Category: The Rule of Law

Open justice and access to court documents – a (lightly updated) footnote

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| Open Justice, The Rule of Law

Historical court documents via St. Louis Circuit Court Historical Records ProjectArticle 34.1 of the Constitution provides that “Justice … shall be administered in public“. By way of footnote to my earlier post on Open justice and access to court documents comes the decision of Hogan J in Allied Irish Bank plc v Treacy (No 2) [2013] IEHC 242 (21 March 2013). The applicant had been mentioned in affidavits filed by the defendant in the main action, and took this motion to have access to those affidavits. Hogan J held in his favour, and emphasised that he was entitled to the affidavits as of right and not necessarily on foot of an application to court:

[21] In any event, I do not consider that the Court’s permission was required for this purpose. These allegations were ventilated in civil proceedings in open court and, as I have already found, the affidavits were effectively openly read into the record of the court. Given that these proceedings were in open court pursuant to the requirements of Article 34.1 of the Constitution, it follows that any cloak of confidentiality or protection from non-disclosure vanished at point. …

[22] The open administration of justice is, of course, a vital safeguard in any free and democratic society.

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Messing about in boats: Restitution from the Executive – I

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| Restitution, The Rule of Law

EH Shepherd's illustration of Ratty and Mole in a boat on the river, from Kenneth Grahame's The Wind in the Willows, via the Bodleian Library

“Believe me, my young friend, there is nothing – absolutely nothing –
half so much worth doing as simply messing about in boats”.

Ratty to Mole (above), in Kenneth Grahame‘s
The Wind in the Willows (1908) chapter 1.

In Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 (HL) (pdf), the House of Lords held that taxes and other imposts unlawfully exacted by the State are recoverable by the taxpayer as of right, and that this duty to make restitution carries with it the obligation to pay interest on the sums unlawfully exacted. Three recent cases raise very interesting issues relating to this principle, and I want to discuss them in two posts. The first case is the decision of Cooke J in Island Ferries Teoranta v Minister for Communications [2011] IEHC 388 (18 October 2011)) and [2012] IEHC 256 (26 June 2012), and I will discuss it in its own terms in this post. The other two cases are the decision of the UK Supreme Court in the FII case (Test Claimants in the Franked Investment Income Group Litigation v Inland Revenue [2012] 2 WLR 1149, [2012] UKSC 19 (23 May 2012)) and the decision of the Court of Justice of the European Union in the Littlewoods case (Case C-591/10 Littlewoods Retail Ltd v Her Majesty’s Commissioners for Revenue and Customs [2012] ECR-I nyr, [2012] EUECJ C-591/10 (19 July 2012)), and I will discuss Island Ferries Teoranta in the light of those decisions in tomorrow’s post.…

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Open justice and closed tribunals: refugee hearings and the Rule of Law

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| Freedom of Expression, Media and Communications, Open Justice, The Rule of Law

Refugee Appeals Tribunal logo, via their websiteIn a previous post, I considered the common law and constitutional aspects of the principle of open justice. In Wednesday’s Irish Times, Carol Coulter reported on a case in which a child asylum seeker is alleging perceptible bias on the part of a member of the Refugee Appeals Tribunal. At present, the applicant is seeking leave to bring judicial review proceedings against the rejection of her asylum application, and the leave hearing is expected in the coming months. In an accompanying story, Coulter discussed previous cases which have challenged the secrecy and perceived unfairness of the Tribunal. That reference to “secrecy” set me thinking about the principle of open justice in the context of closed tribunals, and this post is a first attempt at applying the principle in that context. In that respect, I very much welcome discussion of my analysis in the comments.

The starting point is section 19(4A) of the Refugee Act, 1996 (also here) as inserted by section 7 of the Immigration Act, 2003 (also here), which provides:

(a) The chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in section 16(17) [of the 1996 Act, also here]) a decision of the Tribunal which in his or her opinion is not of legal importance.

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Seeing justice done – open justice and the limits of the common law

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| Freedom of Expression, Juvenal, Open Justice, The Rule of Law

Blind Lady Justice, mural on the wall of the Criminal Courts of Justice, DublinA little while ago, I argued that liberty, democracy and the rule of law together constitute the constitutional trinity on which many modern states are founded, and that, not only are there the traditionally understood strong liberal and democratic justifications for freedom of expression, there are also equally strong free speech justifications founded in the rule of law. In yesterday’s decision in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012), the Court of Appeal for England and Wales made this point in rhetoric of great eloquence, perspicuity and vigour (though the judgments are curiously ambivalent in their ambit and ambition).

In my earlier post, I argued that, a commitment to the rule of law – where law is equally applied in open court by an impartial judiciary – both reinforces and is reinforced by robust protection of freedom of expression. The proper protection of fundamental rights reinforces the necessity for the protection of free speech as one of those fundamental rights. The proper functioning of impartial judicial tribunals is reinforced by the protection of free speech, which ensures monitoring of and comment upon the operation of such tribunals.…

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Better angels, undesirable devils, and the judicial pay amendment

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| Irish Society, judges, Open Justice, The Rule of Law

Why Vote NoEarlier this evening, I did an interview on The Last Word with Matt Cooper on Today fm concerning next Thursday’s referendum to amend the Constitution to add a mechanism to allow judges’ salaries to be reduced. The arguments in favour of the principle are very strong: as a matter of fairness and balance, when other public servants are suffering pay reductions, there is no good reason why judges should not do so too. But that is not the only principle at stake here: the independence of the judiciary is an important aspect of the rule of law. Any implementation of the principle of reduction in judicial salaries in line with other public servants ought to be done without doing violence to the principle of the independence of the judiciary. As I said on The Last Word with Matt Cooper this evening, I do not believe that the proposed amendment manages to maintain this balance.

The amendment proposes that “provision may … made by law to make proportionate reductions to the remuneration of judges” in certain circumstances. Leaving aside those circumstances, this simply allows the reduction of judicial salaries to be effected by legislation, which in the ordinary way is proposed by Government.…

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Judge dread

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| Irish Society, judges, Judicial Appointments, Open Justice, The Rule of Law

Judge Dredd via WikipediaGrowing up, I loved the comic 2000AD, and one of its leading characters was Judge Dredd (pictured left). We never saw underneath his helmet’s visor because – with his catchphrase “I am the law” (echoed by Lord Thurlow LC in The Madness of King George) – he represents the impartiality and facelessness of justice. This is why more traditional representations of lady justice show her wearing a blindfold – as in the statute overlooking upper castle yard in Dublin Castle: the blindfold represents objectivity and impartiality. Hence, under Article 34.5.1 of the Constitution, judges make a declaration that they will execute their functions “without fear or favour, affection or ill-will towards any man”. This judicial impartiality, abjuring both preference and malice, is the cornerstone of the rule of law – it requires and allows both that questions of legal right and liability to be resolved by application of the law and not by the exercise of discretion, and that the laws of the land should apply equally to all: be you never so high, the law is above you. But, as the text of judicial oath expresses, to be able to decide without favour, judges must be free to decide without fear – that is, without the dread in the title to this post.…

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Free speech and the rule of law

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| Freedom of Expression, Open Justice, The Rule of Law

Kenny and ObamaLast week, on 17 March, as the world celebrated Ireland’s national day in honour of St Patrick, the Taoiseach (the Irish Prime Minister) made the annual presentation of a bowl of shamrock to the President of the United States (pictured left). I seem to remember being taught in school that the reason the shamrock is one of Ireland’s unofficial national symbols is because St Patrick explained the Christian doctrine of the Holy Trinity by reference to the three leaves of the shamrock. I now work in a College named for the same Holy and Undivided Trinity. So, it might come as little surprise that I have recently been thinking about a trinity, though a rather more secular one. What I have in mind is the constitutional trinity on which many modern states are founded: liberal democracy and the rule of law.

All three elements of this trinity are multi-faceted, contestable, and elusive. Moreover, it is possible to conceive of a state which commits to one of the elements of this constitutional trinity, or even two, but – like a three-legged stool – they have become mutually reinforcing in many modern states, so much so that they often fade into one another both in popular conception and in more considered analysis.…

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