Category: Irish Law

Theseus’ paradox and the Legal Services Regulation Bill

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| Irish Law, Legal Services Regulation

The deeds of Theseus, on an Attic red-figured kylix, c.440–430 BCEAccording to Plutarch, in his famous Lives of the Noble Greeks and Romans, Theseus, mythical king of Athens, after many labours and adventures (shown left), including the slaying of the Minotaur, returned to Athens, where his ship was kept in the harbour as a memorial for several centuries. The Athenians repaired and restored it over time, so that eventually every part of it had been replaced. Theseus’ paradox raises the question of whether something that has had all of its parts replaced remains the same thing. The same conundrum arises with the allegorical axe which has had both its head and its handle replaced several times. The Legal Services Regulation Bill has been amended so much during its labyrinthine journey through the Houses of the Oireachtas that I am reminded of these stories.

Many of its proposals were prefigured by the UK’s Legal Services Act 2007. Writing this morning in the Brief (a daily email newsletter from the Times, which will be made available later in the week here), Dame Janet Paraskeva made two points about the Act which resonate in the context of the current Bill. First, she points out the promise of the Act has not always been fulfilled “not … by any shortcoming in the legislation but by a lack of will to make the practical changes on the ground that would remove obstacles to choice.”…

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A small step towards slightly more open justice in the Irish Supreme Court

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| Irish Law, Irish Supreme Court

Light bulb via wikipediaAs reported by Ruadhán Mac Cormaic in yesterday’s Irish Times, the Irish Supreme Court is to make written submissions available to the public. This is an excellent development – the public’s right of access to court documents is a very important aspect of the open administration of justice. According to Ruadhán:

In a direction to lawyers, posted on the Courts Service website, Ms Justice Denham said the new practice would apply to all submissions sent to the Supreme Court Office as of yesterday. The documents will only be available once the relevant appeal hearing begins.

(Para updated 8 October 2013: updates underlined) I found it hard to track down the relevant Practice Direction: when I wrote this post it is was not yet either on the Courts Service News page or the Supreme Court Practice Directions page, though it is now available on the Practice Directions page. However, on twitter, Ruadhán pointed me to the current Legal Diary (doc | pdf), where I found the following Practice Direction:

THE SUPREME COURT

PRACTICE DIRECTION

Written Submissions

1. Subject to directions of the Supreme Court and the following paragraphs of this direction, a copy of written submissions lodged in or transmitted to the Supreme Court Office or handed in to the Supreme Court on or after the 7th October, 2013 in relation to, or in the course of, the hearing of any appeal or matter will be made available to any person requesting same, on payment of any fee chargeable for such copy.

…

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The future of the Seanad

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| Irish Law, Irish Society

Seanad, via Oireachtas.ieThe following appears under the above heading in the letters page of today’s Irish Times:

Sir,

As academics engaged in research in a variety of different disciplines we strongly advocate a No vote in the upcoming referendum on Seanad abolition.

We believe that to tackle the major issues affecting our society, it is vital that there should be more scrutiny of legislation and executive accountability, not less; that the level of vocational expertise in our parliamentary system should be strengthened, not eliminated; and that political participation by citizens in deliberative democratic processes should be intensified, not reduced. While the Seanad, as currently constituted, is not sufficiently equipped to deliver on these ideals, the reform proposals set forth in the Seanad Bill 2013 proposed by Senators Feargal Quinn and Katherine Zappone go some way to meeting them.

By broadening the nomination process and giving all citizens the right to elect our senators, the Quinn-Zappone Bill seeks to implement the real value of bicameralism in providing space for reflection and debate by two sets of qualitatively different representatives. By increasing the Seanad’s powers of scrutiny in a range of areas and providing for the right of the people to force the Seanad to debate on an issue of national importance, this reform package has the capacity to bring new expertise and scrutiny into the parliamentary system and to provide a channel for citizens to express their views, their ideas and their suggestions for change, thus strengthening the foundations of democracy in our country.

…

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Some reflections on @RuadhanIT’s excellent @IrishTimes series on the Irish Supreme Court

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| Irish cases, Irish Law, Irish Society, Irish Supreme Court, Judicial Appointments

The Surpeme Court, via its site, and with the kind permission of the Chief JusticeIn Brown v Allen 344 US 443, 540 (1953), Robert H Jackson, Chief Prosecutor at Nuremburg and Associate Justice of the Supreme Court of the United States said of that Court:

We are not final because we are infallible, but we are infallible only because we are final.

Supreme Courts’ quality of finality, on matters of the gravest import, fascinates observers; and, giving us a chance to go behind that finality closer to home, Ruadhán Mac Cormaic (@RuadhanIT) has an excellent series of articles on the Irish Supreme Court in the Irish Times. Here (with some added links and a few comments) is a flavour of his coverage over the last few days.

Inside Ireland’s Supreme Court: “… Nearly all judges resist labels such as liberal or conservative, pro-State or pro-plaintiff and dismiss attempts to extrapolate from their background a predisposition to decide a case a certain way. …”. Nevertheless, it is a persistent trope amongst watchers of the US Supreme Court (and of the UK courts, though perhaps less so), and it is likely to become so for the Irish Supreme Court as well, if the planned Court of Appeal allows the Supreme Court to become more of a constitutional court in the mo(u)ld of its US counterpart.…

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Open justice and civil jurisdiction, in the Courts Bill 2013

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| Irish Law, judges, Open Justice

Element of Photo of Four Courts By Night, by MassafelliPhotography.comThe Department of Justice yesterday published the Courts Bill, 2013, which has two main aims. The first is to increase the monetary limit of the jurisdiction of the District and Circuit Courts in civil matters. The second is to allow the press some limited access to family law proceedings.

At present, pursuant to the Courts Act, 1991 (also here), the limit for the District Court is €6,384 (formerly £5,000), and this Bill would raise it to €15,000; and the limit for the Circuit Court is €38,092 (formerly £30,000) and this Bill would raise it to €60,000 for personal injury actions and €75,000 for all other civil claims. This is long overdue, as it will mean that cases can now be heard in more appropriate courts; in particular, matters appropriate to the Circuit Court need no longer be commenced in the High Court. In such cases, there will be simplified procedures and reduced costs. I think this is an entirely sensible idea, but I have two comments. First, section 16 of the Courts Act, 1991 (also here) provides a power by which the government may by order vary these limits without recourse to primary legislation; and I hope that this power is used in future to ensure that the District and Circuit Court limits keep pace with inflation.…

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The slayer’s bounty, the homicidal heir, and accelerated inheritance from Crippen to Nevin

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| Irish Law, Restitution

Wellcome Trust image of Crippen and Le NeveHawley Harvey Crippen (pictured far left) was the first criminal to be captured in Britain with the aid of wireless communication. He was an American homeopath who fetched up in London at the turn of the 20th century with his wife, Cora, a former music-hall singer. After she disappeared in 1910, Hawley and his lover, Ethel le Neve (pictured left, with Hawley), were questioned by Chief Inspector Walter Dew of Scotland Yard, and they fled in panic, first to Brussels, and then via the steamship Montrose to Canada. Meanwhile, during a search of Hawley’s house, the police found human remains buried in the basement. On the Montrose, he and Ethel (who had tried to disguise herself as a boy) aroused the suspicion of the captain; and, since the ship was one of the few fitted with the new Marconi wireless, he was able to radio the authorities. Dew boarded the Laurentic, a faster ship which arrived in Canada ahead of the Montrose; and, with the help of the Canadian police, he apprehended Hawley and Ethel. They were returned to London (the picture, left, was taken at their arraignment). Hawley was convicted of murder, and his appeal was dismissed (R v Crippen [1911] 1 KB 149).…

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The spirit of Madison, and not his ghost

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| Human Rights, Irish Law, Irish Society

James Madison, via WikipediaRights matter when their exercise is unpopular. It is easy to exercise a right when no-one else objects. It is when some-one else objects, and seeks to prevent its exercise, that the right to do so becomes crucial. This is particular so when the majority object, and seek to rely on the force of numbers to prevent its exercise. That is precisely when the right is at its most important, and most necessary. As Kearns P (Carney and Hogan JJ concurring) put it in Fleming v Ireland [2013] IEHC 2 (10 January 2013),

51. … If, accordingly, the plaintiff’s constitutional rights extend as far as the manner claimed, then the fact that she is exercising those rights in a manner and for a purpose which some might consider contrary to their own ethical, moral or religious beliefs – or even the prevailing mores of the majority – is irrelevant.

This is an extremely important holding as to the nature of constitutional rights. Fleming itself is a very sad and difficult case in which a Divisional Court of the High Court unanimously upheld the the ban on assisted suicide in section 2(2) of the Criminal Law (Suicide) Act, 1993 (also here) (see Paul McMahon on Ex Tempore | Conor O’Mahony on Constitution Project @ UCC).…

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Unconstitutional expenditures – VII – The judgments in McCrystal, Part 2

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| Irish cases, Irish Law, Irish Supreme Court

Element of cover of Department of Children and Youth Affairs publication, via the Department's websiteIn McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012), the Supreme Court’s per curiam established that the respondents had expended public moneys on a booklet, website, and advertising campaign in relation to a referendum in a manner which was not fair, equal, impartial or neutral. In judgments handed down on 11 December 2012 by Denham CJ, Murray J, Fennelly J, and O’Donnell J (Hardiman J concurring with all four) the Court gave reasons for the conclusions which had been expressed in the per curiam. My analysis of these judgments is in two parts. The first part, in my previous post, considered some of the issues raised in the judgments. The second part, in this post, considers the impact which those judgments have on the issues raised in my earlier posts (I, II, III, IV, V, VI).

From my previous post, it is clear that, in McCrystal, the Supreme Court made two main findings. First, where the Government acts in clear disregard of the Constitution, then the Courts can intervene. Second, arising from McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), there is an obligation upon the Government, if it wishes to expend money providing information in relation to a referendum, to do so in a manner that is fair, equal, impartial and neutral.…

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