Cassandra Voices

Category: Law

  • 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.

  • Irish Prison Reform Long Overdue

    The degree of civilisation in a society can be judged by entering its prisons.
    Fyodor Dostoevsky, The House of the Dead (1862).

    The quote above is from a work of fiction, but the author was drawing on a memory of four years imprisonment, following conviction for involvement in the Petrashevsky Circle – a Russian literary discussion group of progressive-minded intellectuals opposed to Tsardom.

    The great novelist only narrowly avoided a firing squad too – a stay of execution arriving at the last moment – which shaped his views on the death penalty. In The Idiot (1869) Prince Myshkin offers a salutary critique: ‘the whole terrible agony lies in the fact that you will most certainly not escape, and there is no greater agony than that’. He asks: ‘Who says that human nature is capable of bearing this without madness?’

    A sketch of the Petrachevsky Circle mock execution.

    For morals reasons – the idea of the state descending to premeditated killing – most jurisdictions no longer permit execution of prisoners following conviction for capital crimes. The strong likelihood of miscarriages of justice makes the argument against the death penalty appear insurmountable. A 2014 study indicated that one-in-twenty-five sentenced to death in the U.S. had been innocent.

    The idea endures, nonetheless, that certain offences place perpetrators beyond the pale, incapable of redemption – diabolic even – wherein they are viewed as a perpetual threat to society, or even a moral contagion.

    But, like it or not, the vast majority of prisoners do eventually re-join society, and it is in the wider community’s interest – with due regard for a victim’s or their relatives’ thirst for retribution – that convicts are rehabilitated to the extent they emerge as law-abiding and, ideally, self-sufficient citizens.

    Given an estimated one in every two re-offend within three years of release in Ireland it appears the correct balance between punishment and rehabilitation is not being struck. A ‘Bibilical’ ‘eye for an eye’ view – reconciling moral accounts – still informs Irish attitudes to incarceration, with overcrowding exacerbating difficulties in an inadequate prison infrastructure.

    According to Fíona Ní Chinnéide, of the Irish Penal Reform Trust in July: ‘At the outset of the pandemic, Irish Prisons were way overcrowded, you had people sleeping on mattresses on the floor.’

    With courts resuming normal service, she feared prison populations would rise sharply, leading to further overcrowding: ‘I mean, in the best of times overcrowded prisons do not support rehabilitation and lead to increased tensions, drugs and violence, but Covid-19 brings an additional layer to this.’

    Small Scandinavian countries such as Norway (20% after two years), Denmark (29% after two years) and Finland (36% after two years) currently lead the world in curbing recidivism. This can be attributed to prisons preparing inmates for life on the outside, including through open prisons that reintegrate offenders back into communities.

    Slopping Out

    A de-humanization of prisoners is evident in the nineteenth century layout of Mountjoy Prison, the conditions of which could drive anyone to madness, or at least perpetuate a life in crime. Any visitor can discern a judgmental Victorian morality pervading the edifice.

    Mountjoy Prison, Dublin 1850 Illustrated London News Public Domain.

    The spectre of Henry Martin Hitchins, formerly Inspector for Government Prisons in Ireland, who oversaw its opening in 1850 lingers. He advised the first governor:

    prisoners committed to your charge have been convicted of grave offences against God and man, that they have forfeited their civil rights and are confined much to protect society against their evil practices as to afford them an opportunity of repentance and reformation. It is therefore of primary importance that the prisoners should be brought to a proper sense of their condition and after the religious exhortations of the chaplains nothing so directly tends to effect this object as a firm and steady exercise of a severe discipline.

    Inhumane features of the nineteenth century regime endure wherein the prisoner forfeits basic civil rights and experiences degrading treatment. Gary Simpson was held in Mountjoy Prison between February and September 2013. As a ‘protection prisoner’ he was kept in isolation from other prisoners – detained in cells on the D1 wing prior to its refurbishment. During that period there was no in-cell sanitation, nor even a sink providing running water.

    Prisoners were normally provided with a ‘slopping out’ chamber pot and a plastic bucket of water for washing their hands. Simpson brought an action for damages in response, alleging he was regularly compelled to urinate into empty milk cartons as the chamber pot was too small to be used more than twice without being emptied. He claimed he had to defecate into a refuse bag for the same reason.

    Simpson received damages of €7,500 in 2019 after contending with conditions the Supreme Court agreed breached a constitutional right to a basic level of dignity while in prison. The paltry nature of this award – commensurate with a soft tissue injury – is a damning reflection on the degree of Irish civilisation.

    Disturbingly, despite a government pledge in 2017 to end the practice by this year, it was revealed in August that fifty-one inmates in Irish prisons are still slopping out.

    It could be you…

    Most of us, generally law-abiding citizens are not kept awake at night at the prospect of a stretch behind bars, but even among ‘respectable’ families there are often members who find themselves on the wrong side of the law. And delving into family histories invariably yields an ancestor who has offended against dominant morals expressed in the laws of the day.

    In my own case, a great-grandfather Luke Armstrong (1853-1910) of Tubbercurry, Co. Sligo was subjected to at least two stretches behind bars for activities he viewed as political – the so-called Land War of the early 1880s – but which the Crown authorities considered criminal. An ambitious shopkeeper, ‘who was better dressed than his Tubbercurry companions,’ he was arrested in April, 1884 and charged with his fellow conspirators with being a member of the Fenian Society, and conspiring to murder a land agent.

    An eviction during the Land War.

    Luke Armstrong and his co-defendants were eventually transferred to Kilmainham Gaol in Dublin, and brought to trial the following November at Green Street Courthouse. Thankfully, given the gravity of the charges, all the accused were acquitted based on the unreliability of the Crown informant’s evidence.

    As a high-ranking member of the IRB, this was not Luke’s first brush with authority. He was also incarcerated in Enniskillen Gaol earlier in the 1880s where he was subjected to ‘two days’ solitary confinement by the Governor. Luke must have gained extensive experience of slopping out during these unwelcome sojourns.

    The Land War of the 1880s may seem like a far off, almost mythical, period, but as recently as the 1940s Irish political prisoners were held – for years on end in many cases – without trial under Emergency Powers Orders in Nissen huts in the Curragh – labelled Tin Town (Baile an Stáin or an Bhaile Stáin) by internees that included the novelist Máirtiín Ó Cadhain.

    According to the historian Tony Gray, the EPOs ‘were so draconian that they effectively abolished democracy for the period, and most aspects of the life of the country were controlled by the dictatorial powers the government acquired.’[i]

    Ironically, another great-grandfather of mine, former Taoiseach (1948-51 and 1954-57) John A. Costello, was responsible for drafting emergency legislation while Attorney General in 1926 in response to the assassination of Kevin O’Higgins; although according to his biographer David McCullagh: ‘While portrayed as draconian, the response was in fact far more measured than might have been expected, or than was initially considered.’[ii]

    At least, to Costello’s credit, in opposition when emergency powers legislation came before the Dáil again during World War II he insisted on a right of appeal to the courts from special tribunals.[iii]

    John A. Costello 1891-1976.

    Today, new emergency legislation in response to the pandemic awakens fears that “generally law-abiding citizens” could yet fall foul of draconian laws intended to protect the community. Indeed, the term ‘lockdown’ is derived from the lexicon of incarceration: the confinement of prisoners to their cells for all or most of the day as a temporary security measure. Perhaps our experience of stay-at-home orders will instil greater empathy with the loss of liberty and privations endured by a prisoner.

    One should be hesitant, therefore, to assume prison to be the fate alone of an underclass or those exhibiting extraordinary moral deviancy. Any one of us could face a stint behind bars, either through weakness, as a result of a mistake or error, a miscarriage of justice, or even where a moral conviction leads to a stand against a law or authority we consider illegitimate.

    In accepting this possibility, we should consider the minimum duty of care owed by the State to any person incarcerated, and the purpose of a prison sentence.

    Principles of Sentencing

    Objectives of sentencing include revenge, retribution, just deserts, deterrence, incapacitation, rehabilitation and restoration.[iv] The most familiar type of sentencing is a custodial sentence, but judges can also levy fines, or make community service orders; contributions to the poor box are often accepted as a form of contrition in lieu of sentencing.

    The handing down of a prison sentence demonstrates to the community that morally repugnant behaviour will receive its just deserts. The threat of incarceration may also act as a deterrent, and a victim’s desire for revenge or retribution should be respected and vindicated.

    The current conditions of Ireland’s prisons now amply provide for deterrence and revenge: who in their right mind would relish even a night in ‘the Joy’?

    To an extent this is how it should be. Unless the State administers sentencing proportionate to a crime – as agreed by the community through its laws – faith could be lost in the rule of law. Indeed, vigilantism could emerge in its absence – as we have witnessed with extra-legal pursuit of drug dealers in some Dublin neighbours, and especially in Northern Ireland, where horrific kneecapping still occurs. The State should endeavour to monopolize the use of force with the objective of reducing violence, and other antisocial behaviours, overall.

    Mandatory sentencing of ten years under the Misuse of Drugs Act 1999 for possession of drugs with a value over €13,000 has not, however, proved an effective deterrent and in most cases judges find exceptional circumstances apply to avoid the full imposition of the term for what is a non-violent offence.

    It is understandable that judges would wish to avoid the nuclear option of a prison sentence, which often hardens individuals to lives in crime. If, however, Irish carceral institutions adequately rehabilitated young offenders in particular – nipping errant behaviours in the bud – judges might be inclined to prescribe short interventions. This could offer a chance for someone to turn over a new leaf, and even learn new skills in a safe environment.

    Legislators might also consider broadening the range and reducing the period for convictions to be ‘spent’ – fixed at seven years for particular offences. This might diminish the social stigma of serving time behind bars, allowing for it to be seen as a therapeutic intervention rather than a lifelong stain on one’s reputation.

    One means of addressing victim impact and an understandable desire for retribution or revenge is through non-adversarial mediation. This includes the idea of restorative justice, which brings perpetrators together with victims of crime. Ideally, a consensus is formed around what the offender can do to repair the harm caused by the offence. See Alan Gilsenan’s documentary The Meeting (below).

    Anders Breivik

    Incapacitation is also a necessary ingredient to sentencing, where an individual presents an ongoing threat to society, or even to fellow prisoners. This is a familiar justification for the death penalty, and there remain scenarios where an agent of the state – usually a police officer – acting in the common good, may lawfully kill someone, notwithstanding the twenty-first amendment to the Irish Constitution prohibiting the death penalty. Such a response is only lawful if it is proportionate to the threat – a test similar to justifications for self-defence.

    Dostoyevsky’s moral argument, and the likelihood of miscarriages of justice, are convincing arguments against the death penalty, but the ongoing danger posed by individuals must still influence the severity of sentencing.

    Thus, the continued solitary confinement of Anders Breivik – currently serving twenty-one years for a bomb and shooting attack that left seventy-seven people dead in Oslo – was not held to violate Articles 3 and 8 of the European Convention on Human Rights, relating to the prevention of torture and inhuman or degrading torture, and the right to privacy and family life.

    Flowers laid in front of Oslo Cathedral the day after the attacks. Image: Johannes Grødem

    The test employed is one of proportionality. The court obviously took into account that Breivik is a mass murderer who had admitted to indiscriminate killing for a political end. Authorities fear he could exert a nefarious influence over fellow prisoners given an opportunity to do so. This view may be correct but it sets a dangerous precedent; albeit the Norwegian government argued that Breivik’s three-cell complex, with access to video games, TV and exercise facilities, is better than the conditions of most other prisoners, thereby compensating for his solitary confinement.

    In recent times terrorism has emerged as a justification for harsher sentencing – and even torture – and extended periods of questioning before charges, but the definition of a terrorist is loose and unsatisfactory, and a form of structural racism (or Islamophobia) appears to inform treatment of offenders in many jurisdictions. My own great-grandfather was considered a Fenian terrorist in his day.

    Satirical drawing, ‘the fenian-pest,’ Punch Magazine, 1866.

    Open Prisons

    The temporary removal of liberties such as conjugal rights between husband and wife is generally considerate a proportionate punishment when a guilty verdict is found. This view was upheld in Ireland in the case of Murray v. Ireland [1985]. But what if the denial of such a liberty impedes rehabilitation or the restoration of a flourishing individual to society? This judgment may merit re-examination if we are to prioritise rehabilitation.

    The interest of the community in ensuring a prisoner is equipped to transition back into civilian life should trump an understandable desire for revenge felt by victims of crime and their relatives. But this reasoning does not now inform sentencing in Ireland, where even posting a letter requires a lengthy review process at either end. Enjoying the privilege of just one phone call a week means prisoners cannot easily stay in touch with family members.

    Among the reasons for Finland’s low rate of recidivism is the open prisons developed to prepare convicts for life on the outside. Instructively, Finland has the lowest per capita incarceration rate in the European Union, with just 51 people per 100,000 in some form of prison, according to the World Prison Brief, while Ireland’s stands at 84 per 100,000, which might well be higher but for current overcrowding inhibiting sentencing.

    The former prison building of Katajanokka, Finland is being renovated into a hotel.

    Also, instructively, Ireland ranked sixth worst in Europe in a crime index conducted by Numbeo scoring 44.52, whereas Finland lies in thirty-fifth place overall on 22.80. Thus, despite a significantly smaller prisoner population, Finland is also a safer country than Ireland, scoring 77.20 against 55.48. Given Ireland’s GDP per capita ($89,383) exceeds Finland’s ($49,334) by a considerable margin, this is clearly a question of priorities rather than resources, and sadly, an indicator of our respective “degrees of civilisation.”

    Sasu Tyni, a researcher at Helsinki University and the Criminal Sanctions Agency (RISE), says that the Finnish system is based on a belief that locking people up is a last resort. ‘Closed prisons are more or less grounded in security purposes, while open prisons aim to be closer to society, family, work etc,’ she explains. ‘The strategy of the Criminal Sanctions Agency has for years been to use closed prison as the last option. We assume an open prison system can decrease the risk of recidivism.’

    Prison governor Kaisa Tammi-Moilanen explains that prison authorities have ‘purposely tried to avoid everything that we can which are associated with a prison,’ which means there are no physical barriers stopping prisoners from escaping. Tammi-Moilanen explains this is intentional, as it encourages prisoners to develop a sense of self-control.

    Prisoners in a closed prison don’t need to learn any self-control, because everything they do is controlled. But to be a normal citizen you need to have inner control of your life, so you know how to behave, you know what is good for you and you know what is good for the society.

    In contrast in Ireland, according to the annual report of the Inspector of Prisons from 2008:

    At present the open prisons at Loughan House and Shelton Abbey are, to an extent, used to cope with the overcrowding in the closed prisons and therefore in their current use could only play a minor role in the effective management of prisoners through the prison system.

    There is no evidence that international best practice has been taken into account since.

    Reskilling

    Re-evaluation of the role of Irish prisons does not appear to be on the immediate horizon. The new Minister for Justice Helen McEntee indicated that Garda reform, domestic violence and the modernisation of the sector’s IT services were her three priorities in an interview with the Sunday Business Post in August.

    Yet historic shortfalls in rehabilitation have brought high rates of recidivism at significant cost to the exchequer: the average price of an ‘available, staffed prison space’ was €75,349 in 2019. Moreover, the lawlessness evident in parts of Ireland can be traced, at least in part, to the failure of the prison system to rehabilitate adequately.

    Targeted investment should produce long-term savings by reducing recidivism. The new Minister thus has a huge opportunity to leave a profound legacy that could ameliorate conditions in certain ‘no go’ neighbourhoods.

    Introducing meaningful open prisons to reintegrate prisoners into communities would require a cultural shift however. Prevailing Irish attitudes towards crime are informed by enduring social cleavages: in Dublin expressed in euphemisms about someone being ‘from the inner city;’ or ‘of Traveller origin’ in rural Ireland. Yet prison reform could address long-term poverty and social exclusion. Any progress would be a significant feather in the new Minister’s cap.

    It seems obvious that prisons should offer inmates a chance to break the chain in a life of crime, rather than perpetuating one. Sadly, incarceration remains a breeding ground for criminality. Fresh thinking is required to address shortfalls in mental health provision, drug addiction counselling, and general education – especially illiteracy: one in six of the adult population in Ireland is still functionally illiterate.

    In 1997 the Irish Times reported: ‘It is widely accepted that the standard of education of most inmates adults and juveniles is somewhere between third and fifth class of primary school.’ Twenty years later the same paper reported: ‘Overall, four out of five prisoners (80 per cent) left school before their Leaving Cert, more than half (52 per cent) left before their Junior Cert, and just over a quarter (26 per cent) never attended secondary school.’

    Anyone hoping to leave a life in crime behind should be able to glimpse viable alternatives while in prison. A Leaving Certificate is generally seen as a foothold for advancing one’s career. In 2011 the Irish Times reported that 117 prisoners were sitting the Leaving Cert and 161 were taking Junior Cert exams that year, but current figures are not easily accessible.

    Alternatively, offering prisoners business skills has been floated as one approach by chef-entrepreneur Domini Kemp, who participated on a programme at Wheatfield Prison. As she it put it:

    I read that prisoners cost north of €68K a year in Ireland and it struck a chord with me that if you could teach them how to start their own business and reduce the rate of reoffending, how much you could save.

    An entrepreneurial career path will obviously not suit every ex-prisoner. The challenge of starting a small business should not be underestimated. But the state should be empowering prisoners with career alternatives for when they return to their communities.

    Mountjoy Campus, North Circular Road, Dublin, Dublin 7, Ireland

    Wellbeing

    In an enlightened society such as Finland’s it appears as if the traditional prison is being phased out. This may be attributed to many factors including an inclusive education system, as well as advanced ideas on wellbeing. Minister of Social Affairs and Health in Finland, Pirkko Mattila, explains the connection between economic growth and wellbeing:

    Economic growth improves people’s wellbeing, whereas wellbeing and health of the population enhance economic growth and stability. This interlinkage must be better recognised. In Finland, we are putting forward a holistic approach to this question that requires horizontal thinking and cross-sectoral co-operation. We call this approach, the Economy of Wellbeing.

    This holistic approach seems to play an important role in keeping crime to a minimum in Finland. In contrast the steady acquisition of wealth in Ireland appears to be decoupled from the Economy of Wellbeing. A more enlightened prison system could help bridge that divide.

    Nevertheless, it may be impossible ever to extinguish the evil that leads to certain crimes. The example of Anders Breivik in Norway demonstrates that even highly civilised countries witness heinous crimes, or black swan events.

    We may always require prisons to act as a deterrent and to protect society from evil behaviour, but it is worth bearing in mind that any one of us could find ourselves behind bars. It is in all our interests that prisons assist inmates to become functioning members of society. The Irish prison system is now perpetuating criminality, and the new Minister should make reform a priority.

    Featured Image: main hall of Kilmainham Gaol.

    [i] Tony Gray, The Lost Years: The Emergency in Ireland 1939–45 Little Brown & Co, London, 1997, p. 5.

    [ii] David McCullagh, The Reluctant Taoiseach: A Biography of John A. Costello, Gill and MacMillan, Dublin, 2010, p.63

    [iii] Ibid, p.139

    [iv] See Frank Schmalleger & John Ortiz, Corrections in the 21st Century, 4th Edition, 2009, p.71

  • Amy Coney Barrett and “Originalism”

    The day that they killed him, someone said to me, “Son
    The age of the Antichrist has just only begun”
    Air Force One coming in through the gate
    Johnson sworn in at 2:38
    Let me know when you decide to thrown in the towel
    It is what it is, and it’s murder most foul
    What’s new, pussycat?
    What’d I say?
    I said the soul of a nation been torn away
    And it’s beginning to go into a slow decay
    And that it’s 36 hours past Judgment Day

    Bob Dylan ‘Murder Most Foul’

    As I have previously argued, the death of Ruth Bader Ginsburg is the death knell on a long liberal tradition of American judges, including William O. Douglas, the Irish-American William Brennan, and Harry Blackmun. More recently we have had John Paul Stevens, and perhaps David Souter, who went on a voyage from straight conservatism to moderate liberalism, can be added to that list.

    This sad passing should be of grave concern to the world, as the composition of the U.S. Supreme Court is more important than any President. It has finally been subsumed by the dangerous ideologies of neoliberalism, religious fundamentalism and hatred and exclusion of the other.

    At one level, abortion is the canary in mine shaft, which may be distracting from other equally important issues. America has had to contend with threats to the seminal judgment of Roe v. Wade before, when Ronald Reagan appointed Sandra Day O’Connor as the first female judge of the Supreme Court. She appeared to be an ardent anti-abortionist, but flipped to some extent in Planned Parenthood v Casey (1993). I don’t think Trump has made the same mistake – much to my chagrin – with Amy Coney Barrett.

    Let us be clear. The appointment of a woman simply because she is a woman is not a cause for celebration. It is another Populist gesture from a Trump Presidency designed to deflect from criticism of her judicial philosophy. She is deeply conservative and an adherent of an historical and literalist approach to the interpretation of the U.S. Constitution, which is aligned with deep-seated religious and political fundamentalism.

    As an ardent Catholic boasting seven children, of whom two are adopted, it is fair to surmise that she may have reservations about contraception. Her support of the ownership, possession and use of handguns – even for non-violent felons in Kanter v Barr (2019) – is conditioned by an historical approach to interpreting the Constitution. This she has inherited from the recently deceased Supreme Court judge Anthony J. Scalia – affectionately known to liberals as Tony the Phoney – under whom she clerked. ‘His judicial philosophy is mine too,’ she said.

    Scalia with President Reagan in 1986.

    Justice Harry Blackmun, (the author of the majority decision in Roe v Wade) realised this might happen in Planned Parenthood (1973); the light flickering at the end of his moving judgment. That light is now extinguished.

    Of significant concern to all non-nationals, she also voted as circuit court federal judge for Trump’s hard line legislation on Green Cards, and will no doubt also expand the protection of religious rights, conditioned by historicism and literalism. Gay rights groups have also been very troubled by her views. Such ‘deviant’ preferences were contrary to public morality in 1789 after all, as was the presence of inferior races.

    We have entered a dark era dominated by the religious right, involving literal and historical interpretation of the U.S. Constitution. A return to eighteenth century values is upon us, including the fire and brimstone of the Old Testament, neglecting to remember that Thomas Jefferson was a deist, if that. Let’s not forget that the United States required a Civil War to end the ‘peculiar institution’ of slavery that was not even mentioned in that document, apart from in the three-fifths clause that represented a African-American slaves as three-fifths of a white person for electoral purposes, in order to maintain a balance between slave and non-slave owning states.

    Originalism

    So what is the evangelical Christian conditioning of her mentors?

    • Old Originalism or Original Intent dates from the 1980’s scholarship of Robert Bork, and is linked to the intention of the Founding Fathers, or a subtle shift to meet objections; the ratifiers of the Constitution.
    • New Originalism (if it can be termed thus) or Original Meaning Originalism or Original Public Meaning focuses on the original public meaning of the Constitution. Which includes the unmistakable whiteness of the signatories. This leaves a measure of indeterminacy and thus discretion to future generations, but is really a sleight of hand designed to conceal much of the above.
    • A further distinction has been drawn between Original Meaning and Original Expected Application. The argument is that whereas Original Expected Application binds us to the intention of the Founding Fathers, Original Meaning gives us a text which we show attention and fidelity to, and which provides a blueprint for future generations

    In essence, the original version of Originalism (now termed inter alia Old Originalism) contended that in order to interpret the Constitution, judges should search for the intention of the Founding Fathers. The view was a rejection of what was perceived as the judicial activism of the Warren and Burger courts, and was initiated by Reagan’s Attorney General Edwin Meese, who argued for ‘Original Intention’ to put decisions back on the proper path of reflecting the views of the Founding Fathers, and respecting ‘democratic’ principles.

    Thus, it is important to stress that from the outset Originalism is associated with neoliberal or even neoconservative political principles, not a middle ground Burkean conservative approach.

    There has also been a subtle nuancing from Original Intent to Original Understanding or Original Meaning, to deal with the objection that it was the ratifiers’, not the framers’ intention, that was important, but even at the time there were powerful intellectual objections.

    It has been repeatedly argued that we cannot access the mental states of the Founding Fathers or ratifiers. They might have had conflicting mental states, and their intentions are simply unknowable. Further, and crucially, it seems to me, the Founding Fathers or ratifiers had no particular foresight as to the state affairs and social circumstances that would emerge after they had departed, while the Constitution was presumably designed to cope with the exigencies of new circumstances.

    Founding Fathers, John Adams, Thomas Jefferson, Benjamin Franklin, Roger Sherman, and Robert Livingston.

     

    Original Meaning Originalism

    Jefferson Powell has added a further criticism, which is that the Founding Fathers themselves did not believe that looking to their intention was an appropriate approach, and that it was the public words of the text that were binding.

    There is another powerful and all-pervasive intellectual objection to Original Intent, which is a dominant theme of this article: even if we are certain of the precise intentions of the Founding Fathers and ratifiers, and even if we knew they intended to bind us to their settled historical meaning, why should we care?

    Why, in substance, should we be bound by the dead hand of history?

    In reaction to these criticisms the Original Intent movement shifted its position. Spurred on by Justice Scalia and members of Reagan’s Justice Department, the movement began to argue it was not the intention of the Founding Fathers or ratifiers that was important, but the publicly shared meanings of the text. Or at least those shared in 1789.

    The New Originalism (or ‘Original Meaning Originalism’) has as its core idea that the meaning of the constitution is the original public meaning of the document, or its conventional semantic meaning, including the meaning as changed by amendments. Such theorists then began to look at dictionaries and documents of public record to ascertain what citizen views were on constitutional matters at the time. They believed that such sources would discipline courts from engaging in judicial activism.

    A Constitution Falls to be Interpreted by Successive Generations.

    Barnett has argued that the text legitimates the use of the State’s coercive power, and legitimates judicial activism. That ultimately it defers to a theory of popular sovereignty in that the people gave their permission to that written text (which in this jurisdiction they extend frequently by referendum), with the government acting as agents of the people. This is correct, but it is the will of the chosen few, interpreted through the prism of Old Testament values and emergent racism.

    Jack Balkin, a moderate liberal, defines Original Meaning as a commitment to the fidelity of the text and the principles of the text, which must mean different things to each successive generation; as words themselves shift in meaning over time, and the nuances of the abstract terms and vague clauses of a constitutional text shift and change.

    He argues for a form of redemptive constitutionalism through the passage of history, where the open-ended language of the constitution delegates the application of terms to future interpreters, arguing that,

    The whole purpose of a constitutions cannot be simply to forestall political judgements by later generations on important issues of justice, to preserve past practices of social custom or judgements of political morality, or to freeze existing assessments of rights in time. When we view these open ended rights provisions together with the more rule-like structural features of constitutions, we can see that they serve a somewhat different goal. They are designed to channel and discipline future political judgements not forestall it.

    Balkin asks the question: what do abstract provisions in the constitutional text do? Are they designed only to limit future generations, or are they also designed to delegate the articulation and implementation of important constitutional principles?

    Balkin later expands on the constraints on political judgement imposed by the text, but cautions against freezing political judgments at a fixed position in time. He contends that the constitution is an aspirational document and that the position of those such as Justice Scalia – who claim we are constrained by the original intent of framers or enacters – is a ‘narrative of decline.’ A “decline” has lately turned into a slide.

    In contrast, Balkin argues that principles existing and embedded in the Constitution can be re-interpreted by successive generations to confront contemporary issues. Thus he argues that the class clause in the constitution can protect the right of homosexuals, even if no one at the time of the enactment approved of homosexuality.

    Barret’s views on gays, immigrants and abortion suggest she thinks otherwise.

    Dworkin

    The late Ronald Dworkin, has written eloquently, about historicism, particularly in response to the nomination of Judge Robert Bork to the Supreme Court, and the publication of Bork’s Tempting of America. In assessing the legal intentions of the framers Dworkin argues:

    They intended to commit the nation to abstract principles of political morality about speech and punishment and equality, for example. They also had a variety of more concrete convictions about the correct application of these abstract principles to particular issues. If contemporary judges think their concrete convictions were in conflict with their abstract ones, because they did not reach the correct conclusions about the effect of their own principles, then the judges have a choice to make. It is unhelpful to tell them to follow the framers’ intentions. They need to know what legal intentions – at how general a level of abstraction – and why. So Bork and others who support the original understanding thesis must supply an independent normative theory – a particular political conception of constitutional democracy – to answer that need. That normative theory must justify not only a general attitude of deference, but also what I shall call an interpretative schema:  a particular account of how different levels of the framers’ convictions and expectations contribute to concrete judicial decisions.

    Ronald Dworkin

    Dworkin elaborates that the farmers’ intent can be viewed on levels of generality and that we must seek to ‘disentangle the principle they enacted from their convictions about its proper application in order to discover the political content of their decisions.’

    He expands on that by saying that Bork uses the framers’ intent inconsistently, and at different levels of generality; in a reductive fashion and in a very strict sense for the cruel and unusual punishment clause of the Eight Amendment (to permit capital punishment); but in a broader sense for the principle of equality (to meet the future but then uncontemplated need of outlawing racial desegregation).

    Dworkin concludes that:

    There is nothing abstruse or even unfamiliar in the notion that the Constitution lays down abstract principles whose dimensions and application are inherently controversial, that judges have the responsibility to interpret these abstract principles in a way that fits, dignifies and improves our political history. 

    Justice Brennan

    On retirement Justice William J. Brennan argued against Original Intent on a number of grounds. He noted that the ‘proponents of this facile historicism justify it as a depoliticization of the judiciary,’ but ‘the political underpinning of such a choice should not escape notice,’ and that a ‘position that upholds constitutional claims only if they were within the specific contemplation of the framers in effect establishes a presumption of resolving textual ambiguity against the claim of constitutional right.’

    Brennan further argues, apropos the U.S. Constitution, but of equal application to the Irish Constitution, a constitution is not just a majoritarian document, but embodies substantive value choices that are placed beyond the legislature. Contemporary courts should abide by this duty in modern circumstances.

    End of Days

    What Amy Coney Barret’s appointment means is that the liberal academic, political and legal agenda has lost the argument, and the Bible Belt is in the box seat. It is game over in the U.S. Supreme Court, and the interpretation of texts will now be literal and historical.

    Expect decisions that are pro-gun ownership, anti-abortion, anti-gay rights, anti-health care and above all a reinstitution of Christian evangelical rights. People of colour and migrants will be excluded as unworthy to the clean and pure. It is an exclusionary and intellectually baseless approach, but it is running America and most of the rest of us by extension.

    Above the duty of the court is to keep the chosen few happy and rich. A quote from Orson Welles’s ‘The Third Man’ captures the sentiment:

    If I offered you twenty thousand pounds for every dot that stopped, would you really, old man, tell me to keep my money, or would you calculate how many dots you could afford to spare? Free of income tax, old man. Free of income tax – the only way you can save money nowadays.

    People are seen as insignificant dots, and objects of exploitation for the elect.

  • Enforcing Environmental Rights

    Introduction

    However scant the support provided by the legal process, as a lawyer I am drawn to rights-driven considerations. In terms of recent context – blinkered by the present over-reaction – Obama’s climate change initiative has been overturned by Trump, who effectively tore up the Kyoto Accord.

    The internal U.S. solution to climate issues is to endorse such market-driven approaches as ‘Cap and Trade’. For example the Law and Economics movement allows and encourages individual U.S. States to permit, through legislation, permission to purchase the right to pollute. Obviously what happens is that once a corporation’s pollution credit is exhausted in a given State they simply move on. It is, in short, a polluter’s charter.

    A pollution or carbon tax is justified on the basis that it will promote efficiency but little account is taken of the externalisation of environmental meltdown, or on whether it is regressive or not. China’s ongoing disregard for pollution controls and restraints on consumption is well documented. The excuse given is that the U.S. is doing worse. So there seems to be little hope of the Big Two changing course.

    Nonetheless, as we will see, such ‘environmental rights’ as there are can be divided into three distinct categories: environmental procedural rights; the right of environment and the right to environment.

    A Consensus of Crisis

    Discourse on the status of the Blue Planet is varied and complex. On the one hand it is quite clear that it will survive climate chaos even if humankind does not. Gaia, as James Lovelock conceives her, has an infinite capacity for renewal and regeneration. But the scale and imminence of the impending disaster is being carefully manipulated in the vectors of public opinion. Trump, Bannon and others should be indicted for the crime against humanity of ecocide.

    The science is saying – the work of Elizabeth Colbert in particular – that without radical action, within sixty years the remaining wild mammals may be extinct. In these circumstances human extinction is likely to occur by increments.

    Various parts of Earth will be rendered uninhabitable through plant and animal die outs, destroying natural habitats and accelerating ecological meltdown. Raised temperatures will foster further mass migrations, with no clear destination, or pity, emanating from the privileged few, as quarantining of refugees in secluded detention centres becomes the norm.

    Radical inequalities in wealth and assets will diminish life expectancies through poverty and an under-resourced and undermined welfare system. Death on the Instalment Plan, as Louis-Ferdinand Céline put it after the Great Depression awaits for many of us. So in the medium term a mass extinction seems unlikely. More likely there will be significant population culls as a cost-benefit analysis to human life is applied.

    A crucial consideration, flagged in detail by John Gray, is that the top soil on which agriculture rests is being rapidly eroded. Furthermore, of even greater concern perhaps, is that chemical inputs into agriculture are wreaking havoc with natural ecosystems.

    Gray has previously argued in favour of an alliance between moderate conservatism and the green agenda, conserving venerable institutions while enhancing environmental and civic health. This is a variant on sustainable growth or development. Unfortunately, this admirable ideal appears to have little chance of success in the real world of power and money.

    Besides, the post-truth plague has put wind in the sails of climate change denial, as inaccurate and self-serving ideas are peddled by the likes of Michael O’Leary. These are accepted as valid points of view, as part of a misplaced notion of balanced coverage.

    The agenda is clear. The far-right prizes its assets and its riches, and prefers to pillage the Earth, rather than protect the planet.

    Collapsing Glaciers, Arundhati Roy and Indian Precedent

    According to the Geophysical Research Letters the ongoing melting of the glaciers of Antarctica is expected to be exacerbated by the collapse of the greatest canyon on earth: the Denman Glacier. By now the glacier is mostly cut off from the sea due to the level of glacial ice piled inside and atop the ravine.

    As the glacier’s edge continues to retreat down the slope, however, warm ocean currents will pour into the canyon, battering bigger and bigger sections of the glacier and gradually turning the Denman trough into a giant bowl of melt water, with nowhere to go. This scenario could have a runaway feedback loop of melt that ultimately returns all of Denman Glacier’s ice to the sea — risking a nearly 5 feet (1.5 m) rise in the planet’s sea level.

    This could lead to significant migrations from South to North – a mass exodus in fact – as overheating increases, joining the ever prevalent boats arriving in Sicily and elsewhere on the Mediterranean. I fear increasingly draconian measures to control migration and effectively dispose of fellow human beings.

    The developed world is not immune however. The environmental crisis, coupled with inevitable pandemics to come, is likely to precipitates a global financial collapse. The recent Financial Crisis has already brought ‘strong man’ leaders, and an increasingly oppressive jackboot state in so-called democracies.

    Assets need to be preserved, and those who threaten the status quo and the inward rapacious march of unchecked capitalism may be disposed of. As John Gray remarked in a different context: ‘The quickening advance of science and technology in the past few centuries has not gone with any comparable advance in civilization or human rationality.’

    Many human rights organizations reliant on funding and sponsorship from right-wing think tanks are becoming less than eager to confront the hard issues, as the consequences for doing so is a withdrawal of funding. The priorities of the Ford Foundation and others, who fund NGOs, brings a devotion to identity politics rather than the crucial issue of climate change.

    Those therefore, such as the Indian writer Arundhati Roy, who challenge rapacious capitalism around the world, or have the temerity to object to its nefarious agenda will be murdered, imprisoned or simply disappeared. This goes hand-in-hand with sectarian repression in India where, ‘people are graded and assessed according to their faith.’

    Naomi Klein has offered a powerful critique in a series of books ever since The Shock Doctrine (2007). The important point to grasp is that the Chicago School approach of enforced shocks and distractions occlude sinister power grabs. The Covid-19 pandemic is a perfect sideshow in this respect for a shake down by large corporations. Over-reaction and mass hysteria about a virus becomes another distraction from a bigger picture of environmental, and social, meltdown.

    In India and beyond, Arundhati Roy demonstrates how neo-liberalism and environmental damage go hand in glove in her Capitalism a Ghost Story (2014).  Since the publication of The God of Small Things (1997) she has channelled her energies into political activism against the growing environmental and economic calamity being perpetrated on her native land, through the depredations of neo-liberalism. It is that political conscience that is the primary interest of her new awareness.

    In Capitalism: a Ghost Story there are all sorts of resonances to her new work of politicized fiction The Ministry of Utmost Unhappiness. There is the mass evictions of India’s ‘surplus population.’ The street vendors, rickshaw riders, the small shops and business people, that brought the suicide of 250,000 farmers. This forced displacement, often from rural areas to cities, augments wealth of the one percent of plutocrats who control India. A graveyard, or simply being simply dumped in a river bed, is often the fate of the displaced, or the disappeared.

    It is clear in both books that this is the product of  a society where corruption is endemic. Inequality works to the benefit of monopolistic corporate interests, involving crossover interests of transnational corporations and law firms. Even the NGO sector won’t cut it as Roy saliently points out: ‘charity douses anger with pity.’ It can even silence criticism of neo-liberal atrocities by deflecting attention to ‘safer’ human rights issues such as gender equity.

    Roy has suggested that Covid-19 offers a portal that may allow us to mend the error of our ways. I hope she is right.

    https://vimeo.com/426871719?fbclid=IwAR2MMWAdI_jbI1ASvY78K-XBh-QxPMrgWIUTdjuclsedx-wWv5CHtLP-XEo

    Dissent from Sweden

    This brings us to Greta Thunberg, our only child public intellectual. Aged just sixteen, Time Magazine saw fit to make her its person of the year for 2019. She became famous for not attending school to demonstrate against her government’s inaction over climate change, leading to a spate of copycat demonstrations.

    Her recent short text, available in any decent book store for £2.99, No One is Too Small to Make a Difference (2019), provides a summary of her speeches. She questions, given an imminent mass extinction, whether attending school is a terribly worthwhile idea, and identifies a cathedral solution. This is a brilliant analogy as we need deep structural and integrative thinking, and the leadership of the just and the wise. She might also have noted that serfs and slaves built the cathedrals, just as wage-slaves constructed those great cathedrals of capitalism: the skyscrapers.

    Greta Thunberg sees the world through black and white lenses. Good and evil. This provides a refreshing clarity, demanding action to be taken now, or her generation has no future. She is right insofar as the overwhelming majority of scientists are to be believed.

    Fortunately she is Swedish and retains a comparative freedom to speak her mind, despite the chastisements of Mr. Trump. The writ of neo-liberal justice does not extend to that Nordic country just yet.

    Little wonder also that anarcho-syndicalist groups such as Extinction Rebellion have gained traction when the political process has failed. The dangerous vista of extra-legal tactics, beyond civil disobedience, is on the horizon. The beast is slouching towards Bethlehem.

    Applying Sustainability in Our Daily Lives.

    There are also environmental considerations about the quality of civic life. Alain de Botton’s The Architecture of Happiness (2006) argues that the kind of buildings we inhabit and work in make a profound effect on our wellbeing. The poet Kathleen Raine pointed to a sense of homecoming when we encounter cities ‘where in architecture, sculpture and painting, the needs of the spirit are met.’ She attributes a growing alienation in the Britain of the 1960s to the architectural fashion of the time.

    It is self-evident that operating in an aesthetically pleasing home environment will raise the spirits, and yet this idea is often dismissed. Placing people in Bauhaus tower blocks creates battery hens. America is the paradigm of the skyscraper mentality, with Chicago’s Louis Sullivan ‘the father of the skyscraper.’

    I have visited perhaps the seminal modernist or rather brutalist example of sustainable living apartments. Le Corbusier’s Unite d’Habitation (1952) is the perfect expression of his idea of ‘a machine for living in.’ Although wonderful in principle, in application it is a bastardised disaster.

    East elevation of Unité d’habitation Marseille in 2019

    How can you function properly, or think straight, while raising a young family living in an overpriced tenement which chews up most of your salary? Commuting to work compounds the problem, as you spend your spare hours on a train going to and from an ‘open plan’ panopticon of a workplace that generally diminishes your wellbeing. Sedentarism and a lack of exercise will shorten your life span and diminish a capacity to think freely. Failures in Irish urban planning, such as Ballymun Tower Blocks, lay behind the heroin epidemic of the 1980s.

    Yet there is good urban planning that raises the spirit. Paris was a crime and slum invested medieval city until the Baron de Haussmann developed a prototypical grid system, after Napoleon III instructed him to bring air and light to cetnre the city, to unify the different neighbourhoods with boulevards, and to make the city more beautiful. Yet today beyond the city limits, the architectural depredation of les banlieues has engendered the social dislocation and La Haine.

    Camille Pissaro, Avenue de l’Opera

    In Ireland Mary Robinson spearheaded an attempt to preserve the Viking Wood Quay settlement many decades ago, which was an early intimation of her ongoing attempts to raise global conscience, and force environmental regulation and climate change awareness in Ireland.

    It should be noted that great businessmen – which is not entirely an oxymoronic idea – think long-term and in terms of fundamentals of life. Benevolent capitalists, such as the Adriano Olivetti and John Cadbury, had regard to the quality of life of workers and housed them appropriately, endowing long obsolete privileges such as pensions and benefits.

    We need to discover an ecologically harmonious way of living rather than simply eco-friendly consumer choices, such as one discovers in a fabulous recent book called, Norwegian Wood: Chopping, Stacking and Drying Wood the Scandinavian Way.

    Imperfect Legal Solutions

    As indicated, in procedural legal terms the broad notion of ‘environmental rights’ can be divided into three distinct categories: environmental procedural rights; the right of environment and the right to environment.

    Environmental procedural rights include those associated with rights of participation in decision-making, access to information and the ability to access justice, such as is expressed in the Aarhus Convention under European Union Law. But any consultative processes and public hearings are irrelevant if outcomes are pre-determined.

    The right of environment is perhaps the most radical, envisaging as it does a value in the environment beyond mere human benefit. Such an approach assumes that the environment should be held as a good on its own merits, and protected as such. The argument is based on the position that it is arbitrary to restrict justice and rights exclusively to inter-human relationships and to tolerate a situation in which interested parties are deprived of essential values in the distributive process on the basis of morally irrelevant factors – such as their not being human.

    Finally, there is the right to environment. This was first given international expression in the Stockholm Declaration, Principle 1 of which stated that ‘[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being …’

    The right to environment is conceptualized as a right pertaining to each individual – the environment is valued not on its own merits, but in light of its importance for human existence. The exact description of the right has been framed in various ways. A range of adjectives have been used: decent, healthful, natural, pure, clean, ecologically-balanced, safe (see International Environmental Law and Policy for the 21st Century, Pring and Nanda). Throughout the literature, a common theme is that of ensuring human health is not put at risk by environmental degradation. Obviously, this approach is open to the criticism that it is entirely anthropocentric.

    So do we assess the environment as a benefit to us as humans or as an intrinsic good in and of itself? I would argue in favour of the latter approach. But legal case law and rights are toothless fairies if there is no political will to implement them.

    Coda

    So legislative and constitutional protections exist and lobbying continues apace. This seems destined to fail, although I have not given up hope. In the present circumstances – portals or otherwise – as creatures of bounded rationality, with limited time, what we can do in our own lives is at least try and do as little harm as possible.

  • Jonathan Sumption on Law and Politics

    In his recent book, Trials of the State Law and the Decline of Politics, (Profile Books) 2019 Jonathan Sumption argues for judicial deference to the Separation of Powers between the legislative, executive and judiciary branches, warning about the politicization of the latter. He argues that courts have assumed too much power, negating the political process, and that the domain of human rights has become rudderless.

    Keith Joseph

    Recently, in light of the Coronovirus pandemic, he has sagely warned about the endurance of restrictions on basic liberties in an interview on BBC Radio 4 at the end of March, where he decried: ‘A hysterical slide into a police state. A shameful police force intruding with scant regard to common sense or tradition. An irrational overreaction driven by fear.’ Perhaps this former adviser to the Conservative M.P. and Cabinet Minister Sir Keith Joseph – a formative influence on Thatcherism – is on the road to a more conciliatory Damascus?

    Of course there is a liberal consistency in his approach, in that he does complains in his book about the disproportionate interference by the British State into our private lives. 

    Now, with police officers restricting movement and enforcing self-isolation – curbing a natural inclination towards sociability among human beings – he pointedly decries an appalling vista. In the land where the cause of liberty is taken seriously, and the faerie queen resides, we find the genesis of transhumanism, alongside unchecked executive authority. 

    Sumption’s faith in a representative democracy, which has been undermined in recent times, is touching, but out of step with the perils we face. 

    Quoting the American realist Judge Hand, he points out that a society where basic civility has been all but lost cannot be saved by judicial interventions, let alone politicians. As someone with Thatcherite sympathies he must surely recognise that the neo-liberal order is in collapse all around him. An unfettered free market has brought division and cartelization that is not equipped to deal with the demands of a major crisis. 

    Alas, human dignity is difficult to preserve when you are left to wait on a trolley in a hospital corridor with an undignified death on the horizon. These are the kind of human rights Sumption has never really deigned to address.

    Magna Carta

    I recently paid a visit to Runnymede – in the halcyon days when one was allowed to roam free – the site in 1215 of the signing of Magna Carta (the Great Charter). It is the cornerstone of UK constitutionalism, and the closest to a foundational, written document, albeit the rights and privileges it confers are limited to the nobility of the time. 

    Noticeably, apart from in the gift shop, the text in its complete form is not evident. But one part of the text, Clause 39 is everywhere; on the fabulous exhibit ‘The Jurors’; on one of the chairs, of which more later; in the actual memorial itself in truncated form; and in the recent ‘Writ in Water’ sculpture, where it emerges like a primeval incandescent blob from out of the water. It reads

    No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

    It is the genesis of due process and the rule of law; a tradition now under grave threat, just as Sumption warns, with fundamental human rights no longer applying under a state of emergency.

    On that subject, in the famous Radbruch Formula (Radbruchsche Formal) the great German jurist argued that where statute law is incompatible with the rule of law to an intolerable degree, and where it negates the principle of equality, which is central to justice, it could be disregarded. In 1946 he wrote:

    [P]reference is given to the positive law, duly enacted and secured by state power as it is, even where it is unjust and fails to benefit the people unless it conflicts with justice reaches so intolerable a level that a statute becomes in effect false law and must therefore yield to justice where there is not even an attempt at justice, where equality the core of justice is deliberately betrayed in the issuance of positive law then the statute is not merely false law it lacks completely the very nature of law.

    Even an arch-Anglo Saxon empiricist such as Sumption now seems to see clearly a return to the embedded draconian legislation of yesteryear; yet as a Justice of the Supreme Court, until 2018, Sumption was not one to use rights-driven considerations to qualify or strike down legislation. He would never have been the Lord Atkin of the last public emergency during World War II, whose famous dissenting judgment in Liversidge v. Anderson (1941) is worth recalling:

    In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

    The Disappeared

    The film by the great Chilean director Guzman Nostalgia for the Light (2010) is part of his continuing exhumation of the nefarious legacy of Pinochet. It is largely devoted to the plight of numerous Chileans searching the desert for the bones of their children, often scattered over great distances, near the camps where Pinochet interned his victims. One particularly poignant scene features an elderly woman finding different bones of her son in different locations, which she proudly exhibits. 

    In Runnymede the disappeared are represented on the deeply affecting mosaic patterns of a chair. Yet the Thatcherism which Sumption contributed to endorsed Pinochet’s rule. Now Milton Friedman’s shock doctrine, visited on Chile after its emergency, may be used against a land more accustomed to moderation. You reap what you sow Lord Sumption. 

    Lord Sumption

    Parts of Sumption’s book, and his more recent pronouncements, demonstrate the dread sense of foreboding of a wise elder, and he serves the public good by speaking out.

    One senses, with his keen sense of history, that he thinks also that neither court nor politicians are going to solve any of this; that it is the beginning of a reversion to a medieval standard of justice, prior to Magna Carta. This humble Fool senses that deep down the noble King Lear-Lord Sumption is revealing less than he has demonstrated.

  • The Legal Challenge of Preventing Future Misinfodemics in the Age of Digital Activism

    Throughout the COVID-19 pandemic, the world has seen a deluge of misleading advice, false rumours, and coordinated attempts to contravene expert advice. Over the years, it’s become popular to collectively refer to this as fake news.

    This was a term that gained traction throughout the 2016 Presidential Election in the United States, and has become a popular buzzword ever since. It was even the Collin’s Dictionary Word of the Year in 2017,[1] highlighting its impact in the cultural zeitgeist. While this phenomenon is not new, the current incarnation carries a significant digital difference. Technology can foster the spread of false stories with unprecedented speed and efficiency.

    This was demonstrated during the Irish referendum to repeal the 8th amendment. Researchers out of UCC showed that when people were given both true and fabricated stories about events in the run up to the referendum, participants, from both sides, recollected false stories, particularly about the other side.[2]

    More recently, the discussion in Ireland has begun to probe the role of digital platforms in perpetuating the dangerous spread of ill-founded claims. It appears that in the time preceding each government announcement about COVID-19, instant messaging apps are flooded with false, misleading, and potentially harmful whispers.

    As these concerns grow, so too do calls for legal intervention. While this is necessary, and likely, important details must be hammered out in relation to risks associated with the delicate task of regulation in this area. In many cases, harmful false information does not affect everyone equally.

    In particular for elderly and vulnerable groups, the accuracy of medical information and advice can genuinely be a matter of life and death. This must also be considered when looking at how far-right campaigns attempt to weaponise digital platforms to lay the blame of COVID-19 against immigrants.

    At the moment, numerous claims with misleading and xenophobic undertones have characterised the social media landscape, with Chinese citizens being disproportionately targeted with abuse online.

    https://twitter.com/Adriel_Kasonta/status/1245488720154898437

    In light of this, an important detail is emerging. Misinformation can be weaponised to target groups that are already marginalised. This must be acknowledged as regulatory solutions to misinformation continue to develop. While law could have a critical role in curtailing future misinfodemics online, marginalised voices must be protected within these efforts. Within this protection, the potential for social media to platform underrepresented voices must be considered.

    The Importance of Digital Activism in Democracy

    The objective of combating misinformation must not be viewed in isolation. While much more needs to be done in order to preserve the accuracy of information and news online, the Internet’s democratic potential must not be undermined. Much of this potential is grounded in creating areas of unprecedented accessibility, where diverse and pluralistic voices can be amplified. This can be seen through the expansion of digital activism.

    Public opinion now widely regards the role of digital platforms as a valuable vehicle for initiating social change. In America, a 2018 study demonstrated that 69% of citizens feel that social media platforms are critical in ‘getting politicians to pay attention to issues’, while 67% felt that they are important for ‘creating sustained movements for social change.’[3] As well as enlarging the scope for democratic deliberation and participation, social media has facilitated new open forums for activism, while eroding previously robust structural barriers and allowing citizens to more directly amplify issues of public interest.

    In recent years, digital platforms have fueled numerous activist movements addressing racial and gender based societal problems. Two flagship social movements have showcased the potential for digital platforms to be a generative environment for social change. The Black Lives Matter movement brought attention to systemic racial injustices, while #MeToo drew global eyes to a wide spectrum of sexual harassment.

    While these two movements had separate social motives, both were operationalised by digital platforms that helped to consolidate harmonised messages, and mobilise international solidarity.

    The 2013 shooting of Trayvon Martin sparked a hashtag that drew attention to events involving unjust treatment and persecution by law enforcement and the criminal justice system. With further shootings by police in 2014, protests led to civil unrest, spurring use of the hashtag that galvanised a number of international ‘chapters’ adopting the same slogan.

    In doing so, social media platforms were instrumental in spawning an umbrella activist movement. After the 2014 shooting of 18 year old Michael Brown, the hashtag resurfaced. In the three weeks after this incident, #BlackLivesMatter appeared on social media approximately 58,747 times every day. When the judicial decision not to indict the police officer responsible for Brown’s death was issued on November 25th 2014, the hashtag was used 172,772 times.

    Within the following three weeks after this decision, the hashtag appeared 1.7 million times across popular digital platforms. Through its ability to focus attention on specific incidents and wider related social problems, the #BlackLivesMatter demonstrated the role of social media as a powerful mechanism for broaching politically sensitive but socially prescient topics.

    Digital platforms have also facilitated impactful discourses surrounding gender based violence and harassment. Originating with accusations levelled at high profile figures in 2017, #MeToo gained viral traction in late 2017, leading to a variety of related stories shared by both celebrities and ordinary users who recounted instances of harassment.

    Many of these users would not have had their stories heard in the days before more accessible platforms that give users access to an audience. In this way, technology and surrounding digital architectures, have revolutionised discussions surrounding stigmatised issues. The hashtag #MeToo has been used tens of millions of times since the initial 2017 tweet from actress Alyssa Milano which prompted women to report their experiences.[4]

    The benefit of ‘hashtag activism’ to foster a social movement around a cohesive message can be seen through its ability to hold power to account. Public pressure on foot of the hashtag and related discussions bred numerous consequences.

    In spite of particular focus in America and the English-speaking world, the #MeToo gained significant international traction, aided by social media’s ability to transcend border. By fostering environments where victims of sexual harassment and abuse could report and publicise personal anecdotes that reinforce the movement’s broader message, it encouraged exposure of personal and often relatable stories. This shows that social media can act as a machine for creating empathy.

    Instances such as #MeToo also forced a discussion to question and challenge existing structural flaws in how harassment was dealt with upon receipt of complaints. This exposed unacceptable standards and worrying loopholes, and did so under a universal and recognisable framing. In this way, social media can carry important social capital, especially to those who need it most.

    This is a point that should be threaded through legal discussions that broach intervention on foot of misinformation concerns. As a policy objective, misinformation must be minimised, while also striving to maintain and expand the internet’s democratic capabilities. 

    The Backfire of Censorship as a Response to Misinformation

    In light of social media’s role as a vehicle for social activism, legal responses to the problem of misinformation online must be delicately handled. If regulatory intervention in this area is based on an obsession with cancelling out anything other than mainstream voices, this could have harmful consequences for digital activism.

    Globally, recent examples can demonstrate how this manifests. In Hungary, recent legislative developments for Prime Minister Viktor Orban to ‘rule by decree’ involve criminal sanctions for spreading false or ‘distorted’ information. These sanctions can match, and even exceed punishments for defamation and slander under Hungary’s criminal code.

    In India, misinformation led to a confused exodus of migrant workers in light of rumours over lockdown restrictions. Many of these migrant workers were desperately attempting to leave their place of work to return home, in fear of being restricted from leaving during a prolonged lockdown. This underscores the reality that misinformation can harm the most vulnerable, and already marginalised.

    In response, the Supreme Court issued advice to the central government, noting how potentially harmful the spread of ‘fake news’ online can be. The Court was correct in identifying the problem, but provided worrying commentary in issuing solutions. It was ultimately advised that media outlets are prohibited from publishing information ‘without first ascertaining the true factual position.’ The factual position needed to be verified by the government.

    This is a problematic solution when recognising the need for governments to be held accountable. It is especially troubling during a crisis such as the COVID-19 pandemic. If the government becomes a self-appointed arbiter of truth, what happens when that same government is faced with information that is true, but that is also unfavourable?

    Social media has a unique role to play in bolstering movements that expose injustices, mistreatment, and neglect of marginalised and disaffected groups. Unfortunately, it is also a space where misinformation thrives.

    This presents a future quagmire, if and when more serious regulatory measures are initiated to respond to this infodemic. These are difficult interests to reconcile. However, the adoption of a holistic approach, grounded in human rights, can help to disentangle this problem, and offer proportionate solutions.

    How Should Irish Legal Responses Proceed?

    The current Irish legal framework has been characterised by numerous encouraging developments in response to this issue, often correctly seen as an electoral problem. More broadly, a major legal issue has been the growing pains of political advertising law in the digital age, Regulation of political and issue based advertising has not been fully applied to digital advertisements and appears outdated when considering the growing sophistication of the technological capabilities.

    Proposals have been floated to legislate for more secure elections by increasing restrictions on political advertising online, including the Social Media Online Advertising Transparency Bill 2017, a law that would prohibit the use of automated accounts for example.[5]

    2018 saw the ‘Interdepartmental Group’ on the Irish ‘Electoral Process and Disinformation.’ This report ascertained that while the risk posed to Ireland’s electoral process was ‘relatively low’, online developments exposed glaring vulnerabilities. In particular, threats of potential ‘cyber attacks’ and ‘the spread of disinformation online’ were identified as ‘substantial risks.’[6]

    This was followed by The International Grand Committee on Disinformation and ‘Fake News’, which convened in Dublin on November 7th 2019. This was a promising development, and recognised the need for a holistic approach to this problem. Signatories from eight countries agreed to advance measures to curb the spread of disinformation, while also acknowledging the need for fundamental rights to be protected.

    The question of how this delicate balance can be achieved is one that requires a lengthy discussion. Viewing the problem of misinformation currently, it appears as though regulation should intercede quickly and heavily. However, it would be far better to take a step back and develop long term and human rights-proofed solutions.

    Adopting a human rights approach, within initial stages, carries two valuable benefits. First, it can ground discussions in a thorough recognition of the scope of rights and civil liberties that need to be protected whilst combating misleading and harmful information online. The right to non-discrimination, the right to free speech, and the right to free and fair elections all need to be taken into account. This is a balancing act that can be achieved when using human rights as a guide.

    In terms of how to achieve this balance, human rights can again inform this discussion. Principles such as proportionality and the well-established need for legal intervention with free expression to be ‘necessary in a democratic society’, provide highly useful guidance. This is guidance that is extremely important considering the tendency for governments to use extreme events to usher in draconian legal measures.

    Some of the most invasive and harmful legislation has been rushed in on the back of a crisis. As seen with the introduction of the Patriot Act after 9/11, the time of emergency is often not an ideal time to craft laws that protects civil liberties. This must be taken into account when figuring out how to intervene to stem the flow of false claims online. 

    Human Rights Central

    The immediate crisis demonstrates that vulnerable groups are among the most immediate victims of the misinfodemic that has accompanied COVID-19. Accordingly, robust steps need to be taken to debunk and mitigate the spread of rumours and falsities that identify marginalised targets in future events such as these.

    Going forward however, this problem must be seen more broadly. A crucial step that the legislators must take is to ensure that human rights are central to forming responses to misinformation. When considering how activist voices and social movements can be protected while advancing solutions, comprehensive and routine consultation with human rights groups is needed.

    Civil society and non-profit organisations must be engaged to inform Irish law makers in how to construct effective prevention of misinformation, but insulate digital activism from censorship. Hopefully, the severity of the COVID-19 pandemic can kick start this complex but critical legal discussion.

    [1] Collins Dictionary Announces “Fake News” as the 2017 Word of the Year’ (Collins 2017) <https://www.collinsdictionary.com/woty>.

    [2] Gillian Murphy, (2019) False Memories for Fake News During Ireland’s Abortion Referendum. Psychological Science, 30(10), 1449–1459.

    [3] Dan Whitehead, ‘You deserve the coronavirus’: Chinese people in UK abused over outbreak <https://news.sky.com/story/coronavirus-chinese-people-face-abuse-in-the-street-over-outbreak-11931779>

    [4] Monica Anderson, Activism in the Social Media (Pew Research 2018) < https://www.pewresearch.org/internet/2018/07/11/activism-in-the-social-media-age/ >

    [5] Anke Wonneberger, Iina R. Hellsten & Sandra H. J. Jacobs (2020) Hashtag activism and the configuration of counterpublics: Dutch animal welfare debates on Twitter, Information, Communication & Society < https://www.tandfonline.com/action/showCitFormats?doi=10.1080%2F1369118X.2020.1720770&area=0000000000000001>

    [6] Emanuella Grinberg, ‘What #Ferguson stands for besides Michael Brown and Darren Wilson’ (CNN, November 19, 2014)

    [7] Monica Anderson and Skye Toor, ‘How social media users have discussed sexual harassment since #MeToo went viral’ (Pew Research 2018)

    [8]  How Social Media Users Have Discussed Sexual Harrassment Since Metoo Went Viral (Pew Research 2018) <https://www.pewresearch.org/fact-tank/2018/10/11/how-social-media-users-have-discussed-sexual-harassment-since-metoo-went-viral/>

    [9] Colm Quinn, Hungary’s Orban Given Power to Rule by Decree With No End Date,’ <https://foreignpolicy.com/2020/03/31/hungarys-orban-given-power-to-rule-by-decree-with-no-end-date/>

    [10] Supreme Court Asks Government To Curb Fake News On Virus, Set Up Portal Within 24 Hours For Real Time Information, Bloomberg Quint (31 Mar 2020) <https://www.bloombergquint.com/coronavirus-outbreak/sc-asks-centre-to-curb-fake-news-on-coronavirus-set-up-portal-within-24-hours-for-real-time-info>

    [11] Online Advertising and Social Media (Transparency) Bill 2017 Part 1, 2.

    [12] Overview- Regulation of Transparency of Online Political Advertising in Ireland, Department of the Taoiseach (14 Feb 2019) <https://www.gov.ie/en/policy-information/7a3a7b-overview-regulation-of-transparency-of-online-political-advertising-/> Last accessed 11 Oct 2019 

    [13] In particular when the European Court of Human Rights assesses interferences with free expression, a key question the Court asks is whehter the interference was necessary in a democratic society, and predicated on a pressing social need [https://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-18(2007).pdf]

  • Vigilance Required Against ‘Seepage’ of Emergency Legislation in Ireland

    On Thursday 19th of March, the Dáil passed emergency legislation in response to the Covid-19 pandemic. The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill has two main features.

    The first are financial measures assisting those affected, protecting living standards, and maintaining spending in the economy. The second aspect concerns laws permitting agents of the State to shut down mass gatherings and to order people to stay in their homes. Also, there are regulations allowing for the detention of a person, on foot of a medical recommendation, if they refuse to self-isolate.

    The rapid spread of the pandemic temporarily hands necessary draconian powers to a State that has already acquired other wide-ranging powers in response to subversive activity relating to the ‘Troubles’ in Northern Ireland and, more recently, violent gangland criminality. These have long been subjected to criticism by civil liberties activists in Ireland, including Mary Robinson, as well as external bodies, concerned by the unwarranted erosion of the rule of law.

    In particular, the Offences Against the State Act 1939 permits trial without jury before the Special Criminal Court. Subsequent Offences Against the State legislation created a number of special evidential provisions in response to the unique situation then at play in Ireland, including the use of ‘belief evidence’ of a Chief Superintendent before the Court and the drawing of ‘adverse inferences’ from the silence of a suspect in custody.

    Interestingly, the Special Criminal Court became the focus of a lengthy exchange during the leaders’ debate on RTÉ prior to February’s election, with Sinn Féin President Mary Lou McDonald repeatedly being asked to clarify her party’s position on the issue.

    Indeed, Fine Gael leader Leo Varadkar went so far as to rule out a coalition with Sinn Féin based on its purported view on the Court; his Fianna Fáil counterpart Micheál Martin then claimed that Sinn Féin always votes against the renewal of the Offences Against the State legislation on instruction from ‘their IRA old comrades.’[1]

    The problem with handing over such powers to the State is that once granted they are not easily relinquished, as the police and judiciary grow accustomed to their exercise. This has been the case with the Special Criminal Court that now sits in the impressive and imposing Criminal Courts of Justice building on Parkgate Street in Dublin.

    Protecting civil liberties, such as the right to jury trial, may seem less important as long as extraordinary powers are not abused. However, the existence of special powers poses the ongoing risk that they may be exploited by unscrupulous, or even tyrannical, politicians or agents of the state.

    This article provides background on the emergence of the Special Criminal Court, and the general criticisms that have been directed against the use of a non-jury trial, followed by an assessment of its use against organised crime. It also posits potential alternative practices that could be used to protect endangered juries. As we enter a prolonged period of draconian measures restricting our conduct it is salutary to consider the powers already at the disposal of the State.

    General Criticisms in the Use of a Non-jury Court

    The current Special Criminal Court has been subject to general criticism since its establishment in 1972. The justification for the existence of a non-jury court centred on the potential for juror intimidation and the fear that jurors could be coerced in their decision-making. In announcing the establishment of the Special Criminal Court, the then Minister for Justice, Desmond O’Malley, referred to the prevalent atmosphere of intimidation in courthouses and the threat of retaliation.[2]

    In response, a statement from the ‘Citizens for Civil Liberties’ on 26 May 1972 expressed the concern that the establishment of the Court would deprive citizens of the right to jury trial.[3] The introduction of belief evidence later that year[4] also sparked criticism from members of the academic community. Writing in 1974, Mary Robinson stated that, ‘in effect, this would not even be a case of one man’s word against another, but a case of belief which was based on undivulged facts and derived from undivulged sources – which could only be at second or third hand – being set against another man’s assertions’.[5]

    While the workload of the Special Criminal Court declined noticeably over the following decade, this appears to have been the result of a decline in subversive activity rather than the result of a policy change on behalf of the DPP.[6]

    Writing in 1989, Hogan and Walker noted the lack of political pressure to have the court disbanded and posited that this might be a tribute to the fairness and impartiality of the operation of the Special Criminal Court since 1972. However, they wrote that this also provided ‘disquieting evidence of the “seepage” of emergency legislation into the ordinary law of the State. What was once seen as a radical (and purely temporary) departure from standard norms has now become an accepted feature of the criminal justice system’.[7]

    While in 1996 the Supreme Court indicated the necessity that the Special Criminal Court be kept under constant review, it refused to find that the system was unconstitutional.[8]

    Human Rights Committee

    The use of the Special Criminal Court was criticised by the Human Rights Committee in 2001, which found that the State was in breach of the right to equal treatment, espoused by Article 26 of the United Nations Covenant on Civil and Political Rights, given the power of the DPP to certify trial in the Special Criminal Court.[9]

    The Committee found the State to be in breach of the obligations under Article 26 and stated that it was critical to its conclusion that the DPP was under no obligation to provide reasons and that judicial review of his decision was ‘restricted to the most exceptional and virtually undemonstrable circumstances’.[10]

    In its 2002 report, the minority of the Committee to Review the Offences Against the State Acts 1939–1998, which consisted of Hederman J. and Professor Dermot Walsh, focused on the primacy of the right to trial by jury, which they described as ‘a cornerstone of the criminal law system’ which  ‘ensures that the innocence or guilt of a person charged with an offence is determined by twelve randomly chosen members of the community, each of whom brings to the process the benefit of his or her life-experience and individual perspective.’[11]

    They noted that the risk of possible jury intimidation is reduced, that the members of the Court can be relied on not to be swayed by political views from convicting where the offence was politically inspired and that the prospects of conviction may be considered more likely, ‘not because the members of the Court are unfair but because studies have consistently shown that non-jury courts have a higher conviction rate than courts with trial by jury’.[12]

    Furthermore, Professor Dermot Walsh in his dissenting comments in the Report of the Committee to Review the Offences Against the State Acts 1939–1998 argued that such exceptional criminal justice measures would, under the guise of combating terrorism, cause more lasting damage to basic democratic values and the rule of law than ‘the terrorists could ever hope to have achieved,’ and suggested the replacement of the standards underpinning the Offences Against the State legislation with ‘standards that are more firmly rooted in due process, civil liberties and human rights’.[13]

    In contrast the majority of the Committee stated that ‘as long as there is in existence a paramilitary threat to public peace and order, the need for the Special Criminal Court will probably remain.’

    In light of the majority recommendations, the operation of the Special Criminal Court has been maintained, despite on-going controversy in the context of organised crime, which is discussed below.

    Meanwhile, most of the recommendations made by the Committee to Review the Offences Against the State Acts 1939–1998 intended to align the legislative provisions with human rights norms have not been implemented and have largely been ignored by the State.

    In its 2014 report on Ireland, the United Nations Human Rights Committee highlighted its continued concern ‘at the lack of a definition of terrorism under domestic legislation and the continuing operation of the Special Criminal Court’.[14]

    The UNHR Committee called on the State to ‘introduce a definition of “terrorist acts” in its domestic legislation, limited to offences which can justifiably be equated with terrorism and its serious consequences’ and to consider the abolition of the Special Criminal Court completely. [15]

    Trial of Organised Crime in the Special Criminal Court

    In 2002, the majority of the Committee to Review the Offences Against the State Acts 1939–1998 reported that juries in Ireland are ‘distinctly uncomfortable’ in cases involving organised crime and that attempts have been made to tamper with juries in high profile criminal trials in the ordinary courts. The Committee felt that the threat posed by organised crime was sufficiently serious to justify the continuation of the Special Criminal Court on that ground alone.[16] In DPP v Special Criminal Court & Ward,[17] Carney J stated:

    Those engaged in [organised] crime require a wall of silence to surround their activities and believe that its maintenance is necessary for their protection. They have at their disposal the resources, including money and firearms, to maintain this wall of silence and will resort to any necessary means, including murder, in furtherance of this objective.[18]

    It has been suggested that organised criminality is not ‘ordinary’ crime as such and measures akin to those used against suspected terrorists are warranted.[19]

    Criminal Justice Act 2009

    Despite the foregoing, the use of the Special Criminal Court for the purposes of non-subversive and organised crime has sparked heated debate in recent years. For example, the Criminal Justice Act 2009 was urgently passed through the Dáil against a background of increasing gangland violence and it evoked great controversy, with many lawyers publicly opposing it.

    A large group of lawyers penned a letter to The Irish Times expressing their dissatisfaction with the content of the Act and the manner in which it was rushed through the Houses of the Oireachtas. Among the complaints was the fact that the Act had been:

    … introduced without any research to support its desirability and without canvassing expert opinion or inviting contribution from interested parties on the issues. It appears now that it will be passed without proper debate in the Dáil because such debate has been guillotined by the Government. It is quite simply astounding that we as a society would jettison ancient rights and rules of evidence in such a manner and seemingly without regard to the effect such impetuous legislating might ultimately have on the respect for the rule of law in this country.[20]

    It was further argued, in relation to the Act’s provision for applications to extend time in detention to ‘be heard otherwise than in public’ and to the possible exclusion of the accused and his legal representatives,[21] that ‘the provision for secret hearings to extend detentions without the presence of the suspect or their lawyer’, was a stark departure from the principle that justice should be administered in public. The letter set out that:

    Secret hearings should be anathema to a system based on the rule of law. From the manner in which detention hearings are currently conducted, there is nothing to suggest that investigations would be compromised. In the main the court hears generalised evidence about the necessity for further time to carry out interrogations, forensic testing or assessment of evidence.[22]

    The Irish Council for Civil Liberties also criticised the encroachments on the rule of law:

    [T]his provision fundamentally alters the nature of criminal justice in Ireland. It allows for the judge to hear evidence of a Garda of any rank, in private, and without legal representation, in order to justify the continuing detention of a person … In essence what this means is that a person can be held without knowledge of the grounds on which the judge is justifying their continued detention. This detention can be justified by the secret information from any member of the Garda Síochána, regardless of his or her expertise or experience.

    In 2014, the United Nations Human Rights Committee expressed particular concern ‘at the expansion of the remit of the Special Criminal Court to include organized crime’.[23]

    Flouting Human Rights

    With the announcement of the second Special Criminal Court in 2015, the debate regarding the justification and role, if any, of the Special Criminal Court, resurfaced. In June 2015, the Minister for Justice, Frances Fitzgerald, informed the Seanad that:

    Organised crime continues to present a significant law enforcement issue, with a number of criminal gangs continuing to engage in serious crimes. There is, unfortunately, stark evidence of the willingness of these gangs to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. We are also faced with the reality that there are growing links between paramilitary groups and organised crime. Given the nature of organised crime, the investigation and prosecution process can be lengthy and difficult.[24]

    In October 2015, the Director of the Irish Council for Civil Liberties shared an alternate view:

    The Special Criminal Court was created as an extraordinary court in extraordinary times; however, no reasonable person could today claim that there is a public emergency threatening the life of the nation. It is therefore unjustified that this Court’s procedures suspend fundamental fair trial guarantees, including the right to trial by jury. The UN Human Rights Committee has repeatedly identified the Special Criminal Court as being in violation of Ireland’s legal obligations under international human rights treaties and called for its abolition. In 2014 the Committee expressed particular concern ‘at the expansion of the remit of the Special Criminal Court to include organised crime’.

    The continuation, much less the expansion, of such a court in peacetime flouts Ireland’s human rights obligations and is not necessary in a democratic society. Crime, particularly violent and gang crime, are a legitimate concern for our legislators. Tackling such crime must not rely, however, on chipping away at the right to a fair trial, but on a commitment to adequately resourcing An Garda Síochána and the regular Courts.[25]

    More recently, in November 2018, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Professor Fionnuala Ní Aoláin, commented on the Special Criminal Court regime.

    At a lecture hosted by the Irish Council for Civil Liberties (ICCL) and the International Network of Civil Liberties Organisations (INCLO), she stated that ‘the Island of Ireland, more so than many parts of the world has experienced emergency law, emergency practice and the seepage of the exceptional into the ordinary in ways that has not served the rule of law nor the protection of human rights well.’ She pointed out that there had been ‘consistent and trenchant concerns about the use of the Special Criminal Court and the Offences Against the State Act as a “work-around” the ordinary protection of the law’.[26]

    The Future

    There is a genuine risk that the use of non-jury trial, originally an emergency measure, is becoming normalised. It is disappointing that the debate and dialogue in Ireland surrounding the Special Criminal Court have primarily revolved around two poles; jury or non-jury trial. There has been little political discussion of intermediate alternatives for protecting jurors, which, in modern times, might include the use of technological solutions to some of the problems posed by potential jury intimidation.

    One possibility would be to allow the jury to observe proceedings from a remote location, though it must be acknowledged that such protective measures may have a prejudicial effect and may invite the jury to draw negative connotations about the culpability of the accused. Options such as transporting the jury to their homes or taking steps to anonymise the jury[27] may not be as feasible in Ireland given the small size of the country and would again involve the risk of prejudice towards the accused where the jury members are aware of the protective measures taken. A more realistic option to prevent juror intimidation would be to limit the right to inspect the panel from which the jury is drawn, as has been done in Northern Ireland.[28]

    If the Special Criminal Court is to remain in being, it would be preferable that the decision regarding form of trial should lie with the courts rather than the DPP or the legislature.[29] Instead of using a system of scheduling a vast number of offences which are presumptively tried before the Special Criminal Court, each case should be considered on an individual basis.[30]

    The right to jury trial was described by Thomas Jefferson as ‘the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.’[31] One would have thought that in light of the high status formally accorded to trial by jury in the Irish Constitution, these alternatives would merit serious consideration.

    Conclusion

    The current Special Criminal Court was established in 1972 as an emergency measure in response to a unique set of circumstances then at play in Ireland. It would appear, however, that the court now has de-facto permanency in our criminal justice system. While the majority of trials in the Special Criminal Court continue to involve subversive activity, prosecution of organised crime in the court is increasing and a situation has now arisen where emergency powers have become normalised.

    Now, as the Government responds to an unusual situation for Ireland with emergency legislation, it is worthwhile to bear in mind the earlier response to subversive activity in Ireland and – in the words of Hogan and Walker – the ‘disquieting evidence of the “seepage” of emergency legislation into the ordinary law of the State.’

    [1] Ceimin Burke, ‘Explainer: What is the Special Criminal Court and what is Sinn Féin’s stance on it?’, The Journal, February 6th, 2020, https://www.thejournal.ie/special-criminal-court-explainer-4993281-Feb2020/

    [2]Davis, The History and Development of the Special Criminal Court 1922–2014 (Bloomsbury Professional, 2014) 169, citing 261 Dáil Debates (15 June 1972), col 1765.

    [3]McInerney, ‘Special Courts Introduced’ (1972) The Irish Times, 27 May, 9.

    [4]‘Belief evidence’ was introduced by the Offences Against the State (Amendment) Act 1972, s 3(2), which was passed on 3 December 1972. The provision is discussed in detail in Ch 6.

    [5]Robinson, The Special Criminal Court (Dublin University Press, 1974) 31.

    [6]Hogan and Walker, Political Violence and the Law in Ireland (Manchester University Press, 1989) 237.

    [7]Hogan and Walker, Political Violence and the Law in Ireland (Manchester University Press, 1989) 239.

    [8]Kavanagh v Ireland [1996] 1 IR 321.

    [9]The powers of the DPP in this regard are discussed in detail in Ch 2.

    [10]Kavanagh v Ireland, Decision of the UN Human Rights Committee (CCPR/C/71/D/819/1998, 4 April 2001), at para 10.2.

    [11]Hederman et al, Report of the Committee to Review the Offences Against the State Acts 1939–1998 (2002), at paras 9.88–9.

    [12]Hederman et al, Report of the Committee to Review the Offences Against the State Acts 1939–1998 (2002), at para 9.90.

    [13]Hederman et al, Report of the Committee to Review the Offences Against the State Acts 1939–1998 (2002), 255–261.

    [14]United Nations Human Rights Committee, ‘Concluding observations on the fourth periodic report of Ireland’, CCPR/C/IRL/CO/4 (19 August 2014). The Committee had previously expressed concern in 1993 (Comments of the Human Rights Committee, CCPR/C/79/Add 21 (3 August 1993)); 2000 (Report of the Human Rights Committee, Vol I, Gen Ass, 55th Sess, Supp No 40, A/55/40 (10 Oct 2000)); 2008 (Concluding observations of the Human Rights Committee: Ireland’, CCPR/C/IRL/CO/3 (30 July 2008)); and 2013 (‘Report of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya: Addendum to Ireland’ A/HRC/22/47/Add.3 (26 February 2013)).

    [15]United Nations Human Rights Committee, ‘Concluding observations on the fourth periodic report of Ireland’, CCPR/C/IRL/CO/4 (19 August 2014).

    [16]Hederman et al, Report of the Committee to Review the Offences Against the State Act 1939–1998 (2002), at paras 9.33–9.36.

    [17]DPP v Special Criminal Court & Ward [1999] 1 IR 60.

    [18]DPP v Special Criminal Court & Ward [1999] 1 IR 60, 63.

    [19]Campbell, Organised Crime and the Law: A Comparative Analysis (Hart Publishing, 2013) 128.

    [20]Undersigned Solicitors and Barristers, ‘Criminal Justice (Amendment) Bill’, (Letter to the Editor) (2009) The Irish Times, 8 July.

    [21]Pursuant the Criminal Justice Act 2007, s 50(4A).

    [22]Undersigned Solicitors and Barristers, ‘Criminal Justice (Amendment) Bill’, (Letter to the Editor) (2009) The Irish Times, 8 July.

    [23]United Nations Human Rights Committee, ‘Concluding observations on the fourth periodic report of Ireland’, CCPR/C/IRL/CO/4 (19 August 2014).

    [24]Seanad Debates, Vol 240 No 9 (11 June 2015). The Minister was speaking to the Seanad in support of a resolution to continue in operation s 8 of the Criminal Justice (Amendment) Act 2009, which adds certain ‘organised crimes’ to the schedule of offences that can be tried before the Special Criminal Court.

    [25]‘Special Criminal Court Decision ‘Flouts Rule of Law’, says ICCL’, ICCL Press Release (29 October 2015). https://www.iccl.ie/press-release/special-criminal-court-decision-flouts-rule-of-law-says-iccl/ accessed 20 January 2019.

    [26]‘UN expert criticises the Special Criminal Court and the Offences Against the State Act’, ICCL Press Release (21 November 2018).

    [27]These steps include referring to them by number only, housing them in a secret location and monitoring their calls, as occurred in United States v Gotti 777 F Supp 224 (EDNY 1991).

    [28] Juries (Northern Ireland) Order 1996 (SI 1996/1141 (NI 6)), Art 26A, as inserted by the Northern Ireland Act 2007, s 10. This was found not to breach the Art 6 right to a fair trial in Re McParland [2008] NIQB 1. See Campbell, ‘The prosecution of organised crime: removing the jury’, (2014) 18(2) IJEP 83, 97. See also, the recent recommendations of Seymour CB in relation to non-jury trials in Northern Ireland (Seymour CB, Report of the Independent Reviewer Justice and Security (Northern Ireland) Act 2007, Tenth Report 1 August 2016 – 31 July 2017 (Her Majesty’s Stationery Office, April 2018), at para 23.2).

    [29]As suggested by Campbell (Campbell, ‘The Prosecution of Organised Crime: Removing the Jury’ (2014) 18(2) IJEP 83, 100).

    [30]This proposal was suggested by Dr Liz Campbell in her article, ‘The Prosecution of Organised Crime: Removing the Jury’, (2014) 18(2) IJEP 83, 100. It may be noted that, in England, Wales and Northern Ireland, the Criminal Justice Act 2003, Pt VII, which was commenced in January 2007, provides that trials on indictment may be held without a jury in cases where there is a risk of jury tampering. Under s 45 of the 2003 Act, the parties will attend a preparatory hearing prior to the decision to hold a non-jury trial and are given an opportunity to make representations with regard to the decision. This safeguard does not apply where non-jury trial is certified in relation to offences with a political or religious motivation in Northern Ireland under the Justice and Security (Northern Ireland) Act 2007 and is non-existent in Ireland. As Independent Reviewer of the powers under the Justice and Security (Northern Ireland) Act 2007, David Seymour CB has proposed that the Public Prosecution Service could, once they have formed a view that a non-jury trial certificate should be issued but before the submission goes to the DPP, notify the defendant that they are minded to issue a certificate, specifying the condition or conditions and any other material which is in the public domain, and invite representations within a specified period. This would lead to increased transparency in the process, a reduction of the risk of judicial review and to circumstances where the final decision of the DPP would be fully informed, particularly if the defence made coherent and plausible representations that, for example, the conditions relied on were not met. (Seymour, Report of the Independent Reviewer Justice and Security (Northern Ireland) Act 2007, Tenth Report 1 August 2016–31 July 2017 (Her Majesty’s Stationery Office, April 2018), at para 23.3).

    [31] The Papers of Thomas Jefferson, vol. 15, 27 March 1789 – 30 November 1789, ed. Julian P. Boyd. Princeton: Princeton University Press, 1958, pp. 266–270. ‘From Thomas Jefferson to Thomas Paine, 11 July 1789,’ Founders Online, National Archives, accessed September 29, 2019, https://founders.archives.gov/documents/Jefferson/01-15-02-0259.

  • 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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  • Freedom of Speech in the Facebook Age

    Facebook’s CEO Mark Zuckerberg recently called for more stringent Internet privacy and election laws saying, ‘We need a more active role for governments and regulators.’[i] In advocating what amounts to censorship, he seems to have at least awoken to the Promethean beast he has summoned.

    It opens a dangerous vista, however, and is hypocritical for Zuckerberg to complain about hate speech, given his company provides a forum for its ventilation, while deriving vast profits off the advertising of post-truth nonsense.

    Among the essential features of any democracy is freedom of speech, without which other rights are superfluous. Woven into the fibre of the American character, Anthony Lewis described freedom of speech, which is protected under the First Amendment of the U.S. Constitution, as ‘a search engine for the truth.’[ii] It is also enshrined in various international human rights instruments, albeit generally using more attenuated formulae.

    The scope of freedom of speech came before the U.S. Supreme Court in the case of Snyder v Phelps et al in 2011, which concerned the picketing by Westboro Baptist Church at the funerals of U.S. service men and women over the military’s tolerance of homosexuality.

    The Supreme Court held that the constitutional guarantees do not permit any State to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy is directed at inciting or producing imminent lawless action, and is likely to incite or produce such action.

    In his judgement, Chief Justice Roberts indicated that:

    Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.[iii]

    In contrast the European Court of Human Rights will not protect either racist speech or Holocaust denial from prosecution. Similarly, that Court permits the restriction of speech on grounds of public health and morals, or order public. These are, however, malleable concepts easily manipulated by state authoritarianism. It is worth emphasising that it is the speech we most dislike and disagree with that deserves most protection. An appeal to ordre publique involves the demonization and criminalisation of those we disagree with, but our own views could one day suffer the same fate, if we speak out of turn.

    My own opinion is enough for me

    Central to speech protection is defending the rights of others to speak, even if we disagree with their point of view. In his classic formulation Oscar Wilde said, ‘I may not agree with you, but I will defend to the death your right to make an ass of yourself.’

    In latter times the late Christopher Hitchens’s robustness verged on arrogance:

    My own opinion is enough for me, and I claim the right to have it defended against any consensus, any majority, anywhere, any place, any time. And anyone who disagrees with this can pick a number, get in line, and kiss my ass.

    However rudely expressed, Hitchens was attesting to the importance of argument and rational disputation in an increasingly degraded intellectual climate.

    Far earlier, Francis Bacon famously equated knowledge with power; although we should be cognisant of Michel Foucault’s qualification that power determines what counts as knowledge. Thus, speech imparts knowledge, but vested interests determine and condition the parameters of acceptable discourse.

    Elsewhere, the great Ronald Dworkin went further, arguing that ‘free speech is a condition of legitimate government.’ He indicated that the universality of speech as a mode of rational discourse and scientific inquiry could act as truth-seeking counterweight to mass hysteria, negating unreason and prejudice.[iv] Moreover, Stephen Sedley, the great English judge, called it ‘the lifeblood of democracy.[v]

    Speech and words matter, as Orwell trenchantly put it: ‘If liberty means anything at all, it means the right to tell people what they do not want to hear.’

    In retrospect Christopher Hitchens seems to have been at the tail end of a freedom of speech tradition beginning with his hero Thomas Paine, mediated through his other great hero Orwell, and culminating in his own rich tapestry of public utterances. His final collection of essays, and summation, is entitled Arguably, which is, arguably, the most important concept to defend – producing a discourse shaped by rational argument.

    Cultural Degradation

    In an increasingly controlled and technocratic age, fearless independent criticism is being expurgated. The press is controlled by vested corporate interests, and often, in offering ‘balanced’ coverage, editors grant credibility to pure nonsense. There are two sides to every story: Creationism or Darwinism, take your pick.

    Social Media solipsism has leached into the popular press at a time when the appropriate ambit of the freedom of speech proves ever more difficult to define. In this New World Order of endless Internet chatter, character assassination, simplifications and casual defamation are the order of the day.

    The Internet may ultimately prove a force for liberation, but it puts on public display ever more bizarre and outlandish commentaries, often implanted via sinister advertising. This cultural degradation is picked up by social media, which offers a forum for uninhibited cant. Zuckerberg is intervening belatedly, and to save his skin.

    The consequence are the belittling of politics and intellectual discourse – just compare the quality of the Clinton-Trump debates to those of an earlier epoch, such as Kennedy-Nixon. Similarly, the Brexit debates are conducted in a manner reminiscent of the Lord of the Flies, as opposed to the elevated Parliamentary debates preceding the decision to enter World War II.

    Post-Modernism

    Richard McKay Rorty’s observations about language having a fluid structure, which alters over time, is insightful, but can slide into abject moral relativism. The Post-Modernist argument has, in certain respects, been appropriated by the Far Right, who insist that truth is not truth, and that humans have nothing to do with climate change.

    What we are seeing is a free-for-all where all opinions are equal. Aneurin Bevin, as great an orator as Churchill, once remarked to the House of Commons that listening to a speech from Labour Prime Minister Clement Atlee was, ‘like paying a visit to Woolworths: everything was in its place, but nothing was above the value of sixpence.’ Thus, to be taken seriously, one must actually have something to say.

    Great speeches should have content, while any speaker should not get carried away by his rhetoric, which often serves propagandistic purposes. This sound-bite-generation might do well to follow the cautionary words of Wittgenstein that whereof one cannot speak thereof one must be silent.[vi] So respect for freedom of speech should not devolve to giving every clown a stage on which to perform.

    Curbing Advertising

    Whether freedom of speech protects jihadi websites handing down fatwas or exhibiting pornographic beheadings is often up for debate. Less commonly do we hear questions around protecting the population from the sponsored blathering of Trump, the Clintons or Goldman Sachs; or whether freedom of speech extends to protecting the nonsense emerging out of Fox News, which often controls the political narrative. In short, it is pie in the proverbial Sky News to argue that no credence or weight, or indeed audience, should be given to the Neo-Cons or Religious Rights, since they own many of the networks and set the agendas.

    This brings us to the vexed question of whether freedom of speech should be used to protect Internet providers. We know freedom of speech vitalises any democracy, but arguments in its favour may be deployed for nefarious ideological ends, where politically motivated advertisers frame political narratives. When Facebook accepts remuneration from political parties and online publishers in exchange for ‘boosting’ posts there is an implicit endorsement.

    In 2010, while acting as CEO, Eric Schmidt famously let slip that Google needed to secure its ‘borders’ before correcting himself to say ‘networks’,[vii] but the implication is clear that Google, and other corporations such as Facebook, act as Superpowers, which transcend national sovereignty. They then deliberately conflate freedom of speech assertions with the selling of products.

    Far less protection should be extended to commercial free speech, or the so-called freedom of the Internet, where big beasts spy and target you with advertising. Mark Zuckerberg’s call for the regulation of the Internet in fact opens an appalling vista of social control. Clearly his corporate interests are threatened by a veritable shitstorm of abuse, and never mind that Facebook has been used to manipulate voter sentiments.

    Ultimately it is up to constitutional courts, not Zuckerberg, to define the parameters of privacy. Given the storm he has unleashed, there is no way that he should be handed the role of policeman.

    I fear the information we receive from his organisation, among others, is turning us into passive nodal receptors, and permitting artificial intelligence to rewire human identity. This descends into the inevitable containment of speech, suppressing that which can be said, and even that which can be thought before it is mentioned. Or, to quote the title of a novel by Samuel Beckett, Ill Seen Ill Said.

    Moreover, the fluidity of the information superhighway, enables jihadists and other extremists to find one another. This leads Cass Sunstein, the American legal scholar, to argue that the Internet contributes to group polarisation.[viii]

    Worryingly, in academia free speech is now often bound by commercial sponsors, such as the Ford Foundation. In this context of academic self-abnegation and outright ass-kissing it is worth recalling the observation of Karl Marx that there is no point, after all, speaking on Hyde Park Corner when you have nothing to eat. Empowering those without a capacity for speech to the extent of your own is a lawyer’s vocation.

    Speech and communication allow people to do good and negate bad. An understanding of the nuances and tropes of speech also leads towards untangling disinformation, lies and misrepresentations. Online commercial advertising, which often illegally targets its audiences, cannot draw on the defence of freedom of speech.

    Furthermore, there seems little point supressing so-called hate speech, while permitting post-truth circumlocutions and psycho-babble to run riot. Nonsense deserves no protection, and Mr Zuckerberg is the last person we should entrust with regulating this.

    [i] Spencer Kimball, ‘Zuckerberg backs stronger Internet privacy and election laws: ‘We need a more active role for governments’, March 30th, 2019, CNBC, https://www.cnbc.com/2019/03/30/mark-zuckerberg-calls-for-tighter-internet-regulations-we-need-a-more-active-role-for-governments.html, accessed 10/4/19.

    [ii] Anthony Lewis, Freedom for the Thought we Hate – A Biography of the First Amendment, New York, Basic Books, 2010.

    [iii] Snyder v Phelps 562 U.S. 443 (2011), https://supreme.justia.com/cases/federal/us/562/443/, accessed 26/4/19.

    [iv] Ronald Dworkin ‘The Right to Ridicule’, March 23rd, 2006, The New York Review of Books, https://www.nybooks.com/articles/2006/03/23/the-right-to-ridicule/, accessed 26/4/19.

    [v] Stephen Sedley, Law and the Whirligig of Time, London, Hart Publishing, 2018.

    [vi] Ludwig Wittgenstein, Tractaus Logico Philoophicus, London, Keegan Paul, 1922.

    [vii] The Editorial Board, ‘There May Soon Be Three Internets. America’s Won’t Necessarily Be the Best.’, October 15th, 2018, The New York Times, https://www.nytimes.com/2018/10/15/opinion/internet-google-china-balkanization.html, accessed 26/4/19.

    [viii] Cass Sunstein, ‘The Law of Group Polarization’, University of Chicago Law School, John M. Olin Law & Economics Working Paper No. 91, December 13th, 1999. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=199668, accessed 26/4/19.

  • A Poor Relation’s Rich Associations

    A poor relation is the most irrelevant thing in nature, a piece of impertinent correspondence, an odious approximation, a haunting conscience, a preposterous shadow, lengthening in the noon-tide of our prosperity. He is known by his knock.
    Charles Lamb

    In 1954, when I was aged nine, my youthful uncle, aged twenty-five, returned to Ireland from what was then East Pakistan, now Bangladesh. To a child growing up near Sligo town this was a dramatic arrival. The KLM baggage labels read, ‘B K Fitzsimons, passenger from Dacca to Dublin.’

    A retired British army major had fixed Bryan up with a three-year position as personal assistant to the managing director of an English company in the jute trade. Born in Liverpool, of Irish immigrant parents, his father had died young and his mother had returned to her native Sligo during World War II. A period of schooling as a boarder at St. Nathy’s College in Ballaghadereen had not yielded pointers to a suitable career for a student who had not shone academically, but had shown a keen interest in the good things in life, especially the company of friends.

    The regimen at St Nathy’s had not suited Bryan’s tastes or his appetite, requiring his doting mother to send weekly food parcels to supplement the standard fare. Eventually this drew a postal edict from the headmaster banning the practice. Whereupon Bryan wrote to his mother, ‘if you don’t send me food you can send John Gallagher.’ The latter person was Sligo’s foremost undertaker.

    My mother, I believe, had hoped that Bryan’s overseas posting might place a family embarrassment at a safe and permanent remove. The daughter of an impoverished widow, she had made what was seen as a socially significant marriage to a successful solicitor in the town. But BKF was back.

    Bryan lived with our family, off and on, for years. I had two fathers. He took an interest in my education and brought me on many expeditions in my father’s car. Schooling me in the manners of the remnants of the British Raj, he paid particular attention to elocution. He openly announced the hope his protégé would manifest ‘the brains of his father, and the personality of his uncle.’ A caution occasionally uttered, courtesy of Oscar Wilde, was the possibility of the reverse occurring.

    At various points in the 1950s, Bryan went on the high seas. His superior social skills and affinity for the good life helped him find a position with P&O Liners, serving as a waiter in the first class dining compartment. He seems to have been popular with crew at all levels, including the captain and upper echelon. In the course of duties, however, subservience did not come easily to him. Passengers whose dismissive demeanour implied he belonged to the lower orders met with brusque treatment. A drawling American woman who put the question, ‘What’s black pudding waiter?’, received a curt reply not designed to enhance her appetite: ‘pigs intestines madame.’ Other diners deemed ‘trouble’ by virtue of excessive demands could be pitilessly dealt with. One such had a dollop of Silver Dip added to her soup, confining her to cabin for several days, or at least that is how he recalled the episode to his amused nephews and nieces.

    Bryan returned to Sligo after such voyages with a little money in his pocket, which was quickly dispensed in socialising. Staff at the Great Southern Hotel would not have guessed this high society figure in their dining room, entertaining in grand style, was one of their own. Always at ease in company, he was, indeed, the life and soul of any party, and a considerable raconteur. His signature apparel was definitely ‘Çountry’: extrovert plaid sports jacket and cavalry twill trousers.

    After the seafaring interlude my father found clerical work for Bryan at his solicitors’ firm, dealing with insurance claims and the like. His disposition towards hilarity contrasted with the rather sombre atmosphere that had previously prevailed, and an easy telephone manner was increasingly called upon; he would develop a taste for the bustle and excitement around sittings of the District and Circuit courts.

    Along the way he decided to read for the Bar. Undeterred by a lack of savings – it was always his practice immediately to spend any money that came his way – he talked the manager of the Provincial Bank into granting him a substantial loan. I assume my father augmented that regularly over the years that followed – and there were many of those years. Bryan found it difficult to settle into a life of study, and several exams had to be repeated. Yet he had also managed to woo a doctor’s daughter – one of the most admired young women in the town – and needed to do justice to that relationship.

    After five years at boarding school myself, I caught up with Bryan in the realms of third level education in Dublin. It felt a little odd to have an uncle as a fellow law student. However, he entertained my friends enormously, always the last to leave a party and a dogmatic adherent of the ‘rounds’ system of ordering drinks.

    I even shared a flat with him at one point, which became rather a drain on my own modest student allowance. One weekend, when I too was broke, he raided the landlady’s telephone call-box, which delivered a cascade of noisy copper pennies that he transported to a pub in Ranelagh, laying fistfuls on the counter in exchange for his nightly quota of Smithwicks. In due course, I began to see a situation where I might complete my legal education leaving my familial senior behind. I therefore put the skids under him to get him to apply himself to his final exam for the Bar. My sister and I reined him in, virtually standing guard over him by night, with no drink allowed unless several hours of study had been completed.

    On the day of the exam I arrived early in the morning at his digs. To my relief he was awake and looking chipper. After a hearty breakfast I escorted him out the door whereupon we met glorious morning sunshine. He paused. I said, ‘let’s get going Bryan.’ To which he responded by throwing back his head and laughing, before sauntering down the street, in the wrong direction.

    But ‘the uncle’ was not without resources. During a later attempt at his finals, he deployed the full possibilities of emerging short-wave technology. ‘I’m wired for sound’, he confided in the run-up to his repeats, opening his coat to reveal an array of the latest electronic equipment. These would enable him to communicate with a loyal friend on the outside, who could supply answers to the questions submitted sotto voce in the cavernous dining hall of the King’s Inns.

    Indeed, he had been previously implicated in a plot designed to get an entire class of his aspiring barrister friends through oral tests for the ‘Junior Victoria Examination.’ These were administered by the fearsome Professor Fanny Moran, who charged her students with being, ‘ferociously accurate and ruthlessly precise.’ For her oral exam, students were herded into a room from which there was no means of exit, save through another room where the redoubtable Fanny lay in wait as examiner. Only after the interview were they released, one by one.

    In the interests of fairness, each student was asked the same question, which was the reason for the incarceration. Bryan, however, had by this time formed a friendship with a wireless engineer, who lent him the latest in walkie talkie sets. The scheme ensured a level playing field for all candidates, except for the first to be examined. There had to be one martyr, who was tasked with carrying news of the question to a car waiting outside the King’s Inns, from whence the message would be radioed back to the rest of the students, who could consult their textbooks for the correct answer.

    Unfortunately the first candidate misunderstood the question, which was, nonetheless, dutifully relayed to those remaining in the room. By the fourth interview Fanny Moran burst forth: ‘I don’t know why it is, but all of you seem to give the same wrong answer.’ When this frightful intelligence reached the control vehicle feverish attempts were made to regain radio contact with the rest of the candidates, who had by this stage switched the equipment off. In the course of the failed operation a barrister-tutor, later a judge of the Superior Courts, chanced to pass down Henrietta Street. Glancing at the car and its occupants, he immediately surmised the situation. ‘Lads’, he said, ‘ye have gone a long way since we used to slip five shillings to the porter to get hold of the question.’

    By fair means or foul, Bryan did receive a call to the Bar. Money, however had run out and there were debts undischarged. He went to London from time to time to replenish his coffers, returning at intervals. In the course of a visit home, my father having passed away, Bryan was called upon to give away my eldest sister. By this stage he was drinking heavily. The family exerted all manner of pressure to ensure he would be ‘in form’ to discharge this role with style and dignity.

    In spite of solemn undertakings, Bryan visited Sligo town on the morning of the wedding and returned the worse for wear. Shortly before the bridal car departed for the church he was seen grasping, not a glass of gin and tonic, but a jug. As bride and uncle linked arms in the traditional passage up the aisle one onlooker was heard to say it was unclear who was supporting who.

    In the late 1970s Bryan again took the boat to England, and effectively disappeared for some years. The family attempted to trace him, but without success. By this time I was established in corporate law practice and had occasion to visit London on business. On receiving a tip-off of an address where he might be located I managed to make contact, and arranged to meet him at my hotel.

    After consuming as many drinks as were compatible with my work assignments for the following day, I invited Bryan to share my twin-bedded room at the hotel. I had learned that he was living in cheap accommodation and had taken up casual employment as a waiter for banquets and the like. The suit and shoes he wore were the only outer garments in his possession. The following morning he asked if I would meet him again that evening, saying, ‘there’s a friend of mine I’d like you to meet.’

    Joining up, we set off towards a smart address in Chelsea, arriving at one of those elegant bijou dwellings where curtains are left undrawn, allowing passers-by to peer enviously into elegantly furnished rooms. A tall, handsome woman opened the door, and I was introduced to ‘Jane’ as ‘a friend from Ireland’; I was just glad to be wearing my business suit in this rarefied environment. Chit-chatting over a glass of Sherry in the drawing room, Bryan mentioned a connection with the politician Garrett FitzGerald, who was known to the lady. He then asked her in jest, ‘where are you taking me now?’ Jane expressed a desire to go out for dinner, so we made our way to ‘The Gay Hussar’ restaurant in Soho.

    Settled at a comfortable table, the ordering complete, Bryan looked at our guest (mine really – it was obvious who was going to foot the bill), and in a most sympathetic tone said, ‘my dear, you look tired.’ ‘Well I am’, she replied, ‘I have been in the house all day.’ I had a momentary vision of her bent for hours over domestic tasks. Then it twigged, as I recalled an invitation card addressed to one ‘Jane Ewart-Biggs’ lying on her mantelpiece. ‘The House’’ I realized, was the House of Lords, and this was the wife of the former British Ambassador, Christopher Ewart-Biggs, assassinated by the IRA in Dublin in 1976.

    Bryan confided to me afterwards that he had written a letter to the grieving widow to express his abject shame at what his countrymen had done. He further added that that if she was ever in need of company of an evening he would be glad to give what comfort he could offer, to which she had responded.

    Having been run to ground in this way, the family resolved to repatriate him and provide some level of support. A little house was purchased on the edge of Sligo town. My then circumstances enabled me to pay him a modest stipend to provide for his basic needs. Banking systems had advanced sufficiently to allow an account to be programmed so that a maximum amount could be withdrawn every week, thereby avoiding splurges when the monthly transfer arrived in the account.

    From this base Bryan attempted to develop a legal practice. A number of solicitors in the town were willing to pass undemanding District or Circuit Court cases his way, and he was said to be impressive on his feet. Where a case demanded a greater level of legal knowledge, he would post the papers to me in Dublin and I would endeavour, with the help of my office library, to ghost the sort of reply that I hoped would meet the satisfaction of his clients. Bryan ‘got by’ for a number of years pursuant to these arrangements. He also struck up a relationship with a good and loving woman, whom he had known in his youth.

    During this period, while visiting a renowned tailor from Sligo, Martin & Son, with a base on Fitzwilliam Square in Dublin, I asked whether it ever happened that a client, for example one from the U.S. – this tailor visited California regularly to take orders – failed, for whatever reason, to take delivery of a suit. I was thinking of Bryan, I explained, who was well known to the Sligo native. ‘Leave it to me’, he said.

    I heard nothing more until another family wedding came around. This time the family were taking no chances. I was to give away the bride. Bryan was, in fact, well behaved on the day. He took his place in a pew looking the proverbial million dollars in an impeccable dark suit and pink tie. I caught up with him in the bustle of the reception at the family home, and asked how he had come by such a fine suit. ‘The suit?’, he responded, ‘I thought you knew all about that!’ ‘Tell me more’, I said.

    ‘Well’, he answered, ‘I was walking down Wine Street and a head peeped out from the tailoring emporium. ‘Bryan’, a welcoming voice said, ‘there’s to be a suit for you.’ I thought to myself – this is the chance of a lifetime. I asked them to bring out the finest quality English and Italian materials available in the shop, but I didn’t like any of them so I asked for the sample books and chose another to be ordered in.’

    As I listened, my jovial mood ebbed away somewhat. Some weeks later, I called into the tailor, and it became obvious a serious breakdown in communication had occurred. We agreed a settlement satisfactory to neither of us.

    A short time after these events, Bryan, perhaps under the influence of his good woman friend, abstained from alcohol throughout the Lenten period. We had high hopes. But Easter Sunday arrived with a vengeance. After a course of pre-prandials at Austie Gillen’s pub in Rosses Point he weaved an unsteady course down the driveway to the family home. As he approached, my mother was heard to rasp, ‘here comes trouble.’ Some days later Bryan breathed his last. It was speculated that the transition from Lenten abstinence to Easter inebriation was more than his system could tolerate.

    I was in Dublin and dissolved on hearing the news. As the arrangements for the funeral proceeded, I received a call from my solicitor brother. He said the tradition had been for burial in a funerary habit, but that this was beginning to change in favour of contemporary dress. ‘He does have a fine suit’, he said, ‘but it’s barely worn.’ ‘Bury him in the suit’, I gasped.

    Footage (at about 4:40) of Bryan in that suit, with gin and tonic in hand, can be seen in this family movie shot by my fourteen-year-old nephew Ed Rice.