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.