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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Referendum on the Abolition of the Seanad: Public Debate and Information Event

L-R: Dr Eoin O’Malley, Senator Katherine Zappone, Fiona Buckley, Dr Conor O’Mahony, Minister Simon Coveney and Dr Maria Cahill

On September 19, Constitution Project @ UCC hosted a public debate information event on the referendum on the proposed abolition of the Seanad, which was attended by almost 200 people. The event was chaired by broadcaster George Hook, and began with contextual information on the Seanad from three disciplinary perspectives. Fiona Buckley of the Department of Government at UCC gave a political science perspective; Dr Maria Cahill of the Faculty of Law at UCC spoke about the implications for constitutional law; and Professor John A Murphy, Emeritus Professor of History at UCC, gave a historical account of the Seanad.

This was followed by the debate, where abolition of the Seanad was proposed by Simon Coveney TD, Minister for Agriculture, and Dr Eoin O’Malley of the School of Government at DCU. The motion was opposed by Senator Katherine Zappone and Dr Conor O’Mahony of the Faculty of Law at UCC. A substantial number of audience members made contributions from the floor. At the conclusion of the evening, a vote was taken on the motion: “That this House would support the abolition of the Seanad”, and was defeated by a significant margin.

The event was covered in the Irish Times (click here). Videos of the contributions are available below.

Fiona Buckley on the functions and composition of the Seanad

Dr Maria Cahill on the implications in constitutional law of Seanad abolition

Professor John A Murphy on the history of the Seanad

Minister Simon Coveney proposing abolition of the Seanad

Senator Katherine Zappone opposing abolition of the Seanad

Dr Eoin O’Malley proposing abolition of the Seanad

Dr Conor O’Mahony opposing abolition of the Seanad

 

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Public Debate and Information Event on the Proposed Abolition of the Seanad

Boole 2 Lecture Theatre, UCC, Thursday September 19th, 7.15 pm

Programme:

7.15:  Welcome

Information Session

7.25-7.55: Contextual information on the Seanad will be presented from three perspectives:

History – Prof John A Murphy, Emeritus Professor of History, UCC

Political Science – Fiona Buckley, Lecturer in Government, UCC

Constitutional Law – Dr Maria Cahill, Lecturer in Constitutional Law, UCC

Debate

7.55-8.40: The proposed abolition of the Seanad will be debated by speakers from both political and academic life:

Chair – George Hook, Broadcaster, Newstalk 106

Proposing abolition – Minister Simon Coveney and Dr Eoin O’Malley, Lecturer in Government, DCU

Opposing abolition – Senator Katherine Zappone and Dr Conor O’Mahony, Lecturer in Constitutional Law, UCC

8.40: Questions and contributions from the floor

9.15: Close

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The Council of State and the Referral of Bills to the Supreme Court

Dr Laura Cahillane

The Process

Today the Council of State meets in the dining room in Áras an Uachtarán in order to discuss the Protection of Life During Pregnancy Bill and to advise the President on whether or not the Bill should be referred to the Supreme Court for a decision as to its compatibility with the Constitution.

Article 31 of the Constitution is the provision which deals with the Council of State. It provides that members of the Council shall include: the Taoiseach, the Tánaiste, the Chief Justice, the President of the High Court, the Chairman of the Dáil, the Chairman of the Seanad, and the Attorney General. Membership also includes any former Presidents, Taoisigh or Chiefs Justice as well as up to seven other persons nominated by the current President. Those currently appointed by President Michael D. Higgins are Michael Farrell, Deirdre Heenan, Catherine McGuinness, Gearóid Ó Tuathaigh, Ruairí McKiernan, Sally Mulready and Gerard Quinn. According to the Constitution, the role of this body is to “aid and counsel the President” and the President cannot exercise any of the powers conferred on him by the Constitution without first calling a meeting of the Council in order to receive advice. However, all the Council can issue is advice and the ultimate decision as to whether or not to refer a Bill to the Supreme Court rests with the President himself, who has seven days from the time the Bill is presented to him in order to make a decision.

If the President decides to refer the Bill to the Supreme Court, at least five Supreme Court judges will have 60 days to make a decision as to the constitutionality of the Bill. The Attorney General will make the case that the Bill is compatible with the Constitution and Counsel assigned by the Court will argue that it is unconstitutional. If the Supreme Court decides that any provision of the Bill is repugnant to the Constitution then the President cannot sign the Bill and the Oireachtas must go back to the drawing board. If however, the Supreme Court decides that the Bill is compatible with the Constitution, the President must sign the Bill and the Act then receives a seal of constitutionality in that it can never again be the subject of a reference as to its constitutionality.

There are a number of issues which have arisen in relation to this procedure.

Bias

A discussion among academics began on Twitter a number of days ago as to the question of whether it is appropriate for Chief Justice Susan Denham and former Chief Justice John Murray to sit on the Council of State and advise the President when they could ultimately be involved in making the decision as to the constitutionality of the Bill. It seems that in practice, the judges rarely contribute to the discussion unless there is a clear-cut issue (See Ruadhan Mac Cormaic’s Irish Times Article on this here). However, the question remains as to whether the judges should recuse themselves so as to avoid any issue of possible bias or pre-judgment. Eoin O’Dell has dealt with this issue today here.

Seal of Constitutionality

Another issue which has arisen in relation to the Article 26 procedure on referral of Bills to the Supreme Court, is the fact that the Bills can never again be questioned once pronounced constitutional by the Supreme Court, despite the fact that the Court simply hears theoretical, academic arguments for and against the Bill. Under the current procedure, the Court cannot hear witnesses or evidence; all arguments are hypothetical. This could pose a major problem in that issues which may not have been apparent when the Bill was being drafted, could later arise in practice but yet could not be challenged if the Supreme Court has already pronounced on the constitutionality of the Bill. This is one issue which has been flagged for possible reform by Minister for Justice, Alan Shatter. Last year when announcing reform of the Courts structure, Minster Shatter also stated:

“Consideration is also to be given … in respect of Bills referred by the President to the Supreme Court, to enable possible future constitutional challenges to Bills already upheld as constitutional following such reference. For example, such further constitutional challenge could be appropriate with regard to legislation where a question arises not addressed by the Supreme Court in its original decision under Article 26, and/or following the lapse of five years or some other specified period from the date of the original decision.”

This question was also considered by the 1996 Constitution Review Group, which recommended removal of the immunity provision. It remains to be seen whether or not reform on this issue will materialise.

One Judgment Rule

Another issue in relation to the reference of Bills to the Supreme Court is that presently, when considering the compatibility of a law with the Constitution under an Article 26 reference, the decision of the Supreme Court must issue as a single unanimous judgment and it is not revealed as to whether any of the judges dissented. This provision, contained in Article 26.2.2, 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. In 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 on the issue of the constitutionality of the Bill. For reasons of clarity and to obtain a definite decision, it was then decided that any such judgment should have the appearance of unanimity, in order to provide certainty in the law.

The one judgment rule also applies to Article 34.4.5, which means that the rule applies to any decision on the constitutionality of a law. While there may be arguments for the retention of the rule, it cannot be denied that the rule only offers a false sense of unity. It is unlikely that decisions which include a dissent would be considered any less authoritative than those which are unanimous. Furthermore, it could be argued that dissenting judgments have added to the wealth of our constitutional jurisprudence and some of the 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. This is another issue which has been marked for possible reform by Minister Shatter.

Timing

One final issue relates to the amount of time which the Supreme Court has within which to pronounce on the constitutionality of the Bill. 60 days might seem like a decent length of time but depending on the complexity of the Bill and the number of issues to be considered, particularly if a point of EU law arises, the time limit can be quite difficult for the Court to meet. For that reason, the Constitution Review Group recommended amending this to allow for a 90 day period instead, with the possibility of a further extension if a reference to the European Court of Justice is required.

Reference of the present Bill

As to whether or not the present Bill will be referred, as noted above, this is solely a matter for President, after he has taken advice from the Council of State. It seems quite likely that the Bill will be referred to the Supreme Court. As to whether or not the Supreme Court will pronounce the Bill compatible with the Constitution thus conferring immunity from any further challenges, that remains to be seen.

 

 

 

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Latest Referendum Commission report gives cause for deep concern

Dr Conor O’Mahony

In constitutional terms, Ireland is going through a minor bout of “Amendamania”. The coalition has already put four constitutional amendments to a referendum. In September, there will be at least two more– the abolition of the Seanad and the establishment of a civil court of appeal – that will involve over seventy separate amendments to our Constitution. The Constitutional Convention has recommended further amendments on the voting age, same-sex marriage and the provisions relating to women in the home, and looks likely to recommend even more.

Against this backdrop, the publication of the Referendum Commission’s report on the children referendum is deeply concerning.Research conducted by the Commission indicates that 41% of voters felt that they did not understand the proposed amendment (a level that the Commission rightly describes as “unacceptably low”). Worse still, the Commission’s report identifies that this is part of a clear trend. Even fewer voters felt that they understood the referendums on Oireachtas Inquiries and the Fiscal Treaty. Admittedly, these three referendums were particularly technical and difficult to explain; but the same can be said about future proposals like reform of the Dáil electoral system (currently being debated by the Constitutional Convention).

You wouldn’t agree to surgery being performed by a doctor who had a poor understanding of what he was doing. Why, then, are we proposing major surgery on our Constitution when those who hold the scalpel – the people themselves –often have an “unacceptably low” understanding of what they are being asked to do?

In successive reports, the Referendum Commission has asked to be given more time to run its information campaigns. In spite of this, it was given just seven weeks in advance of the Children Referendum. Moreover, the Government ran a parallel information campaign of its own. In addition to being found by the Supreme Court to have been biased in favour of a yes vote and therefore unconstitutional, the Commission has concluded that the Government’s information campaign undermined the Commission’s efforts by confusing voters and diverting over €1m that that could have been usefully spent by the Commission.

At the very least, we should be entitled to expect that the Commission will be given a free run at the referendums due to be held in September, with no competing information campaign run in parallel. It should also be given at least three months to carry out its work, and should ideally become a permanent body rather than an ad hoc one that has to start from scratch every time a referendum is held. But the report appears to suggest that this would only be a stop-gap solution. If Amendamania is to continue, it would be downright irresponsible not to undertake more far-reaching reforms of the referendum system.

The manner in which the Referendum Commission is restricted to making strictly neutral, informative statements on the proposed amendment, and no longer has the function of airing the arguments in favour of or against the proposal, needs to be re-considered. This approach inevitably leads to defensive practice, with the result that the Commission’s materials tend to be bland and uninteresting. Only 48% of voters found the Commission’s booklet on the Children Referendum to helpful, while 40% of voters found its television and radio advertisements to be long and uninteresting. Giving the Commission the power to engage with the claims made by both sides of the debate would mitigate the abstract nature of its recent campaigns.

The Referendum Commission is just one source of information during a referendum campaign; the broadcast and print media are the other primary source, with blogs and social media playing an increasingly important role. Meaningful reform should take all of this into account. The manner in which television and radio presenters implement the Coughlan ruling requiring balanced coverage has allowed a huge amount of misinformation to be circulated under the cover of “equal broadcast time”. Presenters often fear to challenge this misinformation lest they be perceived as biased on one side of the other. The result tends to be a shouting match between campaigners in which voters are susceptible to being led down the garden path by misleading statements. In its current manner of implementation, the rule does more harm than good.

Other more radical possibilities also exist. Dr Jane Suiter and Dr Theresa Reidy wrote in the Irish Times last October about the merits of the Danish model, whereby funding is channelled directly to the political parties and to campaign groups, who can then use that funding to advance their arguments to the electorate. An independent referendum or electoral watchdog could potentially police these campaigns to ensure that funding is not used to distribute misleading information.

In the longer term, we also need to explore ways to place a greater emphasis on constitutional and political literacy in our education system. The Constitution states that it is “give[n] to themselves” by the people of Ireland, and Enda Kenny recently described it as “the people’s book”. Yet the majority of us have never read it or perhaps even picked it up. People who hold strong views on issues such as abortion or same-sex marriage should know exactly what the Constitution does and does not say about these matters. Every voter should at least have enough knowledge to know where to look to find out.

Whichever option or suite of options we decide upon, one thing is clear: we cannot afford to blindly continue to make the same mistakes over and over. Just like consent to a contract or a marriage, it is essential that the consent of the people to a constitutional amendment, so far as possible, be fully informed.

Dr Conor O’Mahony lectures in Constitutional Law at University College Cork. Twitter: @ConorUCCLaw

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