Michael Williams wants an end to Judges trespassing into the role of elected legislators especially through inference of rights from the consitution.

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 eectively 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

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 Whomis all authority and toWhom,

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

Gldys Ryn: her cse precipitted 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

, 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 notdo 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 eect 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 eect 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 countrieswith 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 itprotect 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

dicult 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 aect 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

aord 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 eect 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 dicult 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 intendedmorerights 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 dierent” 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 Frnk Clrke

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 aorded rights to

a Burmese citizen seeking asylum in Ireland. The Constitution plainly

aords 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 dierences 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