Cassandra Voices

Author: Michael Williams

  • Unenumerated Constitutional Rights Erode Irish Democracy

    John Philpot Curran

    When the Federal Convention of 1878 had completed its work on the U.S. Constitution in Philadelphia, Benjamin Franklin described its result as, “A Republic, Madam, if you can keep it”.

    Not much later, John Philpot Curran gave a similar warning, now usually summarised as “Vigilance is the price of liberty”.

    Each was saying that a written Constitution describes how a country should be governed, but does not promise that it will be. If we want to keep the system we have chosen, we must be vigilant. A single departure may not seem very significant, but if we ignore it we may realise too late that it was a step in undermining our system of government. It is not enough for political leaders to be alert. In a democracy we are all political leaders, our system of government and the freedoms it promises belong to us, and if we want to keep them we must be vigilant to protect them.

    This country has a democratic Constitution. Article 5 declares that it is to be a democratic state, and other Articles, read together, deliver on that promise. The Dáil is to be the dominant power in the Oireachtas.  Elections for it must be held at regular intervals, so that we can dismiss political leaders who do not serve us as we wish.  Elections must be by single transferable vote.  The “sole and exclusive power of making laws for the State” is vested in the Oireachtas, the only limit being that its laws may not be “repugnant to the Constitution”.  Laws are made in public, at sittings the public can attend and the media can report.

    That our only lawmakers are those the People choose is the foundation of our democracy, as of every representative democracy. By adopting a Constitution that said that the only people who could shape the country by making law were those we had elected, we gave ourselves a democracy in 1937 – if we could keep it.

    Leinster House the meeting place of Dáil Eireann.

    Have we? Partly seems to be the best answer. The Oireachtas is no longer our sole and exclusive lawmaker. In the 1960s Irish judges began to adopt what is called “judicial activism”, the view that judges should play an active role in shaping the law.  In 1965 the High Court advanced that view in the Gladys Ryan case. The Oireachtas had decided that it would be good for our dental health if piped drinking water contained a tiny proportion of fluoride, and enacted the Health (Fluoridation of Water Supplies) Act, 1960, under which piped drinking water was and is fluoridated. Mrs Ryan complained that this meant she and her children had to drink contaminated water, and took High Court proceedings to have the Act annulled. After a hearing lasting many months Judge John Kenny decided she had not proved that fluoridated water was injurious to health and dismissed her claim.  But he made it clear that if he had formed a different view he would have annulled the Act.

    That the case went to hearing is surprising. As we noted above, our Constitution vests in the Oireachtas the “sole and exclusive power of making law for the State”. Those words seem to mean that if a citizen thought an Act was defective her only resource would be to campaign to have the Oireachtas repeal or amend it. If another authority within the State could examine the reasons that led the Oireachtas to pass the law, disagree with them and annul the legislation, the power of the Oireachtas to make law would not be “sole and exclusive”. Those words seem to mean that the judge should not have heard the claim, because he had no authority to interfere with legislation that was consistent with the text of the Constitution. The Attorney General seems not to have made that argument. If so, he effectively abandoned the Constitutional authority of the Oireachtas as our sole and exclusive lawmaker.  It seems never since to have been asserted in any Court.

    The Judgment was a blow to the authority of the Oireachtas in another way. The effect of Judge Kenny’s decision was: “The Constitution includes a list of rights it guarantees to citizens, and the list is clearly not intended to be complete. Other rights may be added. The Oireachtas can add them. So can judges. A judge of the High Court or Supreme Court may decide to recognise a right that a citizen claims but the Constitution does not mention and deem that right to be part of the Constitution, as though it had been included in the document the People adopted in 1937. An Act of the Oireachtas or a Section of an Act that is incompatible with a right a judge has decided to recognise will be annulled as if it were repugnant to the Constitution, even though it is not”. (Rights so identified later came to be called “unenumerated rights, and we will use that term, for simplicity.)

    The Ryan decision changed how we are governed, in three ways. First, judges could examine why the Oireachtas had passed legislation and interfere if they disagreed with its reasons.  Secondly, the Oireachtas’ authority to make laws was no longer sole and exclusive, because judges might decide to recognise and enforce an “unenumerated right”. Thirdly, such a decision by a judge would override legislation enacted by the Oireachtas. That may seem to be a transfer of power from one organ of State to another, but it was an erosion of our democracy, because representative democracy depends on laws being made by those we have elected and by nobody else. Authorising people we had not elected and could not get rid of to override decisions of those we had elected was and is inconsistent with our claim to be a democratic state.

    The Ryan decision also undermined our authority in a less obvious way. Our Constitution provides that only we, the People, may amend it, but when judges import “unenumerated rights” into it they in effect amend it. Our authority to do so is no longer sole and exclusive.

    Separation of Powers.

    Finally, it effectively changes the meaning of “separation of powers” and “separation of functions”. These used to mean that each of the three organs of government, the legislative, executive and judicial, had its separate function in which neither of the others should interfere. It now seems to mean only that the legislature and executive may not interfere in the judicial function.

    There was no protest. We did not show vigilance in defence of our freedom.

    Judges have invoked the “doctrine of unenumerated rights” (a “doctrine” is more impressive than a “theory”) many times since 1965. Unlike legislators, judges deal only with issues others bring before them, so they produce new “doctrines” or “rights” only if litigation gives them the opportunity. However, a substantial number of unenumerated rights have been established and a substantial amount of legislation annulled in the last thirty-six years. For example:

    • Although all of the rights the Constitution lists except Habeas Corpus are promised only to citizens, that is only to people who, as it says, owe loyalty to the Nation and fidelity to the State, the Supreme Court decided to grant an “unenumerated right” to a non-citizen. (V.H. v. Minister for Justice Supreme Court No 31 & 56/2016)
    • It forbade the Government to participate in a referendum campaign. (McKenna An Taoiseach & ors IESC 11; [1995] 2 IR 10.)
    • It forbade the Dáil to conduct an inquiry into matters of public concern that might call for legislative intervention. (Maguire and others Seán Ardagh and others [2001] No. 329 JR; S.C. Nos. 324, 326, 333 and 334 of 2001] – the “Abbeylara case”.)
    • On dubious grounds it invalidated legislation designed to protect young girls from sexual exploitation. C. v. Ireland & ors [2006] IESC 33
    • It refused to hear a Habeas Corpus claim by a citizen who claimed to be unlawfully imprisoned, although the Constitution promises that right to anyone to making such a claim. (Edward Ryan v. Governor of Midland Prison [2014] IEHC 338)
    • In a puzzling decision, it held that a police officer who is asked to approve a search warrant must act “judicially”, and that an officer involved in the relevant investigation cannot do so. The essence of us acting judicially is hearing both sides before reaching a conclusion.  That does not seem to be what the Court meant, but it did not explain what it did mean. (Damache V. DPP {2012] IESC 11
    • Although tradition and the Constitution both say that elected legislators in the Dáil or Seanad are to be free to perform their duties without judicial oversight, the Supreme Court decided that someone who claimed to have been injured by what had been said to her in a Dáil committee could pursue a claim. Kerins v. McGuinness & Ors.  [2019]  IESC 110
    • One Supreme Court judge, Judge O’Donnell, complained in a written Judgment of the quality of legislation, in language reminiscent of an irritated employer complaining about incompetent subordinates. (Clarke  O’Gorman [2014] IESC 72)

    Each of these decisions further undermined the Oireachtas, and, through the Oireachtas, the Irish People’s power to shape the country we live in. Two of them, N.V.H.  and Edward Ryan, are incompatible with the text of the Constitution. The list shows how much of our lives, which we agreed in 1937 should be governed by our elected legislators are now subject to the Court’s intervention – or interference. Again we have not shown vigilance.

    Nor did those we elected to represent us. On the contrary, they have recently enacted the Judicial Council Act, which, after bringing the Council into existence, invited it to prepare “Guidelines” for compensation to be paid to successful plaintiffs in personal injury claims.

    Superficially, that may have seemed rational. Individual judges decide what money should be paid as compensation for injury, so why should not judges as a group agree Guidelines to be applied, or at least consulted, in all cases? The answer is simple. Deciding what compensation should be paid to an injured plaintiff is administering justice, which is the role of judges.  Guidelines to be consulted in all cases have the effect of law, even if they are given another name. Judges have no role in making law. Only the Oireachtas has. So in passing the Act the Oireachtas declined to perform a function that the Constitution imposes on it, and delegated it to a body that has no authority to perform it. This also meant that questions that elected parliamentarians should have teased out will not get the attention they need.  Here are some examples. Readers may think of others.

    • Personal injuries actions operate on an assumption that pain, past present and prospective, can be compensated for by money, and only by money. Is that assumption valid?
    • If it is, is it right to assume that the extent of the pain, not the circumstances of the sufferer, determines the amount of compensation? €10,000 might seem a life-saver for a young couple struggling with high rent or mortgage and household bills, but be next to useless to a retired person living on an adequate pension.
    • Our system protects a wrong-doer from having to address and acknowledge the consequences of his or her wrong-doing, because insurance companies forbid any contact between their insured and his or her victim. Does that serve us well?  Would we drive more carefully if we knew we would have to confront personally the consequences of any carelessness? 

      The criminal court of justice, Dublin. Daniele Idini/Cassandra Voices

    Most Superior Court judges nowadays are “Judicial activists” as described above. The concept is obviously attractive to judges and perhaps to others who believe trained intellects shape a society better than “ordinary people” could. But it is incompatible with democracy. That the Oireachtas invited a Council of judges to make law and the judges agreed tells us how far this country has travelled from the democratic ideals set out in our Constitution. Incidentally, the Guidelines emerged only after judges had circulated among themselves documents that they discussed in private, and that we did not get to see. With limited exceptions, our Constitution requires the Oireachtas and the judges to do their work in public, but, understandably, it did not consider how judges should do the work of the Oireachtas.

    This article is critical of judicial decisions, and might seem to be hostile to our judiciary. Not so. Most of our judges are admirable men and women, with a deep understanding of the law and a strong commitment to justice. The purpose of each decision mentioned above (except the refusal of Habeas Corpus, which still seems incomprehensible) was to do justice. For a dedicated judge to deny someone justice, because our legal structure does not permit it must be disagreeable, almost like a physician refusing treatment to someone who needs it. Most judicial decisions were well motivated and most were beneficial to the community.

    So, the argument that our precious democracy has been and is being eroded by decisions of judges does not mean we should denounce them. It would be wiser to suggest to them, politely, that our country would be better served if they respected the authority of our legislature more than they do at present, recognising that even a little judicial activism risks putting the judiciary in competition with the legislature and that carried to extremes it is inconsistent with democracy. If judges came to accept that, we can be sure they would act to address the problem. They are used to examining and evaluating evidence and arguments, and if the arguments stand up and are supported by the evidence, we should expect our judges to accept them, consider what they need to do to remedy the situation, and do it.  If they accept that an imbalance has grown up between our organs of government that threatens our democracy, we can be confident that change will follow.

    But if they do not, we should remember what Franklin and Curran taught us.

  • An Open Letter to the Irish Supreme Court in Response to the Angela Kerins Decision

    To My Fellow-Citizens in the Supreme Court,

    I write this letter because I think your decision in the Angela Kerins case creates a crisis in the government of this country. It will be critical of that decision and of some decisions of your predecessors, but please do not react to it defensively, or reject it out of hand.  Its aim is to urge you to address and cure a problem, and it invites a positive response, though it does not hide or gloss over the fact that if its arguments are right, you and your predecessors share much of the responsibility for the problem it discusses.

    The ‘Doctrine’ of Enumerated Rights

    Article 15.2.1o of our Constitution vests in the Oireachtas the sole and exclusive power of making laws for the State. The role of judges is to administer justice in courts established by law (Art 34.1) and every judge promises to uphold the Constitution and the laws (Art 34.5.1o). The Constitution you promised to uphold, obviously, is the text the Irish People adopted, enacted and gave to themselves in 1937, with any amendments made by referendum since then.

    The laws you promise to uphold can only be those enacted by the Oireachtas under its sole and exclusive power. The only limit on that power is that if the Oireachtas enacts a law that is ‘repugnant to the Constitution or any provisions thereof’, you are authorised to annul it. (Arts 15.4.1o and 34.3.2o). But since 1965 judges have put a gloss on that concept.

    The following is an attempt to describe how it operates: first, you entertain claims by Plaintiffs that they have a legal right not mentioned in the Constitution; then you label the claimed right an ‘enenumerated right’; next you deem that an ‘unenumerated right’ to be included in the text of our Constitution, though it is not, so that finally, you annul legislation incompatible with that ‘unenumerated right’, as though it had been ‘repugnant to the Constitution’ within the meaning of Article 15.4.1o.

    Undeniably, this process has produced good results. It liberated Mary McGee from a situation where she and her husband had to choose between celibacy and her probable death, because of a foolish law, with sectarian overtones, that forbade the importation or sale of contraceptives. It also contributed to partially dismantling our disgraceful ‘Direct Provision’ system, though only by ignoring the fact that (with one exception) our Constitution guarantees rights only to citizens. But it is open to criticism on the following grounds:

    1. It allows you effectively to amend our Constitution by deeming it to include provisions the Irish people did not vote for;
    2. It thereby circumvents Article 47 of our Constitution, which provides that only we, the Irish People, may amend it;
    3. Good government requires that citizens should be able to find out what the law is. Nobody can tell in advance what new ‘unenumerated right’ you judges are going to discover or what existing Statute you may annul. So, nobody can say for sure what the law is.
    4. Judges introducing new rights into our law involves two things. First, it means you repeal Statute Law enacted by the Oireachtas, as if it were repugnant to the Constitution, though it is not.  (You may label the process annulment, not repeal, but that is a legal fiction.)  Secondly, it means you make law.

    All of these are serious matters, but the fourth is the most worrying to a thoughtful citizen. Our Constitution’s primary aim is to create a democratic State, where all powers of government derive from the People (Arts 5 & 6). In order to achieve that objective, it does a number of things.

    First, it declares that all citizens are equal before the law (Art 40). Next, it requires elections to the Dáil to be by proportional representation, and provides that elections cannot be indefinitely postponed, so that the Dáil must return reasonably often to the People to renew its mandate (Art.16). Then, it ensures that the Dáil will be the dominant House of the Oireachtas (Arts 16, 23 & 24). Finally, it vests in the Oireachtas the sole and exclusive power to make laws for the State (Art 15.2).

    These Articles together constitute the machinery that delivers to the Irish People a State where all citizens are equal, all have equal rights to vote for our representatives, and to remove them if they fail to satisfy us, and those representatives are the only people who may make laws for that State. They are the machinery that delivers the democracy our Constitution promises. Any interference with that machinery undermines our democracy.

    Our Constitution says your function is to administer justice in Courts established by law (Art 34.1). But what does ‘justice’ mean? Or, to put it another way, who decides what justice requires and what it permits? Is it for you judges to define what is just and what is not, and to decide issues that come before you accordingly?

    Or does someone else decide what justice requires, and is your authority limited to administering justice, not defining it? The answer must surely be in Article 15.2, mentioned above, which vests the sole and exclusive power of making laws for the State in the Oireachtas. Clearly, neither the drafters of our Constitution nor the citizens who in 1937 voted to adopt it intended that there should be two systems of right and wrong in the State, one consisting of laws made by our elected legislators and another, identified by judges, called ‘justice,’ and superior to mere law. That would be inconsistent with the basic promise of our Constitution, that ours is to be a democratic State. It would also be absurd.

    Only one view seems tenable. The function of judges is to administer laws made by the Oireachtas in any issue that comes before them that is governed by Statute Law. If an issue comes before a judge and there is no Statute governing the facts of the case, a judge should decide it consistently with what he or she considers justice requires. If the issue is governed by Statute Law, the judge must apply the law, as he or she undertook to do when first appointed to the Bench. A message to the Oireachtas suggesting that its legislation may not be perfect and might advantageously be amended is as far as a judge would be entitled to go – and would probably be welcomed and respected by our legislators.

    Let me expand briefly on the importance of the Oireachtas. In all representative democracies the elected legislature faces the most difficult and responsible task, that of deciding what kind of society it should be, at many different and not always compatible levels, and shaping it to their blueprint by enacting legislation. If there is a hierarchy between the different organs of government, the legislative is the most important and responsible, and the others owe it deference. The primary duty of the other organs is to give effect to the decisions of the elected legislature.

    Our Constitution is the direct expression of the People’s will, so no Statute may be passed that is incompatible with it. Judges decide whether a Statute is incompatible with our Constitution, and if it is, declare that the impugned Statute is not part of our law. But the question you address must surely be: ‘Is this Statute compatible with the People’s Constitution?’ It should not be: ‘Is this Statute consistent with a right that judges think should form part of Irish law?’

    My conclusion is that since 1965, relying on a questionable obiter dictum of one of our most thoughtful judges, John Kenny in Gladys Ryan v. A.G ([1965] 1 IR 294.), judges have been acting in a way that our Constitution does not allow, and have gradually augmented your authority at the expense of the People’s elected representatives. This citizen’s response is to thank you for the benefits you have conferred on us in many cases – and to ask you to stop.

    To any suggestion that this would remove protection for human rights in Ireland, my answer is that the comprehensive European Declaration of Human Rights now forms part of our Statute law, and any future decision to extend legal protection to other rights not currently defined and protected should be made by legislators, not by judges.

    ‘The Abbeylara’ Decision

    If this letter were to discuss this decision in detail it would become intolerably long, so I will only say that neither the High Court nor your Court seems to have considered in depth the needs of the Oireachtas or its powers. To serve us well, it needs to access accurate and reliable information on topics that may call for legislative intervention. And its power to make laws must surely include power to enable itself to gather and assemble such information, and to decide how to do so. Nor, as the text of the judgments shows, did either Court show the Oireachtas much respect.

    The Angela Kerins Decision

    Your decision in Angela Kerins v. McGuinness and others ([2019] IESC 11 & 42.) has to be seen against that background. We do not need to examine Ms. Kerins’ claim except to note that it was made against members of the Public Accounts Committee (PAC) of the Dáil arising from how they had spoken to her and questioned her when she attended one of their meetings.

    When the Irish people adopted our Constitution in 1937, we adopted a rule going at least as far back as the 17th century that our legislators should be answerable to their constituents and to nobody else, including judges. So we provided in Article 15 that they should be immune from legal claims for how they might do their work.

    This was not some whimsical gift to public representatives but a decision, both principled and hard-headed, that we needed to give them this immunity if they were to serve us as we wanted to be served. That is how the High Court approached Ms. Kerins’s claim, and it is worth quoting from its judgment:

    For upwards of four centuries it has been recognised in common law jurisdictions throughout the world that the courts exercise no function in relation to speech in parliament. This is fundamental to the separation of powers and is a cornerstone of constitutional democracy. The Constitution guarantees freedom of speech in parliament, not to protect parliamentarians, but the democratic process itself. The constitutional order requires that speech in parliament remain unfettered by considerations such as jurisdiction. If members of either House were constrained in their speech in the manner contended for by the applicant, the effective functioning of parliament would be impaired in a manner expressly forbidden in absolute terms by the Constitution.

    Your principal decision runs to fifty-six pages in single space typing, and its conclusion is:

    The privileges and immunities of the Oireachtas, while extensive, do not provide an absolute barrier in all circumstances to the bringing of proceedings concerning the actions of a committee of the Houses of the Oireachtas.

    The rationale for that conclusion appears on p.41, paragraph 9.27 and also on p.53, paragraph 15.2 (iii). The reason for keeping judges out of our National Parliament, obviously, is that the Oireachtas should do its work without interference by the Courts. But you insert an additional word, “undue”, before “interference”.  Obviously only judges can decide what interference would be “undue”. That word accordingly allows the judges to enter Leinster House, and adjudicate on what happens there. It negates the wording, and, more important, the intention of the Constitution.

    The Dáil as substitute defendant 

    Faced with the immunity we have conferred on our representatives, you decided that the Dáil should be held responsible for actions by its members you considered were unlawful. That decision seems to me to lack logic, for four reasons.

    First, you accept that Ms. Kerins has no right of action against T.D.s who upset her, but instead of dismissing her claim you substitute new defendants, so that she suddenly has a right of action, not against those who (she says) injured her, but against other people, who didn’t.

    Secondly, in order for one person to be legally liable for another person’s action (what lawyers call ‘vicarious liability’) that action must have been wrongful. But Article 15.13 of our Constitution forbids you to decide that the members of the PAC acted wrongfully. If there is no primary liability there can be no vicarious liability.

    Thirdly, how can the Dáil be liable in justice if some of its members acted wrongly?  If I choose an employee, offer him a job and tell him how to do it, I have responsibility for how he does his work, and may fairly be told to pay up if he injures someone while doing for me the work I hired him to do. But the Dáil does not select T.D.s and Senators. We do. Nor may it supervise or control how legislators perform their functions. That would be inconsistent with democracy. If a T.D. has done something he or she should not have, how can the Dáil be to blame for the actions of people it did not select and cannot control? Making it legally liable for their actions is inconsistent with justice as most citizens understand that word.

    Fourthly, the Dáil is composed of its members (Art 16.2.1o), so any liability you impose on it must fall on them. So your starting point must be that one-hundred-and-sixty-six T.D.s are personally liable (presumably ‘jointly and severally’) to pay any damages and costs the Courts might decide to award to Ms Kerins. But those one hundred-and-sixty-six T.D.s include the thirteen PAC members she complains of. They may not be sued, because Article 15.13 of our Constitution forbids it. So you have placed the liability on the remaining one-hundred-and-fifty-three T.D.s, who did not authorise the thirteen to do what they did, and could not stop them.

    Consequences for our democracy

    So, as I see it, you judges have entered Leinster House, against the intention of our Constitution. You now claim authority to review not only the law our legislators produce but how they do their work, again contrary to the intention of our Constitution.

    Even if you never again intervene in the legislative process, the possibility that you may do so will inevitably be in the minds of T.D.s and Senators as they go about their duties, and influence how they perform them. How can that be reconciled with ‘Separation of Powers’? To me, your Kerins decision is an attack on the democratic principles on which our Constitution is founded.  It’s as simple as that, and as serious as that.

    Confidence in the Judiciary?

    When I thought you judges exceeded your authority by applying your ‘unenumerated rights’ formula, I disapproved, but felt that many of the laws you set aside were ones we were better off without. Similarly, I disapproved of your decision in Abbeylara to interfere in how the Oireachtas informed itself so that it could legislate wisely, but did not think your restrictions would be too damaging. Where the authority of the Oireachtas was not involved, you seemed to me in general to produce sensible judgments, upholding the law.

    In some other respects I was critical: I think you failed to prevent the litigation process from becoming too slow, too verbose and too expensive, so that most of us no longer had access to justice. But I criticised you hesitantly, and respectfully. Your Kerins judgment has changed that. I see it as a direct attack on our democratic system of government. That it was unanimous frightens me. I no longer feel confidence in the body that heads our judiciary. I also suspect – fear – that as more people get to understand its implications more will be alienated.

    Looking at decisions I have mentioned in this letter, your ‘unenumerated rights’ decisions, your Abbeylara decision and now your Kerins judgment, it seems to me they have a common root: lack of respect for the Oireachtas. Members of that body, particularly the Dáil, may sometimes behave in a way that exposes them to ridicule, but the Oireachtas is – and rightly is – our sole and exclusive lawmaker, and the corner-stone of our democracy. All of us, including you, owe it respect.

    The next step should be to recognise and acknowledge the problem the Kerins decision creates, and consider how best to extricate yourselves – and the Irish people – from it. If you succeed in doing that, as I fervently hope you will, you will also have taken the first step towards restoring confidence in our judiciary.

    In ending this long letter I urge you to remember that no human institution can be perfect. We all blunder from time to time. When we err, as we must, acknowledging the error and striving to correct it is the best – indeed the only – way to earn and keep the confidence of those we serve.

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