Category: Irish Supreme Court

There was some chatter online yesterday about the fact that the UK Supreme Court sat for the first time with a 3-2 female-male majority. The Supreme Court of New Zealand had done so last year. Despite the complement of female justices over the last 20 years, the Supreme Court of Canada doesn’t seem to have had a female majority panel yet. And there haven’t been sufficient female justices on the High Court of Australia for it to have happened there. Against that backdrop, I thought I’d find out if and when the Irish Supreme Court had first sat with female majority panels, and this is what I found.

The first majority female panel in the Irish Supreme Court happened more than EIGHTEEN years ago. Denham J was the first woman appointed to the Supreme Court, in 1992; McGuinness J was the second, in January 2000; and a female 2-1 majority on a 3-judge panel of the Supreme Court happened almost immediately after that appointment, in February 2000. In Dalton v Governor of the Training Unit [2000] IESC 49 (29 February 2000) Denham and McGuinness JJ sat with Hardiman J (the image, above left, is of McGuinness J (left) and Denham J (right)).

Macken J (pictured right) was the third woman appointed to the Supreme Court, in May 2005; and a female 3-2 majority on a 5-judge panel of the Supreme happened soon after that appointment, in November 2005. In DPP v Gilligan [2005] IESC 78 (23 November 2005) Denham, McGuinness and Macken JJ sat with Geoghegan and Fennelly JJ.

There does not seem to have been a 3-judge panel on which all three of Denham, McGuinness and Macken JJ sat before McGuinness J retired at the end of 2005.

Denham J became Chief Justice in 2011 (and retired in 2017). The next women appointed were Laffoy J (2013–2017) and Dunne J (2013-present), appointed on the same day (pictured left are Laffoy J (left) and Dunne J (right) on the occasion of their appointment to the Supreme Court by President Higgins (centre)). The first all-female 3-judge panel is Cagney v Bank of Ireland [2015] IESC 80 (22 October 2015) on which Denham CJ, Laffoy and Dunne JJ sat.

The next women appointed were O’Malley J (2015-present; pictured right), and Finlay Geoghegan J (2017-present). The first female 4-3 majority on a 7-judge panel was Murray v Budds [2017] IESC 4 (02 February 2017) where Denham CJ, Laffoy, Dunne and O’Malley JJ sat with O’Donnell, McKechnie and MacMenamin JJ.

Incidentally, given that some of the recent coverage of the UK Supreme Court centred on the fact that Lady Arden succeeded her husband Lord Mance on the Supreme Court bench, it should be noted that Ireland got here first too, with Finlay Geoghegan J (pictured left) being appointed to the Supreme Court some time after her husband, Hugh Geoghegan, retired from that court.


Finally, Ruth Bader Ginsburg, Associate Justice of the US Supreme Court, has said many times:

People ask me sometimes, ‘When do you think it will be enough? When will there be enough women on the court?’ And my answer is: when there are nine.

By that standard, the Irish Supreme Court has a way to go for an all-female bench of 5 or 7, or for every judge to be female. But it is far ahead of many of its counterparts elsewhere in the common law world. And it has done so quietly, without any of the fanfare that accompanied yesterday’s hearing in the UK Supreme Court.

When the UK Supreme Court was established in 2009, with the capacity to broadcast its proceedings, I wondered when the Irish Supreme Court would follow suit, and televise its proceedings too. Today, I have the beginnings of an answer. This morning, the Supreme Court televised its proceedings for the first time, when it broadcast the delivery of two judgments. That broadcast should be available, for the next few days at least, via the RTE Player.

Chief Justice Clarke said that the move was aimed at “demystifying” the courts process, and allowing people to “see how their highest court operates”. He also described the move as a “baby step” which could lead to wider filming of the courts in the future. I hope that it will not be long before the Supreme Court routinely broadcasts its proceedings as its UK counterpart does, and there is certainly potential for the broadcast of proceedings of other courts too. The Irish Times said:

The live broadcasting of court proceedings has been discussed for years but the impetus for it has been attributed to a meeting five years ago between Ms Denham and then RTÉ deputy director general Kevin Bakhurst. Since his appointment as Chief Justice last July, Mr Justice Clarke has been keen to advance the project, and his involvement and support was a crucial factor.

This is an excellent start, but a lot more needs to be done. As Article 34.1 of the Constitution tells us, justice is administered in public. In this day and age, the broadcast of the Supreme Court’s proceedings should be the norm, and the sooner that is so, the better.

I have an OpEd in today’s Irish Times about the decision just before Christmas of the Supreme Court in Collins v Minister for Finance [2016] IESC 73 (16 December 2016). In holding against the challenge by Joan Collins TD to the constitutionality of the 2008 legislation under which the Minister for Finance issued more than €30 billion worth of promissory notes to the Irish Bank Resolution Corporation and the Educational Business Society (EBS), the Supreme Court provided the Government with what was, no doubt, a very welcome Christmas present.

In the OpEd, I make two points about the decision. First, the Court described the separate roles of the Government and the Oireachtas relating to approving the expenditure of public finances as locks, and held that, if the Oireachtas cannot or will not turn its key in its lock, the government cannot ignore or avoid the Oireachtas, or seek to pick the latter’s lock. Second, on the facts, the Court held that the Government, in enacting and implementing the Credit Institutions (Financial Support) Act 2008 (also here), did not pick any lock on public expenditure for which the Oireachtas had the key. However, this emphasis on the Oireachtas’s lock has the capacity to constrain Government in the future, and the Christmas present in the Collins judgment would not then be quite so welcome to Government after all.

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A just-published Report on the Concentration of Media Ownership in Ireland (download pdfs here and here) directly addresses the question in the title to this post: what are the constitutional issues facing the regulation of media ownership in Ireland. The Report concludes that such issue do not prevent government action here, and calls on the Irish government to tackle Denis O’Brien’s media control. It seems that some media are ignoring it. That is a pity. It is a very important Report. It was commissioned by Lynn Boylan MEP on behalf of the European United Left/Nordic Green Left (GUE/NGL) group of the European Parliament, and was prepared by Caoilfhionn Gallagher and Jonathan Price, barristers in Doughty Street Chambers, London, and Gavin Booth and Darragh Mackin, of the Belfast solicitors’ firm KRW Law. It was launched in Leipzig (panel | photo) on 6 October last, and in Dublin last night (press notice | photos).

Here’s a flavour of the Report, from the executive summary [with added links to relevant posts on this site]:

1.8 In our view, taken together, the combination of the highly concentrated Irish media market, Mr. O’Brien’s threats and initiation of a large number of legal proceedings against media and other critics, and serious shortcomings in the defamation framework create a perfect storm which threatens news plurality and undermines the media’s ability to perform its watchdog function. … We strongly recommend that these concerns be addressed as a matter of urgency, and be seen to be addressed.

1.13 The Report’s authors are aware of suggestions that there are legal bars to any such action being taken, but we reject any suggestion that it is not legally permissible to address the status quo and that tackling the current concentration of media ownership is impossible given the importance of property rights in the Irish Constitution and/ or the European Convention on Human Rights (“ECHR”). On the contrary, our conclusion is that there is, in principle, no such legal bar. A retrospective mechanism could indeed be permissible under the Irish Constitution, EU law, and the ECHR. …

1.14 However, whilst this matter of principle is clear, there remain complex and nuanced issues to consider. The devil is very much in the detail, and these are difficult issues. What is now needed is a careful review of the detail, and, accordingly, the Report recommends that the Government establish a cross-disciplinary Commission of Inquiry. This Commission should examine the issues closely and make concrete recommendations, within a tight timeframe. [emphasis added; see also para 6.6]

This is an important call, which I hope the government will heed, but I won’t hold my breath. (more…)

As 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.

2. A person making such a request will be provided with –
(a) a copy of such written submissions in the form in which they have been received or
(b) where paragraph 3 applies, a copy of the redacted version of such written submissions lodged in accordance with that paragraph.

3. With effect from the date aforementioned, each party to an appeal or matter shall, where the written submissions contain any information the publication of which is prohibited by, or would contravene any restriction contained in, any enactment or rule of law or order of a court, transmit to the Office of the Supreme Court a redacted version of that party’s written submissions in electronic format, from which all such information shall have been deleted.

4. It shall be the responsibility of the parties that submissions will not contain scandalous, abusive or vexatious material.

5. Submissions will not be made available prior to the commencement of the hearing of the appeal. Any publication by the person who obtains the submissions should respect any prohibition in law or order of the Court.

6. A request for a copy of written submissions shall be made to the Registrar of the Supreme Court.

7. The Registrar of the Supreme Court may –
(a) seek the direction of the Supreme Court in relation to a request made under this direction,
(b) provide a copy of written submissions in electronic form.

Susan Denham
Chief Justice
7th October, 2013

It’s very welcome that submissions should be available, but it’s a long way from what other similar courts are doing. Take, for example, all of the material already available online in advance of today’s argument in McCutcheon v Federal Election Commission before the Supreme Court of the United States, the comprehensive policy on access to court records before the Supreme Court of Canada, and the current cases submissions page recently commenced by the High Court of Australia. I hope that the Court can move quickly to making these submissions available online, much as those other similar courts are doing. I also hope that that the policy is extended to other Irish courts in due course.

However, I am particularly uncomfortable with the reference to “payment of any fee chargeable for such copy”. I really hope that the discretion inhere in “any fee” means that a fee will not appear in the schedule of fees payable in the various offices of the Supreme and High courts.

Finally, this development has the potential to let in some more light into the Supreme Court appeals process, but it’s quite a weak light, and there are still too many shadows. This is step, a first step, an important step, but for all that, a small step towards slightly more open justice in the Irish Supreme Court.

Article 31.1 of the Constitution provides that there “shall be a Council of State to aid and counsel the President on all matters on which the President may consult the said Council …”. The image, left, is a painting of the Council of State hanging in the Council of State Room in Áras an Uachtaráin, the President’s official residence. One matter on which the President must consult the Council of State is provided by Article 26.1.1:

The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.

On foot of this power, President Higgins convened a meeting of the Council of State to consider whether to refer the Protection of Life During Pregnancy Bill 2013 to the Supreme Court under Article 26; and that meeting is due to begin right about now (see: Irish Examiner here, here, and here | Irish Independent here and here | Irish Times here, here, and here | RTÉ | TheJournal.ie here and here). Update: Writing on ConstitutionProject.ie, Laura Cahillane of UCC provides an excellent overview of the issues which arise on this reference, including – the question of conflict of interest addressed in this post, and an earlier one, on this blog; immunity from future constitutional challenge of Bills approved by the Supreme Court; the propriety of the single-judgment rule; and the amount of time provided by Article 26 for the Supreme Court’s consideration.

This summoning of the Council of State is an unsurprising – even predictable – development; and those who sought to manufacture a controversy out of the reference were misguided (to say the least) as to the President’s constitutional rights, powers and discretions. As to the outcome of the meeting, whilst I think that the chances of a reference are 50/50, I would not be surprised if the President does ultimately decide to refer the Bill. After all, the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995 was referred to the Supreme Court under Article 26. The Supreme Court upheld the Bill (see [1995] 1 IR 1, [1995] IESC 9 (12 May 1995)) and the Bill was duly enacted into law.

There has been much analysis of whether the President should refer the Bill, and if he does, what the Supreme Court might make of it; doubtless, after today’s meeting, there will be much further analysis and commentary. I will leave those issues to others; but, now that the meeting has started, I would like here to raise two small procedural points. The first relates to a possible conflict of interest in the membership of the Council of State; the second relates to the standard on foot of which the President will consider whether to refer the Bill or not.

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In 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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In 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. On the facts, the appellant established, on the balance of probabilities, that the Government had acted in clear disregard of its McKenna obligations in undertaking expenditure on a partisan booklet, website and advertising campaign.

In my earlier posts on the McCrystal per curiam, I parsed not only the judgments of the Supreme Court in McKenna, but also the discussion of McKenna in subsequent cases like Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61, [1996] IESC 6 (12 June 1996) and Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1, [2000] IESC 44 (26 January 2000). In McCrystal, however, the members of the Supreme Court contended themselves with analysis simply of McKenna, without reference to its treatment in subsequent cases. Hence, neither Hanafin ror Coughlan is referred to in any judgment except O’Donnell J’s, whose reference to Coughlan is fleeting ([1]) and to Hanafin is for a very specific purpose and not for what it says about McKenna ([1], [40]).

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