Mr Justice Adrian Hardiman 1951-2016

Dr Conor O’Mahony and Dr Seán Ó Conaill

Everyone at Constitution Project @ UCC was deeply saddened to learn of the sudden death of Mr Justice Adrian Hardiman, judge of the Supreme Court of Ireland. Mr Justice Hardiman was a highly accomplished jurist who left a significant mark on the Irish legal landscape, and whose passing will leave a similarly significant void. He handed down judgments in dozens of crucial cases that will shape Irish law for many years to come; the following is just a brief selection of notable constitutional decisions.

Hardiman JHardiman J was appointed directly to the Supreme Court from the bar in 2000, and it was not long before he made his presence felt. It is arguable that even among multiple majority judgments, his were the defining ones in the well-known cases of Sinnott v Minister for Education [2001] 2 I.R. 545 and TD v Minister for Education [2001] 4 I.R. 259. Both cases concerned claims made by children with special needs who had been denied effective educational services. The common theme was that decisions that impact upon the allocation of public resources are a matter for the executive, and the judiciary should not interfere in this process. In TD, he wrote (at p.358):

“It would of course be possible by constitutional amendment or by the adoption of an entirely new constitution, to vest the courts with powers and responsibilities in social, economic and other areas which are presently the preserve of the other organs of government. This, perhaps, would give immediate satisfaction to those who thought the courts more likely to adopt their views of the merits of certain social or economic questions than the legislature or executive. But it would vest responsibility in these areas in a body without special qualifications to discharge it which, if its views fell into disfavour, would not easily be replaced by another more congenial. It would also render technical and legalistic discussions which should properly be conducted in quite a different manner. And if courts extend their powers to questions which are essentially political they will soon either fossilise developments on such issues or lose that basis in formal and technical logic and consistency which is an essential hallmark of legal, though not necessarily of political, discourse.”

These decisions were the subject of a large volume of academic commentary – and, it must be said, no small amount of criticism from those that felt that they left vulnerable children with no effective remedy for a breach of their constitutional right to education. Unusually for a sitting Supreme Court judge, Hardiman J responded to some of this criticism in a paper at the Magill Summer School in 2004, remarking that “uncontrolled power in the hands of a judge is no more acceptable that uncontrolled power in any other hands” (“The Role of the Supreme Court in our Democracy” in Mulholland (Ed.), Political Choice and Democratic Freedom in Ireland, MacGill Summer School, 2004, p.44). Hardiman J’s openness in engaging in extra-judicial debate about the merits or demerits of various decisions was to manifest itself on numerous occasions in the years that followed; this blog featured a response to a paper he delivered at a conference in DCU in 2014 in which he took issue with the European Court of Human Rights decision in O’Keeffe v Ireland. (The exchange is slated for publication later this year as a pair of papers in a forthcoming collection – see here.)

Hardiman J was a fluent Irish speaker and he applied his linguistic knowledge on the bench, giving judgments in most of the key Irish language cases since his appointment to the Supreme Court. In 2001 his majority judgment (along with Mrs Justice McGuinness) in Ó Beoláin v Fahy [2001] 2 I.R. 279 served as a watershed moment in the recognition of language rights in constitutional discourse in Ireland. Although the constitutional status of the Irish language had long been recognised, it was only following Hardiman J’s intervention that the courts began to consider the true legal implications of the legal status afforded to the Irish language and Irish speakers. This judicial decision has often been cited as the impetus the State needed to take the rights of Irish speakers seriously and led directly to the introduction of the Official Languages Act, 2003 and the granting of Official EU status to the Irish language in 2007. Hardiman J’s attitudes towards the State’s obligations towards the Irish language were best summed up by his dissenting judgment in Ó Maiciín v Ireland [2014] I.E.S.C. 12, a case which concerned the right to Irish speaking juries, where he held:

“The answer to [the Irish language] question does not depend on the private opinion of the Judges asked to decide it about the desirability or the feasibility of the widespread use of the Irish language for official purposes. It depends, rather, on the interpretation of the Constitution and the laws of Ireland which the judges, like the legislature, the executive, and the citizens, must take as they find them. If a government no longer wishes to be bound by the words of the Constitution as it is, that government is in a uniquely strong position to promote a change in those words. But, until then, the government must abide by the terms of the Constitution, just as it expects the ordinary citizen to obey the law. The Constitution is binding law, which binds the Government and the Legislature as much as the humblest citizen.”

Perhaps his most striking legacy came in the area of criminal justice and due process case law, where Hardiman J was a staunch defender of the rights of the accused. In CC v Ireland [2006] 4 I.R. 1, the Supreme Court struck down the law on statutory rape on the basis that it did not allow for the defence of reasonable mistake as to age. Hardiman J stated (at p.44) that he could not “regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual”. In DPP v Davis [2001] 1 I.R. 146 at p. 151, Hardiman J, delivering the judgment of the Court of Criminal Appeal, described the publication of photographs of an unconvicted prisoner wearing shackles as “a depiction of him in a position of humiliation and indignity … the dignity of the individual, and the perception that he is a participant in judicial proceedings with specific rights, and on a footing of equality with other participants, is inconsistent with his appearing there chained, or otherwise manifestly restrained.”

Having delivered judgments of this nature in the past, it was perhaps unsurprising that he dissented from the Supreme Court’s decision in DPP v JC [2015] I.E.S.C. 31 to overturn the rule in DPP v Kenny [1990] 2 I.R. 110 under which unconstitutionally obtained evidence was automatically excluded from criminal trials. In what unfortunately proved to be one of his final major contributions to the work of the Supreme Court, he wrote a stinging dissent, describing Kenny as “one of the monuments of Irish constitutional jurisprudence” and stating that he was “gravely apprehensive” that the majority decision “is a major step in the disengagement of this Court from the rights-oriented jurisprudence of our predecessors”. He warned of the dangers of encouraging lax standards or even police misconduct:

“I protest, in particular, against the distinction, created by this part of the decision, between the ordinary citizen and the members of the privileged and legally empowered group whom I have designated the force publique. If the ordinary citizen were provided with a defence of “I didn’t mean it” or “I didn’t know it was against the law”, then many parts of the law would become completely unenforceable. I believe that the application of this rule to the force publique has the effect of exalting that group and conferring a status of virtual, practical, unaccountability upon it. I deeply regret that this is being done.

… If the Constitution and the rights it guarantees to citizens are to be taken seriously and are to be more than a shibboleth, mere words on a page, it must follow that no official, no matter how high or how important the office which he holds in the State, may breach the terms of the Constitution, and impose on or suspend the constitutional rights of another citizen.”

Critics of Hardiman J’s judgments will point out the contrast between his strident defence of rights about which he felt strongly (in the areas of due process and language) with his unwillingness to grant remedies for the breach of a socio-economic right (the right to education), which did not fit so comfortably with his view of the judicial role. But no one can question that he has left a substantial legacy; he was, perhaps, the dominant voice on the Irish Supreme Court over the last 15 years.

A dheis Dé go raibh a anam.

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Upcoming Event – Sovereignty since 1916: Has the Law fulfilled the Promise of the Proclamation?

 

Monday 14th March, 2016
5.45pm – 7.30pm

Venue: Boole 2

“In the name of God and of the dead generations from which she receives her old tradition of nationhood, Ireland, through us, summons her children to her flag and strikes for her freedom.”

Paradoxically, the 1916 Proclamation both asserts and is premised on the sovereignty of the Irish people. As a unilateral declaration of independence, it makes the break-through assertion of sovereignty. At the same time, it assumes that the Irish people have always held this right of self-determination, and that several hundred years of usurpation of that right by a ‘foreign’ government has not extinguished it. How has sovereignty fared, though, in the hundred years since the Proclamation? Has the law remained faithful to the vision of self-determination espoused by the signatories of the Proclamation?

This event will explore the concrete understanding of sovereignty expressed in the Proclamation as well as the conceptual understandings of this much-misunderstood concept, before examining how the courts have interpreted sovereignty since Ireland became independent.

Continuing Professional Development: 1.5 hours Group Study (General)

This event is hosted by the Constitution Project @ UCC

Speakers and papers:-

Professor Nick Barber, Trinity College, University of Oxford – The Moral Value of State Sovereignty 

Dr. T. Ryle Dwyer, Historian, Journalist – Contrasting Visions of Sovereignty: From the Proclamation to the Civil War

Dr. Maria Cahill, School of Law, University College Cork – Sovereign and Indefeasible? Reflections on participation in the EU

Dr. Seán Ó Conaill , School of Law, University College Cork – A Sovereignty that can never be extinguished? The People and the Referendum

Chair: Dr. Andrew McCarthy, School of History, University College Cork

Enquiries: Noreen Delea, School of Law, UCC
Email: n.delea@ucc.ie Phone: 021 490 3220

Registration: http://www.uccconferencing.ie/product/sovereignty-since-1916/ 

Posted in Constitutional History, Oireachtas, Referendum | Leave a comment

The Final Report of the Oireachtas Banking Inquiry: A Constitutional Perspective

Dr Fiona Donson and Dr Darren O’Donovan

Since its inception, widespread doubt and scepticism has permeated discussion about the banking inquiry. As the end of the process neared, doubts emerged as to whether the committee would be able to publish a final report, and if it ultimately succeeded in its overall remit. The publication of the Final Inquiry Report will trigger further debate, not merely regarding the inquiry itself, but also on the role of parliamentary inquiries generally. In this post we want to locate the likely talking points within broader debates about the Constitution and the place of Oireachtas within it.

“The inquiry was hobbled from the start by constitutional limitations”

One truism that has studded media coverage, is the idea that committee was inexorably (and perhaps fatally) hobbled from the start due to judicially imposed limitations on its operation arising from Supreme Court’s Abbeylara ruling. Some commentators have described the committee as having “little choice” but to be “risk adverse and to focus upon “running a tight process”. The idea that the committee is constitutionally injuncted to “pull its punches” and barred outright from making criticisms of individuals has taken hold. The inquiry itself has been particularly cautious in this regard. Yet, in our view, the Supreme Court’s approach, while presenting challenges, should not be portrayed as a monolithic roadblock to an effective constitutional role for parliamentary investigations.

In seeking to understand this position we must first note the unique nature of the Abbeylara inquiry which impacted upon the judgment of the Supreme Court. The committee adopted terms of reference which envisioned it making findings relating to “unlawful killing”; this summoned up judicial concern about the ability of parliament to make the personalised findings that had marked the era of Senator McCarthy and the US House of Representatives Un-American Activities Committee.  The close relationship between the potential findings and the crime of manslaughter was viewed by the majority of the court as lending a uniquely adjudicative character to the committee’s work in the Abbeylara inquiry. This can clearly be seen in the judgment of the Supreme Court: for example in Justice Hardiman’s regular references to the applicants as “individual citizens” without any correlative emphasis upon them being public officers as members of An Garda Síochána. In short, the entire design of the Abbeylara inquiry hinged upon making findings of individual culpability. In contrast, when delineating the remit of Parliamentary inquiries the Court specifically found that the Constitution focussed inquiries upon considering whether legislation needed to be passed – i.e. in direct aid of the Oireachtas’ legislative functions.  These amount to two very different functions; only the second was regarded by the court as permissible.

So when will an inquiry be focussed upon legislative function rather than adjudicating individual conduct?

This is the question that remains at large, and that the banking inquiry was uniquely positioned to explore. Yet the question has been little noted in the commentary of the inquiry, nor does the committee appear to have spent time publicly considering it. The Abbeylara decision is of little help. The Supreme Court ruling provided only a circular and vague treatment of this question. Some rulings, for example Justice Geoghegan, at paragraph 837, attempted to differentiate between unacceptable direct findings against individuals and possibly inevitable and permissible findings relating to a managerial system which might result in implied blame being attributed to individuals. Overall, the specifics of the Abbeylara inquiry impacted on the examination of this issue with the majority finding that the Committee had not regarded itself as carrying out an inquiry relating to a “legislative function”.

In considering the scope of Oierachtas inquiry powers re legislative functions and wider findings, the position therefore appears to be that the banking inquiry was constitutionally permitted to criticise individuals where the attribution of blame is “inevitably” or “unavoidably” required for creation of new legislation [as per Justice Geoghegan’s test at paragraph 837] or is “genuinely incidental” to the creation or review of laws [as per Justice Hardiman’s test at paragraph 640]. Indeed, this is directly underlined by section 17(3)(a) of the House of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 passed after the failed inquiries referendum in 2013 which states that a committee may:

“make a finding that any matter relating to systems, practices, procedures or policy or arrangements for the implementation of policy which fall within the subject [of the inquiry] ought to have been carried out in a different manner”.

Professor David Gwynn Morgan has noted that the concept of “implied blame” present in both the Abbeylara decision and the 2013 Act is “a very slippery standard for a lawyer to advise upon or for a court to rule upon”. Nonetheless, we argue that a carefully prepared report could have pressed the edges of the concept to deliver firm criticisms tied to concrete future legislative actions.

It is clearly vital that we get clarity on the Abbeylara ruling – something likely to happen this year with litigation arising from the questioning of former Rehab CEO Angela Kerins by the Public Accounts Committee. However, beyond the legalisms of the Supreme Court’s rulings, the banking inquiry underlines the lack of a proactive constitutionalism within our political culture. Too often, Bunreacht na hEireann is perceived as offering only judicially declared “red light” moments which legally prohibit or require conduct rather than injecting positive values to be upheld within the conduct of our politics, government and public administration.

 “There should never be another inquiry under the 2013 Act”

Blaming the Supreme Court only tells us a small, yet influential part, of the Inquiry’s story. As we noted above, the idea that the committee was constitutionally injuncted from pressing individuals on their role in the banking crisis is an easy way out for the Oireachtas. In reality, a number of factors within their own remit also provided for a scenario that indicated that their efforts appeared doomed from the start.

Firstly, and centrally, was the design of the committee’s terms of reference which included the following stated purpose:

“to inquire into the reasons Ireland experienced a systemic banking crisis, including the political, economic, social, cultural, financial and behavioural factors and policies which impacted on or contributed to the crisis and the preventative reforms implemented in the wake of the crisis”

This actually tells the reader little of the underlying objective of the inquiry beyond the creation of an historical record of the banking collapse. In addition, the goal of public engagement in this record building process, strongly championed at the start of the process by the committee, was ultimately obstructed by the extremely broad terms of reference.

Secondly, the terms of reference were broadened from the initial focus on the 2008 decision to bail out the banks to a wide-ranging consideration of context, banking systems and practices, regulatory systems and practices and finally crisis management and policy responses, all operating over an extended period of time. The last module was, inevitably, particularly complex.  In part, the terms of reference were influenced by a desire on the part of the committee to “demonstrate that it [could] carry out a fair and balanced inquiry to answer the key questions that remain behind the banking crisis.”

This desire to “add value” to the existing record, led the Committee to engaged in what we would describe as unfortunate entrepreneurship; at times displaying undue flexibility in relation to evidence gathering. The attempts to hear accounts from the former head of the Anglo-Irish Bank Bank and Jean Claude Trichet were instances where the desire to secure evidence from previously unheard key actors came close to according additional entitlements to particular individuals based on their inaccessibility. The approach taken by the Committee to “engaging” Mr Trichet, at a private event was legitimately criticised by the family of the late Brian Lenihan. Ironically, despite the Committee’s confidence in this private evidence gathering solution, the European Central Bank nevertheless withdrew co-operation from the informal process, citing comments made by inquiry members at the Trichet event.  It argued that while it could engage in a general exchange of views with parliamentarians, it would not discharge accountability to a parliamentary inquiry.

Finally, the timing of the inquiry was a key roadblock to success. While Fine Gael and Labour had committed themselves to a parliamentary inquiry in run up to the previous election, the Government elected to hold the inquiries referendum as a first step to its establishment. The defeat of this referendum, based in large part of the public’s lack of trust of the Oireachtas to carry out this role appropriately, together with the need to create the 2013 Act, meant that the inquiry would be carried out in the last year of the government. At its conclusion, the inquiry had heard from 128 witnesses over 49 days, together with 50,000 documents. A first draft of the report ran to 750 pages but ultimately the timeline, fatally tied to the end of the current life of the Oireachtas, has resulted in a much reduced and reportedly sanitised final version. This is in no way connected to the Abbeylara decision but is the result of politicking and the failures in drafting the 2013 Amendment proposal.

 “This ground has all been covered previously”

This view, often expressed by political scientists and journalists, attempts to portray the independent Commission of Investigation carried out by Peter Nyberg as having been sufficient in its treatment; the idea being expressed here is that we already knew enough of the story. This inevitably leads to other questions: what was the point of the Oireachtas Banking Inquiry? What was it that the Committee was attempting to accomplish anyway? Was this simply politics? While it may be tempting to conclude, as Joe Higgins TD has, that there should never be another inquiry under the 2013 Act – this is to misunderstand, or perhaps close ones eyes, to the central role the Oireachtas can and should play in holding Government responsible for its actions.  A parliamentary inquiry offers a significant forum for debating underlying political responsibility, publicly airing contrasting perspectives and mobilising public debate about reform. It also provides a potentially stronger mechanism for achieving change at the end of the inquiry process.

Commissions of Investigation, as independent inquiries allow for focused forensic fact finding mechanisms carried out, at their best, by experts in their field. However, they are ultimately reliant upon the political buy-in of the Oireachtas and more particularly Government. The failure to implement key Mahon Tribunal findings, underlines that fact that political buy-in or the mobilisation of political shame are irreplaceable variable – something an Oireachtas Inquiry can more often provide. More fundamentally, we should not dismiss our elected body as a central accountability mechanism, consigning it to being “fundamentally ill-suited to the task”. Other jurisdictions show us that Parliamentary Committees are well able to carry out central accountability roles when given the machinery and space to do so. While the passing of the 2013 Act provided a framework for inquiry, it is clear that simply legislating to provide a better inquiry structure is not enough to produce real change. The Act may simply have raised false hopes in the face of a failure to change the political and administrative culture operating within our state.

 “It’s all he said she said anyway”: Why is it so hard to investigate?

This to us is the key constitutional question. Governments typically enjoy talking forward from the crisis rather than acting upon the cause. At this time, a lot of the media coverage is aimed at the institution of the Oireachtas, forgetting the responsibility of Government to operate in a manner that allows for accountability to work in practice. It is vital that we focus discussion of the banking inquiry not only upon politics, but also consider it in its broader constitutional perspective.

The failure to engage in appropriate record keeping by government including the recording of key decisions, along with the failure to provide a wider access to information is detrimental to the accountability process.  We see again that key decisions reached on the night of the banking guarantee were not recorded, that the interactions and justifications behind key regulatory actions were not recorded. While media reporting criticises the lack of “silver bullets” or bemoans the technicality of reports, this should be placed within the context of the investigatory difficulties faced by judicial or other independent actors. Last year’s interim report of the Fennelly Commission also crystalised this dynamic:

“This Commission is, of course, powerless in the matter. It is left in the position of having to reconcile conflicting sworn evidence from responsible ministers and officials at the highest level in the State. It can only register its astonishment at a system of administration which apparently quite deliberately adopts a practice of not keeping any record of a meeting where an important decision is made.”

Ultimately, while the banking inquiry may not reflect well on the Oireachtas, the questions flow far beyond the committee room with the entire investigation reflecting broader difficulties in our constitutional culture. Bunreacht na hEireann is very clear about its aims; the problems are to be found in its interpretation and operation at the most basic structural level.

Dr Fiona Donson (School of Law, University College Cork) and Dr Darren O’Donovan (Faculty of Law, Bond University) are authors of Law and Public Administration in Ireland (Clarus Press, 2015).

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Opting Out of Religious Instruction: Rights under the Irish Constitution and ECHR

Dr Conor O’Mahony

News broke on Monday of a story concerning a pupil in Casteltroy College, a secondary school in Limerick run by the Education Training Board, whose father requested that she be exempted from religion lessons in the school. Initially, the School replied that the religion class (which, in this school, covered a variety of faiths rather than doctrinal instruction in one faith) was a compulsory subject and that the pupil could not opt out. However, following a meeting of the Board of Management on Monday, it was decided that the pupil could opt out, albeit that she would have to remain in the classroom while the subject was being taught.

This story raises a range of interesting issues concerning rights protected by the Irish Constitution and the European Convention on Human Rights (ECHR). Both documents protect freedom of religion (which is a right of both parents and children), and stipulate that parents have the right to determine their children’s religious education and upbringing. As part of this, both documents grant parents what might broadly be described as a right to withdraw their children from religious instruction to which they object.

The precise parameters of the right differs between the Constitution and the ECHR. The Irish Constitution was drafted with the uniquely-Irish primary school system in mind. Accordingly, it recognised that primary education is funded by the State but provided by third parties. Article 42.4 provides that the State shall “provide for free primary education” rather than “provide free primary education”; the word “for” was added by de Valera to an earlier draft in his own handwriting so as to reflect the reality on the ground. Article 44.2.4° acknowledges this reality further by explicitly recognising State funding of denominational schools, and the fact that children may find themselves attending a school operated by a religious denomination to which they do no subscribe. Therefore, to give effect Article 42.1, which recognises parents as the primary and natural educators of children and grants them the right to provide for the religious and moral education of their children, Article 44.2.4° makes express provision for the right to opt-out:

Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.

The strength and effectiveness of this right is greatly undermined in denominational primary schools which operate an integrated curriculum. Under this approach, prescribed by Rule 68 of the Rules for National School 1965, “a religious spirit should inform and vivify the whole work of the school”. School ethos is protected by legislation allowing denominational schools to discriminate on grounds of religion in both teacher employment and school admissions. From the perspective of the right to opt-out, it means that children have a right to opt-out from timetabled religious instruction (usually 30 minutes a day), but not a right to be insulated from the general school ethos, as clarified by Barrington J in the Supreme Court decision in Campaign to Separate Church and State Ltd v Minister for Education [1998] 2 I.L.R.M. 81 at 101:

“The Constitution therefore distinguishes between religious ‘education’ and religious ‘instruction’ – the former being the much wider term. A child who attends a school run by a religious denomination different from his own may have a constitutional right not to attend religious instruction at that school, but the Constitution cannot protect him from being influenced, to some degree, by the religious ‘ethos’ of the school. A religious denomination is not obliged to change the general atmosphere of its school merely to accommodate a child of a different religious persuasion who wishes to attend that school.”

The integrated curriculum does not operate in secondary schools in the same way, and while over 95% of primary schools are denominational, this can only be said of about 50% of secondary schools. Castletroy College initially sought to resist the request to opt-out on the basis that the subject being provided was multi-denominational rather than doctrinal instruction. Nonetheless, the view taken by the Supreme Court in the passage quoted above suggests that this distinction is irrelevant. The right to opt-out applies to the formal timetabled period of “religious instruction”, and would seem to capture whatever form that instruction might take. Thus, while the distinction between “religious instruction” and the overall school ethos or “religious education” is often pointed to as undermining the right to opt-out in a primary school context, it might ironically serve to strengthen it in a secondary school setting.

The ECHR does not contain an express opt-out clause, but an obligation to provide for a right to opt-out may nonetheless arise, depending on the content of the religious instruction being provided. In one sense, it is potentially more flexible than the Irish Constitution, and an opt-out need not necessarily be provided from religious instruction which is genuinely objective and pluralistic. In Kjeldsen, Busk Madsen and Pedersen v Denmark, the European Court of Human Rights (ECtHR) stipulated at para 53 that:

… the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.

In this case, compulsory sex education, with no possibility of an opt-out, was found not to violate the parents’ rights to determine their children’s religious and philosophical upbringing because the content of the curriculum was limited to objective information and did not advocate any particular position or practice. However, notwithstanding its emphasis on the margin of appreciation enjoyed by Member States in setting curricula (see para 53 of Kjeldsen), the ECtHR has shown itself willing to scrutinise the level of objectivity of a particular course, and to require an effective opt-out mechanism where the content falls short of this requirement.

In Folgerø v Norway, the Court found a violation in respect of the so-called KRL subject (Christianity, Religion, Philosophy) due to a variety of factors. Norway argued that the course was multi-denominational and therefore objective. However, the Norwegian Education Act 1998 provided that “The object of primary and lower secondary education shall be, in agreement and cooperation with the home, to help give pupils a Christian and moral upbringing …” While other religions were covered in the subject, Christianity was given by far the most focus, and children were required to perform tasks like learning off the Ten Commandments and gain a “thorough knowledge” of the Bible. The right to opt-out was limited in nature; parents could only request that their children opt-out from the parts of the module to which they objected, and not the entire module. Reasons had to be provided supporting the request, and if granted, the children would remain in the class, with the teachers engaging in what was described as “differentiated teaching” and the children substituting “observation by attendance” for “involvement through participation”.

The Court observed at para 89 that “Article 2 of Protocol No. 1 does not embody any right for parents that their child be kept ignorant about religion and philosophy in their education.” This implies that where a religion class is genuinely limited to objective information, no opt-out need be provided (although such an interpretation does not sit easily with para 51 of Kjeldsen). Further, the Court stated that “the fact that knowledge about Christianity represented a greater part of the Curriculum for primary and lower secondary schools than knowledge about other religions and philosophies cannot, in the Court’s opinion, of its own be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination … In view of the place occupied by Christianity in the national history and tradition of the respondent State, this must be regarded as falling within the respondent State’s margin of appreciation in planning and setting the curriculum.”

In spite of these observations, a violation was found on the basis that the curriculum was not genuinely objective, and the opt-out mechanism provided was not effective. At paras 91-95, it was stated that “the Christian object clause was compounded by a clear preponderance of Christianity in the composition of the subject” and that “not only quantitative but even qualitative differences applied to the teaching of Christianity as compared to that of other religions and philosophies”. At para 99, it held that the “distinction between activity and knowledge must not only have been complicated to operate in practice but also seems likely to have substantially diminished the effectiveness of the right to a partial exemption as such. Besides, on a purely practical level, parents might have misapprehensions about asking teachers to take on the extra burden of differentiated teaching”.

Taken together, Kjeldsen and Folgerø establish that the ECHR does not always require an opt-out; but where the subject in question crosses the line from objective information to placing undue emphasis on one religion or world-view, an opt-out must be provided and it must be effective. Requiring children to remain in class potentially falls short of this requirement, although it may be argued that allowing the children to entirely disengage from the subject being taught and to pursue their own activities strikes an adequate balance. Whether this latter position would satisfy the potentially more stringent requirements of the Irish Constitution is an open question. As noted above, Article 44.2.4° appears stronger than the ECHR in giving a seemingly absolute right to opt-out of religious instruction, regardless of the character of that instruction. Moreover, it specifically uses the phrase “without attending religious instruction”. The use of the word “attending” (as opposed to “participating in”, or something similar) could reasonably form the basis of an argument that anything short of leaving the room fails to vindicate the right to opt-out.

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

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The Officer, the Master, the President and the Chief: Supreme Court Unhappy at Signing of Marriage Equality Bill

Dr Conor O’Mahony

1224307462206_1The recent unsuccessful legal challenge to the outcome of the marriage referendum threw up some interesting points of discussion, and not all of them related to the outlandish nature of the arguments made by the petitioners. From a constitutional perspective, the real talking point was the fact that the Bill to amend the Constitution was signed into law before the Supreme Court denied leave for a final appeal against the earlier decisions of the High Court and Court of Appeal denying leave to bring a referendum petition. The Supreme Court made a point of expressing displeasure at this sequence of events, citing “the respect due to the legal process by other organs of State. In the event, in this case there was no adverse consequence. However, in another situation very serious constitutional consequences might have occurred had this Court considered it appropriate to grant leave on any grounds when the certificate had become final and the Constitution amended.”

Were the Court’s remarks well founded, and against whom were they directed? On the one hand, the challenge to the outcome of the referendum, and the subsequent appeal against the dismissal of this challenge, were clearly unmeritorious. There was not a semblance of proper legal argument and it was an absolute certainty that the Supreme Court would deny leave to further appeal. Notwithstanding this, it clearly would have been better had the Supreme Court issued its ruling before the provisional certificate became final and the Bill was signed into law. The questions is, who should have waited, and did they even have the discretion to wait?

There were three persons involved in the process that led to the Bill being signed into law. As the person who signs the Bill, the President is the obvious one. However, the President only signs a constitutional amendment into law once the referendum process has been completed and certified. The latter is the function of the referendum Returning Officer. In the event of an application being made to the courts to challenge the result of a referendum, then—apart from the judges hearing the application—the Master of the High Court also becomes involved: it is the function of the Master to inform the Returning Officer of the outcome of any court applications.

FC-colourThe comments made by the Supreme Court referred to the ““the respect due to the legal process by other organs of State”, suggesting its ire was directed outside of the courts system. However, the relevant provisions of the law do not seem to give any discretion to either the President or the Returning Officer; instead, they envisage a situation where the relevant function is to be performed automatically once a designated trigger event has occurred. It is strongly arguable that neither individual could have legally declined to act.

To begin with the President, Article 46.5 of the Constitution provides:

“A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law.”

The mechanism through which the President becomes satisfied that the amendment has been duly approved by the People is the Referendum Certificate. Once the Certificate has been issued, the wording of Article 46.5 is mandatory – “shall be signed by the President forthwith”. It seems reasonable to suggest that the president had no choice but to sign, and that there is no scope for him to question the Referendum Certificate once the process set out in the Referendum Act has been followed. Indeed, even if the President had delayed, the Supreme Court’s point about the appeal being moot as the provisional certificate had become final would still be valid.

The Returning Officer has a similarly reasonable argument. Section 40 of the Referendum Act 1994 provides:

(2) As soon as may be after signing the provisional referendum certificate, the referendum returning officer shall publish in Iris Oifigiúil a copy of that certificate together with a statement that such certificate will become final and incapable of being questioned when the officer is informed by the Master of the High Court either that no referendum petition has been duly presented in respect thereof or that every referendum petition so presented has become null and void.

(4) When a provisional referendum certificate has been confirmed or is deemed to have been confirmed by the High Court and is returned to the referendum returning officer with a statement of the fact of such confirmation endorsed thereon in accordance with this Act, the referendum returning officer shall send a copy of such certificate to the President and the Taoiseach.

Again, note the mandatory language – the certificate “will become final and incapable of being questioned when the officer is informed by the Master of the High Court … that no referendum petition has been duly presented in respect thereof”. The Returning Officer “shall send a copy of such certificate to the President and the Taoiseach” once this has happened. There is no scope to question the information provided by the Master.

There is some scope for contrast with the position of the Master of the High Court. Section 41 of the Referendum Act 1994 provides:

Subject to the provisions of section 58, where—

(a) application for leave to present a referendum petition in relation to a provisional referendum certificate has not been made to the High Court within the time limited by section 42(2), or

(b) the High Court has refused all such applications made to it within the said time, or

(c) no referendum petition has been presented in relation to the provisional referendum certificate within the time limited by section 44 , or

(d) every referendum petition so presented has, under section 44(4) or 50(3), become null and void,

the Master of the High Court shall forthwith notify the referendum returning officer in writing accordingly.

In this case, the governing provision is paragraph (b) which deals with refusal of leave to present a referendum petition (rather than paragraph (d), which deals with very specific reasons for rejecting the application rather than a refusal of leave to apply). Strangely, the provision is silent on the position of appeals. Paragraph (b), which refers to the High Court having refused all such applications, presumably falls to be interpreted as only applying once any appeal against the High Court decision has been rejected.

Looking at the chronology of the case, the Master of the High Court sent notification to the Returning Officer on August 24. This was already 24 days after the Court of Appeal order had been perfected. There were only four more days during which the applicant could have sought leave to appeal to the Supreme Court. If it was acceptable to wait 24 days before sending notification, then surely it would have been acceptable to wait 28 and see whether such an appeal would be lodged?

These comments are not intended to be critical of the Master of the High Court as such; the Master commented, not unreasonably, that the Referendum Act had not been updated to take account of the new courts structure resulting from the Court of Appeal. The point is more that the Supreme Court clearly intended to criticise individuals outside of the courts system; close inspection reveals that such criticism is arguably misplaced.

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

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