Category: Politics

The Chief Justice, the Council of State, and Article 26 References to the Supreme Court

Council of State room, Aras an UachtrainArticle 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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Chief Justice argues creation of new court of appeal essential – The Irish Times

From the Irish Times:

Unlike its counterparts in the common law world, Ireland does not have an intermediate appeal court, leading to a situation where the Supreme Court was overwhelmed by the volume coming from the High Court. The creation of a court of appeal was promised in the programme for government, she said.

For my previous posts, see here, here and here.

Do clothes maketh the man?

According to the Adages of Erasmus, ‘vestes virum facit‘, which is often rendered in English as ‘clothes maketh the man’. Two different stories in today’s Irish Times brought this adage to mind. In the first, a picture tells a thousand words:

Nicolas Dupont-Aignan in l'Assemblé National

The photo is by Gonzalo Fuentes via Reuters and Yahoo. It shows French deputy Nicolas Dupont-Aignan covering his face with a scarf in the colours of the French flag to protest at the denial of speaking time to independent deputies during a debate about Libya at l’Assemblée Nationale in Paris yesterday. It demonstrates that what deputies wear in parliament can be as important as what they say. Sometimes, the sartorial expression is obvious, as where a slogan on a t-shirt makes the point. Sometimes, it’s a little more subtle, but all the more effective, as the photo above of Dupont-Aignan demonstrates. And sometimes, even a deputy’s normal everyday wear makes the point: in Ireland, Mick Wallace TD habitually wears a casual pink shirt. Like some other independent TDs, he dresses casually to make a point against unnecessary conformity and stuffiness; and he dresses in pink as “a challenge to the sad macho element in Irish society”. (more…)

Report of the Working Group on a Court of Appeal

Courts Service logoI’ve written about this report twice already. The first occasion was when a committee chaired by Ms Justice Susan Denham of the Supreme Court was established to consider the necessity for a new Irish Court of Appeal (this was in part a response to an article on the point which Judge Denham had written the previous year in the [2006] 1 Judicial Institute Studies Journal 1 (pdf)). The second occasion when the Government received the committee’s report. In the most recent installment of this slow-moving story, the report was published last week – only three months after it was submitted to government – and to generally favourable reviews in the media (see Belfast Telegraph | Irish Independent here and here | Irish Times | RTÉ). (more…)

Plans for an Irish Court of Appeal?

Four Courts dome, detail of an image via wikipediaSome time ago, in a similarly titled post, I discussed the establishment of a committee chaired by Ms Justice Susan Denham of the Supreme Court which was to consider the necessity for a possible new Court of Appeal. I thought it a good idea then, and still do now. According to Carol Coulter in today’s Irish Times, the Government has just received the committee’s report:

Logjam in Supreme Court appeals not serving justice

ANALYSIS: Too few judges hearing appeals and a recent proliferation of lay litigants means judgment delays of years, writes Carol Coulter

… the need for a Court of Civil Appeal to hear most appeals from the High Court, leaving the Supreme Court to deal with constitutional cases and those involving fundamental points of law, … arises from the increasing volume of cases going to the Supreme Court, resulting in lengthy delays. There can be up to three years’ delay in a case appealed from the High Court getting a hearing in the Supreme Court. (more…)

Is DC v Heller a Roe v Wade for our times?

Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state.

For a people who are free, and who mean to remain so, a well-organized and armed militia is their best security.

In 1972, the Supreme Court of the United States decided Roe v Wade 410 US 113 (1973) (Findlaw | Justicia | Oyez | wikipedia), which held the Due Process Clause of the Fourteenth Amendment to the US Constitution protects the (penumbral) right to privacy, including a woman’s qualified right to terminate her pregnancy. It was a controversial decision which demonstrated that the Court was at the vanguard of the dominant public political mood. The Court was sharply divided; the case was decided on the basis of contestable constitutional theory; and it has subsequently given rise to a huge amount of analysis and scholarship, as well as much partisan social commentary and political scheming.

In 2008, the Supreme Court of the United States decided US v Heller 554 US __ (2008) (official pdf | Findlaw report) (Balkinization | Mike O’Shea on Concurring Opinions | NRA | Posner | ScotusWiki | Volokh | Wikipedia), which held that the Second Amendment to the US Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. As with Roe, it, too, was a controversial decision which demonstrated that the Court was at the vanguard of the dominant public political mood. Again, the Court was sharply divided; the case was decided on the basis of contestable constitutional theory; and it has already given rise to a huge amount of analysis and scholarship, as well as much partisan social commentary and political scheming.

But there is one obvious difference between the two cases: whereas Roe stands as the highpoint of liberal judicial activism and reflects a then quite dominant liberal political perspective, Heller stands as a similar highpoint of conservative judicial activism and reflects a now very marked conservative political perspective.

These similarities and differences raise some important questions. For example, Roe became a rallying-point for legal, social and political opposition (update: backlash) to judicial and political liberalism; will Heller become a similar rallying-point for legal, social and political opposition to judicial and political conservatism? Moreover, views on the correctness of Roe have become a litmus test for Republican nominees to the Court; will Heller similarly become a litmus test for Democratic nominees to the Court?

Finally, if (and when?) there is a majority on the Court to reverse Roe, will they do it? Or will they baulk at such a naked exercise of judicial-political power? Or are there other judicial/political considerations afoot? Or will they realise that to overrule Roe simply because they disagree with its political underpinning would be to eviscerate the doctrine of precedent? If they do overrule Roe, then every decision of the Court is up for grabs, even the case that overrules Roe, and yes, even Heller!

A footnote to Election 2007

picture-1.pngNow that An Taoiseach (the Prime Minister) has put us out of our misery and finally called the long-awaited general election, all Bills currently pending will fall with the outgoing Dáil (Lower House). Of those of particular interest to this blog, this means that the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) and the Privacy Bill, 2006 (Department of Justice | Oireachtas (pdf)) now both fall too, and their fate will have to await the pleasure of the incoming government in the next Dáil.

The fate of the Defamation Bill, in particular, raises an interesting question for the press industry. The Bill provided for the recognition of a Press Council; the press industry has advanced with the establishment of an Office of the Press Ombudsman and the Press Council of Ireland in parallel with the passage of the Bill through the Houses of the Oireachtas (Parliament); and they will now have to decide whether to continue with this process now that the Bill has fallen. They could of course keep their powder dry until after the election, in the hope that the incoming government revives the Bill, and then press on with the formation of the Ombudsman and Council. But it would be a better indication of their bona fides in this matter if they carried on regardless, and established the Press Council before the next Dáil sits. Indeed, having done so, it would then give them the credibility to call for the Defamation Bill to be revived by the incoming government!