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Lord Denning’s Theory of Everything: An Analysis of Remoteness in Tort and Contract Law

Lord Denning’s Theory of Everything: An Analysis of Remoteness in Tort and Contract Law

Alex Guard

Introduction

Albert Einstein dedicated the last thirty years of his life to the pursuit of proving the Theory of Everything. This idealistic and ultimately fruitless concept saw the attempted unification of the two foundational theories of physics: General Relativity and Quantum Field Theory. Einstein’s failure and the failure of all subsequent physicists to make such a unification has led many to acknowledge that some subjects are simply meant to stay separate. It is submitted that Lord Denning’s attempt in Parsons[1]to square tort and contract law’s doctrines of foreseeability into a neat test is no less quixotic than the Theory of Everything and thus, this essay will argue that Irish law should instead follow Lord Reid’s more realistic approach in The Heron II.[2]

 

Foreseeability Undergirding Remoteness in Tort and Contract

A common thread in both tort and contract is the question of whether the damage caused by the defendant’s tort or breach of contract is too remote for the defendant to be liable for the same? In answering this question, both tort and contract law have turned to the concept of foreseeability.[3]

In common vernacular, foreseeability is defined as a subjective awareness of possible future occurrences and implies an ability to plan for those future possibilities.[4]Within law, foreseeability derives its substance from the concepts of fault and choice. The logic being that someone who chooses not to avoid a harmful consequences, foreseen by them to be caused by their actions, will be held at fault.[5]The purpose of foreseeability for both tort and contract is to define the point on the continuum between responsibility and remoteness beyond which the defendant has no liability.[6]

Tort and contract, as a rule, do not look into the minds of the real contract-breaker or real tortfeasor.[7]Instead, they take an objective approach by using the reasonable person standard, such that a defendant will be liable for damage that a reasonable person would have foresaw and avoided.[8]This has proven to be a very effective tool in deciphering remoteness because it circumvents the administrative difficulties with proving subjective mental states, establishes generalized standards of conduct to be used in tort and protects reasonable expectations between contracting parties.[9]

However, this shared objective approach to remoteness, although effective, is not perfect and can often be problematic. Namely, it can impute foreseeability to an unaware defendant who actually did not foresee the risks, treating him as though he did and thus, expanding the justification of liability beyond the scope of personal wrongdoing.[10]Moreover, Hoffman argues that, in the case of contract, foreseeability is guilty of being too formulaic and indefinite.[11]In Transfield[12], Hoffman held that the courts ought to consider the extent(as opposed to what kind) of liability for compensation a reasonable person would have assumed responsibility for when making the contract.[13]He claimed that the courts have to go further in their establishment of remoteness and that the orthodox position is merely a superficial and formulaic explanation that acts like a deus ex machinawithout really divulging the reasoning behind why some consequences are deemed foreseeable and others are not.[14]

This piece submits that, even though Hoffman’s interpretation of remoteness is somewhat dubious, namely due to the practical difficulties regarding availability of evidence,[15]his perspective acts as an illustration of the following point: foreseeability is not a hermetic concept and not only does it vary depending on the category of law, but indeed it is individual to the facts of each and every case.

 

Disparity in Tort and Contract’s Application of Foreseeability

As Lord Denning rightly points out, there is a lot of unnecessary confusion surrounding tort and contract’s application of foreseeability due to semantic distinctions.[16]It is argued that the distinction between what a tortfeasor “foresees” and what a contract-breaker “contemplates” is fallacious because there is no way the courts can quantifiably measure the difference of thought either person gives to a potential consequence. It is also argued that the distinction’s symbolic value, serving as a linguistic demarcation between tort and contract, is unnecessary as their differences are apparent from their alternative stipulations of probability.[17]

The Heron II is considered the authoritative precedent on the orthodox position concerning remoteness in tort and contract. The House of Lords held that, in the case of tort, the court, in determining whether the tortfeasor is liable, has to consider whether the consequences were of such a kind that a reasonable man, at the time the tort was committed, would foresee them as a very unlikely to occur.[18]In the case of contract, the defendant will be found liable if they, at the time of making the contract, ought reasonably to have contemplated (foresaw) that the consequences of their breach of contract would be not unlikely.[19]It is clear from this positon that the applications of foreseeability in tort and contract are not the same and that the test in contract is far narrower than that of the wide liability imposed by tort.[20]

 

Analysis of Lord Denning’s Position

In Parsons, Lord Denning proffered a new formulation of remoteness to be applied equally in both tort and contract law. This new formulation essentially bifurcated the standards of foreseeability into two groups: losses for physical damage and economic losses.[21]In the former class of case, Lord Denning applies the tort standard, maintaining that a contract-breaker will be liable if, at the time of the breach, the consequences that ought to have been foreseen were of a slight possibility. In the latter class of case dealing with economic loss, Denning maintained the contract-breaker will be liable if their consequences, at the time of the contract, ought to have been contemplated (foreseen) as a serious possibility.[22]

Lord Denning’s policy behind his new distinction and indeed new perspective on remoteness is no doubt, on the surface, a laudable one: that it would be absurd for a different result to be achieved based on whether the action is in tort or contract.[23]However, it is unclear how this distinction and the squaring of tort and contract’s degrees of foreseeability solves this problem. Denning gives examples of how liability in tort is too wide and notes how it is inconsistent that a manufacturer is liable to the ultimate consumer in tort but not in contract.  Moreover, he gives an example of a contractual and gratuitous hospital/patient relationships and notes that it is wrong that the former can sue in contract and the latter in tort, and that even though the injured party suffers the same damage, they would face different tests for remoteness. It is submitted that there is actually no real iniquity in this orthodox position as the injured party in the former contract case, if unsuccessful at the narrower threshold, can have recourse to the wider test for remoteness in tort. Obviously, the tort party would never have been able to sue for breach of contract, nor should they, because there is no contractual relationship.

Another argument in favor of Denning’s position, which maintains that remoteness in tort and contract should be codified, is that it is sometimes unclear whether an action comes under tort or contract. McDowell contends that this is no reason to collapse the two into a single test[24]and it is submitted that Lord Scarman arriving at the same result as Denning suggests that the orthodox position can be navigated through sufficiently.

The most important criticism of Lord Denning’s delusional position is its complete disregard for the fundamental differences that exist between tort and contract. As Scarman notes, there is no case law supporting such a codification.[25]By creating a complete equation of the tests Denning upsets the crucial understanding that in contract, the critical time for foreseeability is at the time of the making of the contract and not at the time of breach.[26]This derives from the fact that a contract cannot be unilaterally altered after it has been made and thus it must be what is foreseeable at the time of the contract. It is argued that these fundamental distinctions, which have been outlined above, are significant and as a result of them, it is illogical and illusory to contend that remoteness can be equated in tort and contract.

 

Analysis of Lord Reid’s Position

The question is why should contract have a much narrower threshold than that of tort? It is argued that there are numerous reasons as to why contract law should impose narrower degrees of remoteness for damages than tort for compensation. The first reason is that the nature or origin of legal obligation in tort and contract are completely different. In tort, a duty of care is imposed generally on the population deterring them from engaging in,inter alia, negligent or fraudulent behavior. Due to this generality tort needs normative standards of conduct such as the reasonable man. As illustrated by Transfield, contract does not mesh with objective standards as well as tort. This is because, in contract, the nature of the obligation is a voluntary agreement between the parties and therefore, the duty of care can be highly individualized.[27]It appears obvious that contract should not be constrained by strict normative standards of conduct as the duty of care is often not normative in nature. It must be more deferential to the defendant and cannot judge him by a strict generic norm because the defendant may have atypical obligations arising from the voluntary agreement.[28]In other words, it is unfair to force contract to act as a housecat when it is really a tiger, so the law must compromise and let it be governed by the conduct of a lynx.

Another salient reason for narrow liability in contract, providing the fulcrum for Lord Reid’s judgment, is that in contract, if one party wishes to protect himself against a risk, which to the other party would appear unusual, he can direct the other party’s attention to it before the contract is made. This would allow them to assume responsibility for said risk.[29]It can be said that this reasoning is first-rate as it incorporates the fundamental legal values of individual autonomy and freedom of contract. It acknowledges that foreseeability in contract is considered at the time of the contract and that the consequences foreseeable to the defendant are also foreseeable to the injured party and therefore the responsibility ought not to be cast entirely onto the defendant.

Finally, this position of having a narrower liability in contract is logical considering the difference between tort and contract’s remedial measures. Tort compensation is retrospective and focuses on returning a plaintiff to the position they would have been had the tort not occurred.[30]Conversely, contract focuses on putting the injured party in a position they would have been in had the contract not been breached and aims to give them the benefit of the bargain.[31]It is argued that the damages available in contract are far more speculative and discretionary than compensation in tort and thus, there should be a higher threshold for contract than tort. It is for the above reasons that this piece suggests Irish law should follow Lord Reid’s position.

 

Conclusion

This piece has analyzed and critiqued the common thread of foreseeability that undergirds both tort and contract and it made the point that foreseeability is necessarily fluid and cannot easily be condensed into a single test. The recommendation is that semantic distinctions between ‘contemplation’ and ‘foreseeability’ ought to be discarded. It is illustrated how tort and contract are fundamentally different categories of law with different needs and accordingly this essay accepted Lord Reid’s position which recognizes and incorporates said differences. Finally, the analysis of Lord Denning’s position and ultimately concluded that we ought to recognize that remoteness in tort and contract must not be equated because they are substantively different and require different levels of remoteness.

 

 

[1]H Parsons (Livestock) Ltd v Uttley Ingham & Company Ltd [1978] QB 791

[2]C Czarnikow Ltd v Koufos (The Heron II) [1969] 1 AC 350

[3]Banks McDowell, “Foreseeability in Contract and Tort: The Problems of Responsibility and Remoteness” (1985) 36 Case W. Res. L. Rev. 286, 288.

[4]ibid 290.

[5]ibid.

[6]ibid 296.

[7]Parsons (n 1) 792.

[8]McDowell (n 3) 291.

[9]ibid.

[10]ibid.

[11]Lord Hoffmann, ‘The Achilleas: Custom and Practice or Foreseeability’ (2010) 14(1) Edin LR 47.

[12]Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2008] UKHL 48.

[13]Hoffman (n 11)

[14]ibid. 55.

[15]Mark Stiggelbout, ’Contractual Remoteness, ‘Scope of Duty’ and Intention’ [2012] LMCLQ 97.

[16]Parsons (n 1) 794.

[17]John Cartwright, “Remoteness of Damage in Contract and Tort: A Reconsideration” The Cambridge Law Journal, Vol. 55, No. 3 (Nov., 1996) 488, 493.

[18]Heron (n 2)

[19]ibid.

[20]Cartwright (n 17) 493.

[21]Parsons(n 1) 794.

[22]ibid.

[23]Demetrios Hadjhambis, “Remoteness of Damage in Contract” (1978) The Modern Law Review 41 4 483.

[24]McDowell 311.

[25]Hadjhambis (n 28) 485.

[26]Ibid 486.

[27]ibid.

[28]McDowell 311.

[29]Heron (n 2) 353.

[30]Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158.

[31]Ibid.

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Trinity FLAC Research Report on Public Interest Law and Litigation

Trinity FLAC 50th Anniversary Edition Research Project: Public Interest Law and Litigation

Trinity FLAC

https://trinityflac.files.wordpress.com/2019/10/50th-anniversary-research-project-final-to-print.pdf

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The CervicalCheck Scandal – A Legal Analysis

The CervicalCheck Scandal - A Legal Analysis

India Kelly

Introduction

Assistant secretary at the Department of Health, Donal Devitt, said at the Hepatitis C Tribunal in 1997 that when he was first told of the infection of several Irish women by contaminated blood, instinct told him that this was going to be the biggest medical disaster in the history of the state.1 This title, however, has been challenged by the recent CervicalCheck scandal.

A retrospective audit of cervical cancer screenings showed that 221 women’s smear test readings missed abnormalities, leading to the development of cervical cancer. The results of the audit were not disclosed to 162 of these women, 20 of whom have since died.2

Following this revelation, a number of women and their families began litigation, and an investigation was issued by the Department of Health. In this article I will discuss the findings of the Scally Report and the Phelan v HSE case to analyse the legal responsibilities and failures of those involved in the CervicalCheck scandal.

Cervical Cancer Screening

Cervical cancer is an abnormality in the cells at the neck of the womb caused by the Human Papilloma virus (HPV). This can usually be detected by taking a sample of the affected cells in a ‘pap smear’ or ‘cervical test’ and using a machine to identify the presence of HPV.3 In Ireland, the HSE, through the CervicalCheck programme, offers women aged 25 to 60 this test every three to five years.4 The HSE contracts with GPs to carry out the pap smear. Contracts are also arranged with a number of private laboratory companies in the United States5 and one public hospital in Ireland6 to carry out the test which then identifies if HPV is present. The results of the laboratory tests are communicated back to the women and their test-taker by CervicalCheck.7

In 2011 CervicalCheck issued an audit of screening results. The purpose of the audit was primarily to be used by the laboratories for educational purposes.8 In his report, Dr. Scally said that;

‘The CervicalCheck audit was established with laudable aims but planning, governance and documentation appear to have been inadequate. There was little or no anticipation of the challenges which would arise when results were reviewed. Participating laboratories were not given a specification of how to undertake reviews and did not do so consistently. Analysis of the results was sporadic and informal. A trend was identified regarding reviews at Quest but no adequate steps appear to have been taken to define whether this represented a genuine issue and, if so, what actions should be taken to resolve it.’

Non-Disclosure of Audit Results

Prior to 2014 CervicalCheck had no policy relating to open disclosure.9 The issue of disclosure was eventually discussed at a meeting of the CervicalCheck Executive Management Team in January 2016. It was decided that ‘disclosure of the outcome of the audit to the treating health professional would be the best option’.10

CervicalCheck considered that the duty of disclosure fell with the affected women’s doctors. According to Dr. Scally, this remains in keeping with international advice. The responsibility of these doctors to then disclose the results of the audit to the affected women is outlined in both HSE and Medical Council policy.

The HSE defines open disclosure in a document titled ‘Open Disclosure: National Policy’ as:

‘An open, consistent approach to communicating with service users when things go wrong in healthcare. This includes expressing regret for what has happened, keeping the service user informed, providing feedback on investigations and the steps taken to prevent a recurrence of the adverse event.’11

This appears to be a definitive statement of the HSE’s commitment to informing patients of medical errors accompanied by an apology. However, later on in the document this is contradicted:

‘When a clinician makes a decision, based on his/her clinical judgement, not to disclose to the service user that an adverse event has occurred, the rationale for this decision must be clearly documented in the service user’s healthcare record and this decision may need to be reviewed by the clinician at a later date, depending on the circumstances involved.’12

This discretionary power given to a doctor’s ‘clinical judgement’ completely overrides the previously firm commitment to open disclosure.

The Medical Council, the regulatory body of medical practitioners in Ireland, also provides a policy document in relation to open disclosure. While not a legal code, the document outlines a set of principles that all doctors are expected to follow and adhere to. It states that:

Patients and their families, where appropriate, are entitled to honest, open and prompt communication about adverse events that may have caused them harm. When discussing events with patients and their families, you should: acknowledge that the event happened; explain how it happened; apologise, if appropriate; and assure patients and their families that the cause of the event will be investigated and efforts made to reduce the chance of it happening again.’13

The use of the word ‘should’ rather than ‘must’ means that the individual doctor has no absolute duty to follow open disclosure.

Both the HSE and the Medical Council are contradictory in their apparent support of open disclosure with the absence of any absolute requirement to disclose error.

It is thus unsurprising that there was confusion and misdirection when it became apparent that women had not been correctly diagnosed.

Disputes between a number of doctors and CervicalCheck broke out following the issue of letters detailing results of the audit in February 2016. The disputes concerned whether the women should be informed at all, and who should be responsible for delivering the news to the women. That the woman herself might have a say in the matter was not discussed.14

Vicky Phelan & Jim Phelan v HSE & CPL Inc

Correspondence showing an example of such a dispute has been made public through the case brought by one woman affected by the audit. Vicky Phelan began litigation after it became apparent her 2011 smear test result was incorrect. She was diagnosed with cervical cancer in 2014, but was not informed of the review or audit until 2017.15

This case was the first of a number brought against CervicalCheck and the laboratories contracted to carry out smear tests. The main issues in these cases were allegations that the smear tests had been negligently read and a failure to disclose to the women and their families the results of audits carried out on the smear tests when cervical cancer had been diagnosed.16

Ms. Phelan’s claims for aggravated and exemplary damages against the HSE were denied and the case struck out.

A settlement was made without admission of liability for €2.5 million against Clinical Pathology Laboratories Inc, the US firm which had carried out the test for HPV.

Assigning Liability

Though this case was successful in securing financial compensation and bringing public attention to the issue, it did not solve the question of liability.

The Minister for Health announced in December 2018 that, on the advice of Mr Justice Charles Meenan in his Report on an Alternative System for Dealing With Claims Arising From CervicalCheck, an independent statutory tribunal to deal with claims arising from the CervicalCheck scandal will be set up in the near future. The aim of this tribunal will be to assign liability and seek redress. Until the results of such a tribunal are published, we must use the advice Mr. Justice Meenan to investigate potential liability.

In his Scoping Inquiry Dr. Scally explains that there will always be a margin of error involved in cancer screeningresults known as “false negatives”.17 Thus, a number of women will always be reported as having no evidence of HPV in their cells. This does not indicate negligence on behalf of the laboratories carrying out the test. Mr. Justice Meenan says that ‘for a woman – or her family to establish negligence evidence would have to be given from a suitably qualified expert that the reading of the smear fell below the appropriate standard required. Thus where a woman develops cervical cancer following a false negative this is not, of itself, sufficient to prove negligence.’18

The contracts between CervicalCheck and the US laboratories contain indemnity clauses which cover false negatives, as well as dispute resolution mechanisms.19 There may be issues between CervicalCheck and the laboratories that are not covered by the indemnity where liability may be assigned.

With regard to the liability of CervicalCheck and individual doctors for non-disclosure, Mr. Justice Meenan’s assertion that ‘the legal right of a patient to be informed of the result of an audit is the subject of some legal debate’20 is salient, as evidenced by the contradictory policies I have discussed. The withholding of cancer diagnoses from women whose lives were at risk is incontrovertibly morally wrong, but it will be up to the tribunal to establish if it was legally wrong.

Conclusion

It is clear from the cases and reports I have discussed that there must be a statutory duty of open disclosure for both individual doctors and the organisations under which they operate. An absence of definite policy on open disclosure has led to years of argument and uncertainty which cost the lives of 20 women and caused irreversible distress, upset and anger. A requirement for women affected by CervicalCheck to undertake legal proceedings to establish their medical record is unacceptable, and will no doubt have serious implications for their trust in the medical profession. I sincerely hope an independent tribunal will be established as soon as possible, so that women and their families may have their cases heard in a sensitive, dignified, and timely manner.

1 Aine Keane, ‘Ireland's greatest medical disaster’ An Phoblacht (Dublin 1997).

2 Paul Cullen ‘HSE’s CervicalCheck review flawed, says Scally’ Irish Times (Dublin, 11 October 2018).

3 Dr. Gabriel Scally, Scoping Inquiry into the CervicalCheck Screening Programme: Final Report (Department of Health, 2018) ch 3.

4 ibid ch 5.

5 Quest Diagnostics Inc, Clinical Pathology Laboratories Inc, and MedLab Pathology Ltd amongst others.

6 Coombe Women & Infants University Hospital, Dublin.

7 Scoping Inquiry ch 5.

8 ibid ch 8.

9 Scoping Inquiry ch 11.

10 ibid.

11 HSE Open Disclosure: National Policy (2013).

12 ibid para 2.7 p 7.

13 Comhairle na nDoctúirí Leighis, ‘Guide to Professional Conduct and Ethics for Registered Medical Practitioners’ (2016, 8 edn) 43.

14 Scoping Inquiry ch 11.

15 ‘Woman with terminal cancer gets €2.5m High Court settlement’ Irish Times (Dublin, 25 April 2018).

16 Mr. Justice Charles Meenan, Report on an Alternative System for Dealing With Claims Arising From CervicalCheck (High Court, 2018) ch 2.

17 Scoping Inquiry ch 3.

18 Report of Mr. Justice Charles Meenan ch 4.

19 ibid.

20 ibid.

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Unenumerated Rights – Sustainable in Modern Ireland?

Unenumerated Rights – Sustainable in Modern Ireland?

Aine Doyle

Introduction

Emerging in the 1960s and gaining significant judicial support throughout the 70s and 80s, the doctrine of unenumerated rights has been one of the most innovative and controversial measures adopted by the Irish Court to recognise rights since its formation in 1937. Questions have been raised since the doctrine’s foundation regarding whether allowing an unelected judiciary to wield such unchecked powers is undemocratic and lacks objectivity.[1] Issues have also arisen regarding the philosophical ideals upon which unenumerated rights are founded, and whether these foundations are inherently too vague. The question becomes, therefore, that of whether this doctrine has any place in a decidedly more multi-denominational Ireland than that of the late twentieth century. In this essay, I will outline why I believe that unenumerated rights as they have been understood thus far ought not to have a place in modern Ireland.

The Development and Decline of Unenumerated Rights

The doctrine of unenumerated rights was first conceived of in the case of Ryan v Attorney General.[2] In this case, the Court recognised the right to travel and held that rights ‘are not confined to those specified in Article 40’.[3] By focusing on the words ‘in particular’, the Court allowed for rights to be ‘read into’ Article 40.3.2. The doctrine has led to the recognition of,  amongst others, the right to marital privacy,[4] the right to earn a livelihood[5] and, more recently, a right to environment consistent with human dignity.[6] A variety of methods have been used to recognise these rights. Ryan employed a papal encyclical and focused on the Christian and democratic nature of the State, whereas later cases focused on the natural law[7] and the human personality.[8]

The unifying feature of these bases for unenumerated rights is how unclear and vague they are. Although the unenumerated rights doctrine was originally deemed ‘logically faultless’,[9] it has since been accepted that the doctrine has introduced, to put it mildly, ‘an element of uncertainty’[10] into Irish law. On what solid foundation are these rights based? As they were read into the Constitution, can they be just as easily read out? Are unenumerated rights of equal or greater importance to those textually founded in the Constitution?

The almost unfettered discretion allowed to judges was also a serious concern from almost the outset, with Walsh J explicitly stating that ‘judges must interpret these rights in accordance with their ideas of prudence, justice and charity’.[11] This is a definite expansion of the powers of judicial review, and it is these various issues that resulted in the eventual demise of the doctrine.

Although it was never formally abandoned by the Courts, the unenumerated rights doctrine has been largely avoided as a method of rights recognition in recent times. While it was stated in the case of The Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995[12] that natural law is ‘antecedent and superior to all positive law’,[13] this case was followed by repeated calls for ‘some degree of judicial restraint’[14] in employing the doctrine to recognise rights. This decline was further accelerated by the Report of the Constitution Review Group,[15] which advised that the doctrine should cease to be utilised by the Courts. Although the recent case of NHV v Minister for Justice[16] has shown signs  that the doctrine has not faded altogether, it has inarguably declined to an almost irrelevant stature in comparison to its place in the Courts of the 1970s and 80s. The question then becomes that of whether the doctrine has any place in the Ireland of today and whether it could see a revival, given its decidedly religious and Catholic origins.

A ‘Christian and Democratic’ State?

The preamble of the Constitution states that:

‘In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,

We, the people of Éire,

Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ,

(…) Do hereby adopt, enact, and give to ourselves this Constitution.’

This, coupled with numerous references to God throughout the text, has served as the basis upon which rights may be enumerated. This method of rights enumeration was first employed in the case of Ryan v Attorney General, in which Kenny J observed that, ‘personal rights… are not confined to those specified in Article 40 but include all those rights which result from the Christian and democratic nature of the State’.[17] This was further confirmed in the Norris case, which made its decision ‘[h]aving regard to the purposive Christian ethos of the Constitution, particularly as set out in the preamble’.[18]

It is thus questionable whether the formation of new rights based on these foundations would survive in modern Ireland. With recent referenda to repeal the eighth amendment banning abortion and to legalise gay marriage, one would not be surprised to find that, as of 2016, only 78.3% of Ireland’s population are Catholic, down from a height of 94.9% in 1961.[19] It is also interesting to note that, as rights have traditionally been based on papal encyclicals,[20] their formation has been decidedly Catholic in nature, not Christian. Admittedly, this has succeeded in giving judges a tighter frame within which to form rights and one may argue that the percentage of Ireland’s practicing Catholics is still a secure majority. However, the trend is evidently only going in one direction, both in terms of the population and politically. Therefore, I would contend that employing Christianity, or more specifically Catholicism, as a basis upon which to enumerate rights should not continue in the more modern, multi-denominational Ireland of today.

Judicial Activism and Philosophical Vagueness

However, simply because rights perhaps should not be inferred from the Christian nature of the State, does not automatically mean that they cannot be inferred at all. Judges have traditionally used a variety of methods, and any number of these could be employed to enumerate rights in a manner that would not rely so heavily on religion, and thus would not encounter the issues outlined above.

One immediately encounters another significant issue with unenumerated rights, however – the power it allows judges to wield when deciding issues of justice. For example, in utilising the natural law to from rights, the Courts accepted a judicial philosophy that was, if anything, even more vague than that of the ‘Christian and democratic’ nature of the State. For judges ‘to assert that natural law provides a clear set of rules beyond and above a Constitution…is to imagine a vain thing’.[21] Natural law is, at its essence, antecedent to positive law, and to attempt to ‘know’ or to determine the natural law is inherently problematic; ‘[t]he paradox is that of an agent of positive law (the judge) determining what is superior to positive law.’[22] Therefore, given these inherent issues, ‘what a judge or a legislator will recognise as good or as evil depends very largely on his personal disposition.’[23]

Judicial activism is, frankly, unavoidable when one deviates from the written Constitution, regardless of the method one employs to determine rights, because,

‘by conferring a superior constitutional status on some unwritten law, it leaves open the permanent possibility that the courts will use parts of that unwritten law to declare invalid what is explicitly written in the Constitution.’[24]

Namely, in employing these methods, ‘the Constitution is permanently open to paradoxes or inconsistencies.’[25] Who, therefore, is left to fill in these gaps and inconsistencies, so to speak? The judiciary.

One could, of course, argue that judicial activism is not necessarily a bad thing – the judiciary, separated as they are from the political sphere, could perhaps make more objective decisions regarding personal rights. However, I would submit that, particularly due to the intensely fraught political climate we have found ourselves in of late, allowing any branch of government to claim powers greater than those specifically allocated to them is to allow too significant a deviation from the separation of powers as set out in the Constitution. Ireland is an ‘independent, democratic state’.[26] To allow judicial activism to extend to the creation of rights when even the basis of these rights cannot be agreed upon is to significantly deviate from the democratic process. This is because,

‘it is one thing for the courts to render the implicit explicit; it is quite another thing for them to reserve the right to discover rights not only not enumerated in the text but also not logically necessitated’.[27]

It is true that by adding the clause ‘in particular’ to Article 40.3 it would seem that the drafters of the Constitution intended that the list of rights not be exhaustive. The question then must be, however, ‘if the framers…had really wanted to embed unenumerated rights in its text and give permission to the Courts to pronounce upon them, why did they not say so explicitly?'[28] Would it not be more democratic to, as above, have the Courts infer rights from what is explicit in the Constitution?

Where gaps still exist, it is then plausible that the legislature could pass laws enumerating rights. The role of the judiciary is traditionally that of ensuring that the legislature enacts laws that are consistent with the Constitution. Thus, it would seem to be infinitely more democratic to allow the elected legislature to enact laws regarding personal rights and to allow the judiciary to assess these laws for constitutional consistency. This improves democratic participation in the enumeration of rights, which is integral to the process of rights enumeration, as personal rights must be one of the most important and significant legal safeguards provided by the Constitution to the average person. This process would also allow the separation of powers to function by having the judiciary ‘check’ the legislature, rather than having the judiciary essentially create laws with little to no oversight.

 

Conclusion

In conclusion, it would appear that unenumerated rights should not have a place in the Ireland of today. While it is almost unavoidable that the Constitution requires that certain rights be implicit, I would argue that, as it is currently understood, the doctrine of unenumerated rights is insufficient to discover these rights. This is largely because the process by which the doctrine discovers these rights is too undemocratic to hold in modern Ireland. By giving the judiciary what is ‘practically tantamount to an open invitation… to become latter-day philosopher-kings via the guise of constitutional adjudication’,[29] the separation of powers’ suffers and the ability of the people to impact upon the rights that affect them is significantly diminished. The country has changed since the ‘Christian and democratic state’ was first cited in the 1960s. The method by which rights are enumerated must also change accordingly.

 

 

[1] JM Kelly, Fundamental Rights in the Irish Law and Constitution (2nd edn, Allen Figgis & Co Ltd 1967).

[2] [1965] IR 294.

[3] ibid [313] (Kenny J) (emphasis added).

[4] McGee v Attorney General [1974] IR 284.

[5] Murphy v Stewart [1973] IR 97.

[6] Merriman v Fingal County Council [2017] IEHC 695.

[7] McGee (n 4).

[8] Norris v Attorney General [1983] IESC 3, [1984] IR 36.

[9] Kelly (n 1) 42.

[10] ibid.

[11] McGee (n 4) (SC) 318-319 (emphasis added).

[12] [1995] IESC 9, [1995] 1 IR 1.

[13] ibid [38] (Hamilton CJ)

[14] OT v B [1998] 2 IR 321 (SC) 370.

[15] Constitution Review Group, Report of the Constitution Review Group (Pn 2632, Stationery Office 1996).

[16] [2017] IESC 82.

[17] Ryan (n 2) (SC) 313 (emphasis added).

[18] Norris (n 8) [71] (Henchy J) (emphasis added).

[19] Central Statistics Office ‘Census of Population 2016 – Profile 8 Irish Travellers, Ethnicity and Religion’ https://www.cso.ie/en/releasesandpublications/ep/p-cp8iter/p8iter/p8rrc/ accessed on 19/12/18.

[20] Ryan (n 2).

[21] Kelly (n 1) 69.

[22] Oran Doyle, ‘Legal Validity: Reflections on the Irish Constitution’ (2003) 25 DULJ 56.

[23] Kelly (n 1) 69.

[24] Desmond Clarke, ‘The Constitution and Natural Law: A Reply to Mr. Justice O’Hanlon’ (1993) 11 ILT 177.

[25] ibid.

[26] Article 5.

[27] Gerard Casey, ‘Are there Unenumerated Rights in the Irish Constitution?’ (2005) 23(8) ILT 123, 125.

[28] ibid.

[29] Gerard Hogan, ‘Unenumerated Personal Rights: Ryan’s Case Re-Evaluated’ (1990-1992) 25-27 Ir Jur 95, 110.

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Recent Events in Sudan and the ICC: The Prosecutor v Omar Al Bashir

Recent Events in Sudan and the ICC: The Prosecutor v Omar al Bashir

Naz Khan

ICC Jurisdiction

In Resolution 1564,[1] the U.N. Security Council (UNSC) requested the U.N. Secretary-General investigate reports of gross violations of humanitarian and human rights laws in the Darfur region of Sudan between 2003 and 2008.[2] The International Commission established that the Sudanese government, along with Rapid Support Forces (RSF) or Janjaweed militias,[3] carried out indiscriminate attacks on civilians including mass rapes, killings, torture, enforced disappearances and the destruction of villages on a systematic basis throughout Darfur.[4] The International Commission referred these crimes  to the International Criminal Court (ICC) who issued an arrest warrant for Al-Bashir, the incumbent President of Sudan.[5]

The case raised several issues of contention: first the issue of an arrest warrant for an incumbent head of state was contentious; second the African Union (AU) requested a deferral of the case and established a High-Level Panel on Darfur, seeking to find an African solution to bring about accountability and reconciliation in the region. Charges against Al-Bashir included crimes against humanity, war crime, and genocide based upon perpetration by means, meaning that Al-Bashir had committed these crimes indirectly through the army and the militia.[6] ICC jurisdiction, in this case, is established by a UNSC referral, since Sudan is not a party to the Rome Statute of the ICC.[7] Article 13 enables the UNSC to refer a case to the ICC, according to its powers under Chapter VII UN Charter.[8]

Domestic Charges       

Instead of being surrendered to the ICC to face charges on international crimes, Al-Bashir has been in the custody of the military who instigated a coup in April 2019.[9] Al-Bashir now faces prosecution in Sudan for corruption, after being found with $113 million in foreign currency in grain sacks at his residence.[10] Prosecutors in Sudan have informed Al-Bashir that he faces charges of “possession foreign currency and acquiring suspicious and illicit wealth”,[11] based on an emergency decree that Al-Bashir himself imposed following protests to his rule that made it illegal to carry more than $3,000 in foreign currency.[12]

Concerns were raised however, about the potential for Al-Bashir to receive a fair trial in Sudan and the possibility of escaping prosecution for the most serious international charges against him .[13] Further investigations could lead to domestic charges for money laundering, financing of terrorism, or the killing of up to 100 protestors – which could lead to a potential death penalty under Sudanese criminal law.[14] Because such domestic charges involve a long prison sentence or potential death penalty, Al-Bashir could escape being tried at the ICC for the mass atrocities and the deaths of around 300,000 people, including allegations that he had overseen an attempt to wipe out part of the Fur, Zaghawa and Masalit communities.[15]

A Massive Blow to the ICC?

The ICC has faced numerous criticisms throughout its 20-year history, for long delays, weak management, and ineffective prosecutions,[16] including interferences with witnesses,[17] and in particular from the nations of the AU for its disproportionate emphasis upon situations in Africa.[18] The OTP currently investigating ten situations in Uganda, Democratic Republic of Congo (DRC), Darfur, the Central African Republic (CAR), Kenya, Libya, Côte D’Ivoire, Mali, another situation in CAR, in Georgia, and Burundi (since 2017).[19] This African focus has led to numerous accusations against the court of double-standards, neo-colonialism, and ‘white justice’, which makes the ICC no more than a criminal court for Africa, while failing to address war crimes in Iraq, or Afghanistan perpetrated by Western leaders.[20] Such accusations have been growing over the past decade, with AU member states regularly threatening to withdraw en masse from the Rome Statute; South African announced its withdrawal in October 2016.[21]

The Al-Bashir case has been symbolic of this diplomatic crisis between the AU and the ICC, the AU being early supporters of the ICC, while other states (notably permanent members of the Security Council: the United States and China) have never ratified the Rome Statute. [22]  African leaders have been highly critical of the indictment against Al-Bashir, with Jean Ping, chairperson of the AU’s Commission arguing that “international justice seems to be applying its fight against impunity on to African as if nothing were happening elsewhere – in Iraq, Gaza, Colombia or in the Caucasus.”[23] The AU adopted an official policy of non-cooperation with the ICC; arguing that the peace process in Sudan should take precedence over the ICC arrest warrant for Al-Bashir, and claiming that as a head of state he enjoyed immunity to prosecution.[24] This non-cooperation by the AU has also led to the collapse of the trial of the Kenyan President Uhuru Kenyatta in December 2014,[25] thus exacerbating the perceived crisis of legitimacy for the Court.

Non-cooperation has also been a feature of the failure of the ICC to obtain custody of Al-Bashir, who has travelled to Ethiopia, Chad, Malawi, the DRC, Nigeria, Kenya, and South African, during the period of his arrest warrant; all of whom have failed to arrest and surrender Al-Bashir to the ICC,[26] which is part of their obligation as parties to the Rome Statute. In the light of the non-cooperation of African States with the Office of the Prosecutor, it appears that the Al-Bashir case will be critical to the future of the ICC. If the ICC manages to prosecute the former Sudanese leader, this will show that the ICC can overcome the lack of support from African countries and the AU. However, it seems most likely that Al-Bashir will be prosecuted in Sudan, leaving the international charges untried.

[1] S.C. Res. 1564, at (Sept. 18, 2004).

[2] Int'l Comm'n of Inquiry on Darfur, Rep. of the Int'l Comm. of Inquiry on Darfur to the U.N. Secretary-General, at 1(2005) (pursuant to S.C. Res. 1564, (Sept. 18 2004)) [hereinafter Inquiry on Darfur].

[3] Bashir Makes First Appearance since Sudan Coup, BBC News (June 16, 2019), https://www.bbc.com/news/world-africa-48655897.

[4] Inquiry on Darfur at 2.

[5] L. Oette, Peace and Justice, or Neither? The Repercussions of the al-Bashir Case for International Criminal Justice in Africa and Beyond, 8 J. Int'l Crim. Just. 345, 346 (2010).

[6] Prosecutor v. Al Bashir, ICC-02/05-01/09-73, Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant Arrest against Omar Hassan Ahmad Al Bashir", ¶ 2 (Feb. 3, 2010) https://www.icc-cpi.int/CourtRecords/CR2010_00656.PDF.

[7] Rome Statute of the International Criminal Court art. 13, July 17, 1998, 37 I.L.M. 1002, 2187 U.N.T.S. 90 [hereinafter Rome Statute]

[8] Id.

[9] Sudan Unrest: Why Omar al-Bashir Was Overthrown, BBC News (April 15, 2019), https://www.bbc.com/news/world-africa-47852496.

[10] Bashir Makes First Appearance since Sudan Coup, supra note 3.

[11] Hiba Morgan, Scepticism as Sudan Moves to Put Omar Al-Bashir on Trial, Alijazeera (June 17, 2019) https://www.aljazeera.com/news/2019/06/anger-skepticism-sudan-moves-put-omar-al-bashir-trial-190616184112957.html.

[12] Id.

[13]James Reinl, Omar Al-Bashir Must Answer For Darfur Abuses Now, ALIJAZEERA (June 19, 2019)

https://www.aljazeera.com/news/2019/06/icc-prosecutor-omar-al-bashir-answer-darfur-abuses-190619155025202.html.

[14] Id.

[15] James Copnall, Darfur Conflict: A Bloody Stalemate, BBC News (April 29, 2013) https://www.bbc.com/news/world-africa-22336600.

[16] Elizabeth Wilmshurst, Strengthen the International Criminal Court Chatham House (June 12, 2019) https://www.chathamhouse.org/expert/comment/strengthen-international-criminal-court.

[17] Jon Silverman, The Justice Conundrum: Africa’s Turbulent Relationship with the ICC Harvard Int'l L.J.  (Feb. 18 2019) https://harvardilj.org/2019/02/the-justice-conundrum-africas-turbulent-relationship-with-the-icc/.

[18] Femi Falana, Achieving Justice For Victims And Ending Impunity Across The Continent (July 31, 2019) https://saharareporters.com/2019/07/31/achieving-justice-victims-and-ending-impunity-across-continent-femi-falana.

[19] International Criminal Court, Situations under Investigation (2019) https://www.icc-cpi.int/Pages/Situations.aspx (last visited July 1, 2019).

[20] Jean-Baptiste Jeangène Vilmer, The African Union and the International Criminal Court: Counteracting the Crisis  92 Int't Aff. 1319, 1320 (2016).

[21] Id.

[22] Ryan J Vogel, Challenges for the United States with the Rome Statute’s “Crime of Aggression” 1 Utah Valley U.  J.  Nat'l Security (2017) 7, 18 (2017).

[23] Soudan: l’Union africaine veut interrompre la procédure contre Al-Bachir, Le Monde Afrique (Mar. 4, 2009) https://www.lemonde.fr/afrique/article/2009/03/04/soudan-la-decision-de-la-cpi-inquiete-l-union-africaine_1163310_3212.html.

[24] Leila Sadat, 'Why The ICC’S Judgment In The Al-Bashir Case Wasn’T So Surprising' (July 12, 2019) https://www.justsecurity.org/64896/why-the-iccs-judgment-in-the-al-bashir-case-wasnt-so-surprising.

[25] Lorraine Smith-van Lin, Non-Compliance and the Law and Politics of State Cooperation, in Cooperation and the International Criminal Court: Perspectives from Theory and Practice 114 (Olympia Bekou & Daley Briketts eds., 2016).

[26] Prosecutor v. Al Bashir,  ICC-02/05-01/09, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, ¶ 18-20 (Apr. 9, 2014) https://www.icc-cpi.int/CourtRecords/CR2014_03452.PDF.

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