Editor’s Note: Today we publish the 2016 Report on Irish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Dr. Eoin Carolan, Associate Professor, University College Dublin
2016 was very much a year of transition in Irish constitutional law. The year saw several significant developments, each of which raises important questions for constitutional politics in Ireland which remained undetermined at the start of 2017.
The question of whether the constitutional regime on abortion ought to be amended moved further up the political and constitutional agenda with the establishment of a citizen’s assembly chaired by a Supreme Court judge to consider the issue. Criticised by many as an attempt to delay or avoid the making of hard political choices, the assembly is due to make its recommendations in 2017.
The background tension between the judiciary and the government that has been evident for a number of years came to the fore with a public dispute over potential changes to the judicial appointments system. Dissatisfaction on the part of the judges (and many commentators) about the content of the proposals was exacerbated by concerns over the manner and tone of their presentation – a position not helped by the arrival into government of a new “independent” minister who, in his previous existence as a newspaper columnist, had consistently criticised the system as one based on cronyism and political patronage.
II. The Constitution and the Court
The current Constitution in Ireland was adopted in 1937 as a successor to the 1922 “Free State” Constitution. In terms of the courts, the 1937 Constitution (like the 1922 text) departed significantly from the legal system’s Westminster traditions by combining a list of fundamental rights with a specific power of judicial review. The rights in question were primarily civil and political in nature but also included a right to education as well as Directive Principles of Social Policy, the latter of which were stated to be non-cognisable by the courts.
The Constitution also contained more conspicuously Catholic influences than its 1922 predecessor, including a religious Preamble and prohibitions on divorce and blasphemy, as well as an acknowledgment of the special position of the Catholic Church (the latter has since been removed). It has been suggested, however, that the nature and impact of these Catholic influences may be commonly overstated with one leading commentator arguing that “[w]hat is more remarkable … is the extent to which that document also reflected secular … values of liberal democracy, respect for individual rights and the separation of Church and State and the extent to which it does not reflect Catholic teaching”. In the context of developments in 2016 on abortion, it is relevant to note that the express protection of the right to life of the unborn in Article 40. 3. 3, was not in the original text but was inserted by referendum in 1983.
The Supreme Court was one of two “superior courts” identified in 1937 as having the exclusive jurisdiction to invalidate legislation as contrary to the Constitution. In practice, this meant that almost all constitutional litigation was initiated in the High Court, from where it could be appealed as a matter of right to the Supreme Court. Furthermore, the decision was taken in 1937 that the Supreme Court should not be a constitutional court but should have general jurisdiction over all matters. As a result, the Supreme Court had to combine the dual appellate functions of error correction and the principled development of the law across all areas. Given the significant growth in the volume and complexity of litigation in Ireland in recent decades, the result was a substantial increase in the workload of the Court. A 2006 report found that the Court received and processed substantially more appeals annually than any of its counterparts in common law jurisdictions. The 2006 report recommended the establishment of a Court of Appeal. A constitutional amendment to allow for the establishment of such a court was ratified by referendum in October 2013 with the Court of Appeal established in October 2014.
At the time of the referendum, the figures indicated that the Court received 558 appeals in 2013, 605 in 2012, and 499 in 2011 with it disposing of 249, 202, and 190, respectively, in the same period. This gives some indication of the extent of the appellate backlog that had accumulated prior to the establishment of the Court of Appeal. While a portion of these pending appeals were transferred to the new Court, the Supreme Court retained a sizeable number with two additional judges being appointed (bringing the Court to nine) for the express purpose of assisting it in clearing the backlog. By the close of 2016, that appears to have been almost accomplished.
The likelihood is, therefore, that there will be a significant change in the number and nature of cases being dealt with by the Supreme Court in the future. The constitutional amendments introduced by referendum in 2013 stipulate that the Supreme Court has appellate jurisdiction over a decision of the Court of Appeal where it is satisfied that the decision involves a matter of general public importance or that, in the interests of justice, it is necessary that there be an appeal. In practice, this has meant that a prospective appellant must now make a formal written application for leave to appeal. The application may also be the subject of an oral hearing. Initial experience with this new leave stage suggests that, while the Court retains a broad residual discretion to admit cases “in the interest of justice”, the decision whether or not to grant leave will primarily be determined on the basis of the first criterion of “general public importance”. This suggests that the Court will deal with a much smaller number of cases per year but that these will involve complex or significant questions of law. It is expected that constitutional litigation will feature prominently in the Court’s caseload.
III. Constitutional Controversies
Rights and Freedoms
In terms of public profile, the most significant issue in 2016 was the ongoing debate about the Irish constitutional position on abortion. The main provision relevant to this debate is Article 40. 3. 3:
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This was inserted into the Constitution following a referendum in 1983. The current position, as declared by the Supreme Court in its 1992 decision in AG v. X, is that the termination of a pregnancy is constitutionally permissible if there is a real and substantial risk to the life, as distinct from the health, of the mother; and that risk could only be avoided by the termination of her pregnancy.
While the issue has long been controversial in Ireland, the current debate followed several high-profile incidents, including one woman who died from sepsis after reportedly requesting but not being given an abortion, and another where a court order was sought to allow the withdrawal of somatic support for a pregnant woman who had been brain dead for three weeks. From the political perspective, a significant factor seems to have been that the minority government elected in 2016 includes several independents who had publicly expressed support for a change in the constitutional position.
The government therefore announced that it would organise a “citizen’s assembly” to consider the possibility of constitutional reform. Comprising a representative sample of 99 voters and one Supreme Court judge (as chair), the assembly has met on a number of occasions in both public and private sessions; received over 13,000 public submissions; and is due to report its recommendations on this issue in mid-2017. A similar body was established by the previous government to address demands for constitutional reform on marriage equality. As with that body, the suspicion has been expressed that the assembly provides a useful mechanism for government to delay addressing an issue on which there may be internal disagreement while also providing some distance between it and any controversial recommendations that may emerge. Nonetheless, the existence of the assembly does mean that the issue will remain high on the public and political agenda for 2017. There is also clearly a possibility – depending on the recommendations of the assembly – of a further referendum on proposed amendments to Article 40. 3. 3 being held in the short to medium term.
While the public debate has largely been concerned with abortion policy per se, academic discourse in 2016 also considered the possible content and implications of any change to Article 40. 3. 3. This is a more complex question than might first appear because of uncertainty over the constitutional position prior to the 1983 referendum. Several judges had suggested, obiter dicta, that at least some of the rights protected by the Constitution might apply before birth. It is unclear, therefore, whether the 1983 referendum was declaratory of the underlying constitutional position or brought about some change in it.
The prospect that the Supreme Court may (finally) have to address this ambiguity unexpectedly increased in 2016 with the decision of the High Court in IRM v. Minister for Justice and Equality. This was a challenge to a deportation order, in which it was argued that the Minister was required to take into account the rights of the unborn child of the prospective deportee. In addressing this issue, Humphreys J. referred to the previous dicta to hold that the unborn child enjoys additional rights beyond the right to life acknowledged in Article 40. 3. 3. Furthermore, he expressed the view that these rights are extensive given the insertion into the Constitution in 2015 of a specific constitutional provision directed to the rights of children.
Reflecting the importance of this judgment, the Supreme Court has been asked to make use of its exceptional “leapfrog” jurisdiction to take an appeal directly from the High Court. If the Supreme Court agrees, it may be that the question of the wider constitutional position will be definitively addressed in 2017. If so, this will clearly have implications for any potential constitutional amendment. In particular, it raises the possibility that the Constitution would continue to have some – perhaps very significant – consequences for abortion legislation and policy in the event that Article 40. 3. 3 was simply deleted.
On the other hand, one leading constitutional scholar has suggested in a newspaper article that the removal of Article 40. 3. 3 by referendum would not return the law to its pre-1983 position but would most logically be regarded as a decision by the People “to completely withdraw constitutional protection from the unborn”.
With the Citizen’s Assembly due to report to the Oireachtas (parliament), and the appeal in I.R.M. to be heard (possibly by the Supreme Court), it seems inevitable that there will be further controversies – both political and legal –2017.
- Judicial independence
The other major area of controversy related to proposals for a reform of the judicial appointments system and, potentially, for the establishment of a judicial council. Both issues have been discussed in political circles for an extended period of time. This reflects a general consensus that there are limitations to the current constitutional and statutory frameworks that regulate appointments and accountability. Commonly cited concerns include the limited role of the Judicial Appointments Advisory Committee in the selection by government of candidates for judicial office, an associated perception of political patronage, the lack of any mechanism to discipline judges short of their removal by the Oireachtas, and the absence of any formal body to represent the judiciary.
In 2014, the judiciary expressed support for the introduction of a judicial council and for reform of the appointments system. In a submission to a consultation process, the Judicial Appointments Review Committee argued that “the present system of judicial appointment is unsatisfactory”; that “political allegiance should have no bearing on appointments to judicial office”; that any new advisory board should have the power to rank candidates for office and to designate one as “outstanding”; and that a judicial council with responsibility for discipline, education and representation of the judiciary was “a much needed reform”.
Despite agreement on the need for change, however, the new government’s moves to introduce changes to the appointment process have attracted criticism from political and legal figures.
In understanding the origins – and potential constitutional implications – of this criticism, a number of background considerations should be borne in mind.
First of all, there has been a concern about the political approach to the judiciary. The holding of an arguably unnecessary referendum to reduce judges’ pay and the appearance in the media of details about a meeting between the former Chief Justice and Taoiseach at which the question of judges’ pensions was raised were regarded as evidence of a perception on the part of figures in the previous government that there may be political capital to be gained from conflict with an “elite” or “out of touch” judiciary.
Second, these developments seem to have been perceived by the judiciary themselves as an attack upon their position. Most notably, a representative body, known as the Association of Judges of Ireland, was found in 2011 to represent members of the judiciary. That this was a direct response to the political environment was illustrated by the statement on the AJI website at the time that:
The background to the foundation of the AJI was the development, over the months that followed the change of government that occurred in March 2011, of a perceived difficult relationship between the judiciary and the executive, from the perspective of many members of the judiciary.
Third, the government that took office after the 2016 general election is a minority coalition, the many parties in which are Fine Gael (the largest party in the previous government) and the Independent Alliance. The latter’s most high-profile figure is a newspaper columnist who had previously criticised “cronyism” in the judicial appointments process on many occasions. It has been suggested that one of his key demands in government has been reform of the process and, specifically, that any new appointment body have a lay majority and a lay chairperson. In addition, however, he has continued as Minister to express strong criticism of the judiciary. He claimed on one occasion that it was obstructing reform, and on another that a declaration of judicial interests was required in case judges might “forget their oaths”. This prompted criticism from legal and political circles and an apparent response from the Chief Justice who warned in a speech against “inaccurate discussion and misrepresentation of the position of the Judiciary”.
There are two aspects of this controversy that are constitutionally significant. The first is the specific question of how judges will be appointed (and disciplined) in the future. As with the law on abortion, this appears to be an issue where some form of change is likely in the medium term. The government is committed to reform, one of its constituent parts has identified this as a priority, and the main opposition party has also produced its own draft legislation (which largely received a more positive response from legal circles). Quite what the final details of these reforms will be is unclear, however. The government has outlined general principles but no draft legislation has yet been published. Given its minority status, it also cannot be assumed that the government will stay in office long enough to enact any legislation. However, the fact that there is broad political and judicial support for some kind of change means a commitment to reform (if not the policies currently proposed) may survive a change of government.
There also appears to be a degree of consensus that a judicial council would be useful but this seems less of a priority at present. While the judiciary have been vocal in making the case for the council, it should be borne in mind that it was first recommended by a special committee in 2000.
The second aspect of this year’s controversy that merits attention is the more general question of whether this episode – following on from others – is a signal of more profound change in the relationship between the judicial and political arms of the state. Relations between the two sides certainly seem strained in a way that appears without precedent since independence. The lack of trust on both sides and the willingness to engage in a degree of public criticisms that would have been deemed inappropriate even a decade ago are new dynamics in Ireland’s constitutional structures which raise long-term issues around judicial independence and the relative authority of both legal and political actors. While the precise effect of this change is a matter of speculation, it does seem clear – and likely unhelpful – that reforms with important long-term consequences are being formulated at a time of unusual turbulence in this relationship.
IV. Major Cases
The most significant decision of the year was probably that in Collins v. Minister for Finance. This was a challenge to the issuing of long-term promissory notes worth €30 billion by the Minister for Finance to two effectively insolvent banks in 2010 as part of the response to Ireland’s severe banking crisis.
Aside from the obvious importance of the subject matter, the proceedings were constitutionally significant because they raised novel issues relating to the separation of powers and, specifically, the respective roles of the government and the Dáil (lower house) in budgetary matters, and of the courts in reviewing them.
The plaintiff’s core argument asserted the existence of a general separation of powers principle that control of national debt and expenditure must be vested in the legislative branch. Substantial reliance was placed in this regard on Article 1.8 of the US Constitution and on the Federalist Papers. The specific breach alleged was that the Dáil had abdicated its constitutional function by conferring a statutory power on the Minister to issue debt without imposing either a statutory “debt ceiling” or, alternatively, a requirement to obtain legislative approval.
This was rejected by the Supreme Court. The Court pointed out that the Irish Constitution contained no equivalent provision to Article 1.8. Rather, “[t]he Constitution’s main control point on financial matters, is that the appropriation and therefore expenditure of all monies is required by Article 11 to be provided for ‘by law’”.
However, the Court proceeded to hold that the phrase “by law” required more than a statutory basis for the act in question. Instead, it denoted a broader principle of legality which meant that a law formally enacted “must [also] be consistent itself with the dictates of the Constitution, and the order and structure it contemplates”. The Court concluded that the Dáil here had not abdicated its function because the legislation, while not imposing a debt ceiling, contained other constraints on the Minister’s powers. However, it cautioned that the Act was defensible as “a permissible constitutional response to an exceptional situation”. This meant that:
It cannot therefore be considered to be a template for broader Ministerial power on other occasions. Indeed it is unlikely that the Oireachtas would concede such wide ranging power in other less pressing circumstances, but if it did, and, for example, a minister or other body was permitted to provide unlimited financial support, and without limitation in time or object, to any commercial entity, then it clearly would not follow from this case that such was constitutionally permissible.
This suggests that, while the Court did not endorse the general principle advanced by the plaintiff, it does regard Article 11’s reference to “by law” as importing a broader “legality” requirement that any formal measures relating to financial matters must provide for an adequate degree of legislative involvement.
Support for this interpretation of Collins can arguably be found in the other major decision of 2016. Barlow v. Minister for Agriculture concerned a dispute over access by fishermen based in Northern Ireland to mussel seed beds in Irish waters. This had been permitted pursuant to a voisinage agreement based on an exchange of letters between the relevant government departments in Belfast and Dublin in 1965. The legal issue here was whether mussel seed were a “natural resource” within the meaning of Article 10 of the Constitution. This Article requires natural resources to be managed “by law”. The Court concluded that Article 10 did apply, and that this arrangement did not comply with it. It is noticeable, however, that the Court did not confine itself to finding that this exchange of letters did not constitute “law” in a formal sense. Instead, it outlined a more substantive principle of legality which it specifically connected to democratic representation and accountability:
The requirement of Article 10.3 of the Constitution for regulation “by law” is not merely a formal procedural provision, important though that would be. In constitutional terms, it means that the Constitution requires that the regulation of natural resources stated to be the property of the State must be the subject of a decision by the representatives of the People who are accountable to them. Legislation is normally required to take place in public (Article 15.8), which carries with it the possibility of public knowledge and debate. In effect, therefore, the Constitution mandates that if State property, in particular natural resources, is to be sold, leased, managed or regulated, then that decision should be made in public by representatives who are accountable to the People who can accordingly make their views known.
Aside from providing clarity on some of the more rarely-litigated Articles of the Constitution, both Collins and Barlow provide support for the possibility that the Court may be developing a substantive conception of legality which extends beyond the right of an individual to know the law to encompass broader principles of democratic accountability. If this is the case, it may have long-term implications for the separation of powers in Ireland and, in particular, for the legislature’s traditionally submissive relationship to government. That is particularly so given that references to “by law” or “in accordance with law” appear frequently in the constitutional text.
On abortion, on judicial appointments, and on the scope of a possible legality principle, therefore, 2016 was a year of change – but also of continued uncertainty about the form that change will ultimately take.
 For discussion, see Mark Tushnet, “National Identity as a Constitutional Issue: The Case of the Preamble to the Irish Constitution” in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury 2012).
 Hogan (n 1), at 215-216.
 Gerard Hogan, “John Hearne and the Plan for a Constitutional Court” 18.1 (2011) DULJ 75.
 Report of the Working Group on a Court of Appeal (Courts Service 2006).
 Courts Service, Annual Report 2013 at 33.
  1 IR 1.
 Eoin Carolan, The Ongoing Uncertainty over Irish Law on “The Unborn”: A Comment on the Matter of P.P. and Health Service Executive, Int’l J. Const. L. Blog, Dec. 30, 2014, available at: http://www.iconnectblog.com/2014/12/the-ongoing-uncertainty-over-irish-law-on-the-unborn.
 Citizens’ Assembly receives more than 13,000 submissions on abortion, December 22, 2016, available at https://www.rte.ie/news/2016/1222/840774-assembly/.
 [Details of the meetings held (including written and video materials) are available at https://www.citizensassembly.ie/en/Meetings/.
 Eoin Carolan, “Ireland’s Constitutional Convention: Beyond the Hype about Citizen-led Constitutional Change” (2015) 13 (3) Int J Const Law 733.
 G. v. An Bord Uchtála  IR 32, at 69; McGee v. AG  I.R. 284, at 312; Finn v. AG  I.R. 154 at 160.
  IEHC 478.
 Gerry Whyte, “Abortion on Demand the Legal Outcome of Repeal of the 8th Amendment”, Irish
Times, 28 September 2016.
 Jennifer Carroll MacNeill, The Politics of Judicial Selection in Ireland (Four Courts Press, 2016).
 For background to some of these issues, see the blogposts by Laura Cahillane at http://constitutionproject.ie/.
 See Mr. Justice O’Donnell, “Some Reflections on the Independence of the Judiciary in Ireland in 21st Century Europe” (2016) 19 Trinity College Law Review 5.
  IESC 73.
 King v. AG  I.R. 223.