the Irish for rights

The Council of State and the recusal of judges

Simon Coleman's painting of the first meeting of the Council of State on 8 January 1940Two very different stories in the media over the last few days have coalesced in my mind over the weekend. The first story is the announcement by the President of seven appointments to the Council of State. The second is the debate in the US about the recusal of Supreme Court Justices from forthcoming challenges to health care legislation.

The Council of State is established by Article 31 of the Constitution, and its primary role is “to aid and counsel the President”. The first meeting was convened by President Douglas Hyde on 8 January 1940, and a large painting of the event (pictured above left) by Simon Coleman hangs in Áras an Uachtaráin, in a reception room now called the Council of State Room. At the end of last week, the recently-elected President Michael D Higgins announced the appointment of Michael Farrell, Deirdre Heenan, Catherine McGuinness, Ruairí McKiernan, Sally Mulready, Gearóid Ó Tuathaigh, and Gerard Quinn to the Council.

Among the specific functions ascribed to the Council by the Constitution, Article 26.1.1 provides that the President may, after consultation with the Council of State, refer a Bill to the Supreme Court to determine whether the Bill is constitutional or not. This power is by far the most common reason why Presidents have summoned the Council. For example, the first meeting was called so that the Council could advise the President on whether to refer the Offences against the State (Amendment) Bill, 1940 to the Supreme Court. The President decided to do so; the Court upheld the constitutionality of the Bill; and it was duly enacted as the Offences Against the State (Amendment) Act, 1940. Indeed, there were reports over the weekend that Government ministers have discussed the possibility of President Higgins referring legislation concerning an EU fiscal treaty to the Supreme Court.

The President’s appointments to the Council made me think again about the procedures under Article 26. Since Article 31.2 provides that the Chief Justice is an ex officio member of the Council of State, this means that the Chief Justice is a member of the body which advises the President as to whether a Bill should be referred to the Supreme Court. However, as Article 34.4.2 provides that the Chief Justice is the President of the Supreme Court (and thus head of the judiciary), it is natural that the Chief Justice would sit on any reference to the Supreme Court pursuant to Article 26. Indeed, there have been 15 such references to date; and, not only did the Chief Justice of the time sit in all 15 references, he gave the judgment of the Court in every case! The question which has arisen in my mind is whether it is appropriate for the Chief Justice to participate in both stages of this process. The Constitution plainly allows for this, and it has happened in every case so far, but my question is whether this practice should continue.

The principles of natural and constitutional justice require that a decision-maker should not sit as part of an appellate body to hear an appeal against the original decision. As a consequence, the Courts will set aside decisions “where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias” (Orange Telecommunications Ltd v Director of Telecommunications Regulation (No 2) [2000] 4 IR 159, [2000] IESC 79 (18 May 2000)). This is so even (perhaps especially) where the decision-maker in question is a judge in the highest court (In re Pinochet [2000] 1 AC 119, [1999] UKHL 1 (15 January 1999)). As a consequence, in MJLR v McGuinness [2011] IEHC 313 (27 July 2011) Edwards J acceded to a request that he recuse himself from the case on the grounds that comments he had made at an earlier stage in the proceedings “may have created the incorrect impression in the mind of the respondent that the Court … had prejudged the substantive argument”.

Against this background, my question is simply this: whether, for similar reasons, a Chief Justice who has participated in a meeting of the Council of State, after which the President refers a Bill to the Supreme Court, might be open to a reasonable apprehension of having prejudged the substantive issue being referred. On the other hand, it is clear that not every prior involvement necessarily invalidates subsequent determinations (see, eg, J & E Davy v Financial Services Ombudsman [2010] IESC 30 (12 May 2010)). In an Article 26 situation, the role of the Chief Justice on the Council is simply to advise the President, who takes the actual decision to refer the Bill, so the level of the Chief Justice’s involvement at this stage would seem to be very small, and may not in fact be sufficient to give rise to a reasonable apprehension of prejudgment. Nevertheless, to avoid even the appearance of conflict, in any future Article 26 situations, it might be best for the Chief Justice to decline to participate either in the meeting of the Council or the deliberations of the Court.

I suspect that I started to think about the recusal of the Chief Justice in such circumstances because of the controversy over whether Justices of the US Supreme Court should recuse themselves from the health care challenge. According to the New York Times:

Liberals in Congress have called for Justice Clarence Thomas to recuse himself from the review of the health care reform law because his wife, Virginia, has campaigned fervently against it. Conservatives insist that Justice Elena Kagan should remove herself from the case because, they claim, as solicitor general she was more involved in shaping the law than she lets on.

However, Chief Justice Roberts robustly (if inevitably controversially) defended his colleagues:

I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.

It will be interesting (to say the least) to see if the US Supreme Court treats the connection between Justice Thomas and his wife in the same way as the House of Lords did the connection between Lord Hoffmann and his wife in the Pinochet proceedings. In the first Pinochet case, Lord Hoffmann was a member of a majority of the House of the Lords which acceded to a request to extradite General Pinochet to Chile. In the second Pinochet case, a differently-constituted panel the House of Lords held that the fact that Lord Hoffmann’s wife worked for an international NGO which had campaigned strongly against General Pinochet and which had been allowed to intervene in the earlier hearing to support the case that he should be extradited, meant that, although there was no question that Lord Hoffmann was actually guilty of bias in coming to his decision, nevertheless, public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand. In the third Pinochet case, the House of Lords again ordered the General’s extradition.

Applying the standard in the second Pinochet case (followed in Ireland in the Orange case), it is hard to see how Justice Thomas could sit on the health-care case if it were to arise in the UK or Ireland. The question of whether a Chief Justice who has participated in a meeting of the Council of State should subsequently recuse from an Article 26 hearing is much less clear-cut, but intriguing for all that.

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7 Responses to “The Council of State and the recusal of judges”

  1. Mathilda Twomey says:

    I am a judge in a very small jurisdiction where the issue of recusal comes up very regularly. In a very small community where every one is related, associated or familiar with the parties or issues before the court the whole process and administration of justice would be frustrated if we continuously recused ourselves. The case of President of South Africa v South African Rugby Football Union comes to mind in many respects. It effectively sums up different jurisdictions’ approach to the recusal issue. How do you balance the value of the judicial oath of office with that of perceived bias?
    M. Twomey

  2. Eoin says:

    Thanks for dropping by, Mathilda. And thanks in particular for the reference to President of the Republic of South Africa v South African Rugby Football Union (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999), with which I was not previously familiar. The following paragraphs are particularly important:

    [10] At the very outset we wish to acknowledge that a litigant and her or his counsel who find it necessary to apply for the recusal of a judicial officer has an unenviable task and the propriety of their motives should not lightly be questioned.[9] Where the grounds are reasonable it is counsel’s duty to advance the grounds without fear. On the part of the judge whose recusal is sought there should be a full appreciation of the admonition that she or he should “not be unduly sensitive and ought not to regard an application for his [or her] recusal as a personal affront”. …

    [28] In Council of Review, South African Defence Force, and Others v Mönnig and Others Corbett CJ said:

    The recusal right is derived from one of a number of rules of natural justice designed to ensure that a person accused before a court of law should have a fair trial.

    [31] Judges have jurisdiction to determine applications for their own recusal. …

    [35] A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before the courts and other tribunals. This applies, of course, to both criminal and civil cases as well as to quasi-judicial and administrative proceedings. Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes. …

    [45] … the test for apprehended bias is objective and that the onus of establishing it rests upon the applicant. … An unfounded or unreasonable apprehension concerning a judicial officer is not a justifiable basis for such an application. The apprehension of the reasonable person must be assessed in the light of the true facts as they emerge at the hearing of the application. It follows that incorrect facts which were taken into account by an applicant must be ignored in applying the test. …

    [48] … The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.

  3. Gerard Sadlier says:

    A couple points:
    1 Even if you were right, the CJ could presumably rely on the doctrine of necessity. She is constitutionally bound to sit on the Council of State and to prezide as President of the Supreme Court. So she is obliged to be involved at both stages – RLO v. Irtc [1997] shows that the necessity principle forms part of Irish law.
    Of course you could say that the Supreme Court could be constituted without the CJ but given the historical practice, that seems a stretch.
    2 The fact that you have dealt with something at one stage doesn’t mean that you have made up your mind on it. The fact that, say a judge grants an interlocutory injunction doesn’t necessarily preclude her from dealing with the substantive case.
    It would be otherwise, if she had expressed a particularly strong view.
    3 Irish law has committed itself to a surprisingly permissive standard when it comes to objective bias.

  4. Eoin says:

    Thanks, Gerard. I take all of your points, which demonstrate that there is a lot to be said on both sides of the issue. Even if the CJ is, but virtue of the Constitution, a member both of the Council of State and of the Supreme Court, she could decide to not to attend either a meeting of the Council concerning legislation or to sit on a subsequent Art 26 referral – so, it isn’t necessary that she participates at both stages. And even if there is a surprisingly permissive standard for objective bias, it does eventually kick in. My point is not that there actually is a conflict here, but that there is an issue worth exploring here.

  5. Eoin says:

    A strong example of the necessity for judicial recusal is provided by Keegan v District Judge Kilrane [2011] IEHC 516 (26 October 2011). The facts of that case are a long way away from the issue discussed in the post, but I mention it here for the sake of completeness, and because Birmingham J made some comments which might be relevant to the question of whether the Chief Justice must, as a matter of law, decline to serve either on the Council of State or in subsequent Article 26 proceedings:

    The approach taken by Irish jurisprudence and the jurisprudence of the ECHR is very similar indeed. In particular, both recognise the need to guard against perceived or objective or unconscious bias, howsoever labelled.

    In truth the legal principles that apply are not, and cannot be, seriously in dispute. The difficulty arises in applying well-established principles to the facts of this case. … It seems to me that it is necessary to consider the nature and extent of the prior relationship.

    As was pointed out by Denham J in Bula Limited v Tara Mines Limited (No 6) [2000] 4 IR 412, a judge is not disqualified from adjudicating in a case merely because one of the parties was in receipt of his or her professional legal services at an earlier time. In the context of the independent bar which operates in Ireland, such a link is not a connection sufficient to disqualify. It requires special additional circumstances to disqualify a judge from adjudicating on a case:

    Thus, a long recent and varied connection may disqualify a judge. The circumstances must be cogent and rational so as to give rise to a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the issues in the case.

    … The question then is how all of this would strike an informed, objective observer? … it seems to me that the overriding consideration is that a fair, reasonable and objective observer in possession of the facts, should have confidence in the fact that the applicant was being tried by a judge who was capable of bringing an open mind to bear. In my view, such an observer might well believe that it would be very difficult for the judge to put out of his mind the prior information that had come to him in his unique role as a defence lawyer, and in these circumstances, while believing that the applicant was in large measure, the author of his own misfortune, view the proceedings with a significant degree of disquiet. Accordingly it seems to me that confidence in the administration of justice is enhanced by the quashing of the challenged orders and that is what I propose to do.

  6. […] Oireachtas will have the chance to re-consider section 107. If it does not, the section could be referred to the Supreme Court by the President. If he does not, a challenge by the media to the section [a cross between Irish […]

  7. […] Murray J, are members of the Supreme Court which will hear any reference under Article 26. I have considered in a previous post on this blog whether this dual membership gives rise to a potential conflict of interest such that […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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