Cassandra Voices

Tag: 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.

  • Rule of Law Backsliding in Rogue EU States

    This is an abridged interview with jurist Laurent Pech, Professor of European Law, Jean Monnet Chair of European Public Law (2014-17), and Head of the Law and Politics Department at Middlesex University London. Professor Pech identifies rapid autocrisation in a number of EU states, particularly Hungary and Poland, where the Rule of Law has been undermined in a three stage process that has been exacerbated by the emergency conditions of the pandemic.

    On Mandatory Hotel Quarantines

    Technically it has always been possible for national authorities to restrict EU free movement rights on a number of grounds, such as public health. But EU law is normally opposed to collective measures. So you can only restrict on a number of grounds the exercise of free movement on a case by case basis. And you must always comply with the principle of proportionality, so you cannot impose disproportionate measures in the name of public health. You have to have a compelling reasons and you have to demonstrate them on a case by case basis. I’m not familiar with the measures contemplated by the Irish government …

    Without knowing the details of any general policy of containing EU citizens or more generally, [a mandatory hotel quarantine for] EU residents, regardless of citizenship, in my view, would not be compatible with the law, as I understand it.

    What I can tell you is that public health can only be used as a grant of derogation for individual cases, not for the blanket prohibition on arrivals from other EU countries. I don’t think … the European Commission, would let it fly.

    …

    I’m not familiar with any [other] EU country … which is essentially preventing residents in the EU from travelling as a collectively speaking, as a country, imposing on EU residents, trying to get to another EU country and then the mandatory quarantine.

    On the Rule of Law

    I can tell you what the Rule of Law is in EU law in the law of the European Convention on Human Rights, in fact, in our Constitution, constitutional law … the case law has defined the rule of law quite compellingly. Why are we debating these days the definition of the rule of law?

    …

    the concept is being challenged, especially from current authorities in Warsaw and Budapest. The argument is the Rule of Law is too vague and meaningless. It does not exist. And it’s just kind of an intellectual subterfuge to impose neoliberal policies or whatever. But as a matter of EU law, actually, the Rule of Law can be defined. It’s normally defined, understood as a set of legal principles, such as the principle of legal certainty, the principle of judicial review before independent courts, respect for human rights, these kind of principles.

    …

    The Rule of Law is to be found in the EU treaties and has been exhaustively defined both in EU legislation and in the case of the European Court of Justice.

    …

    The essence of the Rule of Law is that we have rules to prevent the abuse of power so we can do something about the abuse of power. We can fight abuse of power, abuse of public power both. But to do that, we need independent consent, which is why one of the components of the Rule of Law is independent courts, where you can assert your rights against the public authorities. So the essence of the Rule of Law, is essentially that even the king, even the president, is subject to the law. There are no distinctions; everyone can assert a right against the public authorities. So this is the essence of the Rule of Law even before the EU itself was created.

    It’s one of the many checks and balances on what we can call unhealthy democracy … certain countries in the European Union have gone down a path where, as for the Rule of Law being challenged in its conception, in its very existence, also other type of checks and balances such as freedom of the press. I mean, it looks like that once one is gone. Then the other one follows.

    Hungary and Poland

    In the case of Hungary and in the case of Poland, essentially, we have a new breed of autocrats. They’re not like the old autocrats, where you see tanks one morning in the streets and then a clear change of regime in the afternoon. It’s much more difficult and they’re much smarter than the previous generation. So I have used the concept of Rule of Law, backsliding of democracy and the Rule of Law; I use the term backsliding to describe what has been happening in the past ten years in these two countries.

    To summarize briefly the process … They only need to get free and fairly elected once and then as soon as they’re elected their job is to make sure to rig the system, to undermine the checks and balances before the next legislative elections. How do you do that? … they tend to always apply the same playbook or the same cooking recipe. The first two steps you’re going to take is you’re going to capture of the Supreme Court or the constitutional court of the country.

    You either purge the current membership of the Supreme Court or you appoint new judges to the Supreme Court … You don’t care whether you comply with the Constitution, because by the time you have captured the Court, then you can get the new court to argue that what you want is not a violation of the Constitution…

    At the same time, what we’ve seen in Hungary, Poland and elsewhere is that while you are violating the Constitution in plain sight, you have to capture the public broadcaster. Or do you do that? If you have a parliamentary majority it is very easy. You can violate the Constitution and you can just pretend it’s not a violation of the Constitution. You’re going to appoint a new board and you’re going to appoint a new president and you’re going to use the taxpayers’ money essentially also to bully or try to corrupt or bribe the private media outlets as well into submission. Why is it important to capture the media? Because you need to shape the public narrative while you are openly violating the Constitution.

    Scapegoats

    You have to explain or try to convince the people that yes, maybe, yes, we are violating the Constitution … but we are doing this in the name of the people. And you are going to convince them this is what you want and then you going to use this some scapegoats in the process. So what you see, what we’ve seen in Poland, Hungary and elsewhere is that they always have a huge need for scapegoating.

    So it’s going to be George Soros … you name a new thing and then they change. They rotate. … It was perhaps worth stressing that you have a change of scapegoat every six months to twelve months when you have exhausted one you need another scapegoat … then it could be also academics. So it could be a corrupted journalist, it could be Communist judges. You need to smear, essentially, the guardians of the Rule of Law. So once you have captured the Supreme Court and the media, you’re going to use scapegoating … You’re going to then bully into submission, order what are called guardians of the Rule of Law, guardians of democracy, the press being one of the key checks on power.

    …

    What I’ve seen emerge in the past few years, is that to avoid European criticism, what they do, they use proxies … what do I mean by proxy? A fake association, a fake NGO which indirectly or directly is given taxpayers’ money … You use a story as a way of distracting the people from the destruction of checks and balances.

    The new would-be-autocrats are much more difficult to fight because a lot of time by the time people wake up it’s a bit too late … the media sector is gone, judicial branch is gone. And then obviously they’re ready for the next elections with the press either bullied into submission or brought to bankruptcy.

    The Last Steps

    One of the last steps in this kind of Rule of Law backsliding process is to radically change the rules of the game. So by the time you have the next legislative election, they’re going to have reformed completely the electoral code. They’re going to capture the electoral commission as well. So it means that they can essentially rig the elections … usually it’s enough to control the ecosystem of the public media. But then also, if need be, you can also rig electoral results in a specific constituency … Also, remember, if you have captured the judicial branch, it means that there’s no place for you to go to challenge the results of the election, even if the results have been gained through unlawful means

    You can you still have elections. Yes, the opposition can win … but it’s virtually impossible to win in these conditions.

    There is no electoral level playing field anymore. Within three, four years, the system has been completely captured … Hungary is no longer a democracy. I expect Poland to be another electoral taken custody within the next two years.

    In fact, Poland is quite dramatic in a way. They had two presidential elections last year. Both of them were completely unconstitutional. I mean, there is not even a room for discussion. They were held in unconstitutional conditions.

    It’s possibly what I call the authoritarian gangrene is going to spread to other EU countries because people are watching, people are paying attention and they’re saying, well, look, it’s working, it’s working fine for Orban and Kaczyński, so why not me? Why not implement this recipe as well in my own country?

    In Hungary the main newspaper, which is not in the control by the government, now has sixty defamation lawsuits pending against. Essentially they’re trying to bankrupt these main opposition newspaper through lawsuits … then you’re going to punish judges if the lawsuits are wrongly decided, so to speak. In addition to that, you have the death threats, that you have a smear campaign. So much so that essentially, if you’re a critical journalist, then you may have no choice but to leave your own country if you want to pursue your profession. What’s happening to journalists is also happening across the board to judges, lawyers, academics. And so we are talking here essentially about a return to the old fashioned de facto one party state. And so I’m afraid we have to be aware of the gravity of the situation

    The Silver Lining

    The silver lining is that Poland and Hungary are the two most extreme cases of autocratic nations, at least in the EU … But maybe we’re going to get there slowly but surely in terms of third possible candidate in the EU. Now, we’ve been talking about Slovenia in the past few weeks because of the parameters of the attacks essentially trying to take control of the Slovenian state agency. And this Slovenian prime minister is indirectly funded by Orban. So essentially Orban is trying to export his model into the Balkans and also into Slovenia. We’ve been talking about the situation in Romania and Bulgaria for quite some time. Malta has also been in the news following the assassination of a journalist who was investigating corruption cases.

    I would say some political entrepreneurs are looking at how successful Orban and Kaczyński have been. Some of them are wondering whether, in fact, this is a good way forward, not for ideological reasons, just possibly this autocratic playbook is a good way of wining power and retaining it.

    The Situation in the U.K.

    Poland and Hungary are just the two most advanced cases in the EU. I have personal worries about the situation in the U.K. if we leave the EU for a minute … there are clear indications that the ruling majority in the UK is trying to dismantle or capture the checks and balances. So essentially they’re trying to annihilate any accountability, including changes to elections. Usually when you see changes being contemplated regarding the electoral commission or electoral rules or IDs to be required to vote and then surprise, surprise, those most disadvantaged by the new electoral rules are those not voting for the ruling party. So this is when you have to get worried. And also in the U.K. we’ve been talking about changing judicial review to make it more difficult to challenge that. And we’ve been talking also about possibly reducing the jurisdiction of the Supreme Court.

    [During the pandemic] I’ve seen an excessive use of secondary legislation. So the parliament has essentially abdicated its role as the key legislator and the government has taken over defining or restricting free movement, something which normally can only be done by the parliament. So I would say this is also part of a potential authoritarian pattern. So we need to really make clear, because once the government is in the business of de facto legislating in place of the parliament, then essentially abuse of power can easily be committed. And if at the same time judicial review is undermined, then you find yourself essentially without any avenue to challenge the excessive use of power. I’m not a libertarian myself, but certainly as a lawyer, I have strong concerns when I see the government essentially becoming the de facto parliament in the name of the Covid-19 emergency.

    Press Freedoms

    So there is ongoing work in the EU to make it more difficult for politicians or oligarchs, these regimes, to sue or bully (journalists) into submission.

    We need to go back to what was the case in the nineteen eighties through strong anti-concentration rules in the media market … if we want to have media pluralism, we need to have a properly functioning media market. You cannot have dominant players essentially asphyxiating the market. So you need to prevent abuse of a dominant position … if we had a well-functioning media market, we would be protected from public abuse of power, but also prevent abuse of power. And the abuse of power does not necessarily come from overbearing governments, it can also come from overbearing private actors. Think of Amazon, think of Google. There is a lot of work to be done in this regard. So concentration of power, whether private or public must be constrained, must be restricted and subject to the law applied by independent courts.

    Covid-19 and Authoritarianism

    Covid-19 has been kind of a blessing in disguise for these autocratic regimes …. giving them even more powers than they used to have … an exceptional situation calls for exceptional powers. But the problem is, once these kind of governments get accustomed to exceptional powers, then they don’t want to give it back …

    So then that’s going to be the next battle as soon as the covid-19 situation is under control. I mean, we need to make sure that parliaments everywhere get back into the business of what they’re supposed to be doing in the first place, which is legislating and controlling the executive these days. What we’re seeing is just an executive without being subject to any meaningful scrutiny from any national parliaments anywhere. So this is actually the widespread issue.

  • ‘Wild Law’ is the Path of Natural Justice

    Man-made climate change is as good as a fact, but the consequences are uncertain in any specific location. Indeed, the island of Ireland could actually be more hospitable to human habitation under certain scenarios: drier and hotter summers are predicted, albeit with an increased likelihood of storm events; higher atmospheric CO2-levels could also increase crop yields.[i] Our rising emissions could have greater impacts elsewhere.

    Mitigation strategies may also have adverse side effects. Witness the expansion of sitka spruce plantations across Ireland, which acidify soils and strangle biodiversity,[ii] in pursuit of an improved carbon balance sheet permitting increases in dairy production. There are also question marks around the impacts of wind farms, especially those sited on blanket peat[iii], requiring hundreds of tonnes of concrete in construction, and disrupting the flightpaths of birds. If this energy is devoted to a new generation of electrified autonomous vehicles, rather than communal transport, it will be in vain.

    Climate change opportunism includes the distortion of supermarket shelves being stacked with organic products wrapped in plastic and flown halfway around the world. It is most obvious in the greenwashing of the agricultural sector,[iv] which consistently argues that Irish livestock’s lower emissions profile justifies expansion – as beef and dairy would only be produced elsewhere with higher emissions. Thankfully, the ‘our coal smokes less than their coal’ argument is more easily dismissed as data from the United Nations Food and Agriculture Organisation (FAO), analysed by An Taisce, shows that Ireland is, in actual fact, the most carbon-intensive beef producer in Europe, and ranks third on emissions from its dairy sector.[v] Most importantly, however, narrowing the environmental agenda to climate change alone obscures the equally pressing consideration of the Sixth Extinction, the unarguable reality of which is apparent in Ireland.

    With this in mind, Is it possible that interested parties could assert rights, already implied by the Irish Constitution, to protect Irish nature itself? Could spiralling emissions then be reduced alongside meaningful biodiversity-gains? Such an argument would build on a foundation of Natural Law, a school of thought embedded in the language and historic interpretation of the Irish Constitution. It can be traced to Classical antiquity, as Sophocles’s Antigone puts it: ‘the unwritten and unfailing statutes of heaven’, beyond the temporary, and occasionally illegitimate, laws of any state.

    During the Middle Ages, especially through Thomas Aquinas, ‘pagan’ Classical arguments were adopted by the Roman Catholic Church. In more recent times these became associated with a toxic and myopic focus on human sexuality, especially women’s bodies. Natural Law still transmits, however, compelling arguments for a universal justice beyond, and above, positive law, informed by dialectic, rather than Christian Revelation as is widely assumed.

    The jurist and former President of the High Court, Declan Costello wrote: ‘It has more than once been judicially observed that it can clearly be inferred that the [Irish] Constitution rejects legal positivism as a basis for the protection of fundamental rights and suggests instead a theory of natural law from which those rights can be derived.’[vi] Thus, from the 1960s, Natural Law interpretations ascribed a host of ‘Unenumerated Rights’[vii] to all citizens, including rights to bodily integrity, work, marry, privacy in marital relations, and free movement within the State. These rights are not explicitly identified in the Irish Constitution but are considered intrinsic to the human condition, flowing in particular from a generalised protection of personal rights under Article 40.3. With the Sixth Extinction now upon us, there is an urgent need for Natural Law to be extended to imply an Unenumerated Rights of other species to exist, along with ourselves.

    For this to occur, however, the Court must overcome a contemporary moral relativism, and aversion to decisive ethical responses. No doubt truth is a shifting target, and any single account is insufficient, but faith in our capacity to settle ethical arguments at a given point in time needs to be restored. As Aristotle – whose influence on Aquinas’s Natural Law theory was immense – pointed out:

    The theorizing of truth is in one sense difficult, in another easy. This is shown by the fact that whereas no one person can obtain an adequate grasp of it, we cannot all fail in the attempt; each thinker makes some statement about the natural world and as an individual contributes little or nothing to the inquiry; but a combination of all conjectures results in something considerable.[viii]

    Post-modernists will argue otherwise, but an outlook of ambient confusion is an admission of failure. Holes can be picked in any argument, but the argument as a whole – “a combination of all conjectures” – may stand. One cannot propose anything meaningful without the conviction of arriving at “something considerable” –  an elusive truth. A capacity to determine justice requires we overcome a ponderous Post-Truth incoherence.

    A contemporary philosopher Alasdair MacIntyre sees in the dialectic process, ‘the movement from thesis to thesis as a movement towards a kind of logos which will disclose how things are, not relative to some point of view, but as such’. Contemporary environmental challenges require new logical departures, disclosing “how things are”, “as such.”  Natural Law theory should encompass an Earth Jurisprudence. Then our laws may confront the reality of an oversized human population radically out of balance with its environment, with Ireland presenting a difficult case.

    Currently, however, environmental laws are generally seen as a body of rules foisted on the populace, often in exchange for a subsidy, rather than practices adopted for the commonweal. Accordingly, Coyle and Morrow claim such regulations are seen ‘as a technical instrument of social goals and policies, rather than a body of principles aiming at the articulation of a concept of justice and the good life.’[ix] This can partly be attributed to the prior failure of Natural Law theorists to identify inherent rights in other species.

    In contrast, the sanctity of human property rights have been vigorously upheld. Early modern theorists, drawing more on Christian revelation than reason, assumed rights of virtually unrestrained possession, along with dominion over all wild creatures therein. The seventeenth century Dutch jurist Hugo Grotius described this as ‘a grant which was renewed on the restoration of the world after the deluge’. To deprive any owner of this would, he said, be ‘an act of injustice.’[x] Importantly, however, up to that point there had been little necessity to assert the rights of wild animals, even in Europe, as humans were living in relative harmony with nature, or at least allowing other species to survive. According to Tim Flannery: ‘after the last muskox died in what is now Sweden about 9,000 years ago, the European mainland did not lose another species until the seventeenth century.’[xi]

    Since then the picture has changed dramatically across the world with sixty percent of wild animals wiped out since 1970 alone.[xii] Coyle and Morrow affirm: ‘The very agricultural practices which were held out as a moral necessity by the natural rights theorists can, it seems, create untold environmental damage.’ Given the scale of ecological damage that has ensued – associated with European colonisation of the globe – they argue that ‘the ethical assumptions of the seventeenth century conception of property cannot survive in such circumstances.’[xiii] The accumulating impacts on our planet of over seven billion human beings, living longer than ever, enjoins alternative approaches to land ownership. As Coyle and Morrow put it: ‘If human agriculture was ever in harmony with nature it certainly is not any longer and the sanctity of individual ownership must be restrained. Duties must join rights.’[xiv]

    Natural Law is an ongoing, truth-seeking dialectical process with the aim of disclosing, “how things are, not relative to some point of view, but as such.” If Natural Law is to have continued relevance it must adapt to current conditions. A re-imagining of Natural Law is evident in the field of Earth Jurisprudence, or Wild Law, a term coined by Cormac Cullinan to refer to human laws that are consistent with Earth Jurisprudence.[xv] According to one of its inspirators, Thomas Berry: ‘The Universe is not a collection of objects but a communion of subjects and every member of the Earth Community has three inherent rights: the right to be, to habitat, and to fulfil its role in the ever-renewing processes of the Earth community.’[xvi] These rights ought, logically and morally, to be incorporated into Irish law.

    But how can these aspirations be given tangible legal form? In a seminal 1972 article ‘Should Trees Have Standing?’[xvii] Christopher D. Stone explores how Wild Law might apply. He argues that natural objects could have legal standing by analogy with companies, states, infants, incompetents, municipalities or even universities. Thus, a court appoints a trustee when a corporation displays incompetence. He writes:

    On a parity of reasoning, we should have a system in which, when a friend of a natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship … The guardian would urge before the court injuries not presently cognizable – the death of eagles and inedible crabs, the suffering of sea lions, the loss from the face of the earth of species of commercially valueless birds, the disappearance of wilderness areas.

    He also draws an analogy with the law of patents and copyright:

    I am proposing that we do the same with eagles and wilderness areas as we do with copyrighted works, patented inventions and privacy: make the violation of rights in them to be a cost by declaring the piracy of them to be the invasion of a property interest.

    Furthermore, he suggests this could lead to modifications in our representative democracies:

    I am suggesting that there is nothing unthinkable about, and there might on balance even be a prevailing case to be made for an electoral appointment that made some systematic effort to allow for the representative “rights” of non-human life.

    Stone envisages changes in our legal culture informing wider social norms, as, ‘a society that spoke of the “legal rights of the environment” would be inclined to legislate more environment-protecting rules by formal enactment.’

    Intriguingly, he also speculates, ‘What is needed is a myth that can fit our growing body of knowledge of geophysics, biology and the cosmos’, proposing ‘that we may come to regard the Earth, as some have suggested, as one organism of which mankind is a functional part’. Similarly, Coyle and Morrow argue: ‘The problem is that meaningful change responding to environmental and social imperatives will require a true paradigm shift in how we regard our relationship with the world of which we form a part.’

    A transformation in our legal relationship with the natural world requires the participation of other fields. It was Percy Bysshe Shelley who famously described the poets as the ‘unacknowledged legislators of the world.’ The philosopher Timothy Morton makes the provocative claim that putting ‘something called Nature on a pedestal and admiring it from afar does for the environment what patriarchy did for the figure of women.’[xviii] Perhaps W.B. Yeats’s identification of Irish nature with a ‘glimmering girl’, ‘with apple blossoms in her hair’ distracts from an ongoing exploitative relationship, linked to our colonial inheritance. Indeed, rather than celebrating a patriarch ‘Digging’ for turf, as in Seamus Heaney’s poem by that name did, new accounts might draw inspiration from an often-overlooked visionary poet of the early twentieth-century Irish Revival, Eva Gore-Booth. She gave up the wealth and privilege of her aristocratic background to devote herself to the poor. Gore-Booth also recognises the right of all creatures to exist on the land, notwithstanding human ownership in her 1906 poem ‘The Landlord’

    O the bracken waves and the foxgloves flame,
    And none of them ever has heard your name –
    Near and dear is the curlew’s cry,
    You are merely a stranger passing by.    [xix]

    Hearteningly, all around the world, from Ecuador to New Zealand, conceptions of Earth Jurisprudence, Wild Law or Pachamama are actually taking route. For example, Germany’s constitution makes protection of ‘the foundations of nature and animals’ a national imperative, applicable to government agencies, the legislature and the judiciary. The provision has been cited in over seven hundred cases. Moreover, echoing Christopher D. Stone, Oliver A. Houck points out this ‘does not include the more numerous acts of compliance that drew no litigation at all.’[xx]

    Meanwhile in Ireland species loss continues apace. Liam Lysaght recently records: ‘of the 3,000 species that have undergone a red list conservation assessment, one in every four species is threatened with extinction here.’[xxi] Of particular concern is the continued exploitation of peat bogs for fossil fuel extraction – where considerations of nature conservation align precisely with keeping fossil fuels, and embedded methane, in the ground – as well as the impacts of grazing ruminants.

    Unfortunately, existing environmental legislation, including the EU’s Habitats Directive, is failing to protect endangered species adequately, including the iconic curlew, which is now on the red list. This can partly be attributed to a lack of enforcement, but also, as we observed, such laws are currently considered an encumbrance on property owners, and not a scheme of protection for a common inheritance. So how do we spare what remains of Irish nature from the ravages of human exploitation?

    A constitutional amendment enshrining nature rights, similar to that operating in Germany, should be the long-term goal. But this will take time to bring to fruition, especially as mainstream media only falteringly highlights extinction threats, and none of the main political parties prioritise protection of biodiversity.

    I propose the alternative of a test case, applying Thomas Berry’s tripartite rights to a particular native species; proposing, for example, the curlew has a right to be, to habitat and to reproduce, alongside humans, based on a Natural Law interpretation of the Irish Constitution – as a previously Unenumerated Right. It seems crucial that such rights are ‘discovered’ sooner rather than later before further, irreversible, losses occur.

    The Court could certainly injunct particular activities to protect species under threat, or prohibit certain classes of herbicides or insecticides outright, or even declare particular lands under private ownership as protected habitats. This will require expert witness from recognised authorities to distinguish competing rights of native, invasive and naturalized species. Property owners should be compensated for any loss, but under the Irish Constitution all rights, including that to property, are subject to the common good, which is served by preventing extinctions.

    The allocation of reserves and prohibition on the use of certain chemicals would be a proportionate appropriation by the Judiciary of the powers of the Legislature and Executive branches, in circumstances where there has been a serious dereliction of duty. The Sixth Extinction is an emergency happening before our eyes with recognisable victims, unlike the unpredictable devastation that climate change is wreaking.

    Cattle and sheep farmers can find new roles as landscape guardians. Re-wilding may begin with marginal lands, where farming is already uneconomic, while better land currently under pasture can be converted to tillage in order to accelerate what a recent article in The Lancet has referred to as the ‘Great Food Transformation.’[xxii]

    Eventually, beyond legal prescriptions, habitat reclamation can endear the population to the landscape, and reform destructive behaviours. In developing our appreciation of the soft sounds and sweet aromas in nature we may consider reducing dependence on noisy, polluting motor cars. Greater biodiversity also offers scope for judicious harvesting of foodstuffs, building materials and fuel. The tragedy of the loss of other species is almost impossible to convey.

    Many of us wish to see our laws go further: putting an end to the perverse subsidy regime that only benefits the Beef Barons; or dignifying all animals with a decent life, in the wild. For the moment, however, our best legal argument is to assert the rights of all resident Irish species, living in ecological balance, simply to exist. Reduced emissions will be a happy by-product of biodiversity-gain, raising environmental awareness to a point where destructive behaviours are recognised, and changed. In beginning to liberate the natural world from human dominion let us recall the small victories won in the battle against human slavery along the road to the great milestones. Wild Law can emerge incrementally in Ireland through our existing constitutional framework.

    [i] Stephen Flood, ‘Projected Economic Impacts of Climate Change on Irish Agriculture’, October, 2013, Stop Climate Chaos, https://www.stopclimatechaos.ie/download/pdf/projected_economic_impacts_of_climate_change_on_irish_agriculture_oct_2013.pdf, accessed 19/2/19.

    [ii] Mary Colwell, ‘A forestry boom is turning Ireland into an ecological dead zone’, October 10th, 2018, https://www.theguardian.com/commentisfree/2018/oct/10/trees-ireland-biodiversity-sitka-birds-extinction, accessed 19/2/19.

    [iii] Richard Lindsay and Olivia Bragg ‘WIND FARMS AND BLANKET PEAT. The Bog Slide of 16th October 2003 at Derrybrien, Co. Galway, Ireland’, November, 2005, School of Health & Biosciences University of East London. https://web.archive.org/web/20131218090914/http://www.uel.ac.uk/erg/documents/Derrybrien.pdf, accessed 28/2/19.

    [iv] Kevin O’Sullivan, ‘Environmental group calls Origin Green a ‘sham’’, October 4th, 2017, Irish Times, https://www.irishtimes.com/news/environment/environmental-group-calls-origin-green-a-sham-1.3244507, accessed 28/2/19.

    [v] Press Release ‘Bombshell for Irish Peace’, 12th of February, 2019, An Taisce, http://www.antaisce.org/articles/bombshell-for-irish-beef?fbclid=IwAR0uPTUu1TEoZToCGugOCIoS-nmsigAQNU0g_U3XrIZHNU3PKbF2_zO0YIU, accessed 19/2/19.

    [vi] Declan Costello, ‘Natural Law, the Constitution, and the Courts’, from Lynch and Meenan (eds.) Essays in Memory of Alexis FitzGerald, Dublin, The Incorporated Law Society of Ireland, 1987, p.109

    [vii] The original ‘Unenumerated Right’ to ‘Bodily Integrity’ was approved by the Supreme Court in Ryan v. A.G. [1965] IESC 1; [1965] IR 294 (3rd July, 1965)

    [viii] Aristotle, Metaphysics, Book 2, Part 1.

    [ix] Coyle and Morrow, The Philosophical Foundations of Environmental Law. Property, Rights and Nature, Oxford, Hart Publishing, 2004, p.211

    [x] Coyle and Morrow, p.15

    [xi] Flannery, 2018, p.251

    [xii] Damian Carrington, ‘Humanity has wiped out 60% of animal populations since 1970, report finds’, 30th of October, 2018, https://www.theguardian.com/environment/2018/oct/30/humanity-wiped-out-animals-since-1970-major-report-finds, accessed 20/2/19.

    [xiii] Coyle and Morrow, p.206

    [xiv] Ibid, p.209

    [xv] ‘Discovering the meaning of Earth jurisprudence’, Legalbrief, August 27, 2002

    [xvi] Quoted in Mike Bell, ‘Thomas Berry and an Earth Jurisprudence’, http://rainforestinfo.org.au/deep-eco/earth%20jurisprudence/Earth%20Justice.htm, accessed 20/2/19.

    [xvii] Christopher D. Stone, ‘Should Trees Have Standing–Toward Legal Rights for Natural Objects’, Southern California Law Review. 45 (1972): 450–87.

    [xviii] Timothy Morton, Ecology Without Nature: Rethinking Environmental Aesthetics, Cambridge, Harvard University Press, 2007, p.5.

    [xix] [xix] Eva Gore-Booth ‘The Land to a Landlord’, from Sonja Tierney (ed), Eva Gore-Booth: Collected Poems, Dublin, Arlen House, 2018, p.166

    [xx] Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Envtl. L.J. 1, 2017

    [xxi] Liam Lysaght, ‘The six steps needed to save Irish Biodiversity’, February 19th, 2019, Irish Times

    [xxii] Prof Walter Willett, MD et al, Food in the Anthropocene: the EAT–Lancet Commission on healthy diets from sustainable food systems, January, 2019. The Lancet. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31788-4/fulltext?utm_campaign=tleat19&utm_source=HPfeature’, accessed 26/1/19.

     

  • The Key Change to Fix the Irish Constitution

    The Harp needs more than tuning. The single most important and useful change we should make to our Constitution is to remove the first paragraph of Article 45 which reads:

    Directive Principles of Social Policy

    The principles of social policy set forth in this article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any court under any of the provisions of this constitution.

    As detailed below, this article provides clear instruction to the Oireachtas to ensure the material welfare of the people, but, crucially, prevents any meaningful judicial enforcement.

    Article 45 covers a lot, instructing the Oireachtas:

    • to promote the welfare of the entire people.
    • to secure wage equality and sufficiency.
    • to manage the natural assets to ‘subserve the common good.’
    • to prevent free competition from detrimental concentration of essential commodities.
    • to manage credit for the benefit of the people.
    • to ensure private enterprise is efficient and where lacking be supplemented by the State.
    • to safeguard the interests of the weak and needy.
    • to ensure the health of the people and prevent exploitation.

    There is so much to welcome here. It is clear, humane, balanced, and entirely workable. Sadly, our Constitution grants the Oireachtas, and hence the Government, a judicial free-hand, and so allows them to ignore their responsibilities.

    An amendment to remove the offending ‘cognisable’ clause, highlighted above, would allow judicial oversight of the vast majority of Government business, requiring efficiency, charity and compassion.

    There is limited jurisprudence on the matter. Initially the courts refused to countenance any argument appealing to Article 45, but it has also served as guidance, insofar as it has been used to inform decisions. This progressive approach to allow reference to the Article has yet to be accepted by the Supreme Court, and current conservative thinking reckons it to be clearly beyond the competence of any court: ‘an invalid usurpation of legislative authority’, and a breach of the separation of powers.

    Quite apart from rendering these goals easily ignored by the government, as citizens we have no recourse in law against any government for failing in its duties. Witness the Housing Crisis, Direct Provision, wage inequality, the gap between the minimum and a living wage, the destruction of natural habitats, commercial exploitation of natural resources, multinational tax avoidance, and the general inefficiency of public services, especially health care in all its forms.

    Instead, our government suggests we turn our attention to the Blasphemy clause. This is welcome among secularists, profoundly uncomfortable for the devout, and so will stir a lot of debate but it will make no meaningful difference to the lives of people.

    Consider one issue afflicting the Nation: the Housing Crisis

    The ideology that free markets are inherently efficient is rampant across the world, and clearly evident in Ireland. The common belief that only very lightly regulated business can achieve efficiencies unobtainable in the public sector is especially clear in our Government’s current policies. This avoids both the fundamental conceptual problem of measuring efficiency in terms of money, or more generally wealth creation, and also breaches sections 1, 2-ii, 2-iii, 2-iv, 2-v, 3-ii, and 4-1 of Artcle 45.

    There are almost 100,000 empty houses in Ireland, and about 10,000 homeless people, of which some 3,755 are children, in 1,739 families.

    Rents are rising rapidly, and are already 23% above the pre-Recession peak.

    Rather than exercise Eminent Domain and issue Compulsory Purchase Orders, an old and well established technique of Government, to buy and re-use exiting property to house families, the Oireachtas is considering the Home Building Finance Ireland Bill, which proposes:

    to provide for the establishment of a company called Home Building Finance Ireland (HBFI), to increase the availability of debt funding for residential development in the State. HBFI will provide financing to developers seeking to build viable residential development projects in Ireland on commercial, market equivalent terms and conditions.

    The Bill facilitates funding of HBFI from resources currently held by the Irish Strategic Investment Fund (ISIF), the granting of the necessary power to the National Treasury Management Agency (NTMA) to provide staff and services to HBFI on a cost recoverable basis, the granting of specific powers to HBFI to enable it to carry on the business of residential development finance, and ensures appropriate accountability for HBFI.

    This overtly favours property developers, contrary to the common good. Indeed, the cost of administering this HBFI will likely run to many millions, millions which could be spent directly by the Government on building and maintaining public housing.

    Consider section 2-iv of Article 45 states:

    that in what pertains to the control of credit the constant and predominant aim shall be the welfare of the people as a whole.

    This bill favours developers over the people who are in most need of housing. It is against the spirit of Article 45, but our current Government is happier delegating responsibility to poorly overseen private quangos. This is just one example of why we need to be able to challenge our Government in our Courts.

    Were we to remove the offending paragraph we could not only pursue our indolent government in our Courts for their derelictions of duties to the people; we could also ensure that all future legislation would take full account of our socio-economic rights.

    This is not a charter for vexatious litigants, it should not and would not allow suit against the Government for minor infringements. The Supreme Court is, by necessity, selective in the cases it hears, and once a matter is decided there the precedent is binding on lower courts. But the doctrine of Separation of Powers should not allow the Supreme Court to deny jurisdiction over any part of our Law.

    Let us recall that these principles of Article 45 are already for the guidance of the Oireachtas. That our elected representatives neglect their responsibilities is nothing short of abhorrent.

    It is our Constitution and we must change it. It is up to us as citizens to elect representatives that will introduce legislation for a referendum to fix this broken string.

     

  • Containing Strife – Professional Ideals in Law and Mediation

    Perhaps we can agree on this much: conflict is intrinsic to the human condition. We are desiring creatures. Our needs and wants rub up against those of others. Add in an event of intensification: a road accident, a perceived act of negligence, breach of commitment or betrayal of trust. Then there arises anger and its close relative, blame.

    Many such situations can be framed in legal terms. We have codes to regulate how people ought to behave. A breach gives rise to the possibility of redress. Often, however, we may observe what looks like a complex legal dispute, but that is not at the heart of the matter.

    As a lawyer I worked for months on the blowout of a large and successful business partnership that engaged several large law firms, and various court proceedings. Yet it was never clear why the parties had fallen out. I heard it suggested that the root of the trouble was the slighting by one partner of another’s wife. There is also the phenomenon of ‘grief to grievance’. People in heightened emotional states are more prone to disagreement and finding fault.

    Because we are generally disabled by our conflicts, it can suit us to delegate their resolution to people trained for that purpose. ‘You will be hearing from my solicitors!’ Those are the experts who know what remedies are obtainable, or how far our interests can be pushed.

    II

    The work of lawyers is considered that of a profession. To call an occupation a profession suggests a difference from other ways of scratching a living. There is, in origin at least, the suggestion of  calling or vocation.

    That said, professions have their own associated pathologies. George Bernard Shaw fashioned the line that ‘every profession is a conspiracy against the laity’. Adam Smith famously wrote in The Wealth of Nations that ‘People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.’

    I want to focus for a moment on the nature of professional legal work in litigation and dispute resolution before considering the emerging profession of a mediator.

    The question arises now, whether there is a useful distinction that can still be drawn between a profession and a business. One hears a complaint in recent years that the law has become just one more business. Indeed promotional advertising addressed to the business community often makes a virtue of this development, suggesting that legal firms have a better understanding of the needs of business as a result of being, so to speak, in the same boat: ‘We are [firm XY], where law means business…’.

    What are the distinguishing features of a profession? Generally, one finds an insistence on codes of practice which its members must adhere to. Since lawyers hold a monopoly on the workings of the justice system, their conduct is heavily regulated. By contrast, persons working, say, in the IT sector will have to comply with relevant law applicable to that activity, but will not be subject personally to regulation as to how they conduct their business.

    Another aspect is that professional work seems to involve a higher degree of responsibility for the welfare of the person to whom services are supplied. It should not be a case of profit maximization, of caveat emptor. The expression ‘client’ rather than ‘customer’ indicates a different standard.

    Admittedly, much legal work performed in modern conditions, such as that associated with purchase and sale of property, or construction or corporate mergers or acquisitions might be considered as, simply, one more business. On the other hand, work in handling civil disputes can more readily be seen to have a more significant professional element, especially if promotion of a more peaceful, less strife-ridden society is to be seen as a public good.

    The idea of a profession would also suggest some level of restraint as regards charges, as opposed to ‘what the market will bear’. The historic appendage of a cloth purse till attached to a barrister’s gown, into which a couple of guineas could be slipped unbeknownst to the noble advocate may attract derision, but there is some kind of echo there, however faint.

    Within a law firm, it is hard to justify the use of fee targets for practitioners in dispute work if the social aim is to encourage expeditious settlement. Any scheme to base remuneration or bonuses on such targets would surely be suggestive of a Faustian bargain.

    One would also expect a measure of restraint as regards marketing of professional services which would not be applicable to pure business. This is a difficult area because lawyers have to take account of what competitors are doing. Yet a young solicitor observed to me rather sadly: ‘I was brought up to believe the fee follows the work, but now it seems the work follows the fee’.

    III

    A distinguishing feature of professional work is that it attracts the expression ‘practice’ as a description. There is a whole field of philosophical commentary as to the nature of ‘practices’ and their contribution to society. The philosopher Joseph Dunne has illuminated this subject. His words can offer an inspirational ideal for professional practice.

    A practice is a coherent and invariably quite complex set of activities and tasks that has evolved cooperatively and cumulatively over time. It is alive in the community who are its insiders (that is to say its genuine practitioners) and it stays alive only so long as they sustain a commitment to creatively develop and sustain it – sometimes by shifts which at the time may seem dramatic and even subversive. Central to any such practice are standards of excellence, themselves subject to development and redefinition, which demand responsiveness from those who are, or are trying to become, practitioners.

    Engagement in the characteristic tasks of a practice, which embody standards that challenge one in so far as they are beyond one, leads, when it goes well, to the development not only of competencies specific to that practice but also of moral qualities that transcend it – that characterize one not just as a practitioner in that domain but as a person in life. 

    He adds that a thing worth noticing about what may be called the economy of a practice is that it is not based on scarcity. Thus if one person excels it need not be at the cost of the other people’s chances to develop their talents. He concludes that ‘Every achievement of excellence enriches all those who participate in or care about a practice; it can be an occasion for admiration or even celebration as well as sometimes, of course, for attempts at emulation.’

    What is spoken of here, of course, is practice at its very best, but to express the ideal is to provide some yardstick by which particular work settings can be judged.

    IV

    What then of the newly emerging profession of mediator, an activity recently given status in Ireland as a result of the Mediation Act 2017? This Act, which envisages the establishment of codes of conduct for mediators, had a lengthy gestation, starting with a consultation undertaken by the Law Reform Commission nearly a decade ago.

    The main impetus has been dissatisfaction with the standard model of litigation, built as it is on adversarial confrontation, and correspondingly high costs. There is increasing resistance to what is labeled as ‘binary’ thinking, and promotion of what is termed a ‘non-dual consciousness’. The mediation model asks parties to recognize that they have a shared problem.

    Patterns of practice in mediation are still emerging. Those who have engaged in this work for many years can be heard to complain that lawyers are wanting to take over the field, and to run mediations as if conducted on a practice ground so as to play out what a courtroom outcome would look like.

    The kind of intellectual activity associated with intensive legal work – what a neuroscientist might classify as left-brain-activity, may be necessary to provide an understanding of a case that has proceeded along the litigation path, but the actual work of mediation calls for capacities more associated with the right hemisphere of the brain, and recourse to intuition.

    It is notable that the Mediation Act requires solicitors to give advice on the mediation option before legal proceeding can be commenced. The essential innovation introduced by the mediation alternative is not the arrival of the mediator on the scene, but a decision by parties in conflict to face each other to discuss their differences. This opens the possibility for value added in the engagement of a third party to facilitate the process.

    I suggest that mediation reaches its full potential when the mediator is able to bring to the table a certain capacity that may be called a ‘presence,’ a personal stillness that is evident even in a highly charged setting. This attribute will be hospitable to the parties. It will also support what may be considered the particular ‘magic’ of mediation, a feature unmatched in the adversarial legal system. This is the right of a mediator to have confidential discussions with each party to the conflict. To the degree that the mediator’s energy is sufficiently receptive, a party will be encouraged to be frank in such meetings, to look at both sides of the case, and to recognize their own share in creating the conflict.

    The kind of energies called for in mediation are exactly opposite to the driven, ‘weaponised’ environment associated with legal processes. The quality of presence that I have referred to is not beyond anyone working in dispute resolution, but it needs to be cultivated. For some this may mean consistent Zen meditation or yoga or like practices (the body is always present), or long walks with the dog. A certain spaciousness is called for.

    To imagine that what is called for in mediation is a mere brokering role, or knocking heads together, is to misconceive the potential. And mediators need to remember that reference to what it might cost to have a legal case run through the courts’ system is a poor yardstick with which to measure the value of the service.

    ********

    A younger colleague who worked with me, who was generally considered to have ‘got’ mediation observed that she had come to realize that ‘mediation is mostly about doing nothing’.

    But then, as we know, a certain kind of non-doing can be very powerful.

    And as to selling the mediator’s expertise, there is a wisdom in the story of the famed Rabbi who consoled a young colleague disappointed at how few people were seeking his advice: ‘They come to me’, the great man said, ‘because I am astonished that they come, and they do not come to you, because you are astonished that they do not come’.

    Fergus Armstrong is a mediator and former lawyer: www.oneresolve.ie

    Feature Image: Maggie Armstrong