This article asks what is meant by the concept of The Rule of Law and, after the resignation of a second Minister for Justice in two years, whether such a concept is honoured in Ireland today?
Dysfunctionality and hypocrisy have dug a chasm between the theoretical affirmation of the rule of law by lawyers in this state, and reality. It renders the very nature of our democracy fragile.
1. The Rule of Law in Theory
The legal philosopher John Finnis indicated that the rule of law is:
“The name commonly given to the state of affairs in which a legal system is legally in good shape”.
2. The practice
Let’s then stress test the case of the Irish state today.
The Constitution as interpreted in the courts
Yes of course rights exist in our constitutional matrix and in our still fine, if both dated and shop-worn, constitution, and are enforced by the courts in many instances; but there is also cause for concern about undue deference to the executive, which has led to the non-enforcement of social and economic rights by the courts and an abundance of judicial caution on other rights-based claims – particularly claims where issues of financial disequilibrium or that amorphous blob ‘public policy’ are cited. Judge Gerard Hogan of the Court of Appeal, an eminent constitutional academic, recently noted that the record of the Irish courts in upholding substantive constitutional rights has been disappointing, indeed “baffling”, in the last twenty years and stressed disquieting developments in due process and criminal justice. He noted that the recent Supreme Court decision deriving a right to work for asylum seekers “is probably the first time in 25 years or so that the Supreme Court has invalidated a major item of social legislation or social policy”.
The State: the Garda and the Department of Justice
There are widespread violations of and due process by the state itself and a demonstrable associated relative unaccountability, particularly in the case of the police force and justice department with the latter secrecy-driven tail wagging the former mad dog.
The Charleton Tribunal is now grappling with the collateral implications of the Maurice McCabe scandal: allegations that the police with help from the HSE were framing McCabe, a Garda whistleblower, and others for child sex abuse. The Department of Justice acquiesced in smearing McCabe in that tribunal, ultimately forcing the resignation of the Tánaiste Frances Fitzgerald, former Minister for Justice, in late November.
Considering also that up to two million breathalyser tests have been falsified by gardaí, law enforcement seems to have become systemic law-breaking. Journalist Fintan O’ Toole recently described the Department of Justice as subverting the state. We must address the possibility that the most dangerous subversives are those who have misappropriated the raiments of the state.
3. The Contribution of Lord Bingham
Lord Bingham in a celebrated lecture (published in The Cambridge Law Journal, 2007) developed the following rule closely followed by eight sub rules as to what constitutes the rule of law.
First, the general rule 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 such as A v Governor of Arbor Hill Prison are reached – regardless of its merit as policy. Judges deferring to the mob mentality or refusing to make decisions in conformity with the rule of law out of deference to a twisted sense of populism act misguidedly and not in conformity with the rule of law.
It is also noticeable that the Proceeds of Crime Act was upheld on constitutional criteria even though it operates retroactively.
Lord Bingham then developed eight sub-rules from the above generic statement all of which merit close attention and delineation.
First, the judge considered, “the law must be accessible and so far as possible intelligible, clear and predictable: 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 Chief Superintendent that someone is a criminal is bizarre. The over-deference to government on policy breaches the Rule of Law but has been overindulged by our Superior Courts, particularly since the economic downturn. A disequilibrium in the public finances is not an argument to discount or counteract a claim of rights. So, for example, vague discretionary non-review of the Financial Services Ombudsman process and long-standing deference to administrative structures in asylum, banking and environmental matters will not stand up to historical scrutiny.
Second, Bingham considers that “general questions of legal right and liability the judge should ordinarily be resolved by application of the law and not the exercise of discretion”.
Discretion is in reality too prevalent a feature in our sentencing policies. A recent ‘Prime Time’ programme exposed the scandal of the extent of use of the ‘poor box’ by District Court judges to avoid imposing convictions. ‘Discretion’ also dominates for example in our family courts.
Discretion at a different level is utilised by the Garda not least in the penalty points sphere. The Garda Síochána Ombudsman Commission reported in November that 442 gardaí had cancelled penalty points in the case of one 700 times across 17 counties. Nobody knows how many of the 74,000 fixed-charge notices cancelled were legitimate and how many were not. And of course none of them will face sanctions.
The third rule the judge enunciates is a vision of a type of equality:
“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.
First, a non-citizen is deprived of equality before the law and asylum-seekers have infamously been subject to quasi-internment through the opaquely-named direct provision, though the Supreme Court has gratifyingly ultimately made a unanimous finding that the ban preventing asylum seekers in Ireland for working is ‘in principle’ unconstitutional”.
Second, the courts discriminate against the unmarried father who has never been recognised as a constitutional construct. Third, the human persons doctrine has been used to exclude from the remit of the equality clause educational and economic discrimination. This allows courts to abjure issues of substantive inequality so fundamental to such seminal US decisions as Brown v Board of Education and Tapeka. Fourth, the elevation of the family based on marriage justified discrimination leading, for example, to the non-recognition of gay marriage in the Zappone case, overturned only by a referendum. Moreover, substantive inequality is evident across a range of under-observed rights such as the right to housing – underpinning our housing crisis, mass homelessness and in our inflationary and non-regulated property market.
The fourth rule is controversial: “the law must afford adequate protection of fundamental human rights”.
According to legal philosopher Joseph Raz, a non-democratic system which violates human rights may still conform to the rule of law. Nonetheless, international institutions protecting human rights emphasise the rule of law. So 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”. The European Court of Human Rights has suggested that the convention draws inspiration from the rule of law.
In Ireland, since the judicial mistake of O’Reilly v Limerick Corporation the courts have persistently refused to recognise the rights to food, shelter, water (an increasingly pressing issue), a minimum standard of living and health care – some of the more notable social and economic rights. They are of course not duty or legally bound to reach this result as 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 clause (Article 21) and in addition the Canadians under the right to life and security of the person in the Canadian charter (Article 7) have also read them, in albeit in most instances in terms of negative rather than positive enforceability.
There is also the non-recognition of the right to female procreative autonomy or abortion save in the most limited and hotly contested of circumstances and the non-recognition of the right to die.
An interesting recent exception, and a return perhaps to the judicial activism of the 1970s, is the decision by Judge Max Barrett in Friends of the Irish Environment v Dublin Airport Authority to recognise a ‘new’ right to a good environment albeit confusingly “that is consistent with the human dignity and well-being of citizens”.
Nevertheless in general, as Judge Hogan showed, Ireland is scarcely at the moment a country with a pronounced and demonstrable respect for human rights in theory and practice.
The fifth sense in which 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 an element of state-sponsored support in exercising that right.
There are problems of enforcement in Ireland. The list system in the Four Courts is a shambles and the culture of casual adjournment endemic. The cost of litigation is often scandalously expensive with many counsel given a carte blanche to charge whatever inflated figure they wish. There is, of course, despite the Airey case, no right to civil legal aid and the wheels of justice move at a grindingly slow pace. Reflecting this, litigants resort to self-help, clogging up the lists with spurious cases and endless illogical and de minimis arguments – compounding the problem.
Sixth, Bingham suggests that in many respects at the 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”.
Our Department of Justice and Garda, notably in the cases of Maurice McCabe and inflated breathalyser-test figures demonstrate the flouting of this principle.
GARDA
Problems
Our police problem is structural, cultural, historical and endemic.
Many of our gardaí do not pursue proper investigative methods or cannot investigate properly due to a prosecutorial, results-focused mind-set. They spin, embellish and at worst manufacture evidence. They neglect the obvious and exclude that which is consistent with innocence. They are also inadequately trained and in many instances incompetent.
As the Fennelly Commission report put it (March 2017): “The management structure of An Garda Síochána is hierarchical, in common with police forces around the world. Such structures only work if there are open and accessible lines of communication between all ranks and between all sections and in particular if there is a strong oversight of the overall policing activity of the force”.
In the JC case (2015), the late Supreme Court judge Adrian Hardiman detailing the critical findings of tribunals of inquiry into Garda conduct and recalled recent “deeply disturbing developments” in relation to the force and its oversight. “If the ordinary citizen were provided with a defence of ‘I didn’t mean it’ or ‘I didn’t know it was against the law’, then many parts of the law would become completely unenforceable.
The Morris Tribunal, established by the Oireachtas in 2002, looked at allegations of Garda corruption and malpractice in Donegal, centring mostly on allegations by the McBrearty family and others concerning garda conduct during and after the investigation which followed the hit and run death of Raphoe cattle dealer Richie Barron in 1996.
The first module of the Tribunal looked at allegations that a series of bomb discoveries by gardaí in the early 1990s were hoaxes, finding that two Donegal-based guards, planned them to advance their careers. It was madness.
Indicative elsewhere of the gravity of Garda misbehaviour was evidence given to a 2007 humanrights hearing looking into policing of Shell’s Corrib Gas Project in Kilcommon Parish in north west Mayo was conducted by the US-based Global Community Monitor. It was told by Ed Collins, an American-born local resident of how he had “been beaten, assaulted, kicked, choked, punched… kicked and battered since day one”. One alleged Garda assault left him with a knee so badly damaged that for a considerable period he was confined to a wheelchair, unable to walk. Betty Noone told of seeing gardaí drag a woman to the side of a road – “… she tried to get up, and as a third Garda left her… he kicked her”. John Monaghan, a former Irish Press journalist told of how a Garda had threatened to rape his wife. He had an audio recording that he said was of this incident. Another recording shows how a Garda sergeant joked about raping two female protesters who had been arrested. But the Garda Ombudsman found that no action could be taken against him as he had retired. He had also exercised his right to silence throughout his questioning and “largely gave a ‘no-comment’ interview” to them. Not one of the accused gardaí was disciplined.
The Ian Bailey case currently wending its way to the French courts has aired serious allegations that gardaí considered paying someone in order to frame Bailey for murder.
Other examples of the problems include the now established fact that at the very least for over 30 years many gardaí were involved in criminality in tape-recording conversations between solicitors and clients at Garda stations and in prisons. At least 2,800 non-999 calls were monitored, in 23 Garda stations, from 1980 to 2013. The Fennelly Commission which investigated the delinquency considered it was beyond its capacity to carry out a full search of 13 years’ of recordings.
It seems unlikely that Ministers for Justice Shatter, McDowell, Lenihan, Ahern, O’Donoghue and their civilservice interlocutors knew nothing of this.
Then, of course, there is the case of Maurice McCabe – the whistleblower who brought the practice of deleting penalty points to the public’s attention. It was a serious charge but one which was met with official defensiveness rather than outrage. McCabe made serious charges against colleagues in the Cavan/Monaghan area, including that they framed innocent people for crimes, failed to investigate serious crimes including sexual assault and hijacking, published details of a victim of domestic abuse on social media, were often drunk at work and managed very poorly. Often the impression was falsely given that the offences had been properly investigated. The force itself reacted by making both his personal and work life difficult for McCabe. McCabe’s boss, Commissioner Callinan described the making of McCabe’s allegations as “disgusting”.
Significantly, the McCabe story also highlighted the friendly relationship between Shatter and Garda Commissioner Martin Callinan – one, it appeared, which was quite conducive to ensuring that McCabe’s “disgusting” claims were sidelined.
The Garda Síochána Ombudsman Commission (GSOC) recently received data relating to the issuing of 1.6 million Fixed Charge Notices (FCNs) and 74,373 cancellations of FCNs in the four years 2009 to 2012 inclusive.
Key issues highlighted by the analysis of cancellations data include:
1. Too many members of the Garda Síochána were authorised to cancel FCNs – a total of 442 in the four years
2. Cancellations were carried out by superintendents and inspectors for FCNs outside their geographical area, contrary to policy – one officer cancelled 744 FCNs across 17 counties
3. 72% of all cancelled FCNs were simply recorded as ‘cancelled’, giving insufficient rationale for cancellation to allow GSOC ascertain whether or not they were cancelled in line with proper procedure.
Solutions
The daddy of tribunals is the Morris Tribunal which sat for five years and published its final, eighth, report in 2008. Morris was highly critical of the force, finding it in a state of disarray, with low morale, poor discipline, lack of oversight, and a culture of silence summed up by one witness who told him “We don’t hang our own”. The Tribunal was staggered by the amount of indiscipline and insubordination it found in the Garda.
Morris’s most important recommendation – to set up an independent authority to oversee the force was set aside until it was forced back on the political agenda in the wake of resignation of Garda Commissioner Martin Callinan in March 2014, though allegations of nepotism and impropriety dogged his successor Nóirín O’Sullivan too. The Fine Gael-Labour government established a new Cabinet Committee on Justice Reform to be chaired by the Taoiseach which has moved slowly but has led to changes that provide that the Garda Commissioner is to come under GSOC’s remit – though GSOC should be streamlined further and should have powers to conduct investigations on its own initiative. The time limit for lodging complaints with GSOC has been extended to 12 months; and its investigative powers extended.
There is a need for more training, for the assignment of more formal roles at senior level and for much greater civilianisation of appropriate positions in the Garda. The culture of secrecy and blind support and of antagonism to whistleblowers need to change. The force needs a new strategy and focus, and enhanced ethical sensibility and morale needs to be improved.
The Garda’s track record in reform was strongly criticised in a recent Policing Authority report which found that 50 initiatives which senior officers claimed had been completed had only been finalised in nine cases.
The Policing Authority report to Minister for Justice Charlie Flanagan said the authority had examined 50 recommendations made by the Garda Inspectorate in its ‘Changing Policing in Ireland’ report. The Garda said it had implemented all 50 to the point of completion, but grotesquely the authority found only nine were actually completed.
There is an ongoing programme of reform underway based on the Garda Inspectorate reports which are being progressed through the implementation of the Garda Commissioner’s Modernisation and Renewal Programme 2016-2021 and overseen by the Policing Authority. There is also a Commission on the Future of Policing looking into policing in Ireland and, on the basis of its findings, bringing forward to the Government proposals for the future of policing. The Commission will report in September 2018.
There is always Garda resistance to reform. As Gerard Cunningham noted recently in Village:
“When the second Morris report was published in 2005, the judge pointedly included, as an appendix, a word-for-word reproduction of the recommendations chapter from his first report, a year earlier.
Department of Justice
But if the Garda is dysfunctional, the Department of Justice has always operated to a law of its own. Fintan O’Toole suggested that it is “subversive” of the state it supposedly serves and 2014 Minister for Transport Leo Varadkar went as far as to say the department was not fit for purpose.
According to a 2004 Morris Tribunal report “The Department of Justice was “utterly isolated” from Garda Headquarters. “It rarely seeks specific information from senior gardaí, but when it does ask a question, it tends to take the answer “on trust”.
The issue was dealt with more directly by the Guerin report, which – 10 years after Morris – found that the department accepted without question the many assurances it received from Garda HQ about the serious claims of wrongdoing in Bailieboro district by Maurice McCabe. “What is frustrating, reading it, is how familiar it is [to] Morris”, Dr Vicky Conway, author of ‘Policing Twentieth Century Ireland: A History of An Garda Síochána’ told the Irish Times in May 2014.
The irony is that the Minister for Justice has a powerful role in overseeing the Garda. The 2005 Garda Síochána Act – supposedly designed to usher in a new era after the admonishments of Morris – gives the Minister the power to determine and revise Garda priorities, alter the force’s strategy and issue directives to the Commissioner. The Commissioner can do lots of things, but quite a few of them he can only do after seeking the Minister’s permission. Yet in practice, the relationship between the Minister and the Commissioner of the day – one of the key relationships in the running of the State – appears to remain a delicate balancing act.
“We don’t know much about the relationship”, said Conway. “It has often been quite secretive. I don’t mean that in a conspiratorial way – it’s just not something that has been considered in great detail in public”.
The doyen of Departmental Secretary Generals, Peter Berry, Ireland’s J Edgar Hoover, who gave evidence at the 1970 Arms Trial that Charlie Haughey was fully aware of all the details of the conspiracy to import arms, famously attributed the caution to history. When Berry started in the Department, he noted, Kevin O’ Higgins was the Minister, and was assassinated. That generated a certain reserve. Peter Berry was the most dominant and legendary figure in the history of the Department of Justice, an obsessive and authoritarian figure who trusted very few around him.
According to UCD History Professor, Diarmaid Ferriter, Berry believed ministers come and go, but the Department of Justice goes on forever, and can play by different rules to other departments.
A quarter century later, giving evidence at the Morris tribunal, Seán Aylward, a successor somewhat in the Berry tradition as Secretary General of the Department of Justice, described how the department’s relationship with An Garda had evolved over the past century. In the early decades of the State there was “very direct micromanagement” by the Department. This gave way to a “more modern” relationship, where the department’s focus was on general policy rather than on specific events and incidents. Latterly, there was also “an emphasis on the Garda Síochána working to a plan and bringing in modern management methods”, Aylward said.
The Department comprises 33 different agencies, varying in clout and demeanour, and some of its maladroitness is best highlighted by its dealings with these. Beguilingly, Aylward would speak of the agencies funded through the Department of Justice as the ‘Justice Family’.
Nevertheless Aylward had been head of the prison service before becoming secretary general of the Department of Justice, and brought something of that service’s inevitable Spartanism to his dealings.
He angered residents of the former Magdalene Laundries when he told a key United Nations committee that the “vast majority” of women entered Magdalene Laundries voluntarily or with consent.
Aylward also ran into trouble with the unmacho Equality Authority when it came under the aegis of the Department.
The Equality Authority was an irritant in this family setting. It took cases against family members. It took cases against the ‘mothership’ of the Department. It took issue with the opinions opined by the Department’s Secretary General. It did not recognise authority and the imperatives to give due regard to authority.
Aylward eventually took out the Equality Authority. He put his people onto the Board in order to neuter and silence it. He did the necessary dirty work in the shadows. However the Board split on all the votes required to bring the body to heel. Aylward saw it as a numbers issue – he had not put enough of his people in – rather than an issue of the competence of the people he had put in. So he changed the law and put more of his people on the Board. Again the Board split on all the required votes.
At this point the authority of the Secretary General was at stake, so a merger was proposed of five different bodies including the Equality Authority where it would be lost within ensuing chaos. In the end Aylward cut the Department of Justice funding of the Equality Authority by 43%, unprecedented even for those times when the normal cut was in the region of 4%. Its director, Niall Crowley, resigned in protest.
However, in bringing his machinations to his ends Aylward had for once been forced out of the shadows and the whole dirty business came out in the public domain. He was meanly outed on the front page of the Irish Times as having been referred to the Garda by the Equality Authority. Aylward was alleged to have given details of a confidential file pertaining to the chaplain of Castlerea prison who was in dispute with the prison service to his Church superior the local bishop.
Aylward was also to the fore in the demise of the Centre for Public Inquiry, driven by Minister Michael McDowell, on the basis that its director, Frank Connolly, was a threat to the State.
The single-minded zeal of the Department’s head civil servant is indicative and instructive.
Aylward was succeeded in 2011 by Brian Purcell, who like his own successor was close to Aylward. In 2014 Purcell was removed from the Department, and moved to the HSE, after Taoiseach Enda Kenny received information on phone tapping and sent him to Garda Commissioner Callinan’s home the evening before the commissioner announced his departure from the force. The mysterious events occasioned a Commission under Justice Niall Fennelly.
Noel Waters succeeded Purcell but retired after 40 years in November 2017.
The Department insisted his decision to retire had nothing to do with recent controversies in the justice sector, that it was a “coincidence” the announcement came as questions were being asked about the treatment of Garda whistleblower Maurice McCabe at the Charleton inquiry.
Labour TD Alan Kelly had questioned if there were contacts between O’Sullivan and the Department of Justice around the time Sergeant McCabe was challenged during the O’Higgins Commission of Investigation, which was examining allegations of Garda corruption.
In particular there was controversy over the instructions Garda Commissioner O’Sullivan gave her legal team at the O’Higgins commission in 2016, with leaked transcripts saying her lawyers were instructed to challenge McCabe’s “motivation and credibility”. Tánaiste Frances Fitzgerald resigned from Government in early December in the “national interest”, hours ahead of a no-confidence motion in the Dáil which threatened to bring down the Government. Emails dating back to 2015 were released by the Department of Justice, showing Fitzgerald was aware of a controversial legal strategy to target McCabe at the Charleton inquiry into claims of wrongdoing. The contents contradicted claims by Fitzgerald – who was justice minister in 2015 – that she only learned of the approach being taken by lawyers in 2016. The Attorney General Séamus Wolfe gave a presentation to the Cabinet insisting it would be “inappropriate and improper” for Ms Fitzgerald to have intervened when she received the emails in 2015.
It was surprising that Fitzgerald, a likeable and openminded politician who had once served as an activist head of the Council on the Status of Women, had gone native. But that is the curse of the Department of Justice.
Less anecdotally, an Independent Review Group (The Toland Group) was established by then-Minister Frances Fitzgerald in 2014 to undertake a comprehensive review of the performance, management and administration of the Department of Justice and Equality. The top five issues that the Independent Review Group found were:
1. A closed, secretive and silo driven culture.
2. Significant leadership and management problems.
3. Ineffective management processes and structures to provide strong strategic oversight of the key agencies both to hold them accountable and to ensure their effectiveness is maximised.
4. A Management Advisory Committee (MAC) that is neither sufficiently focused on key strategic priorities that impact on the Department and its key agencies nor ensuring that emerging issues with agencies or with political consequence are identified and managed proactively.
5. Relationships with key agencies tend to be informal and unstructured without strong central management from the Department.
The key recommendations were:
1. A programme for fundamental and sustained organisational and cultural change and renewal.
2. A change in the leadership and management routines, systems and practices to underpin both the performance of the Department and key agencies.
3. An upfront commitment to additional skilled and specialised resources and training and development programmes to lead and drive the change programme.
4. A change in the scope and approach of the MAC to provide better strategic management and support.
5. A structured approach to how agencies and key relationships are managed to hold them more accountable and drive better performance across the broader justice landscape.
The Review identified a culture of confidentiality in the Department’s dealings with An Garda Síochána which had influenced the leadership style, management practices and relationships with other agencies . It found “the culture of the Department to be closed and unnecessarily secretive (even taking into account the important and confidential nature of some of the work). This has resulted in an inward looking organisation with limited learning capacity and reduced openness to new ideas” – the Review Group found that although there had been a challenging expansion of work, the overall Departmental culture has not changed or adapted to the world in which it now operates:
“The Review Group believes that management oversight is weak, which has led to a lack of clear responsibility and accountability, both within the Department and when dealing with external agencies and stakeholders.
Although the strengths that the Review Group has identified [including professionalism, competence and loyalty] are widely acknowledged, from our interviews and other submissions from staff there appears to be a significant disconnect between how the MAC sees the Department and how key external stakeholders and many staff see it”.
Seventh, the judge suggests that “adjudicative procedures should be substantively fair – justice must not only be done but be seen to be done and that justice must not be done behind closed doors”.
In general the judicial system does observe procedural fairness and in our higher, though not our lower, courts, is our greatest hope.
The impartiality and independence of our judiciary does nevertheless need to be severely questioned as there is far too close a nexus between politicians and judicial appointments. The appointment of some less than ideal judges has been a particular feature of recent Fine Gael-led governments, leading to much indignation among members of the law library and those judges who have been appointed on merit.
The international Bangalore principles for judicial independence have been flouted and a judicial council promised for over 20 years has yet to be legislated for, while politicians trade barbs with the judiciary about the status of the Chief Justice on the council and whether it should have a lay majority.
The problems with judges, though not widely known, are profound. In 2014 an unnamed judge of the District Court was accused by the former garda, John Wilson, of seeking to interfere with his efforts to blow the lid on the widespread cancellation of penalty points to the benefit of people with influence or connections with the force. The judge, who has previous form in making controversial statements about witnesses and solicitors in his court, criticised Wilson, a family friend, for raising the issue with TD, Clare Daly, whom he described as “a bitch” and whose arrest on a drink driving offence he described as “karma”. The beak was allegedly furious that Wilson had revealed publicly that another controversial judge, Mary Devins, had penalty points terminated, asking “what had she ever done to anybody?”. The judge made outrageous and unrepeatable comments, according to Wilson, about whistleblower, Maurice McCabe.
At one time any reference to judges or judicial activity in the Oireachtas or by any politician was frowned upon. Recently latitude is afforded in parliamentary and public debate. Independents 4 Change TD Clare Daly’s made a speech in the Dáil last year criticising how a minor speeding offence, which she admitted to, had been dealt with by a District Court judge earlier in the day. Daly labelled Judge Desmond Zaidan’s decision to issue a warrant “ludicrous” and claimed he was “causing huge problems with regard to the administration of justice”.
The judge said he issued the warrant because Ms Daly’s solicitor did not offer a reason for his client leaving the court.
He also accused her of abusing the court process by changing her plea to not guilty while “not having the courtesy to tell the courts why”.
During the hearing Mr Justice Zaidan told the TD to “stand up straight”, perhaps a push too far under our delicate balance of power between judiciary and legislators.
During a Dáil debate on judicial appointment, Clare Daly attacked the judge, claiming her case was an example of the “outrageous decisions” taking place in the courts. It was left to the Green Party leader, Eamon Ryan, to express concern at TDs mixing personal experience of the judicial system with their role of legislating. But issues of the separation of powers are too esoteric for most of today’s thrusting politicians.
Then there is the question of financial compromise. It is basic to principles of the rule of law and fair procedures, and the rule against bias, that judges should not hear cases in which they are compromised.
In July 2015 the Supreme Court pulled its punches in deciding that Judge John Cooke should not have sat in the High Court in a case involving a company in which he held a valuable share.
In November 2012, the opposing party in the case, Goode Concrete, had objected to his hearing any further matters, saying it had learned from its own inquiries some months earlier he had a CRH shareholding in December 2010 valued at some €135,000.
Judge John MacMenamin stressed the court’s judgments were not to be seen in any way as a reflection on the integrity of Judge Cooke who “has served with distinction” in the Irish and European courts. Judge Adrian Hardiman said he believed Judge Cooke behaved with “absolute propriety” and the allegation of objective bias was “a contrivance” designed to get rid of three adverse decisions against Goode. Despite the deference and unction, Cooke’s judgment was overturned and the case assigned to another judge.
He is now chairing the inquiry into NAMA’s controversial Project Eagle which is due to report late in 2018.
The Irish Times is so deferential to the judiciary that the report of the case is still headed ‘Supreme Court allows Goode Concrete appeals in CRH case on grounds of alleged bias’. It can’t accept that a successfully upheld complaint against a judge could rise to anything more substantial than an allegation.
Finally, the judge suggests that the rule of law “requires compliance by the state with its obligations in international law”.
In this respect we do not as a matter of domestic law, by virtue of being a dualist state, comply, or incorporate international instruments into our domestic law. As an exception to this we did of course incorporate and transpose the European Convention on Human Rights (ECHR) but in a parlous manner so 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. Our judicial ambivalence to international human-rights law continues a tradition which dates back to the Norris and Zappone cases.
Ireland rests smug in a fractured world, convinced by its own propaganda of its pervasive excellence. Close scrutiny of our adherence to the Rule of Law reveals gaping weaknesses. From the Garda to the Department of Justice to the Judiciary we need to adopt best international best practice. And get on with it.
David Langwallner is a barrister at Great James Street Chambers in London
