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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McGowan v Labour Court and the Unconstitutionality of Registered Employment Agreements

Yesterday’s Supreme Court judgment, which declared the Registered Employment Agreement system unconstitutional, comes as no surprise. McGowan v the Labour Court, available here, has been a protracted and complicated case but the central issue, which was heard in the Supreme Court, on the constitutionality of part III of the Industrial Relations Act 1946, was quite straight forward.

What is a Registered Employment Agreement?

Registered Employment Agreements (REAs) were introduced under the Industrial Relations Act 1946. Part III of the Act allows employment agreements to be registered with the Labour Court, provided that certain criteria are satisfied. Once registered, the agreement becomes legally binding, not only on the parties to the agreement but on every worker and employer in that sector. The agreements are normally negotiated between trade unions and employers, who are supposed to be substantially representative of their particular industry.

REAs are not unlike Employment Regulation Orders (EROs), which were permitted under part IV of the 1946 Act, until they were declared unconstitutional in 2011. EROs are agreements on remuneration and conditions of employment, which were set by Joint Labour Committees and they also applied to all employers and employees in the given sector. Both part III and part IV of the Act also provided that failure to comply with the agreed terms could give rise to a criminal offence punishable by a fine. In the John Grace Fried Chicken case (available here), Feeney J in the High Court decided that the provisions of part IV were repugnant to the Constitution. Thus, given the similarity of both regimes, yesterday’s decision was certainly not unexpected.

Background to the Case

As noted in the Supreme Court judgment, the proceedings were an amalgam of a series of cases all relating to the REA made on 24th September 1990 in relation to the electrical trade. A number of disputes have centred on this particular agreement but the motivation behind this particular case was a proposal made to the Labour Court to vary the REA in order to increase the minimum rate of pay in the sector, along with the fact that a District Court prosecution had been commenced against Camlin Ltd (one of the original parties) for breach of that REA.  Those proceedings were then adjourned while a consultative case stated was prepared for the High Court. An application had been made to the Labour Court in the meantime seeking a cancellation of the REA but when an adjournment was requested in order to await the outcome of the High Court case, the Labour Court refused. An injunction was then sought in judicial review proceedings to restrain any further hearing by the Labour Court but while granted initially, O’Keefe J later lifted the injunction. The Labour Court then proceeded with the hearing and refused the initial application to vary the REA but also refused to cancel the REA. Again, judicial review was sought to challenge this decision. When the issue reached the High Court, the respondents sought clarification on whether the “multitude of applicants named” (over 500) were actually electrical contractors and whether they had been a party to the 1990 REA. The result of this was that the number of named applicants was reduced dramatically.

The Proceedings

In the High Court, the applicants sought to challenge the REA on grounds of invalidity ab initio and for unconstitutionality. They also challenged the decision of the Labour Court in refusing to cancel the REA. Many other issues arose in the High Court, such as alleged errors of law, objective bias and the question of reasonableness in relation to the Labour Court’s decision. Hedigan J dismissed the applicants’ claims but on the question of the constitutionality of the REA, he decided that he could not consider this due to excessive delay and suggested that the case by brought instead by plenary proceedings. This was then appealed to the Supreme Court, which had to consider:

  1. Whether the appellants were entitled to raise the issue;
  2. Whether the Supreme Court was entitled to determine the issue even though it had not been expressly determined in the High Court; and
  3. Whether Part III of the 1946 Act was repugnant to Article 15.2.1 of the Constitution.

O’Donnell J, giving judgment for the Court, quickly decided the first two issues, specifically noting that the issue of constitutionality had been fully argued before the High Court and was not arising here for the first time so therefore the Supreme Court had jurisdiction to consider the point. It was also emphasised that:

 “To decline to hear and determine this issue would mean requiring the parties to incur substantial costs without the issues between the parties being resolved, and exposing the plaintiffs to the possibility of ongoing criminal prosecution and a choice between having to recommence proceedings or submitting themselves to a regime which they consider unconstitutional. Such an outcome would not be consistent with the administration of justice. Accordingly, albeit reluctantly, the court considers it necessary to address the central issue raised in this appeal.”

Article 15.2.1, which states that the Oireachtas is the only body that can make laws in the State, was first considered and it was noted that recent academic work has shown that this Article was originally more concerned with freedom from Westminster rather than with the separation of powers. However, the provision is also “an assertion of a core democratic principle” and is considered a further aspect of the separation of powers principle enshrined in Article 6. The cases of Pigs Marketing Board v Donnelly [1939] IR 413 and Cityview Press v AnCo [1980] I.R. 381 were then considered and the general principles determined in those cases were enunciated. The central point to be taken from those cases is well explained by Casey in his Constitutional Law in Ireland book: “The Oireachtas, it seems, may delegate a power to put flesh on the bones of an Act; but anything going beyond this will be constitutionally suspect.”

The power afforded under the 1946 Act was contrasted with s 21 of the Industrial Training Act 1967, which was under consideration in Cityview. In that case, the power involved was simply the power to fix the amount of a levy. Here, it was noted that the REA could make provision, not merely for remuneration, but for any matter which can be regulated by a contract of employment, ie wages, pensions, working hours, grievance procedures etc. It was pointed out that the Labour Court had no power of consultation or even a power to comment on a proposed Agreement. Furthermore, there was no guidance given to the Labour Court on the concept of representativity, there was no obligation on the Labour Court to consider the interests of those who would be bound by the agreement but who were not parties to it and while the agreement was binding on everyone in the sector, it could only be varied on the application of the original parties. Thus, it could not be said that the REA was simply putting flesh on the bones of the original statute. This was more than a mere “giving effect to principles and policies contained in the statute itself” – this effectively amounted to law making.

It was concluded that: “There can be little doubt therefore that Part III of the 1946 Act raises serious issues of compatibility with Article 15.2.1.” It was clear that law was being made by persons other than the Oireachtas:

“Instead there is a wholesale grant, indeed abdication, of lawmaking power to private persons unidentified and unidentifiable at the time of grant to make law in respect of a broad and important area of human activity and subject only to a limited power of veto by a subordinate body. In effect, Part III allows the parties to an employment agreement to make any law they wish in relation to employment so long as the Labour Court considers them to be substantially representative of workers and employees in the sector, and does not consider the agreement itself to be unduly restrictive of employment or make provision for unduly costly or inefficient methods of work or machinery, and otherwise complies with the formal requirements of s.27. No guidance or instruction is given to the Labour Court as to how the matters of representativity or restriction on employment or inefficiency or costly methods of work, are to be gauged. The process permitted by Part III cannot be said to be merely the filling in of gaps in a scheme already established by the Oireachtas: in truth the Oireachtas which enacted the 1946 Act could have no idea of even those areas which may be subject to regulation in an employment agreement sought to be registered under the Act, and no conception still less control of the possible range of regulation that might be made in respect of each such matter. Nor did the Oireachtas retain any capacity for review either by the Oireachtas or by a member of the Executive responsible to it, of the agreements actually made. Whatever may be thought of a scheme which permits parties to an agreement to clothe that agreement with certain legal consequences including the possibility of enforcement by criminal proceedings, once such an agreement purports to become binding on non-parties pursuant to s.30 of the Act, it passes unmistakably into the field of legislation which by Article 15 is the sole and exclusive preserve of the Oireachtas. The limited and essentially negative limitations imposed by s.27(3)(d) are plainly inadequate to bring the exercise of such power within constitutional limits.”

A declaration of invalidity was then granted.

The Fallout

The Minister for Jobs, Enterprise and Innovation, Richard Bruton released a statement yesterday stating that the Government had just received the judgment and intended to study it and take legal advice before commenting in detail. The statement also clarified that existing contractual rights of workers in sectors covered by REA are unaffected by the ruling. While the Technical, Electrical and Engineering Union has commented that the ruling erodes existing protection for workers, the NECI (National Electrical Contractors Ireland) has welcomed the decision, expressing an expectation that many jobs will now be secured because long term, viable pay and conditions can now be agreed. Others have agreed with this sentiment and have commented that the result will be good for competition. (See here). The long term effects of the decision remain to be seen but much of this complexity could have been avoided if the opportunity had been taken to radically overhaul the REA system in the Industrial Relations (Amendment) Act 2012, which was passed recently in order to reform the ERO system, which had been struck down in the John Grace Fried Chicken case.

 Dr Laura Cahillane

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A Separate Process for Suicide within the Scheme of the Protection of Life during Pregnancy Bill 2013

 We are delighted to welcome this guest post on the Protection of Life during Pregnancy Bill from Dr Claire Murray of the Faculty of Law, UCC.

 

After considerable speculation, a number of delays, and a few leaks the draft Scheme of the Protection of Life during Pregnancy Bill 2013 was published on Wednesday 1st May. The Taoiseach was keen to state that the draft legislative framework did not in any way extend the rights of women in Ireland. The sole purpose was to provide clarification for doctors and women on the availability of abortion in Ireland in accordance with the extremely narrow terms set out in Article 40.3.3 and the Supreme Court ruling in the X case. The Scheme of a Bill outlines the general shape of the proposed legislation and it will now be sent to the Joint Oireachtas Committee on Health and Children forfurther discussion and debate.Relevant persons will once more be invited to address the Joint Oireachtas Committee and further information on making a written submission can be obtained here. The intention is that the legislative process will be complete by the end of July 2013.

This post will focus on the process contained in Head 4of the draft Scheme to assess “the risk of loss of life from self-destruction.” The inclusion of suicide within the draft legislation has been the primary site of struggle in the recent debates on abortion in Ireland.Once it became apparent that, despite vigorous campaigning, the legislative framework would include a risk to life by suicide the focus of anti-choice campaigners shifted fromarguingthat suicide should be excluded to arguing that there should be a distinct process for assessing the risk to life from suicide and that this should be a more rigorous and onerous process. I have blogged here about the narratives of the untrustworthy, unreliable and hysterical woman underpinning this position. Making it more difficult to obtain an abortion where the risk to life is from suicide is portrayed by those who argue from an anti-choice perspective as the only effective barrier against “opening the floodgates” to “abortion on demand” in Ireland. Clearly these negative narratives have influenced the politicians as the Scheme of the Bill does include a separate process for assessing a risk to life through self-destruction. This distinguishes suicide as a case apart and one that is worthy of additional checks and balances to ensure that the system (and the medical professionals involved) are not manipulated by women who want abortions but do not meet the very strict criteria.

The Heads of the Bill propose that where the risk to the life of the woman is from self-destruction there should be three medical specialists involved in assessing whether there is a risk to her life which can only be averted by providing her with an abortion.Where the risk to life arises from a physical condition two medical specialists are sufficient to certify that the test has been satisfied. The three specialists to be involved are an obstetrician/gynaecologist and two consultant psychiatrists. Both consultant psychiatrists must be employed at a centre that is registered by the Mental Health Commission and one of them must be attached to an institution which has a public obstetric unit.The Scheme requires all three medical practitioners to unanimously certify “in good faith” that there is a real and substantial risk to the life of the woman by self-destruction that can only be averted by obtaining an abortion. At least one of the medical practitioners on the panel must consult with the woman’s GP “where practicable.” In forming their opinion the medical practitioners “should examine the woman.” There is no definition of examination provided in the draft scheme of the Bill. Head 4, subhead 4 states “[i]t will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is permissible under this Act.”

The inclusion of a separate process for assessing risk to life by self-destruction involving three medical practitioners is in line with Option 3 set out in the Report of the Expert Group. According to the explanatory notes under Head 4 this provision arises “from the recognised clinical challenges in accurately assessing suicidal intent, and the absence of objective clinical markers.” The Bill does not provide that the three doctors examine the woman together or that they examine her at the same location. Detail has not been provided in the draft legislation on how a referral to the panel might occur in a case where a woman is seeking an abortion and experiencing suicidal thoughts. The reason given is that clinical situations of this nature are bound to be unpredictable and complex and so flexibility should be allowed for standard medical practice to respond to the circumstances that arise.

The provisions contained in the draft Billappear relatively level-headed and balancedafter the leaks that emerged over the past few weeks. Suggestions that women would be required to be assessed by a panel of six medical practitioners were generally met with a sense of disbelief that this could be considered practical or appropriate. The proposals were described by Dr. Anthony McCarthy, President of the College of Psychiatrists in Ireland and one of only three perinatal psychiatrists practising in the country, as “abusive” and “some sort of sick joke.” However the leaking of these proposals served a purpose. As a result of those leaks there is now a considerable sense of relief that the legislation does not include anything so clearly excessive. Three doctors assessing the risk to life by self-destruction is now viewed as a compromise position, perhaps the best we could hope for, rather than being criticised for being unduly onerous and unnecessary.

In this context I think it is important to reiterate the objections to includingin the legislation a separate process in circumstances where the risk to the life of the woman is from suicide. These difficulties were recognised by the Expert Group in their Report when they suggested including a distinct process in relation to suicide.First, it is inherently discriminatory to have a different procedure in place for women who are experiencing mental health difficulties or suicidal ideation and wish to avail of a lawful abortion. Second, these “safeguards,” as they are termed, serve to reinforce the stigma surrounding mental health conditions in Ireland by treating it as a case apart. Finally this proposal places an extra burden on women by requiring three doctors to make the final decision in cases involving suicide. In general society accepts that one psychiatrist can assess suicidal ideation and this is a routine procedure for clinical psychiatrists.For further discussion on this issue see de Londras at humanrights.ie.

The requirement set out in the draft Scheme that the decision of the three doctors assessing the risk to life be unanimous may create practical difficulties. It allows for the possibility that one medical practitioner could veto the decision in circumstances where the other two doctors are willing to certify that the legal test has been satisfied. Given the recent statement issued on behalf of 113 consultant psychiatrists in Ireland to the effect that “legislation that includes a proposal that an abortion should form part of the treatment for suicidal ideation has no basis in the medical evidence available” it is clear that there is a difference of opinion within the psychiatric profession on this issue. There are, therefore, legitimate reasons for fearing that this situation will arise. The perception of suicidal women seeking an abortion as inherently untrustworthy will continue to impact on the operation of this process once it is introduced.

The inclusion of obstetricians in the panel to assess the risk to life from suicide is also worthy of comment. Obstetricians have no training or expertise in assessing suicidal ideation or risk to life by self-destruction and so it is unclear what they will add to the panel in making this decision. This was highlighted in the response of Doctors for Choice to the Heads of the Bill.The explanatory notes under Head 2 of the Scheme, which relate to assessing a risk to life, other than from self-destruction,note that in all situations, except emergency circumstances, one of the certifying medical practitioners will always be an obstetrician/gynaecologist. The note goes on to state “[t]his provision is deemed appropriate for two reasons. Firstly, in accordance with current clinical practice, an obstetrician/gynaecologist isobliged to care for the pregnant woman and the foetus and, therefore has a duty of care toboth patients and to have regard to protecting the right to life of the unborn and to bring thatto bear on the care of the woman and her unborn child. Secondly, a termination ofpregnancy will most likely be carried out by, or under the care of, anobstetrician/gynaecologist, and therefore their inclusion here should be central in accessingservices and ensuring patient safety.”The obstetrician therefore seems to be included in order to ensure that the position of the unborn is given sufficient consideration in any decision being made.

The suggestion in the Scheme that consultation take place between one of the panel members and the woman’s GP is sensible, but under this scheme the GP will have no direct input into the decision-making process. Arguably it would have made more sense, given the acknowledgement of the valuable contribution that can be made by the woman’s GP in the explanatory notes under Head 4, that the GP be included on the panel making the decision in relation to the risk to life. This is not a suggestion that a fourth doctor should be added to the panel. Rather, if the general position is that two doctors are required to assess the risk to the life of the woman then where that risk is of self-destruction a GP and a consultant psychiatrist would seem to be a reasonable combination. In the context of involuntary admission under the Mental Health Act 2001 the process requires a GP toprovide a recommendation for admission and the final admission order is made by a consultant psychiatrist. There should not be a more onerous process in place under the 2013 Bill in relation to suicide.

Finally, the draft legislation does not provide that the woman must be examined by all three medical practitioners at the same time. While this approach may have been adopted to avoid the process being described as similar to an inquisition, a term that was used in respect of the proposals for six medical practitioners to assess the woman, it may have other negative consequences. Allowing for the possibility that a woman in distress, who states that she is suicidal,might be required to attend at three different appointments to meet with three different medical practitioners and to recount her story three times is questionable. It has the potential to draw out the process and it gives the appearance of a series of obstacles being placed in the way of the woman. It is likely that the repeated recounting of her story by the woman may operate to compound her distress. There is also the risk that any slight variations in the story told by the woman over multiple examinations could be seen as evidence that she is not being entirely truthful. It may be the case that this issue will be addressed in regulations or guidelines, but the provisions in the draft Scheme of the Bill are troubling.

The proposed legislation will provide a degree of clarity to medical practitioners and women in Ireland. However, it will affect only a tiny proportion of women. Those women who have been the victim of rape or incest, those who are carrying a foetus with a fatal abnormality incompatible with life outside the womb, those women whose health will be seriously affected by carrying a pregnancy to term, and those women who wish to obtain an abortion for socio-economic reasons will continue to travel outside of the jurisdiction. Doctors for Choice note that it is unclear whether the Bill would provide an “effective and accessible” procedure for someone in the position of Savita Halappanavar. The Irish state will continue to ignore the difficult circumstances ofmany women. In order for the debate on abortion in Ireland to move forward and begin to engage with issues of autonomy, choice and reproductive rights it is necessary to repeal the 8th Amendment to the Constitution.

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