‘Corrosive commentary' exaggerates judicial scope

Speaking at the opening session of the inaugural UCD-hosted international Public Law Conference (6 July), Chief Justice Donal O’Donnell said that the legal economy in Ireland, as with the general economy, was also small and open.

In an increasingly inter-connected world, in the areas of commerce, environment and security, it was not feasible or sensible for courts to deal with such matters in splendid isolation from other legal systems, he said, delivering a paper entitled ‘The Impact in Irish Law of International Trends’.

The Chief Justice said that the Irish legal system was open and receptive to developments in other jurisdictions.

The widespread use of proportionality as a tool of analysis in Irish law could be traced to Costello J in Heaney v Ireland in the High Court, which looked to the European Court of Human Rights, he said.

Proportionality

That judgment was approved by the Supreme Court, and marked the introduction of proportionality into the mainstream of constitutional analysis in this jurisdiction, the Chief Justice said.

“It was adopted and applied enthusiastically and almost routinely thereafter,” he said.

The test was applied with varying degrees of rigour, he continued, sometimes loosely and sometimes strictly, and this had percolated into Irish jurisprudence.

Recent cases had moved from a basic comparative analysis towards more detailed consideration of the jurisprudence of the foreign legal system, he said.

“It can be said that Irish courts have always been open to principles of foreign jurisprudence, in the sense that we've always received and applied common-law decisions, but that was a largely passive exercise, which became increasingly recognised as such, and undesirable in the period which followed independence,” the Chief Justice said.

Increasing scepticism

The Supreme Court under Cearbhall O Dálaigh was characterised by an upsurge in activity, increasing scepticism, and a strong insistence on the independence and integrity of national jurisprudence, as well as a very deliberate invocation of the decisions of other courts, he said.

The US Supreme Court  emerged most obviously in the landmark case of the State (Quinn) V Ryan in 1965, which concerned the removal of a man for prosecution in England, and a procedure known as the backing of warrants.

The Petty Sessions (Ireland) Act, 1851 made an assumption of a single legal system in place.

Mr Justice Walsh of the Supreme Court rejected the submission on the grounds that, because the State took over an English legal system, the common law that the courts must be deemed to have adopted was not fashioned for interpreting a written constitution, or reviewing the constitutionality of legislation.

If the court of final appeal of any other state was being held up as an example to follow, it would more appropriately be that of the United States rather than the House of Lords, O Dálaigh said.

These sentiments illustrated the energy of the Supreme Court in that era, Chief Justice O’Donnell added.

This led to both the regular citation of US authority in Irish courts, and a steady trickle of Irish lawyers choosing to pursue post-graduate studies in the Unites States. 

Recent proposals in both the UK and US have been described as attempting to reduce the power of the Supreme Court and the judicial branch, and to shift the power to resolve major social political and cultural issues from the court to the political branches. 

These matters had now reached the level of a formal presidential commission in the US, the Chief Justice said.

These changes explained why US Supreme Court decisions were no longer cited in Irish courts as routinely as they had been in the 1960s and 1970s, he said. 

Divergence

“The paths have diverged in ways that might not have been foreseen then,” he said.  

This divergence raised the question of the value of reference to the jurisprudence of other jurisdictions, he continued.

“It might indeed be said to provide some support for those in US courts who took the view that one jurisdiction should not look to the jurisprudence of other courts in dealing with human, constitutional, or human-rights issues,” he said.

Quoting US Justice Scalia, he said that the process of looking to foreign authorities could be reduced all too easily to a process of looking over a crowded room to find a few friends.

Recent moves in Britain to replace the Human Rights Act, while seeming to reinforce the role of appellate courts, were directed more obviously towards limiting the direct impact of the Strasbourg court (ECHR), he said. 

The aim was also to reduce to extent that the courts, both in Britain and abroad, might have an impact on domestic government or parliament decisions, the Chief Justice added.

“These developments, while significant, are not limited to the political arena,” he added. 

He pointed to Lord Sumption’s recent Reith lecture entitled ‘Law’s Expanding Empire’, which argued that law was now taking over the space occupied by politics.

“Lord Sumption argued that judges, especially those on the Court of Human Rights, had usurped power by expanding the interpretation of human-rights law.

Complacent conclusion

“It would certainly be wrong to draw the complacent conclusion that, since the concept of judicial enforcement of rights is being assailed from all sides, it must be in a reasonably stable position,” the Chief Justice said.

It was noteworthy that governmental proposals in both the US and UK jurisdictions had been directed towards the question of limiting the role of courts, he said.

Even more tellingly, scepticism about the exercise of judicial review came from opposite ends of the political spectrum.

Together with the EU’s difficulty in upholding the rule of law, and the stresses faced by the Court of Human Rights and the Council of Europe more generally, it was not necessarily alarmist to see the post-war model of judicial protection of human rights as under more challenge, the Chief Justice said. 

In such turbulent international waters, it might appear sensible to withdraw to our national environments, and concentrate on the domestic, in the hope that international storm clouds would dissipate and not make landfall here, he said.

“However, that would be a mistake in my view,” he said.

“We have important lessons to learn and perhaps some things to teach,” the Chief Justice said. 

It was not inevitable that decisions on constitutional matters should be seen as merely an expression of moral or political views in a legal voice, he said.

“Nor do I accept that law imposes no real or effective constraints on the exercise of judicial power,” he said.

“If the protection of rights by judicial review is to be sustained, it must be placed on a firmer footing than if a particular decision is temporarily popular with the general population, or indeed with that smaller section that constitutes the legal academic community, or opinion-formers more generally.

“A fundamental function of the court under the Irish Constitution … is, if required to do so, to make decisions which may be unpopular, since by definition they are capable of reversing the will of a popularly elected parliament,” he said.

No sustained debate

There had been no sustained debate in Ireland on the power of judicial review, and a strong tradition of accepting the decisions, the Chief Justice said.

“It is important that we discuss and debate the nature and power of judicial review … insulated from the pressures which can arise in a political crisis,” he said.

This indicated a need for greater study of other jurisdictions, and more in-depth analysis, the Chief Justice said.

“Consideration of authority from other jurisdictions should not be limited to the search for the chimera of precisely similar decisions addressing the same subject matter,” he said.

The value of international authority was enhanced if it came with an awareness of the theoretical background for the decisions, he said.

The exercise of assessing and analysing authority could add rigour and depth to the judgment, and locate it more soundly on firmer foundations, he said.

Surprising quarters 

The challenge to post-war protections of human rights was coming from more surprising quarters than could have been anticipated, the Chief Justice added.

“It is important not to simply bemoan those developments. We should address ourselves to what lawyers can do.

“The perception that court decisions are driven by ideology is easily propagated, and difficult to shake off once it gains traction,” he said.

There was a fine borderline between provocative academic debate and corrosive public commentary, he said, noting that such commentary tended to exaggerate the scope of judicial decisions, and underestimated the significant constraints upon them.

Moral or political views

The Chief Justice repeated that judicial decisions could not be reduced to an expression of moral or political views. 

The courts could not act as an unelected and uncontrolled engine of political power, and scholarly and lawyerly values were important and real constraints, the Chief Justice said.