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At the Apex

Donncha O’Connell

The Supreme Court: The judges, the decisions, the rifts and the rivalries that have shaped Ireland, by Ruadhán Mac Cormaic, Penguin Ireland, 464 pp, €22.50, ISBN 978-1844883400

In a controversial speech remembered for other reasons, the late and greatly lamented judge of the Irish Supreme Court Mr Justice Adrian Hardiman bemoaned the absence of an Irish journalistic equivalent to a Joshua Rozenberg (who covers the UK superior courts) or a Des Cahill (who needs no explanation). This was never a fair comment on court reporting in Ireland but it did hint at a gap in legal journalism, that of long-form analysis of our apex court, the Supreme Court.

There were good Irish books written in the past, such as Blind Justice by Joe Joyce and Peter Murtagh and Round Up the Usual Suspects by Derek Dunne and Gene Kerrigan, that drew attention to serious issues of concern in relation to the administration of justice and, indeed, miscarriages of justice. No less significantly, journals such as Magill were dogged in pursuit of these issues. In 1985, its then editor, Colm Tóibín, wrote a lengthy and well-informed piece entitled “The Secrets of the Supreme Court” that was hugely illuminating on the rather taut relationships between members of that court and the small ‘p’ politics of the Irish judiciary.

Not until the publication of Ruadhán Mac Cormaic’s The Supreme Court in September, however, has there been a substantial journalistic treatment of that court since its foundation. There has been no Irish equivalent of the US genre of Supreme Court-fixated journalism led nowadays by great writers like Jeffrey Toobin (himself legally trained) and, in earlier times, by the likes of Bob Woodward and Scott Armstrong, who wrote the ground-breaking book The Brethren, which has since spawned a veritable industry of biographically driven coverage of the US Supreme Court. There is also, in the US, a thriving body of writing by high-profile legal academics and public intellectuals like Cass Sunstein that appeals beyond a purely academic or expert readership.

The absence of this kind of writing is not necessarily a negative comment on Irish journalism or publishing as the Irish Supreme Court, although important, is not nearly as important as the US Supreme Court. It is, however, the most important court in Ireland, although it will now share the judicial stage with the Court of Appeal, established in 2014. However, Irish courts, including the Supreme Court, exist in a more complex constitutional scheme of things involving supranational intersections and an evolving co-existence with important European courts, the Court of Justice of the European Union in Luxembourg and the European Court of Human Rights in Strasbourg. This is not quite as sexy as a court of nine household names sitting at the juridical summit of a massive federal system in Washington DC.

Unlike the US Supreme Court, when it adjudicates on constitutional matters, the Irish Supreme Court is not bound by the same imperative of being “infallible because it is final”. The constitution under which it operates – Bunreacht na hÉireann 1937 – is more easily amendable than its US counterpart and “fallible” decisions of the Irish Supreme Court on constitutional matters can be reversed or refined with relative ease by subsequent constitutional amendment approved by the people.

One of the analytical gifts that keeps on giving in relation to the US Supreme Court, and that transcends academic and popular boundaries, is the endless discourse on the legitimacy of that court’s decisions, especially in relation to the judicial review of legislation. There are many reasons for this and often it is just a way of expressing disapproval of outcomes on “hot” issues such as abortion and positive discrimination but, in contrast with Ireland, there is a solid historical reason to question the legitimacy of judicial review of US legislation. In the US that power is grounded in a famous case, Marbury v Madison (1803), and not explicitly in the text of the US constitution. It is, thus, a judicially discovered power the legitimacy of which can always be called into question by those who are nervous about anything more than a strict construction of the constitution or a suitably fossilised one informed by the “original intent” behind that constitution.

In Ireland the legitimacy of judicial review of legislation by the superior courts is simply beyond debate as that power was given explicitly in the 1937 Constitution. That doesn’t mean we can’t have plenty of fun arguing about the extent of that power and its appropriate use but the existence of the power to strike down unconstitutional law is textually grounded and therefore legitimate, whatever slight democratic queasiness this may cause. Its inclusion in the draft constitution was not without controversy and the disquiet it caused to some is well documented by Gerard Hogan in his foundational text on the origins of the constitution, The Origins of the Irish Constitution, 1928-1941, published in 2012 by the Royal Irish Academy. It took some time for the power to strike down legislation to be exercised with any confidence by an Irish judiciary schooled mainly in the British tradition of parliamentary sovereignty but when they did begin to do so – with some intensity under the leadership of Chief Justice Cearbhall Ó Dálaigh and Mr Justice Brian Walsh – the political disquiet that ensued was focused decidedly on outcomes and less on process, even though both were valid causes of concern. Mac Cormaic’s treatment of this exciting period is excellent, and while acknowledging the vision and exceptional talents of the judges involved he does not over-valorise their activism.

The process of appointment of Irish judges is covertly political and opaque, the equivalent US process being transparently political and overtly politicised. This can be seen with great clarity in the current stand-off arising from President Obama’s nomination of the decidedly unscary Merrick Garland to fill the vacancy arising from the sudden death of the decidedly scary Justice Antonin Scalia. The contemporary Irish equivalent of this high stakes stand-off is Shane Ross, the Minister for Transport, refusing to allow judicial vacancies to be filled until the judicial appointments system is “reformed”. It’s not exactly front page and lacks the drama of would-be judicial villains and good guys, although it involves a comparable level of political grandstanding.

We do things differently here and that has given rise to controversy from time to time, such as in 1994 when the appointment of the then attorney general, Harry Whelehan SC, as president of the High Court led to the break-up of the Fianna Fáil-Labour coalition. The veneer of arms-length transparency introduced by way of atonement for that fiasco by the creation of the Judicial Appointments Advisory Board has been negligible in its impact as a corrective to the politicisation of the judicial appointments process. It would, however, be mistaken to describe this as a disappointment since it was probably never intended to work. Whatever replaces it, if designed within the strictures of the Irish constitution, which provides for presidential appointment of judges on the nomination of the government, is unlikely to be immune from political influence.

Some stories are so good they almost tell themselves, but the story of the Irish Supreme Court is not one of those: rather it requires skilful telling to make it interesting and understandable. In his 450-page chronicle of the court since its foundation Ruadhán Mac Cormaic quite brilliantly tells the story of the people (judges, lawyers and litigants) that shaped its institutional personality, the doctrinal battles that ended up there and the impact of its decisions on politics and society. The book is balanced, perceptive and fair and stands as a major contribution to public understanding of our legal and constitutional system. Mac Cormaic deserves enormous credit for providing a compelling and astute exposition of the Supreme Court in its wider context – especially its political context – drawing with care and discernment on a diverse range of mainly off-the-record sources.

To praise the book for its accessibility is not in any sense to diminish its contribution to scholarship, or to cast it as something inferior to legal scholarship. By writing a careful and nuanced history of the court, Mac Cormaic has provided an authoritative context for what cannot be understood fully by analysis that is exclusively but merely doctrinal. This kind of book is very valuable for the audience for such doctrinal analysis, whether they are students of law (including academics) or practitioners. In appreciating context, practitioners have an advantage but they run the risk of reading too much into context – the narrow confines of the context in which they work – by contrast to their counterparts in the groves of academe who, stereotypically, depend for context on books.

Mac Cormaic’s book is excellent on context. It does not try to be a magisterial study of the jurisprudence of the Irish Supreme Court, though it deals with that jurisprudence – in all its chaotic glory – with great confidence. The jurisprudence or legal doctrine informs the narrative thread of the book, giving it a nice thematic framework, but primacy is given to the story of the court itself. That is its compelling novelty in an Irish setting and what makes it so valuable to those who wish or need to understand more fully what the Supreme Court is doing when it conducts its important business.

Mac Cormaic handles with particular skill and detachment issues which have brought the court into sharper public attention – such as the Sheedy affair of 1999 and more recent controversies over judges’ pay. Donal Barrington, who would have made a great chief justice, emerges with tremendous credit in the telling of the story of the Sheedy affair, which was truly a major crisis for the Supreme Court and not just for the two judges, Hugh O’Flaherty and Cyril Kelly, whose careers were ended by it. The then chief justice, Liam Hamilton, does not come across so well in the telling of this saga and seems like a rather unfortunate figure. This story is told with great care but one has a sense that there are still blanks that may not be filled in for quite some time to come.

Hamilton was not one of the great chief justices. Although animated at times by a certain generosity of spirit, he was probably too pragmatic and not careful enough about the need to balance problem-solving evenly with the consistent application of principle. He also lacked gravitas, on and off the bench, which is a real flaw in a chief justice. Mac Cormaic is perhaps kinder in his assessment of the late Chief Justice Hamilton and others, although there are subtle judgments of character readable between the lines that don’t distract from the core focus of the book, which is to chronicle the life (to date) of an institution and the people that make it work.

In relation to judicial pay, Mac Cormaic reveals that this has been something of a perennial cause of angst for the judiciary in their dealings with the executive since the foundation of the state. The constitutional guarantee not to reduce judges’ pay is, to be fair, a necessary protection of judicial independence but it is hard to convince the wider public that this is anything more than a constitutional guarantee of privilege and, when defended, the special pleading of the greedy. Austerity brings out the worst in everyone but the legal profession faces particular challenges when it speaks plaintively but pointlessly from the Four Courts as an unlikely “anti-austerity alliance”. It matters not a whit how bankrupt you are, or almost are, if the public sitting in judgment see only your moral bankruptcy, and it matters even less that this public judgment is unfair.

These painful but essential truisms were apparently lost on many of the Irish judiciary in the most recent controversy surrounding proposed reductions in judicial pay, culminating in a decisive referendum on the issue. Mac Cormaic’s documenting of this controversy appears to be very well-informed. No doubt many of the judges had sufficient common sense to appreciate that some voluntary acquiescence in pay restraint made sense, even if some of them, like others in society, were experiencing the sharp end of recessionary times. Hubris is a terrible thing and hubristic groupthink is even worse. It would seem that the more hubristic brethren of the bench failed to read the political climate with sufficient discernment, playing right into the hands of those that they were convinced were out to get them. The chief justice, Susan Denham, does emerge from this rather unedifying tale as a patient and sensible figure with working political antennae but the overall impression is of a cloistered institution feeling too sorry for itself and clueless about how to engineer its own political salvation.   

Borrowing from a technique of US Supreme Court journalism, Mac Cormaic focuses on dominant judicial personalities, most of whom were young when appointed, such as Hugh Kennedy, Cearbhall Ó Dálaigh, Tom O’Higgins, Séamus Henchy, Adrian Hardiman and, of course, Brian Walsh. The excerpts from Walsh’s regular correspondence with the great US Supreme Court justice William Brennan are a real find that serve to amplify Walsh’s humanity and high-mindedness in a way that would not be evident from academic literature. That relationship must have been complicated as Walsh was not nearly as liberal as Brennan on some issues. Mac Cormaic is perceptive in noticing that Walsh, untypically, did not refer to US authorities in his famous judgment in the McGee case that struck down pre-1937 legislation criminalising the importation and sale of certain contraceptives, choosing instead to base his judgment on Article 41 of the Irish Constitution that deals with families based on marriage. The Walsh-Brennan letters are worthy of further serious study given the centrality of both figures in their respective jurisdictions.

The influence of US jurisprudence was strong, especially during the Ó Dálaigh-Walsh period, when the doctrine of unenumerated rights was vibrant, but this was a mixed blessing. In analysing this stage of its history during which the court was at its most “activist”, Mac Cormaic is excellent at explaining how judicial activism can be what another author, David Gwynn-Morgan, has called “too much of a good thing”. In other words, we tend to approve of it when we like the results but are more sceptical when we consider what judges are doing when, effectively, they make law. The court, particularly under the leadership of the scholarly and philosophically coherent Chief Justice Ronan Keane, and probably also under the significant influence of scholars such as JM Kelly and Gerard Hogan (now a judge of the Court of Appeal), has moved pointedly in the opposite direction, away from judicial activism and unenumerated rights, especially when called on to vindicate socio-economic rights.

Explaining these issues in a book that is rightly preoccupied with telling a story is quite a challenge, but Mac Cormaic navigates this conceptually difficult area adroitly without losing any of the narrative energy of the chronicle, assisted in no small way by the fact that the stories behind the leading socio-economic rights cases are so powerful. Focusing on the cases of Sinnott and TD, he provides an accurate summary of critically important decisions in which the Supreme Court, by significant majorities, emphasised the separation of powers as a superordinate principle of constitutional law, thereby de-emphasising its own power to force the executive to comply with the constitution in relation to certain matters directly connected with the expenditure of public funds.

To those concerned about judicial overreach and the possible micro-management of public policy by unaccountable judges lacking the necessary competence for or experience of public policy this was a good day’s work for the Irish Supreme Court. For the executive, not overly enamoured of the idea of a judge at its shoulder, especially one with a mandatory injunction in his hand, it was one less thing to worry about.

Others, however, who see the courts as a route of ultimate recourse when the political system fails them, may have felt these decisions were too emphatic and insufficiently cognisant of the degree to which overemphasising separation of powers would confirm the social and economic marginalisation that results from power imbalances. As they saw it, luxuriating in the application of liberal democratic theory that required the political process to deliver socio-economic rights for poor or disadvantaged people on the basis that this was none of the judiciary’s business in the face of compelling evidence that the political process, whose legitimate business it is, could not or would not deliver such rights, was harsh and insensitive. In the view of some, like TCD academics Gerry Whyte and William Binchy, taking this position was not even consistent with the “spirit” of the Irish constitution, laced as it is with notions of human dignity.

Much of this was happening around the same time that the Supreme Court was demonstrating a degree of deference to the executive in relation to the handling of immigration matters, which reached a decisive moment in 2003 in the case of Lobe & Osayande v Minister for Justice. That was the case in which a majority of the court decided that the non-Irish parents of children born in Ireland with Irish citizenship could not avoid the full application of Irish immigration law and deportation by virtue of a derivative right to remain here arising from the constitutional family rights of their Irish citizen children. The decisive factor for the majority in this case was the primacy of the executive in immigration matters. The family rights that are so strongly protected by the constitution (and, indeed, the European Convention on Human Rights) seemed to count for less in this particular context.

Immigration also gave rise to cases about the level of judicial scrutiny that was appropriate in relation to administrative decisions. When, in 2010, the Supreme Court by a three to two majority dented the established but weak standard of judicial review – so called “O’Keeffe reasonableness” that allowed only for judicial overturn of administrative decisions that were “irrational” or manifestly contrary to reason – and moved tentatively towards a somewhat stricter standard of “anxious scrutiny” or “anxious consideration”, this prompted Mr Justice Hardiman to write with great indignation of proponents of the stricter standard being “seduced by the intoxicating prospect … of a dramatic judicial incursion into the political and administrative field” and determined to expand the legal domain. This was, of course, pure hyperbole but it did demonstrate the degree to which some judges would go to protect deference to the executive or what they might call judicial restraint on so-called policy matters in a constitutional order informed mainly and predominantly by a particular view of the separation of powers.

Mac Cormaic does not look in any great detail at these cases but he does conclude that the debate on judicial deference is far from straightforward and that the degree to which the judges defer to the executive depends largely on the issues involved. That is a solid conclusion, but as the Supreme Court restyles itself, following the establishment of the Court of Appeal, as a constitutional court, the wider ramifications of its jurisprudence of restraint will become more sharply evident, especially for those who might be minded to litigate in the public interest. It will take some time for this to happen but the court is, undoubtedly, “high-powered”, as described by Mac Cormaic, with interesting and extremely talented figures such as Donal O’Donnell, Iseult O’Malley, Frank Clarke and John MacMenamin who have plenty of tenure remaining. It is highly improbable, and not even desirable, that any of these judges will become rampant judicial activists but some of them, individually or together, may nuance the somewhat reductive understanding of rights under a superordinate doctrine of separation of powers. As the court is downsized – as seems likely – to take account of its changing role and more manageable workload the importance of individual personalities and the dynamic between those personalities will become even more critical. 

It is impossible to cover everything in one book but a more detailed consideration of issues that did engage the Supreme Court, often controversially, such as cabinet confidentiality and the issues arising from immigration, just discussed, would have provided the author with good material to demonstrate his undoubtedly strong analytical capacity. He could probably also have said more on social or moral issues that have engaged the court in its various compositions over time. For example, the X case of 1990, involving the right to travel for abortion of a fourteen year-old rape victim, is explained with real sensitivity, but more detail would be welcome on the role of the judiciary between 1983 and 1990 on the related issues of abortion information and pregnancy counselling to aid a more complete understanding of the critical part played by judges in Ireland’s abortion saga.

Some analysis, however cursory, of the co-existence of national apex courts, such as the Irish Supreme Court, with the European Court of Justice in Luxembourg and European Court of Human Rights in Strasbourg and, more interestingly, of the attitude of some Supreme Court members to the European courts would have been interesting. This would be especially valuable in relation to the abortion cases but, also, as an analytical framework for understanding the strain of self-conscious nationalism in the work of some judges – not just those who dominated in the activist period of the 1970s – that is so well observed by Mac Cormaic.

The book ends poignantly with an afterword noting the sudden death of Mr Justice Adrian Hardiman in 2016. Although there is a brief mention earlier of his angry dissent in the JC case, decided in 2015, on the admissibility of evidence obtained in breach of constitutional rights, this is something which should provide rich material in a second or paperback edition. Some of the monumental achievements of the Irish judiciary in safeguarding due process rights – which Hardiman would, no doubt, have continued to defend with robust eloquence – might now be ‘modernised’ by a court in which his absence will be lamented, even by those who differed sharply with him on other issues.

MacCormaic succeeds at so many levels in this ambitious volume but his outstanding success is in humanising an institution and its processes. He tells the stories of courageous public interest litigants like Gladys Ryan, May McGee, Kathleen Byrne, Leontis Nicolaou (and his daughter Mary Carmel), Máirín de Burca, David Norris, Kathy Sinnott and heroic figures like the girl known as X who is now a woman in her forties. More importantly, he tells these stories with great respect.

He also humanises the judges who decided those cases and does tremendous justice to their endeavours, over time, to do some justice. In the process he tells a good story – the story of the Irish Supreme Court – with great style and impeccable authority.

1/11/2016

Professor Donncha O’Connell is head of the School of Law at NUI Galway and a member of the Law Reform Commission. Any views expressed in this essay are personal.

Space to Think, an anthology bringing together more than fifty of the best pieces to have appeared in the Dublin Review of Books since its foundation ten years ago, was published in October. Selling in the shops at €25, it is also available to order online at a special price of €20 (to collect in Dublin) or €20 + post and packing charges as appropriate for shipping to addresses in Ireland and internationally. To buy online, follow the steps from the home page of our website.

One piece featured in Space to Think is “Kafka on Thames”, a study from 2015 of the presumption of innocence in law and of the police and media campaign against the British broadcaster Paul Gambaccini, who was arrested in connection with allegations of sexual abuse but never convicted or even charged. Here is an extract:

A very important aspect of criminal procedure in the United Kingdom is that, when the police have arrested a person for questioning, they can release him on police bail without the need to go to court, binding him to turn up for further questioning at a later date. This can be repeated several times and was repeated in Gambaccini’s case for over a year. Each re-bailing was leaked to the media before he or his solicitor were informed, with the consequence that there was no possibility that the scandal would simply fade away: it was regularly and very publicly stoked. And this publicity also carries the risk that it may lead other people – fantasists, people interested in selling their story, or deluded individuals who actually believe they were abused by a particular person – to make further allegations.

Gambaccini’s story, together with that of Lord Brittan, Lord Bramall and, a little earlier, Sir Cliff Richard, lead me to wonder whether presumption of innocence can survive in a legal system which permits the police and the media to destroy a person’s reputation in advance of any trial. Paul Gambaccini is a man with many advantages of wealth, fame, intelligence, reputation and extraordinary courage and resilience. If this can happen to him one wonders how a less favourably situated individual could possibly survive.

On March 3rd, 2015, Gambaccini gave forty-five minutes of evidence to the House of Commons Home Affairs Committee. A fortnight later the committee advocated major reforms of the police bail system. More important to Gambaccini, it affirmed his innocence and instructed the Crown Prosecution Service “to write and apologise to Mr. Gambaccini explaining why the case took long when the original police investigation was dropped for insufficient evidence a month before he was even arrested”. The reforms the committee proposes are set out at the end of Gambaccini’s book. They include a strong assertion of a suspect’s right to anonymity, the need for any police communication to the media to be formally done, and the need for there to be “zero tolerance on the police leaking information on a suspect in an unattributed way”. Whether the committee’s recommendations will have any significant effect of course remains to be seen.

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