved the bank guarantee scheme – and since the Government is collectively responsible, it makes no difference (constitutionally speaking) who was in favour or who was opposed. What the Inquiry may be at least as interested in finding out is what information was available to the Government in advance of making that decision, and who was responsible for furnishing that information.

It is far less clear whether preparatory documents such as memoranda or briefing papers are covered by cabinet confidentiality. In the Hamilton decision, the majority judges were at pains to stress that their decision related only to discussions and not to documents. As a matter of fact, many such documents had been made available to the Beef Tribunal in advance of the litigation. Finlay CJ observed at 272:

Since the sole issue raised before us in this appeal is whether such an absolute right of confidentiality exists, I am satisfied that the Court cannot be concerned with either the relevance of the questions sought to be asked concerning discussions at Government meetings, nor with any apparent breaches of such confidentiality which it is suggested have occurred in either documentary or oral evidence already afforded to the Tribunal. These matters would only be relevant if an issue of qualified privilege or confidentiality had arisen.”

Similarly, O’Flaherty J commented at 296-297:

“We are now called on to adjudicate on whether questions can be asked of Government Ministers (past and present) and others about discussions in cabinet. I emphasise that it is with discussions we have to deal because it is common case that all the relevant documents, such as memoranda for Government which are circulated in advance of Government meetings, as well as the written decisions taken and, indeed, various departmental minutes have been made available to the parties.”

It is possible to read Hamilton in three different ways on this point. One is to read it as being deliberately agnostic on the point, in which case it is all open to argument in a future case like the present Inquiry. A second is to read it as tacitly accepting that the documentation made available to the Beef Tribunal had not breached cabinet confidentiality – surely the majority judges would have said so, given the absolutist formulation of the rule that they set down? A third way is to read it in the manner adopted in the subsequent case of Lang v Government of Ireland [1993] ELR 234. In that case, O’Hanlon J commented that a formal memorandum prepared for Government by the Department of Justice in preparation for a decision as to whether to dismiss a prison officer from his post was “protected, and perhaps also precluded, from disclosure” in light of the Hamilton decision. Having said that, the document was in evidence in this case and (as it happened) was considered by the High Court (and deemed irrelevant to the decision, as the information contained therein was simply a repetition of information contained in other voluminous correspondence).

O’Hanlon J’s approach seems the least convincing of the three options set out above, and may have been in part an off-the-cuff reaction to the fact that his own High Court decision in Hamilton had been reversed by the Supreme Court. The view that preparatory documents are covered by cabinet confidentiality runs against what actually happened in both Hamilton and Lang, as well as the wording of the 1997 amendment, which refers specifically to “discussions at meetings of the Government” and makes no reference to documents. In light of the fact that extensive reference was made to the issue of documents in the Hamilton decision, the absence of an express reference to them in the wording of Article 28.4.3° is telling (and arguably decisive).

One final additional (and complicating) factor is section 71 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. This provision, contained in the legislation governing the Banking Inquiry itself, re-states the rule on cabinet confidentiality and extends it to committees appointed by the Government consisting of members of the Government (with or without Ministers of State or the Attorney General). This may tie the hands of the Inquiry even further, but unlike Article 28.4.3°, this provision (or at least the additional element of it) may potentially be reviewed by ordinary legislation. Whether any such legislation would survive constitutional challenge on the grounds that access to discussions of Government sub-committees may undermine broader cabinet confidentiality is an open question.

Dr Conor O’Mahony is a senior lecturer in Constitutional Law at University College Cork. Twitter: @ConorUCCLaw

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Adoption Tracing and the Constitution: No Referendum Required

Dr Conor O’Mahony

Like many others, I was pleased to hear newly-appointed Minister for Children Charlie Flanagan announce plans to examine legal reforms that would allow people who were placed for adoption as children to trace the identity of their natural parents. The right of children to an identity is protected by Article 8 of the UN Convention on the Rights of the Child, and it is difficult to see how this right could be vindicated by the current regime, whereby adoptees have no right to any information regarding their origins.

On Wednesday, however, Taoiseach Enda Kenny threw a spanner in the works by announcing in the Dáil that since mothers who placed children for adoption have a constitutional right to privacy, addressing the issue might require a referendum. This is a familiar claim when calls for reform are being resisted; Governments are fond of attributing their inaction to constitutional restrictions.

In this case (as in many others) the claim does not survive scrutiny. The Supreme Court directly addressed the issue of adoption tracing in IO’T v B [1998] 2 IR 321. In that case, the Court accepted the plaintiff’s argument that the right to know the identity of her natural mother was one of her unenumerated personal rights under Article 40.3 that flowed from the natural and special relationship between the mother and child (per Hamilton CJ, pp.345-348). The Court accepted that the exercise of this right might conflict with (and be restricted by) the mother’s right to privacy, but stipulated that the natural mother did not have an absolute constitutional or legal right to have the anonymity guaranteed to them at the time they placed the child for adoption preserved (per Hamilton CJ, p.354).

IO’T v B has been criticised by the Adoption Rights Alliance (pp.21-23) for providing adoption agencies with an excuse to impose a blanket ban on the provision of identifying information. Nonetheless, it is clear that the judgment leaves it open to the Oireachtas to address this issue. There is simply no question of a constitutional impediment arising to the extent that a referendum is required to pave the way for reform. The majority judgments (at pp.340-341) cited with approval the following well-known passage from the judgment of Kenny J in Ryan v Attorney General:

“None of the personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas when the common good requires this. When dealing with controversial social, economic and medical matters on which it is notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen. Moreover, the presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established applies with particular force to this type of legislation.” ([1965] IR 294 at 312)

Since adoption tracing is a classic case of reconciling competing rights, it is a matter for the Oireachtas to deal with; the presumption of constitutionality will apply with “particular force” to any legislation, and the decision of the Oireachtas should prevail unless it lacks “reasonable proportion”. Even the dissenting judgment of Keane J (at p.379) expressed a preference that the matter be dealt with by the Oireachtas rather than the courts, since it enjoys the advantages of expert guidance and democratic mandate. Thus, it is difficult to envisage a court striking down any legislation enacted on this point.

I have previously criticised this Government for claiming that a referendum is necessary to introduce marriage equality, when ordinary legislation would (in my view) suffice. However, at least on that issue, the argument is relatively intricate. By comparison, this issue is quite clear cut – so why did the Taoiseach suggest otherwise? Were his remarks off the cuff, or were they based on advice from the Attorney General’s office? Either way, the statement is the latest in a long line that indicates a worrying attitude towards the Constitution on the part of Irish parliamentarians. At best, they make little effort to engage with and understand the Constitution, deferring entirely to the Attorney General’s office and simply parroting legal advice. At worst, they cynically (and often misleadingly) use the Constitution as an excuse for refusing to do things they don’t want to do.

Eoin Daly has criticised what he calls the over-constitutionalisation of Irish politics, whereby ordinary political issues are elevated to constitutional ones. In a sense, however, the problem could also be described as an under-constitutionalisation of Irish politics; the refusal of elected politicians to engage in meaningful constitutional dialogue and argument results in anything labelled “constitutional” being seen as separate to and outside the scope of politics rather than as an integral part of it. It would be nice to see a reference to the Constitution being used to spark debate in Leinster House, and not as a conversation stopper.

Dr Conor O’Mahony is a senior lecturer in Constitutional Law at University College Cork. Twitter: @ConorUCCLaw

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The Role of the Attorney General in the Garda Tapes Controversy

Dr Seán Ó Conaill

Attorney General Maire WhelanOne curious aspect of the Garda tapes controversy has been the focus that some commentators have placed upon the role of the Attorney General Máire Whelan and the misunderstandings as to the role of the Attorney.

Although the Attorney General was not mentioned in the Free State Constitution of 1922, the Office of Attorney General has existed since the foundation of the State.  The Ministers and Secretaries Act, 1924 at Section 6 gave the office some post-independence legislative grounding charging the Attorney with representing the State in legal actions, prosecuting offences (a role which was taken over by the DPP in 1974) and the duty of advising the Government in matters of law and legal opinion.  The First Attorney General post-independence was Hugh Kennedy, who was also elected to the Dáil as a TD in 1923 and served in both offices for a number of months.  During the Dáil debates on what became the Ministers and Secretaries Act, 1924 a number of Deputies noted that there was significant confusing as to whether the Attorney was a member of the Government or not.

Article 30 of Bunreacht na hÉireann 1937 set out the constitutional position regarding the Attorney General and her role. There were few changes to the role with Article 30.1 confirming that the Attorney is an advisor to the Government in matters of law and legal opinion although there were a number of additional roles and responsibilities for the Attorney in the areas of references of Bills under Article 26 and the Council of State (of which she is an ex-officio member).  Article 30.4 makes it clear that the Attorney is not a member of the Government and while the Attorney sits in on cabinet meetings as an advisor she is not a member of the government. This point is particularly important when it comes to the current debate around the Garda tapes.

It is, as yet, far from clear what exactly has transpired and what the long term effects of the Garda tapes controversy will be. It had appeared from initial reports that the Attorney General was aware to a certain extent that the practice of records was ongoing and that she has been working with the Commissioner investigating the matter since November [**but see update below]. It also appears that the Attorney approached An Taoiseach to further highlight the issues and additional details that have come to light, which, according to reports, arose in the context of ongoing litigation.

There have been questions both inside and outside the Dáil as to why the Attorney did not bring this to the attention of the cabinet sooner. However, in many ways, these questions miss the point. Firstly, it is unclear to what extent the Attorney was aware of the recordings and the systems in place with Garda Stations, as she clearly lacks any formal relationship with the force. Secondly, while I understand that it is practice for the Attorney to brief the Cabinet on important cases and working groups throughout the year, she could not possibly bring every case she works on to Cabinet and it is utterly unrealistic to expect her to do so.

Finally – and most crucially – the Attorney is clearly not a member of Government (as stipulated by Article 30.4 of the Constitution), but rather a legal advisor to the Government. She has no executive power whatsoever in relation to the Gardaí, the administration of justice or prosecution of offences; such power correctly vests in the Minister for Justice. It would simply have been outside of the Attorney General’s constitutional ambit to go any further than to advise the Government of matters as she became aware of them and their importance; she could not ever act unilaterally. The current Attorney has shown herself willing to give unpopular advice to the Government, particular in the context of the Referendum on the Fiscal Compact Treaty. Any attempts to scapegoat the Attorney for the current crisis would be wide of the mark based on the current information available.

[*Update: latest reports indicate that the AG was not aware of full extent of the systematic taping in November, was not a member of the working group established to look into the matter and only became aware of the extent of the system in place in the last few days.]

Dr Seán Ó Conaill is the Director of the BCL (Law and Irish) Programme at UCC.

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Judicial Pragmatism at the Expense of Language Rights: The Ó Maicín Decision

Dr Seán Ó Conaill

On Thursday March the Supreme Court handed down the long awaited judgment in the Ó Maicín case and held by a majority of four to one that Mr. Ó Maicín was not entitled to an Irish speaking or bilingual jury.

Ó Maicín is due to be tried in connection with an alleged assault which is alleged to have occurred in the Gaeltacht. Ó Maicín himself, the alleged victim and most of the parties to the case are fluent Irish speakers. Ó Maicín’s constitutional right to conduct his own case through the medium of Irish is well establish by virtue of the status the Irish language enjoys as the first official language and the national language as laid down in Article 8.1 of the Constitution and was not in dispute per se. The central issue here was whether an Irish speaker was entitled to a judge and a jury who could hear the case without the need for translation or interpreters. Murphy J in the High Court {Ó Maicín v. Éire & Others [2010] IEHC 179} refused to grant such a declaratory order, a decision which was upheld by a majority of the Supreme Court. The primary reason for the refusal offered by Clarke J was that to do so would offend the jury trial provision of Article 38.5 of the Constitution. The Court relied heavily on the earlier case of de Búrca v Attorney General [1976] I.R. 38 (a case which concerned the de facto exclusion of the majority of women from jury service) where the Irish Courts had held that jury panels should be truly representative of all of society as a whole, and the exclusion of certain groups or sections of society was deemed unconstitutional. Clarke J felt that empanelling a jury who were capable of understanding a case through the medium of Irish would necessarily mean the exclusion of a large portion of society who do not understand Irish and thus would run against the Court’s earlier ruling in de Búrca. Clarke J further held that even if it were not unconstitutional to empanel a jury of Irish speakers, the relatively low number of Irish speakers in society as a whole would render it almost impossible to empanel a jury using the methods provided for by law at present.

Hardiman J delivered the dissenting judgment and made a number of very noteworthy observations which of course do not carry the force of law but offer an alternative view to the majority. Firstly Hardiman J pointed out that Ireland is without doubt a legally bilingual jurisdiction as enshrined in Article 8 of the Constitution. Hardiman J also pointed to the expert evidence offered by Dr. Colm Ó Giollagáin which was not disputed. In his affidavit Dr. Ó Giollagáin noted that empanelling a jury of Irish speakers, particularly in the Connemara region, would not present an insurmountable task by any stretch. Hardiman J also noted how British Colombia in Canada can manage to offer bilingual trials despite the fact that there tends to be a very limited pool of French speakers in the province. Ultimately Hardiman J felt that by the very virtue of Ireland being an officially bilingual state it was very difficult to come to any other outcome other than to hold that Mr Ó Maicín was entitled to a bilingual jury. He also urged that a jury region be created in the Gaeltacht to facilitate further trials.

The decision of the majority in Ó Maicín can be grouped with many of the more recent judgments concerning the Irish language, whereby a certain judicial pragmatism has been evident, albeit at the expense of the recognition of what are known as language rights. The Irish Constitution awards the Irish language a high status as the first official language and the national language, English being recognised (or accepted as the Irish version of the Constitution puts it) as the second official language. In reality the Irish language is a minority language used by small but not insignificant minority of Irish people. There seems to be certain willingness on behalf of some of the judiciary and even Government to recognise this dichotomy and to err on the side of minimalist pragmatism rather than the strict legalist interpretation offered by Hardiman J.

Recent interventions such as the resignation of the former Language Commissioner, a protest march by over 10,000 Irish speakers organised by Conradh na Gaeilge and even comments by the President of Ireland have highlighted that this issue is not one which is likely to go away any time soon and further cases are extremely likely.

Dr Seán Ó Conaill is the Director of the BCL (Law and Irish) Programme at UCC.

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Judicial Appointments

Dr Laura Cahillane

Since the proposal to establish a new Court of Appeal has been approved, work will now begin on the detail involved in establishing such an institution. Essential to the establishment of the new court will be the appointment of the judges who will preside over it. Minister for Justice, Alan Shatter has indicated that he expects ten appointments will be made. At this juncture it seems only right that we consider once again the appropriateness of the judicial appointments process in Ireland.

The Four Courts, DublinJudicial appointments have always been made by the executive; the Constitution states that judges are to be appointed by the President but on the advice of the Government. For a long time the process was quite informal and the All Party Oireachtas Committee described how “successive Governments were seen to appoint almost invariably, their own supporters to judicial office.” Then in 1994, as a result of the fallout from the attempted appointment of the then Attorney General to the post of President of the High Court, the first real debate about the merits of the appointment system began. The response to this was the establishment of the Judicial Appointments Advisory Board (JAAB) in 1995. The move looked like genuine reform but Professor David Gwynn Morgan has described it as “a good example of pulling the wool over the public’s eyes”. This is because it does little to change the process.

First, the board has no role if the post in question is the presidency of any court or if a vacancy is being filled by the promotion of a lower judge by the Government. In relation to all other appointments, the Board compiles a list of seven names and submits this to the Government. It does not interview candidates or rank them. Thus, essentially it is a filtering mechanism which has not made any real change to the appointments system.

High Court JudgesSome would argue that there is no need for reform since Irish judges have never shown any deference to the Government which has appointed them and they have an excellent record in terms of independence. This is very true but there are problems with the current system. Judges themselves have admitted using political influence to ensure their appointment. Retired Judge Michael Patwell told Charlie Bird a few years ago that such an approach was “common”. In an interview in 2012, Mr Justice Peter Kelly, who is President of the Association of Judges in Ireland stated that the JAAB does not work: “We all know … that people who would be excellent judicial appointments are passed over in favour of people who are not so well qualified.”

One of the problems with the system is that it is not transparent – the Government simply makes its choice and does not have to explain that choice to anyone. Many other jurisdictions have limited the executive’s role in this area and have allowed for more transparency. For example in England and Wales, a Judicial Appointments Commission selects a candidate on the basis of established criteria and submits one name to the Lord Chancellor, who invariably accepts the recommendation. In fact, he can only reject the recommendation on the basis that the person is not suitable for the office concerned and the reasons must be published. The Scottish Appointments Board assesses judicial candidates based on 17 established criteria, it then interviews candidates, ranks them and makes a recommendation to the First Minister.

The Scottish Board also created a Diversity Working Group in 2007. The aim of the group being to research applications with reference to diversity and to suggest measures to increase any under-representation in applications to judicial office.  The Northern Ireland Judicial Appointment Commission has also adopted a diversity and communications strategy, in order to demonstrate its commitment “to merit and diversity by encouraging applications from the widest possible pool.” Such a move would be welcome in this jurisdiction where, despite some recent improvement in gender balance on the Supreme Court, the profile of the majority of judges in Ireland is still white, male, upper middle-class.

In February of this year, Sinn Féin published its Reform of Judicial Appointments Procedures Bill 2013, which aimed to establish clear criteria for appointment, give the JAAB a more significant role in the selection of candidates and reduce the shortlist it presents to the Government to just three names. In the coming days, Independent TD Shane Ross also intends to present a Bill designed to remove political influence from the judicial appointments process. Minister Shatter has previously indicated a willingness to consider reform of the process – in an address to the Law Society’s annual conference in May, Mr Shatter said the current system of appointing judges “is very much of its time and we could do better”.

Given the significant number of imminent judicial appointments, it is essential that we have a conversation on the merits of the present system and that reforms, if they can be agreed upon, are set in motion as soon as possible.

– Dr Laura Cahillane, School of Law and Government, Dublin City University. Twitter: @LaurCah

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Collateral Damage of Seanad Abolition

Dr. Maria Cahill

While it is right that the focus of the Seanad referendum debate should be on the role and position of Seanad Éireann itself, there are 40 amendments to the Constitution which are proposed in the Bill and which do more than just abolish the Seanad. They result in collateral damage which affects, in particular, the positions of judges, the Comptroller and Auditor General, the President and the people.

Currently, judges of the High and Supreme Courts and Comptroller and Auditor General can only be removed by resolutions of both Houses of Parliament, according to Articles 35.4.1 and 33.5.1 of the Constitution. According to the proposed amendment, the Dáil alone would be capable of removing a High Court or Supreme Court judge or the Comptroller and Auditor General, on the basis of a two-thirds majority. This potentially weakens the structural independence of those office-holders.

The position of the President is more seriously affected by the proposed amendment. Currently, Article 12 of the Constitution provides that to remove a President from office for “stated misbehaviour”, there is a two-step procedure, involving both Houses of Parliament. At the first stage, what is needed is a written proposal to investigate the President signed by thirty members of one of the Houses of Parliament, and then adopted by two-thirds of the members of that same House. Under the current arrangements, the other House runs the investigation. After the investigation, that second House must vote with a majority of two-thirds in order to have the President removed from office.

By international standards, that is a relatively easy method of removing a Head of State. In other countries, the test is not simply “stated misbehaviour” but rather high treason, bribery, attempting to pervert the course of justice or overthrow the Constitution, with or without a catch-all such as “high crimes and misdemeanours”. Moreover, impeachment processes often involve the highest court investigating the allegations against the President as a matter of law, and sometimes allow for the matter to be referred back to the people in popular referendum.

Nonetheless, at least in the model that we currently have, the President is guaranteed that the principles of natural and constitutional justice; in particular, the rule against bias, nemo iudex in causa sua, is adhered to.

The changes proposed in the amendment mean that while the two-step process remains, it is carried out entirely by the Dáil, with a four-fifths rather than a two-thirds majority required at both stages. In this model, the Dáil becomes the accuser, the prosecutor, the investigator, the judge and jury, and the one who executes judgment removing the President from office. The closest precedent is the Heneghan case, in Carroll J set aside the dismissal of a fisheries inspector because the same person had been involved in the dismissal process as “witness, prosecutor, judge, jury, and appeal court”. Under the terms of the proposed, Dáil Éireann would similarly be acting in both an accusatory and an adjudicatory capacity in respect of the same decision, having either prior involvement in the decision or effectively prejudged the decision because of its involvement at both stages. Either of these gives rise to a reasonable suspicion that the President would not be afforded the fairness in procedures that he deserves according to the requirements of the rule against bias. In a nutshell, by the terms of the proposed amendment, the basic standards of natural and constitutional justice which would apply to anybody else in the country were they to find themselves facing disciplinary action in the course of their employment would not apply to our Head of State.

If the amendment is accepted by the people in referendum, it becomes part of the Constitution, even though it is out of line with the basic principles of constitutional justice, as well as international standards.  Naturally, we hope that this is a purely theoretical problem; that there would never be a reason to impeach a President. However, since the Constitution has a procedure for dealing with that unlikely event, it should be that that procedure is itself unimpeachable. To the contrary, the procedure contained in the proposed amendment is not above reproach.

The final kind of collateral damage to be addressed is the collateral damage to the position of the people in the legislative process. Currently, the Constitution envisages in Article 27 that the people should have a role in the promulgation of ordinary legislation when that legislation is of such national importance that the will of the people should be ascertained. This procedure has not been used to date, although its potential use was mooted during the summer in the context of a controversial piece of legislation.

The proposed amendment deletes Article 27 altogether. It is unclear why this was the course of action the government favoured but it is an unnecessary deletion because while Article 27 involves the Seanad, it is by no means dependent on the Seanad.

There was certainly scope for a more imaginative alternative whereby the popular referendum on important legislation could be initiated by a certain number of county councils or a certain number of councillors or even a certain number of registered voters. If the Government wanted to abolish the Seanad but still ensure that there was a check on the power of the Dáil, and still some role for the people in the legislative process, these kinds of creative solutions were available to them. These solutions would also be consistent with developments in other jurisdictions were citizen’s initiative procedures and petition and initiative procedures are becoming increasingly popular.

It is unnecessary to assume bad faith on the part of anybody; in fact one could go so far as to say that it is logically implausible to impute bad faith to anyone in the current government, since even if the referendum is successful none of the changes will be in place until after the next election. Nonetheless, the structural effects of the proposal to abolish the Seanad causes are such that they cause collateral damage which affects the positions of judges, the position of the Comptroller and Auditor General, the office of the President and the place of the people, all of whom lose ground to the gain of the Dáil and the gain of the Government. Those structural effects and that collateral damage are also worthy of our attention.

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