The fragile rule of law in Ireland
by David Langwallner
What is meant by the Rule of Law and is such a concept honoured in Ireland today? I believe that the rule of law though arguably an unqualified good is not being adhered to in this state save mostly by the judiciary and that the legal system and erratic observance of legality by state officials renders our democracy fragile. In my view Ireland draws close to that amorphous notion, a failed state that cannot in reality uphold the rule of law. This opinion piecewill not be a comprehensive pathology but will point out many of the salient practical features which show how the rule of law is breaking down.
The Rule of Law: Theoretical Incoherence?
We first need to probe the many senses in which the rule of law is described.
Joseph Raz, a legal positivist who believes in “perfectionistliberalism” has suggested that the rule of law ismerely a kind of shorthand description ofthe positive aspects of any given political system. From a different vantage point the fundamentalist Christian legal philosopher John Finnis considers that the rule of law is: “[t]he name commonly given to the state of affairs in which a legal system is legally in good shape”.
Another philosopher Brian Tamanaha chimes to negative effect that the rule of law is “an exceedingly elusive notion” which leads to “rampant divergence of understandings” and is similar to the amorphous concept of Good in that “everyone is for it, but has contrasting convictions about what it is”.
At bottom,there is no consensus: itis elusive at best: a form of smokescreen or professional hypocrisy at worst. But let us endeavour to be constructive.
For example Carothers, though sceptical, adds a worthwhile positive definition of the rule of law as: ‘a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. In particular, anyone accused of a crime has the right to a fair, prompt hearing and is presumed innocent until proved guilty. The central institutions of the legal system, including courts, prosecutors, and police, are reasonably fair, competent, and efficient. Judges are impartial and independent, not subject to political influence or manipulation. Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding”.
Now let us stress-test certain aspects ofthis detailed expurgation against the patient – in this context Ireland Inc.
Yes of course rights exist in our still fine, if shopworn, constitutional matrix and are enforced by the courts inmany instances butthere is also an undue deference to the executive that has led to the non-enforcement of social and economic rights particularly the right to housing by the courts. There is an excess of judicial caution on otherrights-based claims, particularly where issues of financial iniquity and the countervailing amorphous blob, public policy, are implicated. There is also widespread violation of privacy by the state and its police force, in particular. The overly sanguine way we as a nation have accepted, in effect, what has been police and state criminality with respect to privacy for the last thirty years without wide spread outcry is baffling. At least there are signals of an upsurge in civil disobedience,which when peaceful, as Habermas,the German sociologist of critical theory and pragmatist, would contend, leads to a vitalisation of democracy. Not here. Further, the scandal that is our banking structures, the disgrace of the banks varying interest-rate repayments in breach of agreements, the sometimes unconscionable evictions, are not conterminous with the rule of law. NAMA is a mess formulated by the neo-liberal club which did its best to avoid a proper new deal for the Irish people. The banking inquiry was a poorly performed French farce.
What is desperately needed is a rightto housing. Eviction should be rare, require rehousing, and should only follow meaningful intervention by an arbitrator who can determine whether the consumer can repay and whether the bank – with or without the enlistment of a vulture fund – is bundling the mortgage at a bargain-basement rate to private-law profiteers.
Further, many of our state institutions have major structural problems. The Garda are not progressive in training and intent: they do not seek justice or the truth, but rather a result. They, attimes spin, embellish or atworst, manufacture evidence – and, to be candid, at times act criminally and in violation of the rule of law. Finally, there are limited independent checks and far too close a nexus between politicians and the police.
The recent moving of the deckchairs by the Garda Commissionerwill not change the culture or training of the force, its group think or, arguably, its competence. It needs a radical ovehaul and a redirection so primarily promotes truthseeking, investigative process.
The impartiality and independence of our judiciary needs at times to be severely questioned because there is far too close a nexus between politics and judicial appointments. Though most are appointed on merit, many of our judges are appointed for their proximity to political parties. Further, some judges have an aggrandised sense of themselves: certainly they are not servants of the state as that is not a judicial function, butrather,they are the servants of the constitution which is a bulwark to protectthe people against state excess. Judges also need, in the interest of public confidence as to their impartiality, to declare their shareholdings and indebtedness to the banks.
Moreover, parts of the government left itself open to the accusation, during the bugging crisis, that it was also mired in corruption. In the strictest sense it observed the rule of law but, inmanner, itlaid itself open to the criticism levelled elsewhere by the late great Christopher Hitchens of being crypto-fascist, pursuing a form of fascist authoritarianism but seeking to conceal what it really is.
The Contribution of Lord Bingham:
Lord Bingham in a celebrated 2007 lecture developed the following rules as to what constitutes the rule of law.
First, the generalrule and the core of the rule of law according to the judge is that: “all persons and authorities within the state, whether public or private, should be bound by, and entitled to, the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.
It should be noted that such a rule is violated when retroactive legislation is passed or a retroactive decision reached as happens – regardless of their perspicacity as a matter of policy. Judges deferring to the mob breach the rule of law.
Lord Bingham then developed eight subrules from the above general statement, all of which merit close attention and delineation.
First,the judge stated the lawmust be accessible and so far as possible intelligible, clear and predictable. A legal norm, the judge indicates, must disclose to a citizen what is adequate in the circumstances of a given case. The judge suggests in contrast that a norm is not law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.
In this respect the layers of ambiguity and discretion inherent in, say, the Proceeds of Crime Act 1996, which allows for the confiscation of assets theoretically without charge on the say-so of a senior police official, is bizarre. I have always felt, and continue much more so now, to feel that it is not in any meaningful sense law, nor can it be administered fairly in light ofthe practices ofthe police force. Further, the over-reliance on policy criteria and. A disequilibrium in the public finances is not an argument to discount or a claim of rights. I am shamelessly Dworkinean in this respect: issues of principle must always trump policy and budgetary considerations if we are to formally adhere to the rule of law.
Secondly,though Binghamdoes accept some need for discretionary decision-making, in general questions of legalright and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
Discretion is too prevalent a feature in our unregulated and unstructured sentencing policies and, for that matter, our family courts where any contested dispute isweighted heavily againstthe constitutionally under-protected,
unmarried father. The family courts are often, in my view, the crucible of false and fabricated allegations. Discretion at a different level is exercised by the Garda not least in the penaltypoints scandal.
The third rule the judge enunciates is effectively equality insofar as: ‘the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.”
Well of course we do not apply laws equally. Firstly, a non-citizen is deprived of equality before the lawand an asylum-seeker, nowsubjectto the quasi-internment of direct provision. Secondly, the proviso the second sentence of the equality clause has been utilised to justify the truly disgraceful aforementioned constitutional discrimination against the unmarried father who has been non recognised as a constitutional entity ever sinceNicolaou v An Board Uchtala (1966), a decision so bizarre it belongs to the later parts of the Victorian era. Third, the human persons doctrine has been used to exclude from the remit of the equality clause educational and economic discrimination. Issues of substantive inequality so fundamental to such seminal US decisions as Brown v Board of Education and Tapeka are thus not adjudicable.
As for substantive equality, our attitudes toward non-nationals and Travellers not least in a significant number of criminal prosecutions which are an all too prevalent feature of innocence project cases, is derisive. The slash and burn attitude towards funding of social services demeans society.
The fourth rule is controversial – that the law must afford adequate protection of fundamental human rights.
The judge accepts that the leading rule-oflaw scholar Dicey included no such substantive content in the rule of law and, according to Joseph Raz, a non-democratic system which violates human rights may still conform to the rule of law. Nonetheless, international institutions protecting human rights do emphasise the rule of law. Thus the preamble to the Universal Declaration of Human Rights 1948 recites that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
Of course ever since the judicial mistake of O’Reilly v Limerick Corporation the Irish courts have persistently refused to recognise the rights to food, shelter, and housing (an increasingly pressing issue), a minimum standard of living and healthcare. They are, of course, not legally bound to reach this result. For example, the Indian constitutional court,which interprets a document modelled on our own, has read them in positively under the rubric of the right to life (Article 21). The Canadians in their charter (Article 7) have also read them under the right to life and security of the person. Many other countries followsuit but like the flat earth society we stand alone.
There is also the non-recognition of the right to procreative autonomy, including abortionsave in the most limited and hotly contested of circumstances, and the non-recognition of the right to die – to name but two civil and political rights. In my view the argument for procreative autonomy and privacy-choice rights, even though youmay disagree with abortion morally and personally as I do, are irrefutable in a society that purports to be tolerant and liberal. Of course it is contestable whether a court should arrogate to itself such a power save perhaps in the context of rape which would involve, at least, a balancing of inhumane and degrading treatment against the right to life ofthe unborn.
Finally, although we protect freedom of speech the sanitisation of our discourse, the mass-media packaging of thought and the internal cernsorship aboutwhat can and cannot be said by even the quality press and, above all, the intolerable gutter press, which demands a workable privacy statute, scarcely leads to an enlightenment salon culture or the creation of a Habermasean exchange based on ideal speech and communicative action.
The fifth sense inwhich the judge evokes the rule of law is that “means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve”. This entails a right to go to court and perhaps state sponsored support in exercising that right.
Is this practically enforced? The list system down the Four Courts is in some respects a shambles and the culture of adjournments endemic. The cost of litigation is often prohibitive with many senior counsel taking a carte blanche to charge whatever inflated figure they wish. The Bar Council is a body that has not served the interests or financial stability of the junior bar by its opposition to the legal services bill.
Further, there is, of course, no absolute right to civil legal aid leading to huge inequality of arms between banks and often lay litigants who cannot afford legal representation, and the wheels of justice move at a grindingly slow pace. I am also in favour of a defined cap on the fees that can be charged and the need to ensure that work is more evenly distributed.
Sixthly,the judge suggests that atthe core of the rule of law is the idea “that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.”
The judge indicates thatthis sub-rule encompasses judicial review.
There is mounting and significant evidence that this was not in substance during the bugging crisis.
Seventhly, the judge suggests that adjudicative procedures should be substantively fair and that justice must not only be done but be seen to be done and not be done behind closed doors.
I have largely shied clear from criticising judges except for criticisms of some decisions and in my viewthe judicial system does comply with procedural fairness and is our greatest hope at the higher levels but that is not to negate excessive deference towards the banks, the hegemony of conservative judges with narrowness of background and life experience as well as ties to political parties. Judges should be definedly apolitical.
Finally, the judge suggests that the rule of law “requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations”.
In this respect we do not, as a matter of domestic law because we are a dualist state, comply or incorporate international instruments into our domestic law. As an exception to this we did of course incorporate the European Convention on Human Rights but in a parlous and impoverished manner such that in reality as is made clear in the recent Gormley case decisions of the ECHR are merely of persuasive power which we are free to discard at will a construction at odds with the practice of the UK Supreme Court among others.
The Marxist view on the rule of law was put thus by the celebrated historian EP Thompson “The rule of law is only another mask for the rule of a class. The revolutionary can have no interest in law, unless as a phenomenon of ruling-class power and hypocrisy; it should be his aim simply to overthrow it”.
Though Thompson himself in contrast believed that the rule of lawwas an unqualified good it that it can check arbitrary power to which my response is is that is what the judges should be doing.
In invoking Marxism it might be noted that we do not have a social-democratic culture and are in slave to a neo liberal capitalist orthodoxy reinforced by the advent of two new neo-liberal electoral forces at General Election 2016 with no coherent electable social democratic choice.
I am a believer in the inherent goodness of the rule of law in all of the senses invoked by Thomson and Bingham as far as courts checking arbitrary power is concerned. However, politicians, along with aspects of the state including the HSE and the police, are dysfunctional at best and in some instances corrupt and worse. There is limited substantive adherence by those organs to the rule of law in Ireland today.
The problem is I see scant observance of it except from the legal benches in Ireland today and I am not optimistic absent a popular dissensus leading to a democratic revolution which would gernerate a proper functioning social democracy.
We are nearly there – a failed state on the anniversary of 1916.
David Langwallner is a barrister at Great James Street Chambers London.