The Supreme Court’s scourge of the state, tribunals and political correctness – Kyran Fitzgerald
Few forelocks these days are tugged when top politicians, professionals or churchmen pass by. The recurring theme of the age is one of loss of respect for the lofty. Yet, for a number of reasons, the judgments issued by our higher courts apparently continue to command popular respect.
True, many consider our judges to be overpaid and part of a remote elite, presiding over a flawed justice system, yet there is a pretty general acceptance that the individuals occupying high judicial positions are people of substance.
Scant popular sympathy is on hand for those who display contempt towards the courts.
In part, this may stem from a recognition that our judges have played a major role in papering over the cracks left by a dithering legislature unwilling to implement reforms that could cost them in the ballot box. Irish judges are viewed as incorruptible, notwithstanding an unfortunate recent case, that of former Judge Perrin. Their work rate is viewed as being high. Above the District Court level, judges have, by and large, avoided the temptation of wading into controversy.
More recently, the senior courts have been forced to cope with the fallout from the wave of insolvencies. Judges have however, sought to iron out the flaws in the current system, often using creative means. Overseas, the US Supreme court has, in the past, served as a beacon.
Politically promiscuous, he was a strong backer of the Progressive Democrats, having previously been both a member of Fine Gael and, later, a Fianna Fáil candidate
In the 1950s, Earl Warren presided over a Supreme Court that helped to transform American life. In 1954, in ‘Brown v US Board of Education’, the Court outlawed segregation in the school system and it later sanctioned an overhaul of the country’s State legislatures in a move designed to stamp out political gerrymandering.
The Irish Supreme Court, at times, has been highly creative. For strong believers in the right to individual freedom, the dissenting judgment of the late Mr Justice Niall McCarthy in ‘Norris v Attorney General’ stands out.
McCarthy in favouring the application to have laws banning homosexual acts declared unconstitutional, questioned how bans contained in Acts dating back to 1861 and 1885 could be deemed to be consistent with constitutional guarantees of freedom of expression.
He cited the US Supreme Court judge, Louis Brandeis, to the effect that “the right to privacy is the right to be left alone”.
McCarthy had a long, distinguished career as a barrister and was unusual in that he stepped straight from private practice onto the Supreme Court. He was popular and witty.
Adrian Hardiman also moved straight from practice at the Bar onto the highest court in the land. As a counsel, he stood out by dint of his eloquence and the sheer size and breadth of his legal practice. A brilliant advocate, colleagues recall that as a junior counsel, he was involved in so many cases that it was the Senior Counsel who was ‘holding the fort’, awaiting the arrival of the star advocate.
As a senior counsel he acted for the former MEP, Social Welfare Minister and Democratic Left leader, Proinsias de Rossa, in a libel action taken against the Sunday Independent and its columnist, Eamon Dunphy. In July 1997, a jury awarded de Rossa £300,000 in damages after it decided that the journalist had wrongly alleged that de Rossa was involved in, or tolerated, serious paramilitary activity, among other things.
The size of the award was upheld by the Supreme Court on appeal by a majority of four to one – the latter, Ms Justice Susan Denham, now Chief Justice, favoured cutting the size of the award in half. She also called for a direction on the quantum of an award to be given to a jury – a view rejected by the then Chief Justice, Liam Hamilton.
The Court decison was later appealed to the European Court of Human Rights. Hardiman was, in those days, a bundle of energy. Politically promiscuous, he was a strong backer of the Progressive Democrats, having previously been both a member of Fine Gael and, later, a Fianna Fáil candidate.
He served as legal advisor to the PDs’ first leader, Des O’Malley, and found himself embroiled in controversy over remarks made – in the informal atmosphere of the Shelbourne Bar- relating to the Beef Tribunal by a colleague, Gerry Danaher, then acting as legal advisor to Taoiseach Albert Reynolds.
Educated by the Jesuits at Belvedere College, his father was a school teacher. His family background was respectable, but not particularly privileged.
He arrived in UCD determined to make his mark.
A lot of sweat went into manufacturing his seemingly effortless brilliance as an orator. He later recalled that he arrived to make his maiden speech at the College Literary and Historical Society “clutching three thousand words of frenzied handwriting in a sweaty fist”.
What cannot be denied, however, is that his judgments are eminently readable, and accessible to most laymen. Hardiman is certainly clever and erudite
Possessed of a baritone voice that belied his modest frame, Hardiman became a star debater, befriending future legal colleagues such as Michael McDowell, fellow Jesuit boy, and Mary Finlay, now a High Court judge.
Many students viewed the L & H crowd as pretentious twits, but the debating society proved to be a good training ground for life in the lucrative legal ‘killing fields’.
Hardiman, while honing his advocacy skills, and testing his larynx to near destruction, met his future wife, Yvonne Murphy.
They married early, settling in a flat in Merrion Square before moving to a property in Palmerston Park, Rathmines.
Yvonne later moved from a career in social services, journalism and political advice to became a barrister on the north west circuit and latterly a Circuit Court judge.
In 2006-7, Judge Murphy chaired the Commission of Investigation into child abuse by the Catholic clergy in the diocese of Dublin, producing a well-regarded, searing, report.
The youthful Adrian favoured a formal style of dress as part of a young fogey reaction against the anorak-and-denim dress-code of the era.
His opposition to the College Left was in part born of a contrarianism, but it had deep libertarian roots, gut feelings which persist today and are apparent in many of his judgments.
At times, his contempt for state bodies and for public officers erring from the path of justice is visceral.
On occasions, his opposition to ‘political correctness’ can appear almost curmudgeonly, no more so than in his decision in the case brought by the Equality Authority against Portmarnock Golf club.
What cannot be denied, however, is that his judgments are eminently readable, and accessible to most laymen. He avoids the nitpicking, equivocation, and tortured reasoning, that characterise so much of today’s judicial output. Hardiman is certainly clever and erudite: he can recite reems of poetry and constitutional articles and has given entertaining talks on James Joyce and Flann O’Brien, well outside the curtelage of the Four Courts.
Early in 2005, after five years on the bench, he ruled in proceedings initiated on behalf of a Donegal businessman, Frank Shortt, who had been framed by members of the Gardaí and imprisoned for three years. Hardiman did not mince his words. Mr Shortt had been “perjured into prison” by policemen keen to advance their careers at his expense, with consequences that were “nothing less than life blighting”.
“That the perpetrators were wearing the uniform of the State aggravated the wrong giving the affair a public as well as a private dimension”.
The judge sanctioned an award of over €4.6m in damages to Mr Shortt.
The decision stands out as a rare case where the Supreme Court actually raised a High Court award, from €1.9m – an increase of almost 250 per cent.
Last December, Hardiman took another swipe at a state authority, affirming the decision of the High Court to quash a decision of the Minister of Justice to refuse a certificate of nationality to a baby boy, Faisal Sulaiman. He put it bluntly: “I simply do not understand why so great an effort has been made over so long a period to deprive a small boy of citizenship. If there is a point to the pain and anxiety caused to the child’s family, the expense to which they have been put and the taxpayers money that has been spent, it entirely eludes me”.
In the earlier decision of ‘Lobe v Minister of Justice’ he adopted a different stance. He concluded that the state could force the family concerned to leave the state provided that the Minister of Justice was satisfied that the interests of the common good justified an interference with what is clearly a constitutional right.
Being born in Ireland, the child plaintiff had automatic citizenship. What was at issue was the capacity of that child to ‘anchor’ the remainder of his family to the state.
He quoted with approval from the 1982 judgment of Seamus Henchy in ‘The People v O Shea’.
“It may be said of the Constitution, more than of any other legal instrument that ‘the letter killeth, but the spirit giveth life’ No single constitutional provision ( especially one designed to safeguard personal, liberty or social order ) may be isolated or construed with undeviating literalness”.
In the Equality Authority v Portmarnock Golf Club case, the key point at issue was whether Portmarnock, which did not allow (full) membership to women, was a “discriminating club” within the meaning of Section 8 of the Equal Status Act, thereby attracting sanctions such as the loss of a licence to sell alcohol.
Ruling with the majority in the Club’s favour, Hardiman indulged in some provocative baiting of feminists, including quotes from an Irish Times article entitled ‘Wanted : Single Sex zones for our sanity’. He cited the example of the ICA, founded in 1910 “to bring women together in fellowship”.
“There are said to be only two all men golf clubs in Ireland, but almost any directory provides pages of women’s associations”.
Hardiman thought Portmarnock more a club for men than a club for golf.
NUI Galway academic, Donncha O Connell, was moved in Village Magazine to describe the judgment as being “laced with the rhetorical flourishes of a once great advocate”. By contrast, Judge Fennelly in his dissenting judgment, applied the ‘ordinary and plain meaning’ of Sections 8 and 9 of the Act, concluding that Portmarnock did not cater only to the needs of men playing golf ,and therefore could be held to have discriminated against women players in the application of its rules.
Some will have drawn parallels with Hardiman’s comments at the annual Law Society Justice Media Awards some years ago when he equated journalists to “cowgirls”. The Supreme Court judge was later challenged on some of his remarks by a woman reporter. Quoting the musical Oklahoma, the judge said “the farmer and the cowman should be friends” – the farmer being lawyers and the cowman, reporters. His beef was largely the well-directed one that media coverage of court cases was “inadequate and uninformative”.
Hardiman has ruled in many landmark commercial cases heard by the Court since his appointment in 2000.
In March 2011, the Supreme Court allowed an appeal brought by the ‘reclusive’ property developer, Paddy McKillen, against an attempt on the part of the National Asset Management Agency (NAMA) to take over €2.1bn of his loans from Bank of Ireland.
The High Court had found for NAMA in what was seen as a pretty definitive ruling. McKillen had deployed the services of the leading US economist, Joseph Stiglitz.
In Hardiman’s view, the effect of such a loan transfer would be to extinguish the borrower’s equity of redemption, leaving NAMA in the position where it did not have to account for the excess of value in the assets over the debt.
Hardiman concluded that NAMA would, in effect, be exercising a right of foreclosure, something not seen since the early 19th century.
He contrasted the NAMA business plan, and its seven-to-ten-year life, with the strategy deployed by McKillen – to hold prime assets over a long term.
In his view, McKillen was entitled to a hearing before such a handover of loans was put into effect.
Hardiman noted that all the McKillen loans were performing, providing a “significant stream of income over and above his (McKillen’s ) obligations to the banks”.
There was a real concern that NAMA would in taking a short-term view, maximising its return, could have a ‘devastating effect’ on McKillen: “in Ireland and other common law jurisdictions, the scope of the requirement of fair procedures has expanded considerably”.
“At the very minimum”, McKillen “had a right to a fair hearing by an unbiased body”.
In the case brought by Comcast (joined by Persona Digital Telephony and by Sigma Wireless Networks, the other unsuccessful 1996 bidders), an unsuccessful bidder for the mobile phone licence won in 1996 against the galaxy that is the Minister for Public Enterprise, Michael Lowry, Esat, Denis O Brien, and Ireland and the Attorney General, the Supreme Court was asked to rule on a motion by the state to have the proceedings struck out on the grounds of delay.
Hardiman was having none of it. He noted that Comcast had indeed issued its original plenary summons as far back as October 2001, alleging breach of statutory duty, misfeasance in public office, breach of the Prevention of Corruption Act, 1907, fraud, deceit, etc.
“These submissions (by the State ) are wholly lacking in reality. The corruption alleged was covert, devious & concealed”.
He mocked the notion that the same limitation period applied in a ‘simple running down action’ to a “case of such complexity with the subject matter allegedly characterised by concealment and deceit”.
The way has been opened to litigation that is likely to put the taxpayer and, potentially, private business interests associated with the licence-holders on the hazard for huge sums.
But the Court felt it must keep open the route to justice, as Hardiman the libertarian was only happy to make clear.
This distrust of the state and its agents is never deeper when it comes to Tribunals of Inquiry. One of his last acts as a senior counsel was to secure a victory for the late Liam Lawlor over the Flood-Mahon Tribunal in 1999.
In July 2011, Hardiman let loose, describing how “appalled” he was by the length and cost of the Tribunals, when commenting on an attempt by the Director of Corporate Enforcement, Paul Appleby, to secure the disqualification of Tom and Mick Bailey as directors of Bovale Developments.
In Hardiman’s view, the expense to individuals of participation in tribunals has been “nothing less than grotesque”.
He has arguably been less willing to dwell on some of the breakthroughs engineered by the Tribunal system – in large part because, at heart, he is a traditionalist, a believer in the Common Law and in the basic tenets of the 1937 Constitution.
His concerns about the treatment of people, including ordinary witnesses, by Tribunals is well grounded, however.
At times, these star chambers acquired a life of their own, bestowing untold riches on some of its long-serving staff, and counsel.
In July 2010, speaking at the McGill summer school in Donegal, close to his holiday home, he stoutly defended de Valera’s creation, Bunreacht na hÉireann, against reformers interested in substituting for it a document along the lines of the 1916 Proclamation.
In his view, the demand for simplicity could result in the loss of basic constitutional rights.
In some ways Hardiman resembles Antonin Scalia of the US Supreme Court who is against affirmative action and Federal interference with the States. He too is charismatic, writes well and dissents often. Scalia, however, is too religious and patriotic to be a libertarian.
At heart, Adrian Hardiman lies in the tradition of Edmund Burke, the great 18th-century polemicist – the only difference being that Burke turned to conservatism and towards a pessimistic outlook in recoil from the French Revolution and its nasty after-effects. The young Hardiman never dabbled in revolution in the first place.
He is a staunch believer in the separation of powers and an independent judiciary untainted by experimentation.
He is appalled by the Government’s moves to cut the judicial pay and pensions bill, in part because it would appear in his view to threaten the status of the judges.
Of relations with the reforming Justice Minister, Alan Shatter, the less said the better.
All of which suggests that while Mr Justice Adrian Hardiman will no doubt produce many more searching and stimulating judgments, he will not be interested in challenging the deep flaws of a legal system which permits fraudsters to dampen down public comment on their activities by adroit use of draconian libel laws and which permits them to evade justice with the assistance of highly-remunerateed legal consiglieri once their dubious activities have been unearthed. Because hallowed traditions have their cost.
In the bath…April/May: Adrian Hardiman
Adrian Hardiman lay back in the ah bubbles in his PRIvate bathtub as he was indeed entitled to barking Kipling’s If stentorianly and thought how evil the State was A BATHtub He reflected, nay he adumBRATEd that the State would never get its hands on Always emphasise the SYLLable They have taken my pension they have taken the PDs, they have taken McDowell but my home on the Park is my CAStle He thought he heard someone spitting but realised on reflection it was himself Alan Shatter He thought of Edmund Burke, Antonin Scalia The tribunals Legally sterile They couldn’t get his bath or if he had his way almost anything or anyone Was he the better jurisprudent? He felt inDEED so The overbearing State Pension grabbers Antonin: not a distinguished cognomen like Adrian Smug fawning and unctuous Hardiman Thoughts drifted back to Belvo and the impersonations bold urchins on the street used to do of his fine baritone To UCD sweating at the L & H All that larking about with Michael McDowell – the FCA days when all he needed was his uniform an edition of the Irish Law Reports and the absence of girls to feel complete How things had moved on Women How they got in the way If Portmarnock is entitled to succeed on this appeal brought by the Equality Authority then so too would a women’s club or a gay club or a travellers’ club, or an Ethiopians’ club with the same sort of rules ImmeMORial He hoped he’d spelt women’s right He thought of the court reporters He’d cleverly quoted the musical Oklahoma – though even that was probably beyond most of them “The farmer and the cowman should be friends” he’d said He sang it now and flushed He hoped no one could hear him Last time he’d taken a bath they’d heard him down the street His declamatory baritone How one or two of his select friends in the club had laughed The farmer being lawyers and the cowman reporters Later he’d spoken of women reporters as cowgirls “Phwarr Phnoarr” he chortled contentedly Or was it furiously? He certainly wanted to seem comfortable in his skin He looked down the bath at all that judicial skin and stuff Caressed a distinguished foot with a fine loofah Just when had he known that he was distinguished he tried hard to think No it was more to muse Cogitated He tried again not to think of Susan Denham Media coverage of court cases is inadequate and uninformative and much of this was down to reporters just being the wrong sex His loin tightened Hardiman Golf he loved it RUGby No ladies need apply I WISH ladies and gentlemen to confess my great disappointment that even the result and its significance is often distorted as the reporter or some editor focuses on some incidental but picturesque detail he proNOUNCed with a RHETorical FLOURish. POLITical correctness gone mad A gaggle of university debating society women and some shiny faced Ógra Fine Gaelers were whooping and hurrahing bassly in his head Their time would come he reflected They may go on themselves to forge distinguished legal careers Was it better to be described as distinguished or eminent Acclaimed esteemed or illustrious Brilliant certainly He debated in his head whether Joyce or Lévinas had the less secular notion of epiphany He rehearsed an impromptu anecdote about James Joyce Bertie Ahern and the ah premier of CHINA The learned Herr Doktor to whom I defer PROM iscuous with the truth a REDUCTIO ad absurdum he POSTulated RHETorically Unsettled by all the fury and self-importance the bubbles had dissipated In mute dissent He lunged at the bath chain with his foot.