The Resurrection of Tribunals in Ireland? Some Preliminary Thoughts on the Disclosures Tribunal

Dr Laura Cahillane

Tribunals in Ireland have a long and controversial history. Many felt that with the passing of the Commissions of Investigation Act 2004, we had seen the end of tribunals in Ireland. While the new legislation allows for lower costs and speedier resolutions to investigations, the major difference between this procedure and a traditional tribunal of inquiry is that the latter is usually held in public. Holding the inquiry in public has advantages; there is more scope for cross-examination of witnesses and generally the tribunal can make stronger findings. But holding hearings in public also means potential adverse consequences on a person’s right to a good name and so parties whose rights may be affected are generally accorded the right to legal representation. This is when the costs mount up. Despite the controversy surrounding tribunals, public scepticism on their effectiveness, and fears as to the potential costs involved, the Government decided to appoint a tribunal to investigate the circumstances surrounding the smear campaign against whistleblower Sergeant Maurice McCabe. Of course, the Government had little choice in the matter after the McCabe family stated that it would not support a secret investigation and called for a public inquiry. Thus in 2017, Ireland begins its thirty fourth tribunal of inquiry.

The opening statement of the Disclosures Tribunal, as it has been officially called, was heard yesterday in Dublin Castle and already, Supreme Court Judge Mr Justice Peter Charleton, who is chairing the tribunal has set out a clear statement of intent. Charleton is well aware of the difficulties surrounding tribunals, having acted as Counsel at the Morris Tribunal, and it was apparent from his statement that he wishes to make a break with the past and conduct an efficient and effective inquiry.

Television camerascamera

The most obvious novelty at the opening of the inquiry yesterday was the presence of cameras. The Department of Justice had issued a statement last week, at the request of the Judge, specifying that cameras would be permitted during the reading of the opening statement but that filming would have to be ‘limited to a fixed position at the back of the room’, silent, and that flashes were not permitted. This was the first time television cameras had been allowed to film any proceedings of a tribunal and speculation is now rife that filming of witness statements and cross-examination may be permitted at a later date.

Of course the question of televising court or tribunal proceedings is, of itself, controversial. I have written about this previously here but the fundamental danger involved is when proceedings turn into a spectacle with witnesses and barristers playing up for the entertainment of viewers. Others argue that there would be no point in televising legal proceedings as they are generally too tedious for the general public. Naturally, the other side of the argument is that the Constitution requires justice to be administered in public and while court proceedings are held in public, it is not possible for many people to access these, whereas television provides unlimited access. Indeed, over 20 years ago, the Law Reform Commission, in a report on contempt of Court, commented on televising court proceedings: ‘We recognise that there may be a significant public benefit to be gained from exposing the detailed workings of the administration of justice in the courts to everyone within reach of a television set, thereby lessening, as one would hope, the remoteness of court proceedings from the general public and the sense of alienation which many feel from that process.’ The same arguments all apply to televising proceedings of a tribunal; there are dangers involved but also significant advantages, particularly where the mission is one of finding and establishing the truth.

There has been no indication as of yet from Charleton regarding any further filming of proceedings but even the decision to film the opening statement sends a message of intent, which was further bolstered by statements made by Charleton in his speech.

In setting out how the Tribunal will go about its work, Charleton impressed with his clarity and determination. He stated that the basic touchstone is ‘fairness and balance’ and specified that ‘there are no pre-conceived notions in this tribunal as to who is a villain and who is a victim, if there are such’. He also pointed out that the Tribunal is ‘a drain on the resources of the Irish people’ and stressed that ‘[e]very lie told before this tribunal will be a waste of what ordinary men and women have paid for through their unremitting efforts. Every action of obfuscation, of diversion of focus, and of non-cooperation is unwelcome for that reason.’ He also intimated that he will not entertain obfuscation in the cross-examination of witnesses, calling for focus and examination on what is important. After setting out the terms of reference, along with his hope that the truth will be victorious, he called on anyone with information on the matter to come forward and cooperate with the tribunal.

Legal representation

He made some interesting statements regarding legal representation which are relevant in the context of costs and delay – two traditional criticisms of tribunals of inquiry. He noted that the entitlement to be represented ‘will be afforded to everyone whose reputation is in any reasonable sense likely to be adversely affected by the report of the tribunal’. This, of barristercourse, is no less than what is required by Constitutional justice and he also set out that represented persons will be entitled to other rights such as copies of the evidence and cross-examination etc, all of which have been well-established since the case of Re Haughey [1971] IR 217. He also noted however, that legal representation should be ‘tailored with regard to the level of representation and as to attendance, based on how central the represented person is reasonably thought to be.’ Later in the statement he makes the point that he is entitled to disbelieve a witness or disagree with an expert opinion without those persons having representation and towards the end of the statement he explains that applications for representation are not to be made yet since it is still unclear whose reputation may be put in jeopardy. All of this seems to suggest that the right to representation, which is not absolute and only granted in certain circumstances, will be restricted to those for whom it is essential in order to uphold their right to a good name and parties who will not be affected will not  be granted this right. Presumably, this is all in the attempt to secure a timely resolution and to keep costs down.

Privilege

In a further effort to offset delays to the inquiry, Charleton referenced the fact that the rights of parties to a tribunal are now well established as a result of a number of judicial review applications taken during previous tribunals. While acknowledging the right of access to the courts, he stressed that there should be no further need for judicial reviews and if anyone has a problem, they should apply to the tribunal. However, one issue which could potentially cause delay if taken further, is the question raised by Charleton in relation to journalistic privilege.

In the statement, he asked whether there exists a journalistic privilege and whether it attaches to communications to a journalist where that communication by the source may not be in the public interest but, instead, where the source is ‘perhaps solely motivated by detraction or calumny’ or if the source was ‘using the media as an instrument of naked deceit’. He stated that the tribunal had ‘no settled view on the matter’ and would carefully consider submissions. He also pointed out that the existing law suggested that the privilege is that of the confidential informant and not the journalist, suggesting perhaps that this issue could be avoided if the informants were willing to come forward directly to the tribunal. Given the number of journalists who may have to appear before the Tribunal, it is very likely that a ruling will be necessary on this issue.charleton

Part of Charleton’s statement on the issue of privilege may also prove to be decisive for Commissioner Nóirín O’Sullivan, who has declined to comment on how she instructed her lawyers for the O’Higgins investigation. The Commissioner has relied on lawyer-client privilege in refusing to comment but as Charleton pointed out, it is the client who holds the privilege and therefore can waive that privilege. This suggests that the privilege will not be an appropriate stone to hide behind.

Notes of Optimism

Four years after journalist Michael Clifford wrote that the publication of the Mahon report had ended the era of tribunals (see here) we are faced with yet another such inquiry. However, the early indications are that this Tribunal may avoid some of the past problems. Mr Justice Charleton has been very clear that he intends to abide by the schedule given and produce a timely report. It remains to be seen whether the issues around privilege will cause delay but for the moment, the mood is optimistic and Charleton has set a positive tone; stressing that the purpose of the tribunal is to establish the truth, he recited an apt ancient Irish motto: ‘Glaine ár gcroí, neart ár ngéag, agus beart de réir ár mbriathar — purity of heart, strength, and adherence to our word.

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Scholarship Bulletin: 2016

The following is a list of scholarship produced on the Irish Constitution during 2016. (It may not be comprehensive; please notify Conor O’Mahony of any omissions and they will be added.) The listing has been limited to publications focusing substantially on the Irish Constitution; publications by Irish scholars that do not contain any substantial reference to Irish constitutional law have been omitted.

Maria Cahill, “Ever Closer Remoteness of the Peoples of Europe? Limits on the Power of Amendment and National Constituent Power” (2016) 75(2) Cambridge Law Journal 245-270

 

Constitutional amendment; sovereignty [Published Version]

[Open Access]

Laura Cahillane, Drafting the Irish Free State Constitution (Manchester: Manchester University Press, 2016)

 

Constitutional history; 1922 Irish Free State Constitution

 

[Publisher website]
Eoin Carolan, “Establishing the Public Interest in Media Publication: The Difficulties with Denis O’Brien v RTÉ” (2016) 55 Irish Jurist 189-198

 

Privacy; Dáil privilege  
Eoin Carolan, “’Leaving behind the Commonwealth model of rights review: Ireland as a model of collaborative constitutionalism” in Marie-Luce Paris & John Bell (eds), Rights-Based Constitutional Review – Constitutional Courts in a Changing Landscape (London: Edward Elgar, 2016)

 

Separation of powers  
Eoin Daly, “Religion as Public Good and Private Choice In Irish Constitutional Doctrine” (2016) 55 Irish Jurist 103-122

 

Religious freedom  
Alan Greene, “Through the Looking Glass? Irish and UK Approaches to Strasbourg Jurisprudence” (2016) 55 Irish Jurist 112-133

 

ECHR  
Andrea Mulligan, “Constitutional Aspects of International Data Transfer and Mass Surveillance” (2016) 55 Irish Jurist 199-208

 

Privacy  
Yvonne Murphy, “The Marriage Equality Referendum 2015” (2016) 31(2) Irish Political Studies 315-330

 

Family; Marriage; referendums [Published Version]
Mr Justice Donal O’Donnell, “Some Reflections on the Independence of the Judiciary in Ireland in 21st Century Europe”(2016) 19 Trinity College Law Review 5-38

 

Judiciary  
Conor O’Mahony, “Falling Short of Expectations: The 2012 Children Amendment, From Drafting to Referendum” (2016) 31(2) Irish Political Studies 252-281

 

Family; children; referendums [Published Version] [Open Access]
Brian Tobin, “Marriage Equality in Ireland: The Politico-Legal Context” (2016) 30 International Journal of Law, Policy and the Family

 

Family; Marriage [Published Version]
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The Judicial Appointments Saga

Dr Laura Cahillane

 

In 1995, Brian Cowen urged the Dáil to delete the sections of the Court and Court Officers Bill 1995, which subsequently established the Judicial Appointments Advisory Board. Cowen had been part of a ministerial sub-committee which designed the scheme so that the government could ‘save face’ following the controversial Whelehan Affair the year before. Cowen claimed the JAAB scheme had nothing to do with meaningful judicial reform but rather was a short term political solution to a problem which had since gone away and he asked his colleagues not to include the proposed scheme noting that as a practitioner in the courts, he anticipated ‘many problems in the event that those sections are agreed’.

 
This so-called ‘charade’ has now been in operation for over 20 years and controversy has followed it since then. The problems with the current system are well known but despite the fact that the need for reform had been acknowledged for many years, it is only now that this area of law is being tackled.

 
As part of the current Programme for Government, Minister Shane Ross secured a promise to ‘replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission’ which would include ‘a reduction in its membership, an independent chairperson selected by the Public Appointments Service and approved by an Oireachtas Committee, and a lay majority including independent people with specialist qualifications.’ We are still awaiting publication of the Bill and in the meantime, it seems the government has agreed not to appoint any further judges under the current scheme – something which has not gone down well in legal circles.

 
Furthermore, last week the Minister provoked the ire of the judges by suggesting that judges should make an annual declaration of interests because they might forget their oath, which requires them to exercise their powers ‘without fear or favour, affection or ill-will towards any man’ and to ‘uphold the constitution and the laws’. This followed earlier comments which suggested the judiciary was holding up the reform process. The Chief Justice responded this week while speaking to the National Judges Conference citing ‘inaccurate discussion and misrepresentation of the position of the Judiciary’ in recent public discourse. She stated that: ‘it is surprising that it has been stated that the Judiciary are fighting change – when the opposite is the case – the Judiciary have been advocating change, but it has not yet been advanced.’ Later, Minister Ross clarified on RTE Radio’s News at one programme that the judiciary is opposed to the lay majority element of the proposed bill.

 
While all of this has been going on, Fianna Fáil’s Jim O’Callaghan introduced a private members bill to establish a Judicial Appointments Commission. Unusually, the Bill received a warm reception from most parties in the Dáil and apart from some criticism of the entire judicial system from Deputies Barry, McGrath and Daly, there seemed to be a genuine consensus and spirit of co-operation amongst deputies during the debate on the Bill. The Government didn’t even oppose the Bill, although they plan to bring forward their own Bill shortly which will likely overtake that of O’Callaghan.
So why, when there appears to be much agreement over the terms of the existing Bill, does the Government see fit to proceed with a further Bill? The answer to this is most likely down to Minister Ross’s personal crusade to rid the current process of the appearance or possibility of political bias or any other form of ‘cronyism’. However, with a few amendments to the current Bill, the Minister’s requirements could be accommodated.
O’Callaghan’s Bill contains many of the reforms which are necessary in order to improve the current system. For example, it provides that for each judicial vacancy, the new Commission would recommend 3 names to the Government and would rank the candidates, having conducted interviews. The Government would not be required to select the highest ranked candidate or even any candidate on the list but in that case would have to publish a reasoned decision for the departure. It would also require the new Commission to draw up and publish specific selection criteria based on merit and would allow the Commission to consult the Court as to whether particular competencies were needed. The Bill specifies that, subject to the paramountcy of merit-based appointment, ‘the Commission may also have regard to the importance of promoting gender and cultural diversity within the judiciary, and any lacuna in legal expertise or Irish language proficiency amongst judges of the court in respect of which the vacancy arises.’
The composition of the Commission is also a new departure; while the usual 5 judicial members and 2 from the Law Society and the Bar Council are included, it also provides for 5 additional members from nominating bodies including: the Citizens Information Board, An tÚdarás um Ard-Oideachas, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission, and the Free Legal Advice Centres. When explaining this provision in the Dáil Deputy O’Callaghan invited further advice and discussion on the nominating bodies.

 

These are all worthwhile and welcome reforms but from the perspective of the Government, or at least part of it, they do not go far enough. The Programme for Government specifically mentions a lay majority on the Commission as well as a lay chair. Minister Fitzgerald explained in the Dáil that the Government’s Bill will ‘increase lay membership and have a lay chairperson no longer appointed by the Minister, but by open appointment. The general scheme also proposes to open up appointments at every level and in every relevant court to the new process; make District Court judges eligible for appointment to the High Court; consolidate the existing and mostly un-codified provisions on qualifications and eligibility; and repeal previous enactments.’ But these changes could easily be accommodated in O’Callaghan’s Bill.

 

One issue with the Bill is that it proposes to increase to 15 the current requirement of 12 years practice as a solicitor or barrister as a prerequisite for appointment to the superior courts. It is unclear why this is necessary and together with the existing pension arrangements, which require 20 years on the bench in order to qualify for a full pension, it might discourage applications and might even be indirectly discriminatory towards women as it will effectively prevent those who have taken maternity leave or career breaks from applying for judicial office. In addition, while the provision allowing the Commission to take diversity into consideration is a positive move, it would be better to make this prescriptive as currently the JAAB is empowered to do a number of things, for example to interview candidates and to ‘do such other things as the Board considers necessary to enable it to discharge its functions under this Act’ but they simply don’t do these things. Therefore a requirement to have regard to diversity would be an improvement.
That there is finally some movement on reforming this area of law is to be welcomed. However, the controversy surrounding the debate is not helpful. There is a constitutional imperative that each branch of the separation of powers should respect and not undermine the other. To do otherwise is to put the administration of justice in danger. Minister Ross’s intentions are noble and he is correct to pursue the reforms he seeks – the provision of equality of representation or a majority of lay persons has worked well in other jurisdictions and helps to avoid the appearance of self-perpetuation. But given the spirit of collaboration evident in the Dáil on the introduction of Deputy O’Callaghan’s Bill, perhaps the Parties could work together, in the interests of justice and in the era of new politics, to find a solution and progress this important legislation. And while they are at it, perhaps they can finally settle the long-awaited Judicial Council Bill also.

 
Dr Laura Cahillane is a Lecturer in Constitutional Law at the University of Limerick.

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Squaring Circles: Recent Case Law on Medical Decision-Making and the Unborn

Dr Conor O’Mahony

On November 2, the High Court ruled in Health Services Executive v B that a woman could not be forced by court order to undergo a caesarean section in circumstances where her previous medical history posed an elevated risk to the life and health of both mother and child in the event of natural delivery. This is the latest in a series of recent High Court decisions that have addressed issues touching on medical decision-making and/or the rights of the unborn child. At the very least, it seems that there is some tension between the principles established in these various decisions, and it is worth discussing whether they can be reconciled.

In HSE v B, the HSE sought an order compelling a pregnant woman to have a caesarean section against her will on the basis that she had had three previous deliveries by caesarean section, and had never had a natural delivery. The risk of uterine rupture during natural delivery increases after a caesarean section. Medical evidence indicated that it reaches 1 in 150 after one previous c-section, rising to 1 in 50 following two previous c-sections. As uterine rupture can potentially result in the death of both the mother and the baby, natural delivery is not contemplated after three previous c-sections. Since the practice is unheard of in this country, expert witnesses were reluctant to put a figure on the risk, but when pressed, gave a “guesstimate” of 1 in 10.

The mother, for her part, wished to attempt natural delivery at first, while remaining open to a c-section if ultimately needed. (In the event, this is precisely what happened, and the baby was successfully delivered.) Her medical advice was that an emergency c-section would carry increased risks when compared with an elective c-section. Ultimately, her consultant declined to offer her the service due to the risks involved, and evidence indicated that no hospital in the country was willing to do so. In these circumstances, the application made to the High Court to compel the c-section.

The High Court accepted that the mother’s decision was exposing both herself and her unborn child to unnecessary risk. As regards the risk to herself, it was held (relying on Fitzpatrick v K [2009] 2 IR 7) that the mother had full decision-making capacity, and accordingly that she had the right to make a decision of this sort. As regards the risk to her unborn child, it was found (relying on Northwestern Health Board v HW and CW [2001] 3 IR 622) that the right of the State to intervene to protect unborn children could not be any greater than its right to intervene to protect born children. As such, intervention could only be justified if the case was an “exceptional” one within the meaning of the Constitution. It was found that this case did not come within this bracket, essentially on the basis that the level of intrusion on the mother’s rights was disproportionate to the level of increased risk involved in the case. The Court stated at para.19:

“The Court does not understand why she does not follow medical advice, just as it may have been puzzling why the parents in the HW and CW case did not follow medical advice. However, this Court does not believe that the increased risk which she is undertaking for her unborn child is such as to justify this Court in effectively authorising her to have her uterus opened against her will, something which would constitute a grievous assault if it were done on a woman who was not pregnant.”

Before turning to the contrast with other recent High Court decisions, numerous aspects of the judgment merit comment in their own right. First, the analogy to Northwestern Health Board v HW and CW is a less than perfect one, as that case involved a mere risk to health and not a risk to life.  However, it seems that the two decisions are probably on all fours with each other. Northwestern Health Board only contemplated intervention in the case of an “imminent” or “immediate” threat. Even though natural labour presented a one in ten chance of uterine rupture, this does not equate to a one in ten chance of death for the unborn child (which only occurs in a minority of cases of uterine rupture). Thus, it seems that the risk to the unborn child was too remote to meet the very high threshold set down in Northwestern Health Board.

Also interesting was the failure of the judgment in HSE v B to engage with the description of the threshold for intervention set down by the judges in Northwestern Health Board. Only one passage from the four majority judgments in that case was cited, and it was not one of the passages that defined the threshold for intervention. The decision in HSE v B seems really to have turned more on proportionality analysis – i.e. that the level of risk was not high enough to justify the level of intrusion – rather than on the “exceptional cases” test; but this was not fully articulated, and no case law on proportionality was cited. Neither was there any engagement with the reasoning underpinning the test set down in Northwestern Health Board (namely the protection afforded to the marital family; and it is not clear from the judgment whether Miss B was married), or with the question of whether the threshold for intervention to protect children has been in any way affected by the replacement of Article 42.5 (on which Northwestern Health Board was based) by the new, slightly re-worded Article 42A.2.1°. Instead, it was taken as read that the same test applied. Some further analysis of this issue would have been welcome.

Another notable point was the relatively absolutist language used to describe the mother’s right to make decisions for her daughter; for example, at para.30, it was stated that the mother may make a decision “even though it may not be in her daughter’s best interests”. An added layer of complexity was that unlike in Northwestern Health Board or other landmark cases like N v Health Services Executive [2006] 4 IR 374, the child did have her own independent legal representation. (It is an irony of Irish constitutional law that unborn children are afforded this privilege, but born children are not – and the insertion of Article 42A has not rectified this situation, since it only requires that children have their views ascertained where they are capable of forming them, and in any event, does not extend to cases on healthcare decision-making.) However, even having allowed counsel for the unborn to make submissions on the question of whether the reporting restrictions on the case should be lifted (which counsel for the unborn did – opposing the lifting of restrictions), the Court made its ruling on this point without even referring to submissions made on behalf of the child. Instead, it was baldly stated at para.30 that “this remains a matter exclusively for Ms. B to decide, and not a matter for the HSE to decide”. Since the HSE was not the only party opposing this matter, the failure to explain why the arguments on behalf of the child were not decisive suggests a failure to properly engage with them. Perhaps the confusion around the status of counsel for the unborn acting at a point after the birth of the child may account for this, but it is to be hoped that measures aimed at implementing the provisions of Article 42A.4 around the right of the child to be heard are taken somewhat more seriously.

Finally, perhaps the most interesting aspect of HSE v B is the evident tension between its outcome and the outcomes of two recent High Court decisions by Humphreys J. The most obvious is the decision in AB v CD [2016] IEHC 541, in which it was held that prisoners (unlike members of the general population) do not have the right to refuse medical treatment leading to their own death. The tension between the two cases arises because a decision by a prisoner to this effect has no impact on anyone other than the prisoner himself or herself – and yet the High Court ruled that the right cannot be exercised. By contrast, in HSE v B, the mother was allowed to exercise her right to refuse medical intervention, even though the effect of doing so was to create an unnecessary risk to the constitutionally-protected right to life of her unborn child. Depending on one’s philosophical standpoint, either decision might be viewed as suggesting that the other was wrongly decided – but it seems difficult to reconcile the two, short of accepting that prisoners forfeit all constitutional rights upon incarceration (which flies in the face of multiple decisions, such as State (Richardson) v. Governor of Mountjoy Prison [1980] ILRM 82 and Kinsella v Governor of Mountjoy Prison [2011] IEHC 235, among others).

The other decision by Humphreys J that is worth mentioning alongside HSE v B is IRM v Minister for Justice [2016] IEHC 478, in which it was held that the rights of the unborn child under the Constitution are not limited to the right to life, but include other rights protected under Articles 40.3 and 42A. At para.68, it was held that “[h]ealth and welfare of the unborn must also be an actually effective right.” This expansive reading of the constitutional rights of the unborn does not sit easily with other High Court case law (most notably Ugbelase v Minister for Justice [2010] 4 IR 233), and had been strongly criticised by Mairéad Enright here. On one view, it does not contradict the reasoning of the High Court in HSE v B, since that decision was premised on the unborn having no greater rights than a born child. However, reading the two Humphreys J decisions together, it is interesting to speculate on how his willingness to override refusal of medical treatment (even where no one else was affected) in AB v CD, coupled with his concern for broad rights of the unborn in IRM, might have led him to decide HSE v B.

Finally, a brief mention should be given to PP v Health Services Executive [2014] IEHC 622, in which the High Court declined to compel the maintenance of life support for a pregnant woman who had suffered brain death. The case turned on medical evidence indicating the absence of any realistic prospect of the baby (who was at thirteen weeks’ gestation) surviving until a live birth. However, the High Court noted that the case might have been decided differently if there had been a prospect of survival:

“…when the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living.”

In other words, the judgment contemplates highly invasive medical intervention, without the mother’s consent, in order to save the life of the unborn. (This is a descriptive statement of the law, and not a normative endorsement of compulsory medical intervention in such circumstances.) However, this case can be distinguished from HSE v B on several grounds: first, removing life support from a pregnant woman before the foetus is viable would result in the certain death of the unborn. It therefore satisfies the “imminent” or “immediate” risk of death threshold set down in Northwestern Health Board, unlike the much more remote level of risk present in HSE v B. Second, the mother in PP v HSE was described by the Court as “no longer living”, which obviously cannot be said of the mother in HSE v B. Thus, although PP did envisage that a mother might be subjected to compulsory medical treatment to save the life of her unborn child, there is no real contradiction between that decision and the decision in HSE v B.

What should be noted is the failure to cite PP at all, notwithstanding the fact that it is the only other written judgment from an Irish court considering whether a pregnant woman may be compelled to undergo a medical procedure to protect the unborn. Perhaps because of this, the two cases approach a similar issue from very different perspectives: PP framed the issue purely in terms of a conflict between the right to life of the unborn and the right of the mother to refuse medical treatment/die a natural death/dignity. It did not examine the power of the State to intervene to protect children in exceptional cases at all, presumably on the basis that it did not view this provision as being applicable to unborn children. HSE v B, by contrast, framed the issue as one of intervention to protect the child; it scarcely mentioned Article 40.3.3°, and did not cite any case law interpreting that provision. As a result, what we are left with is parallel lines of authority rather than a coherent body of precedent, with associated question marks about whether the outcome of a future case might hinge on which of the two approaches is taken. It would be preferable to see this uncertainty resolved.

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

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Guest Post: The President, Public Statements and Political Controversies

Dr Laura Cahillane

Following comments made this week by President Higgins on the lack of reform of the Direct Provision system and homelessness (reported here), questions are again being raised on the role of the President and whether by speaking out on controversial issues, Michael D is acting contrary to the Constitution.

1224307462206_1The issue has rarely been far from public attention during the presidency of the current incumbent. However, while traditionally the presidency was seen as a conservative office, since Mary Robinson, the presidency in Ireland has evolved – recent Presidents have been described as having pushed the boundaries of the office. Robinson is frequently lauded as having ‘saved’ the presidency by doing so but she also courted her fair share of controversy during her time in office, having met with the Dalai Lama despite criticism from the Chinese government and the discomfort of  Haughey’s government.  She also became the first Irish President to meet Queen Elizabeth and, in defiance of her critics, she famously shook Gerry Adams’ hand, saying he was elected by the people of West Belfast, and in shaking his hand, she was shaking theirs. In many respects Robinson’s actions were more controversial than those of Higgins as she frequently clashed with the government – which is when things could become problematic from a constitutional point of view.

The Constitution sets out the duties of the President but does not state explicitly that the President must remain politically-neutral or non-controversial. The holder of the office is constrained in many of the duties conferred by the Constitution as a result of Article 13.9 which requires the President to perform his duties ‘on the advice of the government’. Indeed, the President must first seek the approval of the government before addressing a message to the Nation on any matter and before any address to the Nation or the Houses of the Oireachtas, he must also consult the Council of State. The rules of parliamentary debate also provide that the conduct of the President is not open to comment. All of this is to ensure that there will not be a conflict between the President and government of the day.  Article 12.9 even provides that the President cannot leave the State without governmental consent. Thus, while it does not openly say so, these Articles have resulted in a convention, similar to that which applies to judges, that the President should not become involved in a political controversy. However, as a convention, this is not legally enforceable as such. In fact, conventions are more akin to a type of etiquette or political morality.

But while the President is inhibited in many ways, the Constitution also contains a provision in Article 13.8 which declares that the President is not answerable to either House of the Oireachtas or to any court for the exercise of his powers and duties under the Constitution. This puts the President in a relatively independent position.

arasWe cannot deny the fact that the presidency is now a political office. The successful candidate is democratically elected and the views of candidates are well publicised before the election. We cannot expect the office-holder to remain silent on issues that are important for the people of Ireland and it is unrealistic to expect him or her to be truly apolitical. Robinson often described her role as President as being a voice for the people and while the Constitution officially recognises two types of role – guardian of the Constitution and head of State – it seems as though the office has unofficially incorporated this additional aspect of being a mouthpiece for the people. In fact, it is this new element of the presidency which is said to have revitalised the office and has ensured its popularity of late.

At the same time, there are boundaries which, while they may be pushed, should not be crossed. One such boundary is for the President to openly criticise government policy. A great attempt is made in the Constitution to prevent such a scenario from ever happening. President Higgins has been careful in this regard; he has not explicitly criticised the government and there has been no open breach of the Constitution, but it appears as though his most recent comments have come quite close. While many people might agree with the comments made, the Constitution clearly assigns the policy-making role to the executive branch of government and therefore it is not controversial to say that the President should not intervene in specific policy issues. The office should not be a platform for pursuing policy-driven agendas – popular, well-meaning, or not.

The role of the Presidency today is a vague one and the incumbent must walk a fine line, upholding the Constitution, observing the conventional niceties of the office while also representing the people of Ireland and providing an increasingly important ‘ voice for the voiceless’. In doing so however, the President must be careful not to push the boundaries past breaking point.

Dr Laura Cahillane is a Lecturer in Constitutional Law at the University of Limerick

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