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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Scholarship Bulletin

At Constitution Project @ UCC, we plan to begin publishing periodic bulletins on the latest Irish constitutional scholarship. The aim is to provide a resource that brings together a comprehensive list of the latest scholarship on the Irish Constitution, including web links to online publications where available. This will raise awareness of the many publications in the area by making it easier to access the material and collating details of publications that are scattered across multiple international outlets. Please get in touch (conor.omahony [at] ucc.ie) with details of errors and omissions.

The first bulletin covers publications in 2015. The first half of 2016 will follow shortly, and bulletins will be issued 2-3 times a year thereafter. Happy reading!

2015

Citation Keywords Web Links
Ivana Bacik, “A Feminist Review of the Law on Abortion” in Fischer, C. and McAuliffe, M. (eds), Irish Feminisms: Past, Present and Future (Dublin: Arlen House, 2015), pp.147-168

 

Abortion; Eighth Amendment  
Caroline Bergin-Cross, “The Evolution of the Definition of Family and Marriage under the Irish Constitution” (2015) 18(2) Irish Journal of Family Law 39-43

 

Family; Marriage  
Laura Cahillane, “Ireland’s System for Disciplining and Removing Judges” (2015) 38(1) Dublin University Law Journal

 

Judiciary  
Eoin Carolan, “Ireland’s Constitutional Convention: Behind the hype about citizen-led constitutional change” (2015) 13(3) International Journal of Constitutional Law 733-748

 

Constitutional reform [Published Version]
Conor Casey and Dáire McCormack-George, “An Analysis of the Right to Shelter in Irish Law for Children and Adults” (2015) 54 Irish Jurist 131-154

 

Economic and social rights  
Peter Dunne, “Civil Partnership in an Ireland of Equal Marriage Rights” (2015) 53 Irish Jurist 77-99

 

Family; Marriage  
Oran Doyle, “Conventional Constitutional Law” (2015) 38(2) Dublin University Law Journal 311-330

 

Constitutional conventions  
Fiona de Londras, “Constitutionalizing Fetal Rights: A Salutary Tale from Ireland” (2015) 22(2) Michigan Journal of Gender and Law 243-289

 

Abortion; Eighth Amendment [Published Version] [Open Access]
Alan Greene, “Questioning executive supremacy in an economic state of emergency” (2015) 35(4) Legal Studies 594-620

 

Separation of powers [Published Version]
Tom Hickey, “Revisiting Ryan v Lennon to Make the Case against Judicial Supremacy (and for a New Model of Constitutionalism in Ireland)” (2015) 53 Irish Jurist 125-153

 

Judicial review; separation of powers  
Gerard Hogan, David Kenny, and Rachael Walsh, “An Anthology of Unconstitutionality” (2015) 54 Irish Jurist 1-30

 

Judicial review  
Clara Hurley, “Case Note: PP v Health Services Executive” (2015) 18 Trinity College Law Review 205-213

 

Eighth Amendment  
James Kane, “Civil Liability for Exploiting Trafficking Victims? A Speculative Application of Meskell v CIE?” (2015) 54 Irish Jurist 57-78

 

Horizontal enforcement; trafficking  
Clare Elizabeth Kelly, “Ireland and Judicial (In)Dependence in Light of the Twenty-Ninth Amendment to the Constitution” (2015) 18 Trinity College Law Review 15-41

 

Judiciary  
Meg MacMahon, “All Changed, Changed Utterly: The Marriage Equality Referendum and the Children and Family Relationships Act 2015” (2015) 18(4) Irish Journal of Family Law 95-100

 

Family; Marriage  
Patricia McKenna, “Fair Referendum Campaigns in the Light of Recent Court Decisions” (2015) 14 Hibernian Law Journal 56-74

 

Constitutional reform; referendums  
Ben Mitchell, “Process Equality, Substantive Equality and Recognising Disadvantage in Constitutional Equality Law” (2015) 53(1) Irish Jurist 36-57

 

Equality  
Andrea Mulligan, “Maternal brain death and legal protection of the foetus in Ireland” (2015) 15(2-3) Medical Law International 182-195

 

Eighth Amendment [Published Version]
Conor O’Mahony, “The Constitutionality of the Children and Family Relationships Bill” (2015) 18(1) Irish Journal of Family Law 3-8

 

Family; Marriage  
David Prendergast, “The Conventionality of Constitutional Law” (2015) 38(2) Dublin University Law Journal 441-446

 

Constitutional Conventions  

 

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Mr Justice Adrian Hardiman 1951-2016

Dr Conor O’Mahony and Dr Seán Ó Conaill

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

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

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

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

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

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

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

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

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

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

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

A dheis Dé go raibh a anam.

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