Two 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. Read the rest of this entry »

In the internet era, most Supreme Courts worth their salt have attracted high quality dedicated and independent commentary from the blawgosphere. The market leader is probably SCOTUSblog – which, as its name suggests, is a blog about the Supreme Court of the United States – but I also like the charm of Court Artist as well. The Supreme Court of Canada has The Court; the Court of Justice of the European Union has ECJblog; the European Court of Human Rights has Strasbourg Observers; and, right from the off, the UK’s new(ish) Supreme Court has had UKSC blog. Now, the Irish Supreme Court has taken its place amongst this premier league of courts of final appeal.

Paul MacMahon has just started Ex Tempore. He hopes that Ex Tempore will provide a resource for lawyers, academics, law students, and anyone seeking to understand what the Irish Supreme Court does and how it does it. The site provides weekly previews of upcoming cases, keeps watch on relevant High Court developments, and offers commentary on the Court’s decisions. More broadly, Ex Tempore explores the Court’s history, its place in the Irish system of government, and its relationships with other courts. I’m really excited about this development. It’s been a long time coming, and it joins the growing list of ardent and high-quality Irish law blawgs.

At this early stage, three things occur to me. Read the rest of this entry »