[i], the Supreme Court decided that a citizen who claimed he was unlawfully kept in prison was not entitled to bring a Habeas Corpus application for his release, even though that right is included in the Constitution. There was no reaction from the Government, the Dáil, the media, any civil liberties organisation, or the public. This article will look at this decision and at a number of others, in their constitutional, legal and political contexts, and at what the absence of public reaction tells us about how Ireland is governed.
The Development of Judge-made Law
Let us look first at the Constitution. Article 5 describes Ireland as a democratic state[ii], and Article 6 says that “all powers of government, legislative, executive and judicial, derive, under God, from the people”[iii]. Article 15 vests in the elected Oireachtas “the sole and exclusive power of making laws for the State”[iv], which seems to follow on logically from Articles 5 and 6. Article 34[v] provides that justice will be administered by judges, but does not empower them to make laws, since that power is reserved to the Oireachtas. But as the Ryan decision and others show, judges often make law.
Let us look next at how that process started. It was in 1965, in a case involving another Ryan, Gladys Ryan v Attorney General[vi]. Mrs Ryan wanted the Courts to annul legislation that she claimed endangered her children’s health by requiring their Local Authority to supply them with fluoridated drinking water. Judge Kenny in the High Court decided that on the evidence she had not established her claim that fluoridated water was bad for the Ryan family, but he went on to say that if she had, the judges would have had authority to end the fluoridation scheme by annulling the legislation that established it[vii]. He said the list of citizens’ rights contained in the Constitution is not exhaustive, and citizens have rights in addition to those it specifies. He went on to say that judges were authorised to identify and enforce such “unenumerated rights”. His words were:
“The next matter to be considered (though I have already said something about it) is whether the general guarantee in Article 40, section 3, relates only to those personal rights which are specified in Article 40 or whether it extends to other unspecified personal rights of the citizen. If it extends to personal rights other than those specified in Article 40, the High Court and the Supreme Court have the difficult and responsible duty of ascertaining and declaring what are the personal rights of the citizen which are guaranteed by the Constitution. In modern times this would seem to be a function of the legislative rather than of the judicial power but it was done by the Courts in the formative period of the Common Law and there is no reason why they should not do it now.”
The recent development in Ireland of judge-made law, with whatever consequences it may have for our constitutional democracy, derives from those words of High Court Judge Kenny, so it will be worth our while to examine them. They do not seem to be a judicial decision based on having listened to arguments for and against the proposition that judges have the power he describes. They read more like an expression of opinion, what lawyers call obiter dictum[viii], than a judicial finding.
Next, rights imply duties, and cannot exist without them. If you have a right to privacy, others have a duty not to snoop in a way that infringes it. If you have a duty to pay tax, the State, through one of its agencies, has the right to collect tax from you. Duties and rights are reciprocal, and inseparable. Declaring what rights citizens should have involves declaring that others must respect those rights and not frustrate them. (Many judicial declarations about citizens’ rights have obliged the State to spend money.) But declaring rights and imposing duties is the essence of making law. And, as we have noted above, our Constitution provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas. The words “sole and exclusive” seem on their face to mean that only the Oireachtas may “ascertain and declare” citizens’ rights, and that a judge who claimed to do so would exceed his Constitutional authority. Judge Kenny was a careful, conscientious judge, and it is surprising that his judgment in the Ryan case did not address the argument that when the Irish People adopted a Constitution that separated the powers of government, they limited the role of the judges as lawmakers.
Invasion of Authority
The next example of judicial invasion of the authority of the Oireachtas, “constitutional justice”, has the same foundation. The logic of the argument is as follows: If citizens have rights in addition to those mentioned in the Constitution, one of them must be a right to be treated fairly. If judges are authorised to ascertain and declare “unenumerated rights”, and they include a right to justice, then judges must be entitled to identify and remedy injustice. If the executive treats citizens unfairly, by withholding a benefit they are entitled to in law, or discriminating against them in some other way, they suffer injustice, and a judge should intervene to protect them. Accordingly, judges must have authority to do so. It seems entirely right that judges should have authority to protect citizens from injustice at the hands of the government or civil servants. But the judges’ next step was to apply the same test to legislation. If legislation produces injustice, the Courts claim the authority to declare it invalid and to delete it from the Statute Books, even if it does not conflict with a specific provision of the Constitution. If justice is one of the “unenumerated rights” that the Constitution implies citizens are entitled to enjoy, then a law that produces injustice must be a denial of a constitutional right.
This argument was developed over a number of cases, but it is most clearly enunciated in the majority Supreme Court decisions in McKenna v An Taoiseach in 1995[ix]. That was the case where the Government proposed to campaign to have the Divorce Referendum passed, and the Court decided by a majority that, while members of the Government were entitled to campaign, the Government as a whole might not do so, nor might public money be spent on the campaign. The basis was that “constitutional justice” required that those campaigning for and against the Referendum should be treated equally, and intervention in the campaign by the Government on one side would be unfair to the other. The argument that the Government was bound to work towards the “common good” as they identified it, and should not be restrained by the Courts from doing so, was hardly considered.
At first sight, for judges to apply the same rule to each of the other two organs of government seems reasonable: what is sauce for the executive goose is equally sauce for the legislative gander. But is it? The role of the executive is to give effect to laws passed by the legislature, and if the executive acts unjustly in doing so, such injustice should be corrected. But does it follow that the judicial organ of government is authorised to set aside decisions of the People’s elected representatives, sitting in the State’s sole and exclusive lawmaking body, because the judges think the legislature has legislated unjustly? Surely it begs the question, in a democratic state, “who defines justice?” Who decides what it requires, what it permits and what it forbids? The Constitution does not specify, but Article 34 says “justice shall be administered … by judges”, which seems to mean their role is limited to administering justice, and does not include defining it. If defining justice and specifying what it requires, what it permits and what it forbids is part of the process of making laws, then, as we have seen, that is the sole and exclusive function of the Oireachtas.
Moreover, the proposition that judges have that power is not supported by what the Constitution says about when the Courts may annul legislation. It authorises judges of the High and Supreme Court to declare legislation void if it is “repugnant to [the] Constitution or to any provision thereof”[x]. Until recent times, when judges began to apply the concept of “constitutional justice”, this provision was interpreted strictly. Legislation was annulled by the Courts if it was inconsistent with a specific provision of the Constitution, but not otherwise. However, in recent years judges have claimed the authority to decide what justice requires, what it forbids and what it permits, to measure Acts of the Oireachtas by their yard-stick, and to reject legislation that fails their test.
Some Case Law
Now let us look at some Supreme Court decisions that applied the judicial rules described above. A summary of the decision in each case or a quotation from the judgment will be followed by brief critical comment. The references appear at the end of this article.
- If an under-age girl lies about her age by claiming to be older than she is, a man who accepts what she says and has sex with her may do so with a totally innocent mind. If so, it is unjust that he should face even the risk of being prosecuted, and a Section of an Act that exposes him to that risk is unconstitutional.[xi]
This decision does not consider an argument that the legislation the judges annulled was intended to give effect to one of the Principles of Social Policy listed in Article 45 of the Constitution[xii], and was therefore immune to judicial interference. It also makes an unrealistic assumption that if a girl who wants to have sex tells her prospective partner that she is of full age, her statement is so implicitly credible that he would have no doubt about its truth. In the real world, the mind of the man concerned could be totally innocent only if he knew the girl well enough to know her age. Accepting at face value what she tells him means, at most, that he believes she is probably telling the truth. That is very far from having the “totally innocent mind” the judgment speaks of.
- Although authorising a search of a citizen’s home is an executive decision, it must be exercised judicially. A police officer involved in the relevant investigation cannot bring judicial detachment to such a decision. Legislation that does not specify that only a “detached” officer can make it is accordingly invalid.[xiii]
“Exercised judicially” normally means “after hearing both sides”. But for a search to be useful, it must be carried out unexpectedly, without notice to the occupier, so hearing both sides is impossible. Accordingly, it is unclear what “exercised judicially” means in this context. Moreover, the view that one police officer will scrutinise his colleague’s request for a search warrant “judicially” is inconsistent with reality and with the hierarchical nature of all police forces. The Supreme Court quotes with approval the views of Swiss judges about the circumstances in which a search warrant should be authorised, and the effect is to give more weight to their opinion than to a decision of our National Parliament.
- The Oireachtas has no power to hold enquiries.[xiv]
This decision fails to focus on the Constitutional authority of the Oireachtas as the sole and exclusive lawmaker for the State. That authority must surely entitle it to give itself such powers as it thinks fit or necessary for it to discharge its constitutional functions. In a parliamentary democracy, the elected legislature must have the right to inform itself on issues of public interest, so that it can frame laws that address public need, and it is for it to decide how to go about informing itself.
- “The right to cross-examine one’s accusers is a constitutional right and not a concession.”[xv]
This rule was not confined to a criminal trial, and applies to any public criticism by one citizen of another. It greatly exceeds the protection the Constitution offers for “good name”, which is limited to situations where a citizen’s good name comes under “unjust attack”[xvi]. It means that a citizen who criticises the conduct or morals of another exposes himself to being cross-examined by that other’s barrister, an ordeal for anyone, from which few would emerge unhurt. And that is so even if what he has said is true. That is, if we criticise a fellow-citizen, or expose the fact that a public figure has behaved badly, he is entitled to put us through that ordeal, although what we say is true, and in the public interest. The effect of such a rule on freedom of speech must be chilling. And freedom of speech, though the Constitution does not give it the protection it deserves and requires, is the corner-stone of democracy.
- The professional work of a “distinguished medical practitioner” may be examined by a Fitness to Practice Committee of the Medical Council, but if the alleged error is of a minor nature, that examination must not be conducted publicly, and legislation that allowed public examination was accordingly annulled.[xvii]
This decision attaches more importance to preserving the reputation of a medical doctor than to the interests of prospective patients who might want to know whether his work is still up to standard, before entrusting themselves to him. Moreover, openness is the essence of democracy and secrecy – which threatens the ability of the People, the source of all powers of government, to make informed decisions – is inherently anti-democratic. Promoting secrecy devalues democracy.
- If a citizen claims he is unlawfully imprisoned, and his claim could be framed under the Judicial Review process, he must first avail of that comparatively slow process, and stay in prison in the meantime. He may not seek the speedy remedy of Habeas Corpus, which the Constitution explicitly promises all citizens, until he has first applied for Judicial Review and been refused.[xviii]
This is the decision involving Edward Ryan mentioned at the beginning of this article. The right we lose by it is not one given to us only by an Act of the Oireachtas: it is specified in our Constitution. The effect is to withhold from citizens a protection the Constitution promises to us all. So, we will examine the decision in some depth. Three Supreme Court judges heard the appeal, but they seem to have agreed, as there is only judgment.
Judicial Review is a very wide-ranging remedy, and probably any citizen who claimed he was unjustly imprisoned could bring his claim under Judicial Review. If that is so, the effect of the Ryan decision is to deprive all citizens of the speedy remedy of Habeas Corpus against unjust deprivation of freedom.[xix] (If it is not so, then the effect of the decision is that a citizen in unlawful custody who could not frame his claim under Judicial Review would be likely to be released much sooner than another who could, which would clearly be unjust.)
Usually a judgment examines the arguments advanced on each side, analyses them, explains why the judge decided to reject one view and accept the other, and then states the conclusion that follows from that decision. In this case, it is hard to find a coherent line of argument, if we exclude the implication, discussed below, that the decision follows from a line of reasoning laid down by a former Supreme Court judge. The judgment does say,
“the fact that every person detained has a right to have the legality of his detention examined by the Superior Courts does not mean that such a person has a right to have every complaint he may have examined under the same extraordinary procedure.”
But it does not quote any authority for that decision. A citizen might fairly reply: “Why not? Why should not a citizen who makes a credible claim that he is unjustly imprisoned be entitled to have that claim promptly investigated by a senior judge? What other work could a judge have that should have priority over such a claim?”
On a technical level, the word “extraordinary” in the above quotation seems strange. The procedure for Habeas Corpus is not extraordinary. It is quite simple. Admittedly, Habeas Corpus applications have been unusual, but that may well be because the speedy remedy of Habeas Corpus has been available to a citizen claiming to be unjustly imprisoned. It would be wrong to assume that the Edward Ryan decision will lead to citizens being arbitrarily arrested in the future, but we do know that a traditional protection for all citizens, which the framers of our Constitution considered so important that they built it into it, has been effectively removed by our Supreme Court.
This judgment is worrying for other reasons. First, it was originally delivered orally, with no written text, although it affects citizens’ rights against State oppression. A written text appeared later, and shows signs of having been put together more rapidly than carefully. For example, it does not mention the European Convention of Human Rights Act 2003, which was enacted some years before, and incorporates the provisions of that Convention into Irish law. One of them reads:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Judicial Review proceedings are not “decided speedily”, so the decision seems inconsistent with the Act, as well as with the Constitution.
Secondly, the text seeks to justify the decision by quoting from an earlier judgment delivered by a greatly respected authority, the late Judge Seamus Henchy. In the case of The State (Royle) v Kelly[xx], he said:
“The mandatory provision in Article 40, s. 4, sub-s. 2, of the Constitution that the High Court must release a person complaining of unlawful detention unless satisfied that he is being detained ‘in accordance with the law’ is but a version of the rule of Habeas Corpus which is to be found in many Constitutions. The expression ‘in accordance with the law’ in this context has an ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of the test is to ensure that the detainee must be released if — but only if — the detention is wanting in the fundamental legal attributes which under the Constitution should attach to the detention.”
In the Ryan judgment, the quotation from Judge Henchy’s decision in the Royle case stops there and does not include his immediately following words:
“The expression is a compendious one and is designed to cover these basic legal principles and procedures which are so essential for the preservation of personal liberty under our Constitution that departure from them renders a detention unjustifiable in the eyes of the law. To enumerate them in advance would not be feasible and, in any case, an attempt to do so would tend to diminish the Constitutional guarantee. The effect of that guarantee is that unless the High Court (or, on appeal, the Supreme Court) is satisfied that the detention in question is in accordance with the law, the detained person is entitled to an unqualified release from that detention. It is the circumstances of the particular case that will usually determine whether or not a detention is in accordance with the law.”
The effect is to suggest to a citizen who reads the Ryan judgment that it is consistent with the views of a judge many lawyers regard as our finest. It is only when we read the full text of Judge Henchy’s judgment in the Royle case that we realise that this is not so.
Reducing the rights of citizens
As we look at these cases, it seems we now live in a State where as well as taking powers that should be exercised only in the Oireachtas by those we have elected, judges have used those powers to reduce the rights of citizens. And, as we saw at the beginning of this article, they have done so without protest from politicians, media or citizens. We should ask two questions: “Why?” and “What should happen now?”
As regards “why”, there are probably two main reasons. First, the Irish have an inbuilt attitude of deference; we assume judges are wiser than we are, that they are benevolent and trustworthy, and we accept their decisions because they are made by people we assume know better than we do. Secondly, their judgments are hard for most of us to read, and even harder to understand. They are expressed in a vocabulary that is foreign to most of us, including Latin tags that most of us cannot translate, and deal familiarly with concepts we are not used to. What we do not understand, we do not question.
As regards what should happen, we have two choices. We can accept that ultimate authority for how our country is governed is no longer held by the people we elect, but by judges. Or we can change that situation. Change would not be difficult, at least technically. All that is required is a fairly short and simple Act of the Oireachtas, which the President might be asked to refer to the Supreme Court before signing it, to protect it from future challenge in the Courts. Such an Act might state that the sole and exclusive power to make laws for the State vested in the Oireachtas by the Constitution includes a sole and exclusive power:
to ascertain and declare what personal rights citizens are to enjoy in addition to those listed in the Constitution;
to define justice and to determine by legislation what justice requires, what it forbids and what it permits;
and that, accordingly, no other organ of government may do either of these two things, and any attempt by any such organ to do so is to be void.
It would probably be a wise also to add two other Sections. One would require the High Court to entertain all applications for Habeas Corpus, irrespective of whether they could be brought under another legal process. The other would authorise the Oireachtas to legislate to give itself whatever additional powers it considered it needed to perform its constitutional functions, including powers to inform itself on issues that might call for legislation.
The Oireachtas should then take time to examine decisions of the Courts over the years, and decide which of them should be affirmed and which annulled by further legislation.
All that is needed is the will to do it. But the attitude of successive Irish governments and Dáils has been not merely of deference, but of subservience to the judiciary, and it does not seem likely that any prospective government would introduce such legislation. Without legislative action, rule – or misrule – from the Four Courts will continue. Pressure for change, to restore our democracy and protect our freedom, will probably have to come from us, the Irish People. That is as it should be, because, according to our Constitution, all powers of government derive (under God) from us. If we care about living in a democracy, under laws made by people we have elected to represent us, we need to say so.
Further reading and References
[i] Edward Ryan v Governor of Midland Prison  IESC 54
[ii] Bunreacht na hÉireann, pg.6. Found at <https://www.constitution.ie/Documents/Bhunreacht_na_hEireann_web.pdf >
[iii] ibid, pg.8
[iv] Ibid, pg.53
[v] Ibid, pg.148
[vi] Gladys Ryan v Attorney General,  1 I.R. 294
[vii] Mrs Ryan appealed to the Supreme Court, which agreed with Judge Kenny that she was not entitled to succeed on the facts, dismissed her appeal on that basis, and accordingly did not go into the issue of judges’ powers.
[viii] A Latin term denoting that a comment was made “in passing”.
[ix] McKenna v An Taoiseach  IESC 11 and  2. IR 10.
[x] Bunreacht na hEireann, pg.90
[xi] C.C. v Ireland  IESC 48.
[xii] Bunreacht na hEireann, pg.172
[xiii] Damache v DPP  IESC 11
[xiv] Maguire & others v Ardagh & Others (the “Abbeylara case”)  IR 385
[xvi] Bunreacht na hEireann, Art.40 s.3 sub-s.2, pg.152
[xvii] Corbally v Medical Council & ors  IESC 9
[xviii] Edward Ryan v Governor of Midland Prison  IESC 54
[xix] If it is not so, then the effect of the decision is that a citizen in unlawful custody who could not frame his claim under Judicial Review would be likely to be released much sooner than another who could, which would clearly be unjust.
[xx] The Stale (Royle) v Kelly  I.R. 259