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42 March/April 2022
Michael Williams
wants an end
to Judges
trespassing into
the role of elected
legislators
especially
through inference
of rights from the
consitution.
Michael Smith
wants a new
constitution
but meanwhile,
apart from
theoretically (!),
is relaxed about
whether judges
inferring rights is
democratic and
useful.
OPINION
March/April 2022 43
Judges exceed their constitutional powers.
In 1937 our grandparents adopted a Constitution, Bunreacht na
hÉireann, laying out how they wanted their country to be governed.
They specified it would be a democracy. Only elected legislators
would make laws. If we were not satisfied with how they served us,
we could reject them at the next election.
Over eighty years later, judges have inflated their role. ‘Superior
Court’ Judges, especially in the Supreme Court, make law by annulling
legislation that is compatible with the people’s Constitution, if they find
it incompatible with “rights” they identify, but which the Constitution
does not mention.
They have changed the rules on how public money is to be spent,
how referenda to amend the Constitution are to be managed and who
may claim Constitutional rights. They refused a Habeas Corpus hearing
to a man who credibly claimed he was unlawfully imprisoned. The
constitution promises that everyone who makes a stateable case that
he is imprisoned unjustly, has a right to a speedy hearing by a judge
and prompt release if he is entitled to it. In Edward Ryan v. Governor of
Midland Prison, the Supreme Court eectively inserted the word “not”
before “everyone”. They adjudicate on what legislators do or say in the
course of their work.
Judges should be bound to enforce legislation
compatible with all express terms of our Constitution.
In a 1965 High Court case, Gladys Ryan claimed that the The Health
(Fluoridation of Water Supplies) Act, 1960 was unconstitutional
because it authorised the addition of a small amount of fluoride
to piped water. She said this contaminated water supplied to her
home, claimed she and her children had an implied right under our
Constitution to an uncontaminated water supply and the Act infringed
their right by depriving them of that supply. She asked the Court to
examine scientific material, to disagree with the decision of the
Oireachtas on the merits of fluoridation, and to “correct” the “blunder”
of the Oireachtas, by annulling the legislation.
Article 15.2.1
o
of our Constitution
declares the power of the Oireachtas
to make laws for the State to be “sole and exclusive”. Those words must
Michael Williams doesn’t
approve of judicial additions
to Constitutional rights
Michael Smith argues that a new
constitution is needed but that for the
moment the judges can be trusted as
much as other forces for democracy
New constitution and constitutional convention
needed
I think Bunreacht Na hÉireann betrays ancient and religious thinking
in a modern and post-religious world. It is is after all invoked “in
the name of the holy spirit from Whomis all authority and toWhom,
as our final end, all actions both of men [sic] and States must be
referred” The spirit infuses the whole document. It should be taken
out.
My personal - probably radical - view is that we should have a
new constitution-making process, somewhat similar to the Citizens’
Assemblies we have had on several issues, but with everybody
involved - and steered to take not their own interest but the public
interest or common good as their guide on every issue.
I think a series of citizens’ assembles should preface a non-
religious, progressive, liberal and egalitarian new document
enshrining civil, political social, environmental and economic rights.
It would also guarantee against fascism, Trumpery and
Putinism. In places it should replicate the existing Constitution
to avoid years of clarifying litigation. The new document should
be regularly reviewed following further citizens’ assemblies and
additional rights enshrined.
Meanwhile…
This does not seem to be on the political agenda and, while we
wait for radical change, I am relaxed enough about judges inferring
rights from the fact the rights are, crucially, stated not to represent a
comprehensive iteration.
However, needless to say the separation of powers between the
judiciary and the government and legislature is important.
I appreciate that the separation of powers is crucial and that there
is a technical danger of judicial tyranny. But not in Ireland in 2022.
An ideal constitution would aim to make all rights explicit. It would
rewrite the role of judges but would also rewrite the roles of the
executive and the legislature. One overarching concern is that the
appointment and censure of judges should be a lot less political and
more stringent and seems anywhere close to being the case at the
moment.
Interventionism peaked in 1970s
Actually the courts have been more and more reluctant to intervene
to infer rights. The court of Chief Justice Cearbhall Ó Dálaigh was the
most interventionist or “activist”, 40 or 50 years ago, and current
judicial thinking reflects the unfashionability, perhaps driven by
the debate in the US of judicial interventionist. The recent move
from unenumerated to derived reflects lack of enthusiasm for the
swashbuckling theories of the optimistic 1970s.
Derived rights
Among the derived rights identified by the Clarke-led Supreme Court
is that to seek work. A 2020 Supreme Court judgment, written by
Gldys Ryn: her cse precipitted inferred rights
44 March/April 2022
mean that even if, as Mrs Ryan contended, the Oireachtas had been
wrong in its conclusion about the benefits of fluoridation, a judge had
no power to correct it. But Judge Kenny, who heard the action, came up
with a new theory that in his eyes justified him in hearing and deciding
Mrs. Ryan’s claim.
This was that the short list of citizens’ rights mentioned in the
Constitution was not meant to be exhaustive, and citizens might have
other rights. Elected legislators in the Oireachtas could of course
legislate to recognise such rights, but Judge Kenny asserted that judges
might also identify rights. If they did, the “right” they identified would
notionally be added to the Constitution, so that if an Act of the Oireachtas
was incompatible with that “right” he or she had authority to annul that
Act as though the “right” had been included in the People’s Constitution.
Nothing in it suggests judges have such power and it is on its face
incompatible with Article 15.2.1
o
, I argue the right answer to Mrs Ryan
was that the our sole and exclusive lawmaker had examined the
arguments in favour of fluoridation, accepted them and legislated
accordingly. No other organ of government was authorised to re-
examine that issue or to set aside a decision validly made by the people
constitutionally authorised to make it.
Judge Kenny made two statements that I reject. One was that judges
had identified rights in the formative years of the Common Law and the
other was that there was no reason why they should notdo so now. On
the first, my understanding is that judges have always identified duties
(which of course produced reciprocal rights) but only in cases that were
not governed by Statute. If they were, judges were obliged to apply the
Statute. So the first statement was incomplete, and misleading. The
second, that there was no reason why they should not do so now,
ignored the Constitution, which vests in elected legislators the sole
and exclusive power of making laws for the state. The Ryan decision
opened a door for judges to say, “we disapprove of what the Oireachtas
has decided and therefore won’t apply it. In fact, we’ll annul it”.
The exercise by the judiciary of powers it did not constitutionally
own was not static. Judges seem to me to have trespassed further
and further from their boundaries, relying on “legal precedent”.
They adopted Judge Kenny’s concept and labelled it “the doctrine of
unenumerated rights” (and latterly “derived rights”). Each means that
judges in eect change our Constitution from time to time by adding to
it a new “right” not mentioned in its text and then annul legislation that
is incompatible with this new “right”, as though the “right” appeared
in our Constitution.
Only the Irish people may change their Constitution.
This continues to be true on paper, but as judges identify “unenumerated
rights”, the eect is to amend it. We now have to look at two texts: the
one the People adopted and a varying text that includes “rights” judges
have added to date, with space for them to add new ones.
Only elected legislators may make laws.
This is no longer true. When judges annul legislation because it is
incompatible with an “unenumerated right”, they make laws, overriding
the sole and exclusive power of elected legislators.
The Constitution does leave the door open for the recognition of
rights additional to those it mentions. But the only people whom it
authorises to legislate for such rights are those we have elected to the
Oireachtas to do so. And a subsequent Act would not be invalidated
Clarke, stopped short of finding a right to a healthy environment,
suggesting it might be preferable any such right should be subject
to a public debate and democratic control.
In discussing whether housing is a derived right Clarke noted how
it would be preferable to have the right established by referendum.
All this recognises the central reality that specific rights would
evolve. Rights to housing and a good environment are voguish now.
The right to use contraception was outrageous in 1937, marginal
when recognised by the Supreme Court in Magee in 1973, and
very unoutrageous in 2021. I have said that my preference is for a
rolling constitutional convention that would on occasion aim to add
relevant new specific rights.
Merits and importance of judicial review
All countrieswith constitutions have judicial review. The European
Court of Human Rights applies a form of judicial review.
How without judicial review do you make the constitution
meaningful? That’s a question I think Michael needs to answer. How
does he think think Roe v Wade inferred abortion rights in the US?
I have said my own preference would be for rights to be explicit but
updated by regular Constitutional Assemblies.
Judicial review ensures that the democratic will of the people
voiced by current legislators comes up against the democratic will
of the people enshrined in the constitution. It’s a balance. There’s
a debate as to whether the constitution should then be interpreted
as people felt at the time of adoption or as they feel now; or even by
adopting a somehow literal or ‘textual’ approach.
Status of judicial decisions
There is a lot of academic discussion and there are many judicial
decisions about judicial review. The discussion varies widely but is
live and intense.
Opinion
There are endless books on whether judicial decisions amount,
as Michael Williams disparagingly asserts, to little more than
opinion but for me the requirement for judicial logic/inference
and the appealability of judgments militates against that view. To
infer a right and then be overturned by the Supreme Court would
be perceived as humiliating and damaging to a judge’s career. I’m
sceptical of lawyers but the process of inferring rights I don’t believe
is casual and wouldn’t describe as a matter of opinion.
What do they do?
Judges don’t trade in opinions, instead they weigh litigants’
respective rights and protect the vulnerable.
Bastion against majority tyranny
In many ways judges are a bastion against simple majoritarianism.
Their insulation from political vogues and majorities is precisely
what is needed to protect the rights of people who the majority
may not respect - rights, including minority rights, prevail over
majoritarianism. It is an attractive central selling point for a
constitution that itprotect against the tyranny of the majority.
How rights are formed
The technical answer to how rights are formed is the people decided
March/April 2022 45
because it was inconsistent with such a right. The only rights that may
not be infringed by later legislation are those that the people, from
whom, “under God, all powers of government …. derive” chose to
include in their Constitution.
A regime where wise father-figures restrain juvenile legislators
doesn’t seem to me to be a democracy.
Democracy requires that if we are not satisfied with
how our lawmakers serve us, we can put them out of
office at the next election.
When Judges make themselves lawmakers this is not so. It is very
dicult to dismiss a serving judge, and impossible to get rid of one
who is supported by his or her colleagues.
What elected legislators say and do in making law for
us is to be outside the jurisdiction of judges.
We said so in our Constitution because we wanted our lawmakers to be
able to go about that work without having to worry about how a judge
might view their words.
In the 2019 case of Kerins v McGuinness, Angela Kerins claimed
that when she appeared before a Committee of Dáil Éireann she had
been subjected to abuse by members of the Committee that caused
her psychological harm, and she sought damages from them. The High
Court found she could not pursue her claim because Article 15.13 of our
Constitution grants absolute immunity to a TD or Senator for anything
he or she might say in the Dáil or Seanad. The Supreme Court on appeal
unanimously (and that word makes the decision even more worrying)
reversed the High Court’s decision, and substituted Dáil Éireann as a
defendant. The Dáil consists of its members, so the decision meant
that Ms. Kerins’ claim was against all members of the then Dáil – except,
presumably, those she originally sued, who were exempt under Article
15.13. She was directed to sue not those she claimed had injured her,
but people who clearly had not. This decision opened for the judges a
door into both legislative Houses which our Constitution had shut.
Two Supreme Court decisions aect lawmakers’ ability to investigate
issues that might call for legislation. In re Haughey, in 1971 the Supreme
Court decided that in any Dáil or Seanad inquiry, if anyone’s good name
came under question, he or she had a right to bring barristers into the
inquiry to cross-examine whoever gave evidence threatening his good
name, and to give evidence himself. That is, such an inquiry would be
converted from an inquiry into a court trial. (One has to wonder what
would be the point of having a trial before people who were not judges
and therefore could not decide the issue.)
In the Abbeylara case in 2001 a majority of judges went even further
and decided that neither the Oireachtas or either of its Houses had power
to hold an inquiry if the result might injure the good name of any person
– which meant that it could not hold any meaningful inquiry. None of
the majority seems to have considered, first, that the people who make
laws for the country might need to collect reliable information;
and
should do so in a transparent way, secondly that a public inquiry might
be their only legitimate way of getting information; thirdly that if in the
course of establishing relevant facts the inquiry uncovered something
discreditable to anyone; that could not infringe his constitutional rights
if what emerged was true, and fourthly that an injured person would
have access to the Courts to protect his reputation. None of the majority
judgments shows any understanding of, or interest in, the concept that in
order to legislate wisely lawmakers need reliable information, or that the
when they adopted the constitution (and judges just apply the
Constitution - never make new law). They now need to be re-formed
in a new Constitution.
A definition of rights
One definition of rights is “trumps” against utility (the greatest good
for the greatest number) or majoritarianism.
I would embrace a right to equality and, consistently with that,
rights to privacy, LGBT equality, contraception, housing, a job, a
good environment, a good wage, and also obviously against fascism
and Trumpery (as opposed to trumps against majoritarianism).
Some examples
Again, I’d prefer to take my chances on judges applying such a
document than the rabble majority. Personally for example I think the
rights above shouldn’t be a question for the majority, anywhere.Take
the rights to practise homosexual sex or contraception - I don’t find
adoption of Michael’s adoption of a view of democracy that could fail
to recognise these rights at all attractive. Constitutional democracy
is better than that, I think.
Democracy, constitutional rights and inferred rights
Democracy embraces constitutional rights, in part against a
tyrannical majority, and I am not convinced inferring rights is
anti-democratic. All this is well-traversed territory in constitutional
academia.
Of course care is needed.
Safeguards against judicial excess: Appeal, ECHR, EU
Reassuringly judges are susceptible to appeal and the European
Convention on Human Rights and EU Human Rights law provide
frameworks which circumscribe national abuses.
Inferred rights would need to satisfy half the Supreme Court
If you’re a judge and you are considering overturning the
legislature on the basis of an inferred right it will not really be a
case of your opinion being enough. You will know that if you infer
something implausible (as when an ingenuous High Court judge
recently inferred a right to a good environment from Bunreacht na
hÉireann (1937 i.e. before environmentalism) you will be slapped
down by the Supreme Court so High Court judges will need to aim
that their inferences are unassailable, The Supreme Court decides
by a majority. We all know the complex balance of views that
constitutes the US Supreme Court view on Roe v Wade. But it’s the
same for all inferred rights, even in the Irish Supreme Court. Is Roe v
Wade and the US Supreme Court’s view on abortion merely opinion?
46 March/April 2022
judges were requiring an inquiry to give more protection to its witnesses
than they would receive in a Court hearing.
Public funds were to be controlled by the Government,
subject only to Dáil supervision.
In the 1976 case of Healy v Donoghue, the Supreme Court decided that
anybody accused of a serious crime was entitled to be defended by
a barrister and that the State must pay for his defence if he could not
aord to. A system of free legal aid in trials for serious crimes may seem
a good idea. But it could be essential only if judges could not ensure
that an unrepresented defendant would get a fair trial – which they did
not suggest. The eect was to direct the Government and Dáil either to
raise additional money in taxes to pay for legal aid or to divert to that
purpose money ear-marked for other use, perhaps more meritorious
and urgent.
In the 1995 case of, Patricia McKenna v An Taoiseach, the Court
further limited the power of the Government to spend money and of the
Dáil to approve the spending. A referendum to amend the Constitution
was pending, and the Government, with the approval of the Dáil,
wanted to be able to spend money on describing why it recommended
a yes vote and countering dishonest arguments against it. In forbidding
them to do so the Supreme Court seems to have ignored two arguments
against their decision. First was that the Government and Dáil, in
bringing the issue through the Oireachtas for a referendum, believed
they were acting in the national interest, formed that belief validly in
accordance with their respective constitutional duties, and were rightly
concerned to counter dishonest arguments that had been advanced in
a previous referendum. Second was that having initiated a referendum
to amend the People’s Constitution a government has a duty to the
people explain to them why it had done so and why it recommends
them to approve. Instead, they accepted a dubious analogy between
a referendum to amend the People’s Constitution and a team game
where Government and Dáil, having, so to speak, thrown in the ball,
were barred from the field of play. In this writer’s opinion this approach
was deeply disrespectful of both the Government and the Dáil.
Provided they do not infringe the Constitution,
legislators should be free to make laws and the
Government to govern the country as each thought fit.
As the above shows, this is now true only to a limited extent, and our
elected lawmakers can never know when the judiciary will strike again
and annul laws they have made
So, much of what our ancestors included when they adopted our
Constitution no longer applies. In a series of decisions, judges have
increased their power at the expense of the other constitutional organs of
government. They treat the People’s Constitution, not as the fundamental
rule of the State with which all Irish people must comply but as a starting
point from which judges may develop new concepts, and which they are
not obliged to follow literally – though they insist the Oireachtas must.
While I criticise how Superior Court judges have adjudicated on
constitutional issues, on most issues since 1937 our Superior Courts have
served us well.
We now have roughly six times as many Superior Court judges as we
had in 1937. But as a tree grows, its roots extend and become thicker
and stronger, so that in time they may threaten neighbouring buildings.
Maybe time to clip back?
Dangers of judicial discretion
Set against this certainly are the typical vested interests and
conservatism of the judiciary which, it might legitimately be feared,
could distort democracy by biased inferences. Former Supreme
Court Judge Niall McCarthy noted “when [future judges] do become
leading lawyers, they become members of the middle class, with
all the prejudices and traditions attached to them. The rights
protections of millions of people are largely informed by the cultural
influences upon a small, socially stratified community of senior
judges, filtered through a legal system with high entry costs”.
I am also of course concerned that the process of inference might
emphasise some of the regressive in particular religion-based
philosophies that grounded Bunreacht na hÉireann. The judiciary
has tended to infer rights from an existing enumerated right; the
“Christian and democratic nature of the state”; and the Natural Law
or as a natural corollary of another unenumerated right.
Moreover, entrusting judges with momentous discretions makes
it the more important that they are appointed in a proper way. Even
in a democracy it is not regarded as desirable to elect judges but
the appointments process in Ireland, leaving so much ultimate
discretion to government and with little lay input, is – I concede -
flawed.
One of the things that makes it dicult to dispute the inference of
rights, at least in Ireland, is that it is inarguable that if a constitution,
which the informed populus, often imputed with omniscience,
adopted in 1937, says that “among the rights this Constitution
recognises are”, and then it lists some rights, it must be inferred
that it intendedmorerights than just those listed. That was the logic
in Ryan.
Beyond the logic of the text, I think the debate needs to factor
in decisions in the last year moving from unenumerated to derived
rights.
Change from unenumerated to derived rights
Both doctrines centre on Article 40 but recently retired Chief Justice
Frank Clarke has led a new “derived rights” doctrine - “repackaging
and reining in” the earlier “unenumerated rights” doctrine.
Clarke says this is “not so dierent” from the unenumerated rights
doctrine, but “unenumerated” might create an impression of judges
“plucking” rights from their heads.
His view is probably wiser and truer to the all. Clarke is right.
Except in theory, the distinction is not of overweaning significance.
Former Chef Justice Frnk Clrke
March/April 2022 47
Michael Williams’ rejoinder
Constitutional academia by its nature is heavily influenced by current
judicial thinking. In Ireland today it seems to judges natural and right
that they “correct” “blunders” by the Oireachtas that they consider
oppressive. What I argue is that this isn’t what we voted for in 1937.
On Michael Smith’s first point, I’m not convinced that a new
Constitution, rather than amending our existing one is the way to go.
Before I joined Michael Smith in considering adopting a new Constitution,
I’d ask where we find the present one unsatisfactory.
I’m nervous of making decisions that would bind those who come
after us, and also think too much fiddling with our Constitution could
be bad for us as a country. Stability has value and does not involve total
resistance to change. The present one isn’t flawless, but it’s not bad. I’d
be happy with a tidying-up that reined in the judiciary.
Yes, of course I agree that our sense of what rights citizens and others
should have evolves over time, and in this country I think it has been
evolving in a healthy way, and that judges have made a big contribution
to that evolution – however questionably. But I hold that the evolution
should be in the control of those we have elected to make our laws, not
of judges. That will usually mean that it lags behind progressive thinking.
That is frustrating but a price we pay for democracy.
As a general comment on Roe v Wade, I’d say in most societies thinking
is evolving about when, between ejaculation and parturition, an entity
with human rights should be recognised. We have, sensibly, I think,
been moving from recognition too early in that process, it doesn’t seem
rational to me to place it at parturition, but I don’t even know what I think
is the right stage.
Who decides what are rights? Our legislators decided condoms
shouldn’t be imported into or sold in Ireland, to protect the moral health
of the community. That I disagreed with their view didn’t mean that I had
a legal right to import them. Was a judicial decision about Mary McGee’s
right to marital privacy more authoritative than the decision of our
elected representatives? (Putting aside any views any of us might have
about the merits). Should a communal willingness to be protected from
“impurity” by not being able to buy condoms, expressed through our
elected legislators, have to give way to the more enlightened views of
people whose function is to administer justice, not to make laws?
In a well known case in 2016 the Supreme Court aorded rights to
a Burmese citizen seeking asylum in Ireland. The Constitution plainly
aords rights (except Habeas Corpus rights) only to Irish citizens, people
who owe fidelity to the state and loyalty to the nation. The Court rewrote
it to give the same rights to non-citizens, who have no reciprocal duties.
The result was attractive because the direct provision system was and is
disgusting - but unlawful.
Since we enacted the European Convention on Human Rights Act, we
have a humane and reasonable agreed set of rights which a majority
cannot withhold from a minority. The justification or excuse of need, as
in McGee, is no longer there. And I think repressive Catholic-influenced
legislation is a thing of the past. I think Irish people should be allowed to
govern themselves democratically, and judges, clinging to a power the
People’s Constitution does not give them, prevent that.
Democratic legislatures can make mistakes. But they can correct them
and learn from them. That is how they become “mature democracies”.
Judicial oversight of legislation with a power of veto hinders ours becoming
a mature democracy, by undermining the essence of democracy.
Moreover, I think democracy can educate majorities to be sensitive to
minorities, and that is one of the reasons I value it.
Is it fair to summarise the dierences between us like this? You want
a new, secular Constitution and if we had it you wouldn’t complain about
being governed by sensible, experienced people. I’d quite like to delete
some bits of our Constitution but don’t look for a complete re-write. But I
do complain that it promises us “government of the people by the people
for the people” and that promise is being frustrated.
I’ve enjoyed what’s been a wide-ranging constitutional ri.
Michael Williams is a retired solicitor, writting in his personal capacity.
Michael Smith’s riposte
There are many regressive forces out there, in some Anglophone
countries there is close to a majority of people who don’t have
any feeling for judicial review or rights or democracy. In Britain,
for example, Boris Johnson, is trying to abolish judicial review and
the right to protest, and prorogued parliament, before the courts
overturned his decision.
I have no particular time for the likely politics of judges in our
higher courts, their typically rarefied background or the method
of their appointment, but I note that their decisions are among
the most progressive, decent and fair of any force in Irish society.
They are a safeguard for democracy and rights in dangerous times.
Beyond that I would instigate a process of constitution-making led
by the citizenry and with a view to establishing the centrality of
rights of equality and sustainability. Pending subsequent updating
exercises I would be comfortable with them inferring subsidiary
rights based on equality and sustainability.
Thanks, Michael, for an energising debate.
Michael Smith studied law and is editor of Village
