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The Common Law, the Constitution, and Judicial Self-Identity: Constitutional Rights Adjudication in Ireland

The Common Law, the Constitution, and Judicial Self-Identity: Constitutional Rights Adjudication in Ireland

Cian Henry

 This article forms the first part of the King's Student Law Review and Trinity College Law Review's Joint Edition in Constitutional Law Series

 Introduction

'One of the strengths and – paradoxically, at the same time - the weaknesses of the Constitution was that in the terminology of the 19th century English political scientist, Bagehot, the ‘efficient’ part of the Constitution has the potential to effect too radical a change in the structure of our legal system. This is why I contend that as they gradually realised this in the subsequent decades some of the judiciary have baulked at what has been asked of them. Most of them were instinctively happier with the traditional common law method: incremental, bit by bit change, driven often by pragmatic, fact specific and result orientated considerations. This, in musical terms, is what might be termed the C Major approach: conventional, pragmatic, appealing, less technically challenging.

By contrast, the efficient part of the Constitution... requires a quite different mind-set, namely, to judge the existing law by reference to a set of inherently generalised principles, (‘due course of law’, ‘inviolability of the dwelling’, ‘defend and vindicate’, ‘personal rights’ etc), together with the ultimate power to strike down that law in the event that it did not measure up to these constitutional standards. And there is clear evidence that the judiciary are uncomfortable - even unhappy - if they are required to give full effect to the wording of the Constitution because they privately understand that the logical corollary of doing just this would bring about too radical a break with the established world of the common law which many consider to be the true bedrock of our legal system.'[2]

In the above-quoted passages, Gerard Hogan, a former judge of the Irish Court of Appeal, draws a distinction between two modes of thinking about constitutional law. On the one hand, one can imagine that constitutional law exists within, and therefore is conditioned and constrained by, the traditional common law model which has formed the basis of the Irish legal system since colonisation by the British Empire. The common law is said to be process-focused; it supposes no grand narratives, but instead allows judges to incrementally modify and clarify the law as they react to the concrete cases before them. Accordingly, judges shall attempt to do justice with respect to the Constitution in the cases which come before them, but constitutional cases shall be subject to the same rules as any other legal case. On the other hand, Hogan posits that the Constitution demands an entirely different view of our constitutional order, in which judges are charged with actively realising a vision for society as reflected in the Constitution. In this view, the enforcement of constitutional rights shall be of a supreme value, and so judges should not be as deferential as the common law suggests, but instead play an active role in ensuring the constitutional compliance of the other organs, and thus attempt to realise the substantive justice which the Constitution promises.

In this paper, I draw on this distinction. I do not wish to suppose that one or the other is the better view. Instead, my objective is to show that both views persist and co-exist within the way that Irish judges think about their role within the Irish constitutional order. The reason this is significant is that, as I will argue, the boundaries of the power of Irish courts are rather fluid and largely determined by the courts’ view of what their proper role is, despite supposedly rigid concepts such as ‘the separation of powers.’ In forming that view, I suggest that judges are torn between the two ways of thinking about constitutional law. Often, they are inclined to contain constitutional law within what they see as the logic of the common law. On other occasions, we will see that the prospect of that restrictive approach allowing persistent breaches of constitutional rights leads them to diverge from the classic common law method.

The paper proceeds as follows. In Part 1, I provide a short introduction to Irish constitutional law. I explain that in practice there is generally a bipartite division of state power in the Irish constitutional order between the political branches (executive and legislative) and the courts (the judicial power). I focus on the constraints which the courts place on the political branches under the Constitution and examine the (scarce) textual provisions which relate to the exercise of this review power. In Parts 2 and 3 , I advance two propositions with respect to this power of constitutional review. First, I argue that the outer boundaries of this power are not rigidly defined by the Constitution but instead are fluid, dependent largely on the attitudes of the judiciary themselves about their proper role within a constitutional order. Second, I contend that the attitudes adopted by Irish courts are influenced by, and torn between, the two competing legal traditions and modes of thinking that I have outlined above: the common law method and the constitutional imperative. I make these arguments in the context of a deconstructionist analysis of Irish courts’ approach to two areas of constitutional law that forms the centre of this piece: in Part 2, constitutional standing rules, and in Part 3, the (non-) enforcement of socio-economic rights. In Part 4, I conclude that when faced with constitutional rights litigation Irish judges are driven by the two competing rationales I have described. In practice, they will pick and choose elements of each in fact-specific cases, striking compromises by which they attempt to do justice to both the common law and the constitutional imperative, as fits their overall interpretation of the role of courts under the Constitution.

  1. Constitutional Review in Ireland

The Irish Constitution (Bunreacht na hÉireann) divides state power into three parts,[3] with each part assigned to a particular organ of the state – executive power to the government,[4] legislative power to the parliament (the Oireachtas),[5] and judicial power to the courts.[6] Yet since the enactment of the Constitution in 1937, the separation of powers has been in practice not tripartite, but bipartite.[7] The reason for this is that the government is dominant over the legislature, by reason of the political party ‘whip’ system. Typically, when a general election occurs, either one party wins an outright majority of seats in the parliament or it builds a coalition which has such a majority. Then, members of the government parties are in practice obliged to vote with the party, lest their membership be terminated. In this way, the government can pass legislation through the parliament virtually without constraint (save, of course, for political constraints on what they might do), and so the executive and legislative branches are in practice fused as one.[8]

Under the Constitution, the Courts are empowered to directly review the exercise of executive power,[9] and administrative power through the procedure of judicial review.[10] Furthermore, and perhaps most significantly, Irish courts have the power to review the constitutionality of legislation. Article 34 of the Constitution provides that justice shall be administered in courts established by law. In Ireland, there is no specialist constitutional court, but instead the Superior Courts – the High Court, the Court of Appeal, and the Supreme Court – are empowered to decide on constitutional matters. Their power to review legislation arises first as a result of Article 15.4 which states that the parliament shall not enact any law that is repugnant to the Constitution, and that any such law would be, but to the extent of its repugnancy, invalid. By Article 34.4, the task of determining the validity or otherwise of laws with respect to the Constitution is assigned to the Superior Courts. The courts have interpreted this mandate to mean that unconstitutional laws, or provisions thereof, are ultra vires the legislature, and should be declared void ab initio by the courts.[11] Accordingly, it is a matter of well-established law that Irish courts have the power of strong form, as opposed to weak form, judicial review.[12]

So, it is clear that under the Constitution the courts are empowered to strike down legislation, and, albeit in rare circumstances, invalidate executive actions. However, beyond this, the Constitution does not provide much guidance on how these powers should be exercised. The Constitution does provide for a separation of powers between the organs, however, as I argue below, this only invites further debate as to what the boundaries between the powers ought to be. How have Irish courts determined the boundaries of the judicial power? What is their conception of the proper separation of powers? And what are the ideological influences acting on judges arriving at these conclusions? I shall describe the interpretations courts have given to these boundaries and attempt an explanation of how they have come about through the prism of two areas of substantive law: first, the standing rules which the courts have fashioned to regulate their intake of constitutional review cases; and second, the judicial disagreement over the enforceability of socio-economic rights.

  1. Standing

As a matter of well-established tradition, two doctrines govern the eligibility of persons to take a legal claim alleging the unconstitutionality of legislation in Ireland. First, the doctrine of locus standi requires that a plaintiff must in some way be personally prejudiced by the provision. The burden for a prospective plaintiff is to demonstrate an ‘injury or prejudice which he has either suffered or is in imminent danger of suffering’ as a consequence of the impugned provision.[13] It appears that the plaintiff must have a ‘special interest’ in the proceedings, as a result of a distinct prejudice to him over and above whatever prejudice might exist towards the population generally.[14] Second, relatedly, the principle of jus tertii states that a plaintiff is limited to reliance on his own rights, and is thus precluded from relying upon arguments which invoke the rights of hypothetical third parties. So, for example, an unmarried gay man challenging a law criminalising homosexuality could not invoke a right to marital privacy – he was restricted to rights which he himself enjoyed.[15] These two rules, locus standi and jus tertii, may be seen as two sides of the same coin, operating in a complementary fashion with the ultimate aim of limiting justiciable claims to those connected to a concrete and particularised injury. Hereinafter I refer to them collectively as the rules of standing.

The first thing to observe about these rules is that, notwithstanding that they have a profound effect on the number of persons who are empowered to challenge the constitutionality of legislation, they have no textual basis in the Constitution. In fact, all that the Constitution states is that unconstitutional laws shall be invalid,[16] with the task of determining such validity or invalidity explicitly assigned to the courts.[17] No express mention is made of a limitation on who might raise such an issue.

Nonetheless, the Irish courts in their case-law have developed standing rules which limit the scope of constitutional cases they can hear. The point here is not to criticise this development, indeed, anyone who has the slightest acquaintance with the day-to-day operation of courts will be acutely aware of the need to regulate their intake of cases in the interest of, among other things, judicial economy.[18] Moreover, it could be said that, reading the Constitution as a whole, the reservation of the legislative power to the Oireachtas precludes the courts from embarking upon legal issues entirely in the abstract. In the absence of any standing rules, the courts would be empowered, apropos of nothing, to scrutinise any law that was passed and strike it down if it did not fit with their interpretation of the Constitution. In so doing they would be exercising a power practically indistinguishable from the power to legislate, in a manner that would likely violate any understanding of the constitutional separation of powers.

The point I wish to make is that the extent to which Irish courts apply standing rules depends not on the text of the Constitution or indeed on any other external law or principle, but on the courts’ attitudes regarding what is required by the separation of powers. The separation of powers is not a definitive, self-executing value, but one which may be subject to many interpretations. By its plain words, it requires that certain powers are reserved to certain organs of the state. But of course, the boundaries of these powers are fluid and open to contest, and indeed, as they are written into the Constitution, they are open to judicial interpretation. In other words, to a great extent, the limitation on the judicial power comes from within. The judiciary take a view as to their own proper role within the constitutional order, and this view becomes expressed through, inter alia, the strictness or otherwise of standing rules. And so, the scope of the judicial power may be seen as a matter of judicial self-perception.

The next question is: what drives the views of judges about what is required by the separation of powers? What are the ideologies which influence their perception of their own proper role in reviewing legislation? In the case of standing rules, I would suggest that the traditional rules I have described, which emphasise the need for a distinct, personal prejudice to the plaintiff, reflect an ideology associated with the common law. According to the model of common law adjudication, the law develops as judges are called upon to resolve disputes. However, they are only empowered to act upon certain kinds of disputes – those which are legal in character. As has been observed by Sunstein, disputes which are typically considered judicially cognisable at common law are those which have the form and character of a private law dispute, meaning that they are grounded upon a concrete and particularised injury.[19] Irish constitutional standing rules, especially through their insistence upon injuries of an essentially private law character, represent an attempt to impose this form of common law thinking on constitutional law cases. In essence, such rules ensure that the courts will only embark upon considering the constitutionality of legislation where there is a dispute which is concrete, individualised and bipolar, that being the form best known to the private law roots of the common law.[20]

I have elsewhere argued that the application of such rules in a constitutional context is a site of tension between the common law and constitutional law traditions.[21] Where legislation is said to violate the Constitution, the injury claimed is often of a different character entirely than that known to the common law. First, legislation, unlike the actions of private individuals, is likely to affect people in a generalised, undifferentiated way.[22] Consider briefly that environmental legislation is undoubtedly of  great significance to a great many people; however, its effects are often difficult to individualise because the legislation affects everyone in general rather than someone in particular.[23] Similarly, legislation may have probabilistic or uncertain effects.[24] Where a law aims to reduce the risk of injury to large numbers of people, as much modern regulation does, the effects of altered enforcement for one person are ‘unavoidably speculative’.

If one approaches this from the common law perspective that I have described, such disputes fall outside the scope of justiciability and accordingly do not require resolution by the courts. My point here is not to criticise this approach, but merely to observe that, if instead, one thinks about the problem from the perspective of the constitutional law tradition, one might reach another conclusion. If one sees the objective of the judicial power not as the resolution of concrete and particular disputes, but as the enforcement of constitutional rights, then the rules must be altered such that the constitutional breaches are prevented. As it happens, Irish courts appear to have, in some cases, accepted this constitutional enforcement rationale, and accordingly they have developed exceptions to the traditional standing rules. First, the Supreme Court has ruled that where a legal issue affects the whole constitutional and political structure of the society in which the plaintiff lives, he may be permitted to take a case notwithstanding that there is no special prejudice to him arising from the legislation.[26] Second, the Court has also found that a surrogate applicant acting bona fide may be permitted to challenge legislation on behalf of persons who are not in a position to themselves bring suit, although that exception may be more limited to its own facts.[27] More recently, in Mohan v Ireland, the Supreme Court found that a male member of a political party and prospective election candidate was entitled to challenge legislation which provided that public funding for parties would be cut if they failed to meet certain gender quotas for election candidates.[28] In doing so the Court overturned the judgment of the High Court, upheld by the Court of Appeal, which had essentially held that the mooted harm to the plaintiff was too indirect, the plaintiff having failed to prove that, ‘in the absence of a coercive statutory candidate gender quota, the party would not have sought to implement a candidate gender quota at all.[29] In other words, the alleged injurious effect of the legislation on the plaintiff relied on intermediating actions by the political party, which had to be, and had not been, proven to result from the legislation. In his judgment for the Supreme Court, O’Donnell J quoted the authors of Kelly: The Irish Constitution (5th ed, Bloomsbury Professional, 2018) to the effect that the standard of proof required by the High Court ‘would be impossible to prove given the complexity of the factors involved’.[30]

Using my framework, this judgment confirms that some relaxation of standing rules is appropriate to incorporate forms of injury which are more probabilistic and indirect, and therefore fall slightly outside a common law conception of injury as concrete and particularised. It may be suggested that this move is a motivated by a discomfort with the notion that legislative provisions may evade constitutional review by reason that their effects on individuals, though palpable, are somewhat indirect. Similarly, it is my submission that the development of the above two exceptions by the courts shows their unease with a pure common law approach, insofar as that would protect constitutionally suspect behaviour from judicial scrutiny where it did not amount to a distinct and concrete breach of individual rights.[31] However, these exceptions embrace only in a limited way the constitutional enforcement rationale, in cases which meet a threshold level of public importance. It should be emphasised that the general approach of the Irish courts to constitutional standing rules has been shaped by a certain, widely shared conception of the common law, which emphasises that courts’ jurisdiction to determine disputes is best reserved to cases where plaintiffs are injured in discrete, concrete and particularised ways, with only limited exceptions introduced to blunt the sharp edges of that system.

       3.Socio-Economic Rights

In Ireland, it is a matter of settled law that socio-economic rights do not form part of the personal rights of the citizen protected in Article 40.3 of the Constitution.[32] This issue was discussed in several judgments of the Supreme Court in the seminal case of TD v Minister for Education.[33] In that case the Court was called upon to uphold a mandatory order directing the Minister to implement his policy to build a particular child detention centre. This order had been made by the High Court consequent on the constitutional right of children to positive State intervention where their parents had failed, with the detention centre being the necessary intervention in that case. By a majority, the Court overturned the mandatory order, holding that it was contrary to the separation of powers. Notwithstanding that the Court was limited to assessing the particular mandatory order before it, the various judgments addressed the more general issue of whether and in what circumstances a court could enjoin another branch of government to enforce socio-economic rights, having regard to differing conceptions of separations of powers. This discussion is illustrative for our purposes.

In the leading majority judgment, it has been suggested that Hardiman J took the view that the separation of powers was a ‘superordinate constitutional value, capable of trumping any other constitutional concern’.[34] Moreover, in his view it was a precisely delineated constitutional doctrine, which created a clear-cut, rigid and non-porous division of powers between the three organs of government. Hardiman J argued that while the Constitution provided for certain checks and balances, this does not suggest that ‘a court, or any other organ of government, can strike its own balance, in a particular case, as to how the separation of powers is to be observed’.[35] However, as Doyle has convincingly argued, there is an issue with this logic – if the separation of powers is a constitutional value, then it falls for interpretation by the courts.[36] In fact, when faced with a breach of constitutional rights, a court must in one way or another interpret what the Constitution requires the separation of powers to mean. Indeed, that is the very task which Hardiman J himself had been engaged in. Thus, it seems that the court must have some role in determining how the separation of powers should be observed.

Insofar as the majority’s interpretation of the Constitution is that it does not vest any organ with a residual power to exercise the powers of another organ where it feels that that organ was exercising its powers unconstitutionally, they must be correct: the Constitution reserves certain powers for certain organs. However, this conception is not very meaningful if we do not have a strong understanding of what is included within each power. And, it is notable that the Constitution is silent when it comes to defining what falls within the judicial power as against, say, the legislative. When considered this way, it becomes clear that the constitutional separation of powers is not an exhaustive, self-executing doctrine, as the boundaries between powers are not so clear-cut, but instead are open and contestable. It is perhaps telling that Hardiman J cannot provide a comprehensive account of what is entailed by, say, the judicial power as opposed to any other. Further, it surely undermines this rigid account of the separation of powers that there are explicit socio-economic rights in the Constitution; it is, at the least, not clear from the constitutional text that the enforcement of these rights is beyond the judicial power.

Indeed, it seems to me that a great part of the interpretive task with which the courts are charged is determining what might be included within the rather uncertain and fluid boundaries of each power. So understood, the real question before the Supreme Court in TD was whether a court issuing a mandatory order to enforce socio-economic constitutional rights is exercising a power that is properly within ‘the judicial’. On this question, I suggest, the Constitution cannot provide a clear answer. Instead, again, courts must take a view as to what is within the judicial realm, and, by extension, what is the role of courts in our democracy. None of this is to say that Hardiman J’s conclusion that socio-economic rights fall outside the judicial power is necessarily an unmeritorious one – it is merely to say that his view is not the only one available under the Constitution, and that in reality his view depends less on the textual provisions and more on his overall (again, perhaps worthy) view on the proper boundaries of the judicial power. Accordingly, I would conclude that the contours of the separation of powers as between the judicial and political branches do not follow inexorably from the text of the Constitution, but instead depend largely on judicial attitudes concerning the types of decisions that courts should make.[37]

One attitude in particular that permeated the majority judgments was that there is a distinction to be drawn between commutative justice, which is concerned with relationships arising from the dealings between individuals, and distributive justice, which deals with the claims by individuals against a political authority in respect of the distribution of common goods and burdens.[38] The idea here is that judges should only act upon decisions of the former kind, with distributive matters left as the reserve of the political branches of government.

This is a distinction which receives little support from the Constitution; indeed it is striking that Irish courts have in other contexts enforced constitutional rights which clearly involve resource implications, such as the right to criminal legal aid.[39] Nonetheless, the reliance placed on it reveals what I suggest is the true divide between judges, which is a disagreement about the type of decisions they think proper for the courts to make. On the one hand, some judges are loathe to engage upon decisions which have far-reaching consequences beyond the case before them, such as those which involve the re-allocation of resources. As argued by David Gwynn Morgan:

The focus of a court is naturally upon the individual litigants who are before it. The contest between the plaintiff (sometimes carefully selected, just because s/he amounts to an especially hard case) and the defendant before the court is not designed to bring out the general context and ramifications of the decision. Thus shrouded from the court's gaze are the different circumstances of persons not before the court; the pros and cons of alternative choices to the measure whose constitutionality is at issue; and the knock-on effects of any court case. Yet these matters are the very stuff of socio-economic policy-making.[40]

I argue that this approach is likely to be adopted by judges who more strongly adhere to the logic of traditional common law thinking. It is in keeping with the common law tradition, which is understood to prize adjudication which is pragmatic, fact-specific and incremental, that more complex and wide-ranging inquiries, as will often be required in respect of the enforcement of socio-economic rights, are eschewed. Moreover, as earlier observed, the common law is largely based on a private law model, and thus is associated with and considered to most easily accommodate cases between individuals. In this context it is perhaps unsurprising that, understood this way, it may be seen as hostile to the idea that judicial decisions could or should generate more general consequences for society, rather than merely resolving the dispute before them. According to this common law inspired view, this is simply not a realm which the law should intrude upon – even if the price to pay is the enforcement of constitutional compliance, it is best left to the political branches of government.[41] My argument here is consonant with the contention of David Kenny that an ideology of liberal judicial conservatism, or Burkean incrementalism, persists within the Irish judiciary.[42] This paper develops that insight by suggesting that the ideology of this part of the judiciary is often justified by reference to a particular, popular theory and history of the common law: that it exhibits the enduring wisdom of incremental, facts-limited, case-by-case adjudication and, more generally, change. The idea here is not that the common law has a clear and essential ideological content that mandates a non-interventionist approach to constitutional rights adjudication, but that a particular reading of common law values and understandings dovetails with, and provides legal-conceptual justification for, that approach as it is espoused within the Irish judiciary.[43]

On the other side, judges who are less wedded to this common law tradition, and prize the enforcement of constitutional rights even where it means departing from that tradition, are more likely to also embrace expansive understandings of the judicial power which include the enforcement of socio-economic rights. If not so bound to the idea that constitutional cases should resemble those traditionally associated with the common law, it is more plausible that a judge will come to the conclusion, as did Denham J in TD, that a mandatory order of the kind under appeal could be allowed. In her judgment, Denham J stressed that ‘the court has the power and indeed the duty and responsibility to uphold the Constitution and vindicate constitutional rights’.[44] Whereas judges who view incrementalism as a crucial value emerging from the common law may see that value as one which should condition and constrain their consideration of constitutional rights issue, this constraint may not arise so powerfully for judges who do not share this emphasis. In the absence of it, judges may feel it is within their legitimate role to be more interventionist in the vindication of constitutional rights. To these judges, constitutional rights demand enforcement, and accordingly ought to be enforced even where this involves disputes and decisions which are alien to the mould of the common law.

This rights enforcement rationale comes out strongly in the judgment of Denham J, who repeatedly emphasises the imperative that the courts take action against breaches of constitutional rights. While the departure from common law conceptions of adjudication that this may entail is doubtless not taken lightly by those more wedded to the constitutional imperative, we can sense a different prioritising – in particular, that sometimes the process needs to be abandoned in order to remedy a constitutional breach, and substantively realise the constitutional vision, as they interpret it. Such a form of reasoning is palpable in the judgment of Denham J in TD, where the minority judge argued that the separation of powers was more porous and allowing of judicial intervention than had been suggested by Hardiman J, and that a mandatory order to enforce a socio-economic rights guarantee could sometimes be justified on the grounds that constitutional rights may otherwise be ‘set at nought’.[45] It is my contention that this judgment once more illustrates the thesis of this paper: that judges’ views on the proper role of courts in constitutional adjudication, drawing on their assessments of the values to be drawn from common law and constitutional traditions, influence them to express a particular conception of the separation of powers, which is then said to justify the result of the case.

Conclusion

Where Irish courts are faced with difficult questions regarding the enforcement of constitutional rights, they often justify their result on the basis that it is demanded by the constitutional separation of powers. There is a sense in which this is true – the constitutional separation of powers determines the scope of the judicial power. But in a greater sense, we must know what interpretation of the separation of powers is being applied. As I have argued, the Constitution itself does not speak authoritatively to one or other separation. Ultimately, it falls to the courts to determine the boundaries of their own power, as they interpret the Constitution to require it.

In so interpreting, judges will inevitably be guided, whether knowingly or not, by their internalised idea of the proper role of courts. As Sunstein has written:

Every legal text requires interpreters to draw on background principles that they must supply. It is often true that a text has a plain meaning, or that there is no room for interpretive doubt. But when this is so, it is because there is no disagreement about the appropriate background principles. It is not because there is a preinterpretive ‘fact’ that people can uncover without resort to substantive principles.

Those who deny the existence of such principles are without self-consciousness. They believe that their own views are so self-evident that they do not amount to interpretive principles at all, but instead are just ‘part’ of the text. But interpretive principles are always at work. That is no embarrassment to constitutional law, or indeed to law itself, but instead an inevitable part of the exercise of reason in human affairs. The question is not whether interpretive principles exist, but whether they can be defended in substantive terms.[46]

In our case, I have argued that a key ideological divide as between Irish judges is on whether constitutional law is to be overlaid onto the existing common law system, or whether it should exist outside of and unconstrained by it. Of course, this cannot explain everything that judges do in a constitutional context. However, it does help us to understand that, so often in constitutional rights litigation, Irish judges are torn between two rationales: one which implies that certain types of cases should not be interfered with by the courts, and another which says that the Constitution must be enforced even where it draws the court into unfamiliar territory.

In reality, most judges will not carry through either rationale to its logical conclusions, but will pick and choose between the two. In the context of standing, it was seen that in general Irish courts require that a litigant is personally affected by that which they challenge – in other words that they present with a private law style, self-contained dispute. However, there is clear discomfort amongst the judiciary at the prospect of a blanket enforcement of this common law logic. Hence, they have developed two discrete exceptions to the general rule, which allow the Constitution to be enforced even where there is no common law style dispute.[47] Moreover, in the last year the Supreme Court has slightly relaxed application of the general rule so that a plaintiff can bring a constitutional challenge where the effect of the impugned legislation on him is indirect.[48] With respect to the socio-economic rights jurisprudence, we saw a court split in two between the two competing rationales. A further illustration of the point is that even within the majority judgments, which in general ruled that socio-economic rights were unenforceable, it was acknowledged that in very exceptional circumstances, where the political branches had entirely derogated from their duties, such rights could be enforced. Again, even within one side of the Supreme Court, we can see that they were torn between the need to contain constitutional litigation within traditional common law principles, and the need to ensure that the Constitution is enforced. If the compromises which courts reach in the context of constitutional rights litigation feel unprincipled, it is because they are in fact driven by two competing rationales, with respect to both of which they attempt to do justice as they see the Constitution demanding.

 

[1] LLB graduate, Trinity College Dublin; LLM candidate, Harvard Law School. This paper was written in June 2019.

[2] Gerard Hogan, ‘Harkening to the Tristan Chords: The Constitution at 80’ Constitution at 80 Conference, University of Limerick (11 November 2017) 1-2.

[3] Article 6, Bunreacht na hÉireann.

[4] Article 28.2.

[5] Article 15.2.1.

[6] Article 34.1.

[7] For a fuller account of this argument see Oran Doyle, The Constitution of Ireland: A Contextual Analysis (Hart Publishing 2018) 19-20. Following a general election in 2016, in an unusual turn of events, the political party which had won the most seats was unable to form a coalition majority and so they instead entered a minority government with a ‘confidence and supply’ agreement with the second largest party. As a result of this electoral quirk, perhaps for the first time in Irish history, our separation of powers approximates a tripartite structure, with the minority government reliant on the votes and support of their political rivals and the latter being empowered to pull the plug at any moment. Nonetheless, it should be understood that this division between government and legislature is the exception rather than the rule. It is generally the case that the government dominates the legislature, and accordingly it is the judicial power which places the greatest legal and constitutional restraint on the government’s exercise of state power. See ibid 21.

[8] This is not to diminish the importance of the Oireachtas - among other things, opposition parties can effectively use their seats to draw popular attention to political issues and put pressure on the government to accept their solutions. However, it nonetheless does not act as independently from the government as one might imagine from a plain reading of the Constitution.

[9] The courts may interfere with the exercise of executive power where it is in ‘clear disregard’ of its duties under the Constitution. See Boland v An Taoiseach [1975] 108 ILTR. 13.

[10] By way of judicial review courts may interfere with administrative decisions where there is a flaw with the procedure by which the decision-maker arrived at their decision, however they are in principle not entitled to interrogate the substance of the decision, which is viewed as solely within the discretion of the decision-maker.

[11] See, for example, Murphy v Attorney General [1982] IR 237, 309.

[12] I am using here the terminology described by Mark Tushnet. See: Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press 2008) chapter 2.

[13] Cahill v Sutton [1980] IR 269, 284.

[14] State (Sheehan) v Government of Ireland [1988] ILRM 437.

[15] Norris v Attorney General [1984] IR 36, 58.

[16] Article 15.4.2, Bunreacht na hÉireann.

[17] Article 34.3.2.

[18] See the comments of O’Higgins CJ in Cahill v Sutton [1980] IR269, 277 that the courts must not become ‘the happy hunting ground of the busybody and the crank’.

[19] Cass R Sunstein, ‘Standing and the Privatization of Public Law’ (1988) 88 Colum LR 1432, 1447.

[20] ibid 1436.

[21] Cian Henry, ‘Standing on Thin Ice: Standing Rules and Public Interest Litigation in Ireland and the United States’ (2018) 21(1) Trinity College Law Review 315.

[22] David Feldman, ‘The Human Rights Act 1998 and constitutional principles’ (1999) 19 J Legal Stud. 165.

[23] Oran Doyle, Constitutional Law: Texts, Cases and Materials (Dublin, Clarus Press 2008) 435.

[24] Daniel J Meltzer, ‘Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General’ (1988) 88 Colum LR 304.

[25] Sunstein (n 19) 1458.

[26] Crotty v An Taoiseach [1987] 93 ILR 480.

[27] Society for the Protection of the Unborn Child v Coogan [1989] IR 734. In this case, an anti-abortion interest group was permitted to bring suit to assert the rights of unborn children, who, obviously, could not do so themselves.

[28] Mohan v Ireland [2019] IESC 18.

[29] Mohan v Ireland [2016] IEHC 35, [75].

[30] Mohan v Ireland [2019] IESC 18, [37].

[31] Henry (n 21) 333.

[32] Hogan et al, Kelly: The Irish Constitution (5th ed., Bloomsbury Professional, 2018) 1775.

[33] TD v Minister for Education [2001] IESC 101.

[34] Doyle (n 23) 363.

[35] TD v Minister for Education [2001] 4 I.R. 259, 368.

[36] Doyle (n 23) 365.

[37] Before leaving behind the text to consider the judicial attitudes at play, I should acknowledge one objection to my argument, which would re-assert the impact of constitutional text on this jurisprudence. This objection would have it that the express non-justiciability of the directive principles of social policy contained in Article 45 of the Constitution has influenced the courts in their reluctance to recognise socio-economic rights. Indeed, it is true that this argument was briefly implied in the judgment of Murphy J in TD when he stated that the non-justiciability caveat in respect of Article 45 ‘might be regarded as an ingenious method of ensuring that social justice should be achieved while excluding the judiciary from any role in the attainment of that objective’ (TD v Minister for Education [2001] 4 IR 259, 317). However, it is my contention that the discussion in each of the majority judgments, including that of Murphy J, was almost entirely focused on the doctrine of separation of powers, which was claimed as the driving force preventing courts from making an order of the kind under appeal.

[38] This distinction was identified by Costello J in O’Reilly v Limerick Corporation [1989] I.L.R.M. 181, 194. It was approved by Hardiman and Murray JJ in their judgments in TD.

[39] Gerry Whyte, ‘A Tale of Two Cases – Divergent Approaches of the Irish Supreme Court to Distributive Justice’ 32(1) Dublin University Law Journal 365, 378.

[40] David Gwynn Morgan, A Judgment Too Far? Judicial Activism and the Constitution (Cork University Press, 2001) 63.

[41] For an excellent general rendition of this argument, see Jonathan Sumption, ‘Law’s Expanding Empire’ Reith Lectures (21 May 2019).

[42] David Kenny, ‘Merit, Diversity, and Interpretative Communities: the (non-party) politics of judicial appointments and constitutional adjudication’ in Cahillane et al, Judges, Politics and the Irish Constitution (Manchester University Press, 2017) 136, 142.

[43] The image implied in my argument is that of an ‘interpretive community’ of judges and lawyers who come to read the history, lessons and virtues of the common law in a homogeneous way. See Fish, Is There a Text in this Class? (Harvard University Press, 1980) for discussion of the concept of interpretive communities as originated in literary theory.

[44] TD v Minister for Education [2001] 4 IR 259, 307.

[45] ibid 311.

[46] Cass R Sunstein, The Partial Constitution (Harvard University Press, 1993) 103-104.

[47] Crotty v An Taoiseach [1987] 93 I.L.R. 480; Society for the Protection of the Unborn Child v Coogan [1989] I.R. 734.

[48]Mohan v Ireland [2019] IESC 18.

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Animal Law: Introduction, Discourse and the Irish Approach

Animal Law: Introduction, Discourse and the Irish Approach

Liam O'Driscoll

Introduction

Throughout history, humans have used animals for different purposes including as a source of food, a form of entertainment and a mode of transport. These practices were rarely questioned as they have their foundation in a belief that animals are fundamentally different to humans, and therefore, it is morally permissible for humans to use animals as they see fit.[1] However, since the early 19th century, and more recently since the early 1970’s, the legal protections afforded to animals and the cause of animal welfare has developed significantly. In Europe and across the developed world, legislation has been enacted to safeguard animals against a wide variety of practices such as cruelty, abandonment and improper living conditions.[2] Whilst the pace of this development has been criticised as too slow and misguided by Fetissenko,[3] the improvements in the manner in which humans treat animals has been hailed as significant by other commentators, including Garner.[4] In Ireland, the primary piece of legislation governing the welfare of animals is the Animal Health and Welfare Act 2013.[5] In this article, the primary legal theories of animal law will be examined, alongside an analysis of the 2013 Act and a further analysis of whether the provisions of the legislation comply with the principles of animal law.

Foundations, Ideology and Impact of Animal Law

Curnutt states that animal law concerns the ‘set of legal rules governing human practices that involve animals’,[6] whilst Tischler argues that animal law concerns itself with advancing the interests of animals and preventing their ‘abuse and exploitation’, as opposed to any specific legal rules regulating the relationship between humans and animals.[7] Overall, animal law has been broadly defined as a branch of law, an academic discipline and a social movement. In addition, it is necessary to understand that morality and moral considerations are a key element of the animal law discourse. Is it morally right that animals are killed by humans for food? Is it ethically wrong that animals are used by humans for entertainment? These are the fundamental questions that animal law seeks answers to.[8] With the foundations and moral considerations of animal law outlined, the form and mode that the answers to these questions have taken will be examined. It is argued that the specific answers to these questions can be found in the ideology of animal law. However, it is recognised that issues in regard to animality and animal ethics provide scope for the proper understanding of the biological and philosophical foundations underpinning animal law respectively.[9]

The first significant question that will be analysed is that of the relationship between animal welfare and animal rights. It is submitted that this relationship offers an insightful example in regard to the various different approaches of animal protection. As these two approaches are similar, they will be compared and contrasted throughout this examination. According to Aaltola and Birgitta, the animal welfare approach encompasses a belief that it is wrong for humans to inflict unnecessary suffering on animals.[10] The animal rights approach, on the other hand, argues that animals have an inherent value which is not dependent on their relationship with humans.[11] In other words, the animal welfare dictum focuses on regulating how humans use animals, whilst the animal rights dictum states that animals ought not to be exploited by humans at all. In regard to the latter, Ibrahim sharply criticises how welfarism is ‘ineffective’ because it does not ‘challenge the underlying exploitation of animals’; instead the concept permits the suffering of animals, and according to Ibrahim, a much more radical approach is needed.[12] In contrast to this criticism, it is interesting to note Garner’s defence of welfarism where he states that, despite its limitations, the welfare approach has ‘a great deal of political utility’, in that it offers a practical and realistic route to improving animal protection.[13]

It is submitted that this apparent division between animal welfare and animal rights is false and misleading. In this regard, Pietrzykowski observes that the division between animal welfare and animal rights is premised on the belief that to hold a legal right, one must possess legal personhood. Therefore, the argument is made that under the welfarist approach, animals do not possess any rights or interests.[14] In light of this criticism, it is argued that animals do possess some limited rights and interests under the welfarist approach. Whilst these rights and interests are granted to animals indirectly through the legislature’s desire to regulate issues such as animal health or farm safety,[15] they are rights and interests nonetheless and the arguments advanced by Ibrahim and others that a more radical approach is needed, whilst understandable from an animal rights perspective, is perhaps demanding more of the legal framework than is strictly necessary. In reality, animal welfare and animal rights both advance the interests of animals, but they do so at differing paces.[16]

Animal Law and Ireland

In this section, the provisions of the primary legislative framework in Ireland, the Animal Health and Welfare Act 2013, will be analysed. The 2013 Act replaced the outdated provisions of the Protection of Animals Acts, 1911-1965.[17] Heffernan argues that the 2013 Act was urgently needed in light of ineffective punishment regimes, poor enforcement mechanisms and a significant number of loopholes that resulted in many different types of animals not benefiting from the legislation.[18] Whilst the 2013 Act makes significant improvements, it is argued that the pace of development is too slow in Ireland. This can be seen both from the wording of the legislation and the particular method of protection employed by the legislature. In regard to the former, the 2013 Act suffers from a significant interpretative flaw in relation to the words ‘unnecessary suffering’ which is defined in section 2 as ‘pain, distress or suffering (whether physical or mental) that in its kind or degree, or in its object, or in the circumstances in which it occurs, is unreasonable or unnecessary’. Aaltola and Birgitta criticise this kind of legislative wording, which they state is ‘worded vaguely’ and merely ‘gives the impression that it protects animal welfare’.[19] Whilst the legislation prohibits unnecessary suffering in the context of a duty to protect animals,[20] a prohibition on animal cruelty,[21] the proper feeding of animals,[22] and a prohibition on animal fighting,[23] it is submitted that the definition of unnecessary suffering is too ambiguous to enforce in practice, as any animal welfare considerations could easily be overridden by other considerations such as economic, business or human health concerns.[24]

Whilst the specific wording of the provisions is a considerable weakness, it is submitted that the particular method of protection employed by the legislature is a more important weakness to examine. The Irish legislature choose to adopt legislation akin to the Scottish animal welfare legislation entitled the Animal Health and Welfare (Scotland) Act 2006.[25] Heffernan notes the criticism towards this approach and argues that Ireland should have followed the more ‘radical’, ‘very well thought out and straight forward’ legislative approach of England and Wales,[26] in the Animal Welfare Act 2006.[27] According to the World Animal Protection Index, the significant developments brought about by the 2006 Act have resulted in England and Wales having the least room for improvement in terms of global animal welfare standards. These improvements include the fact that reference to sentience is made in section 1 in regard to the scope of application of the legislation. Furthermore, reference is made to scientific developments for the purposes of expanding this scope in the future.[28] It is argued that such references indicate a willingness on the part of England and Wales to prioritise an essential principle of animal law which is the proper application of scientific knowledge to the classification process.[29] According to Dupré, the classification process is the ‘practical activity of assigning the vast numbers of organisms in the world to particular kinds’.[30] It is submitted that applying the proper application of scientific knowledge to this process is essential because different animals are regulated differently depending on their classification. Thus, factors such as sentience are crucial in terms of the level of protection that is afforded to a particular animal.[31] It is telling that no such references are made in the 2013 Act and therefore, whilst the 2013 Act contains some beneficial reforms, such as consolidation of previous statutes and no ownership requirements in terms of who the legislation applies to, it is submitted that the 2013 Act falls short of the protection that can be practically enacted in light of economic, agricultural and other considerations as is evidenced by the measures enacted in England and Wales by the 2006 Act.[32]

Conclusion

In this article, some of the primary principles of animal law have been examined, namely in relation to animal welfare and animal rights. The discussion began with an examination of the origins and foundations of animal law, especially from the perspective of morality. The discussion then moved to an in-depth analysis of animal welfare and animal rights. Here, it was concluded that the apparent division between the animal welfare approach and the animal rights approach is false and in reality, the difference between the two is purely a matter of how quickly change ought to be brought about in terms of animal protection. Finally, the discussion then developed to exploring how these approaches, along with comparative approaches, are reflected in the Irish animal protection legislation. Overall, it was concluded that Ireland still has significant progress to make in terms of the better protection of animals.

 

[1]* BCL (International) IV Candidate, University College Cork. Member of the Editorial Board of the Cork Online Law Review.

Rene Descartes, Discourse on the Method of Rightly Conducting One's Reason and of Seeking Truth in the Sciences (Republished by the Floating Press 2009) Part V <http://web.b.ebscohost.com/ehost/detail?sid=df7a6b2b-575a-441a-a611-3fa2ba6ee507@sessionmgr101&vid=0&format=EK&lpid=7b1434c8-8d08-448f-94e6-19e93eb5e9f0&rid=0#db=nlebk&AN=330730> accessed 29 October 2019.

[2] Elisa Aaltola & Birgitta Wahlberg, ‘Nonhuman Animals: Legal Status and Moral Considerability’ (2015) 38 (151) Nordic Journal of Law and Justice 83, 83 - 84.

[3] Maxim Fetissenko, ‘Beyond Morality: Developing a New Rhetorical Strategy for the Animal Rights Movement’ (2011) 1(2) Journal of Animal Ethics 150, 152.

[4] Robert Garner, ‘Animal Welfare: A Political Defense’ (2006) 1 Journal of Animal Law and Ethics 161, 162.

[5] Animal Health and Welfare Act 2013 [hereinafter ‘the 2013 Act’].

[6] Jordan Curnutt, Animals and the Law: A Sourcebook (1st Edn, Contemporary Legal Issues, 2001) 10.

[7] Joyce Tischler, ’The History of Animal Law, Part 1 (1972 – 1987) (2008) 1 Stanford Journal of Animal Law and Policy 1, 3.

[8] Lori Gruen, ’The Moral Status of Animals’ in The Stanford Encyclopedia of Philosophy (Fall 2017 Edition)  <https://plato.stanford.edu/archives/fall2017/entries/moral-animal/> accessed 29 October 2019.

[9] See John Dupré, ’In Defence of Classification’ (2001) 32(2) Studies in History and Philosophy of Science 203; Thomas H. Birch, ’Moral Considerability and Universal Consideration’ (1993) 15(4) Environmental Ethics 313.

[10] Aaltola & Birgitta (n 2) 84.

[11] Darian M Ibrahim, ‘The Anticruelty Statute: A Study in Animal Welfare’ (2006) 1 Journal of Animal Law and Ethics 175, 177.

[12] ibid 203.

[13] Garner (n 4) 173.

[14] Tomasz Pietrzykowski, ’The Idea of Non-personal Subjects of Law’ in Visa AJ Kurki and Tomasz Pietrzykowski, Legal Personhood - Animals, Artificialm Intelligence and the Unborn (Springer International Publishing, 2017) [4.5].

[15] See the next section for in-dept examples of how legislation governs these issues.

[16] Visa AJ Kurki, ’Why Things Can Hold Rights: Reconceptualizing the Legal Person’ in Visa AJ Kurki and Tomasz Pietrzykowski, Legal Personhood - Animals, Artificialm Intelligence and the Unborn (Springer International Publishing, 2017) [5.6].

[17] Protection of Animals Acts, 1911-1965.

[18] Sinead Heffernan, ‘Voiceless Victims: Suffering under Lenient Punitive Legislation In Ireland’ (2011) 29 Irish Law Times 103, 105.

[19] Aaltola and Birgitta (n 2) 89.

[20] The 2013 Act, section 11.

[21] ibid, section 12.

[22] ibid, section 13.

[23] ibid, section 15.

[24] ibid.

[25] Animal Health and Welfare (Scotland) Act 2006 (hereinafter ’the 2006 Scottish Act’).

[26] Heffernan (n 18) 106.

[27] Animal Welfare Act 2006 (hereinafter ’the 2006 Act’).

[28] World Animal Protection Index, United Kingdom of Great Britain and Northern Ireland: Animal Protection Index (2014) <https://api.worldanimalprotection.org/sites/default/files/api_uk_report.pdf> accessed 29 October 2019.

[29] See Dupré (n 9).

[30] ibid.

[31] See Charlotte E Blattner, ‘The Recognition of Animal Sentience by the Law’ (2019) 9(2) Journal of Animal Ethics 121, 122.

[32] World Animal Protection Index (n 28).

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Criminalisation & Consent: Sadomasochism in R v Brown

Criminalisation & Consent: Sadomasochism in R v Brown

Hugh Gallagher, Junior Editorial Board

 

Introduction

Consensual sadomasochism(SM) constitutes criminal assault in the United Kingdom.[1] This comes from R v Brown,[2] a House of Lords case in which a group of men were convicted for their involvement in consensual sadomasochistic sexual acts. The key issue facing the Court was whether consent was a valid defence to assault in these circumstances. The Court answered in the negative. Within the judgement Lord Templeman stated this question can only be answered through consideration of policy and public interest”.[3] The aforementioned judgement has been called “autonomy-constricting moralism”[4] while justified as an act to protect society by criminal sanctions against a cult of violence which potentially fostered proselytisation of young men”.[5] This critique will focus on key aspects of; the potential miscategorisation of the sadomasochistic acts therein as ‘violent’ as opposed to ‘sexual’, the consensual element at play, the dissenting judgements’ arguments on the acts’ illegality under existing laws on violence, and the level of harm issue in the ratio decedendi. With those in mind this critique will aim to highlight the potential legal weaknesses of this House of Lords decision.

 The Facts, Judgement, and Ratio Decedendi of R v Brown [1993] UKHL 19

In this case, a group of men (appellants) willingly participated in the commission of sadomasochism against each other, including genital torture, for the sexual pleasure it evoked.[6] Passive partners consented to the acts committed and suffered no permanent injury.[7] The activities occured in private; albeit recorded solely for the delectation of the group.[8] The appellants were tried on charges of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 of that Act. The initial trial judge held that the consent of the victim afforded no defence to the charges, the appellants then pleaded guilty and were sentenced to terms of imprisonment.[9] The appellants appealed against their convictions, contending that a person could not be guilty of assault of that nature in respect of consensual acts conducted in private. The Court of Appeal dismissed their appeals.[10] The appellants appealed to the House of Lords who held, with Lord Mustill and Slynn dissenting, that consensual sadomasochistic encounters which occasion actual bodily harm to a victim is an assault. They held this in the interests of public policy. It thus followed that the appeals would be dismissed.[11] The law following Brown seems to be that consensual assault causing ‘harm’ above the level of assault (such as in sadomasochism) is prima facie unlawful unless such behaviour falls within one of the exceptional categories grafted by the common law, which would subsequently legalise the conduct in question.[12]

Sadomasochism: Sex or violence?

In Brown the sadomasochistic acts were misguidedly characterised as ‘seriously violent’ and not ‘sexual’ thereby making them incapable of being ‘ratified’ by the concept of consent.[13] Hence the judgement assumed: ‘that sex and violence are distinct and easily separable’ and that ‘consent to one is not necessarily consent to the other’.[14] So, if the law insists upon mutual exclusivity, ‘is Brown about sexual practices between consenting adults in private, or is it about deviant, legally unprotected ‘violent’ sexual practices’?[15] To support the former statement, it must be established that SM is legitimate sexual expression albeit involving violence, if so, then consent should and does play a role determining the criminalisation of any resulting harm. In Brown the ‘violent’ categorisation was founded on the infliction of pain within the acts. Yet what if pain is a subjective experience intrinsically linked with pleasure within the human nervous system? Hence, pain in a sadomasochistic context may not constitute ‘pain’ but sexual pleasure. Recent studies shed light on this phenomenon.  In one study, researchers used fMRI to visualise the brains of women as they stimulated themselves to climax, found that more than 30 areas of the brain were active, including those involved in pain.[16] Another found cancer survivors, who had spinal nerves severed to relieve chronic pain, lost the ability to have orgasms.[17] If their pain returned, so did the orgasms. Then a study into paracetamol affecting emotions[18] found the painkilling drug relieved emotional pain, but blunted feelings of pleasure. The drug levelled-off highs as well as lows – an indicator that pain and sexual pleasure operate on shared biological pathways. For human beings, then, it appears that pain and pleasure are intertwined.[19] Nafsika Athanassoulis communicated how this relates to Brown quite eloquently with the words “sadomasochism is sex expressed through violence”.[20] Hence the characterisation of Brown as ‘violent’ is debunked and it is now asserted that sadomasochism is better characterised as ‘sexual’.

Consent in Brown

If accepted that Brown sadomasochism is sexual then it is subject to the general rules of sexual consent and examined alongside the exceptional category of HIV transmission. If consent means ‘factual expressive consent’ [21], this was achieved in Brown. The conditions of freedom, knowledge, capacity, and motivation that are deemed necessary to ‘transmute X’s factual (expressive) consent into legal consent’,[22] were fulfilled so the participant’s consent was not ‘legally defective’ due to coercion, deception or incompetence.[23] Hence in Brown sadomasochism was sexually consensual. Robin Mackenzie criticised that only isolated acts of apparently sudden violence were exhibited on video to the judges, because ‘were the actions placed in the context of on-going negotiations and gradually increased stimulation (as seen in other parts of the video), a more empathetic understanding of such practices as [sexually consensual] might be, and indeed should be fostered’.[24] However there is the element of harm occurring within Brown but a common law exceptional category exists which allows for informed consent to the risk of serious harm for sexual ends.

This is R v Dica.[25] Dica concerned the transmission of HIV, which the law defines as grievous bodily harm (GBH) - a significantly more serious level of consensual harm than Brown allows for. Dica stated that parties can consent to the risk of transmission, which can be construed to mean that one can consent to the risk of serious harm for the sake of sexual gratification. Brown, by contrast, states that parties cannot consent to the risk of actual bodily harm (ABH) and ‘wounding’ for the sake of sexual gratification.[26] Cowan observes that Dica allows for consensual harm within a sexual context, which justifies its derogation from Brown on the assumption the acts therein were ‘violent’. However this distinction from Brown is highly questionable if it is ‘sexual’ as our previous critique asserted. Furthermore the ‘harm’ in Brown came nowhere near the level of harm which was permissible in Dica, as HIV infection is tantamount to permanent debilitating illness and ultimately, premature death[27] whereas in Brown there was no lasting injury. The Dica ratio itself states there is a realm of private sexual relations in which the criminal law should not interfere,[28] such logic which is clearly applicable to Brown. Therefore there is little evidence to justify this exclusion of Brown from the Dica exception. If sadomasochism, in the absence of permanent injury, constitutes the infliction of violence, it is illogical that HIV infection resulting from consensual risk-taking does not.[29]

Dica emphasises the severity of HIV infection to distinguish it from the ‘ordinary’ risks of unprotected sexual intercourse, such as unwanted pregnancy or common STIs. One can implicitly consent to these ‘lesser’ risks without an exceptional category. It is asserted that while Dica is right to distinguish the severity of HIV from the relative triviality of ‘ordinary’ sexual risks, it is misguided in its attempts to contrast SM with the ‘ordinary risks’, by equating it with HIV infection.[30] This is questionable as Dica can seem to implicitly propose that one, if fully informed, ‘can expressly consent to the risk of HIV infection but not SM, because the risk of HIV is still one of those risks that (‘ordinary’) heterosexual intercourse incurs’[31] which can be construed to evidence the court’s normative approach to sexually deviant homosexual practices. It is problematic if the law perceives the heterosexual transmission of a fatal disease more positively than impermanent/superficial injury caused by homosexual sadomasochism.

Inclusion of sadomasochistic behaviour as an offence under assault

Henceforth this critique shall proceed assuming that the courts are not in a position to accept sadomasochism as a legitimate means of sexual expression. It will focus on the legal content of the judgements in R v Brown, with an emphasis on the rationale of those dissenting. As previously outlined, the decision in Brown was made with public policy at its core, to protect society through criminal sanctions from a ‘cult of violence’ which could convert young men to it.[32] Yet, Lord Mustill outlines in his dissenting judgement, ‘corruption of youth is already catered for by the existing legislation’ ‘if there is a gap in it which needs to be filled the remedy surely lies in the hands of Parliament, not in the application of a statute which is aimed at other forms of wrong-doing’.[33] Therein lies two important statements that reference other aspects of this judgement. That the public policy concern was addressed within pre-existing legislation, hence the Brown ratio is undermined and that there was not sufficient ground for declaring the Brown activities to be criminal under the Offences against the Person Act 1861.[34] The later matter is debatable with contentions that the majority focused on the wrong legal idea,[35] they fixated on establishing the sadomasochistic acts were criminal and did not adequately consider ‘Were they criminal under the Act of 1861?’. Lord Mustill stated the statute was “intended to penalise conduct of quite a different nature” and ponders “should in this new situation be interpreted so as to make it criminal”.[36] Furthermore, Lord Slynn in his dissenting judgement in response to the DPP’s submission that it was a matter of policy; should the courts “adopt a paternalistic attitude as to what is bad or good for subjects, in particular as to deliberate injury”? He established it was an area of policy where social and moral factors were extremely important and changeable, hence “it [was] a matter of policy for the legislature to decide.”[37] He further asserted it was not for the courts “to introduce into existing statutory crimes, concepts which did not properly fit there”. In his eyes it was the duty of Parliament to amend the Act of 1861 or the Sexual Offences Act 1967 for the Brown activities to be criminal under them.[38] Hence it becomes apparent that the House of Lords, in their revulsion and eagerness to sanction the behaviour in Brown, may have extended the Offences Against the Persons Act 1861 to cover actions distinctly outside of its legal remit.

Level of harm

Aside from its inclusion under assault, there is another legal issue in Brown: the level of harm. In Brown the Lords heard from Mr. Purnell Q.C. that the appellants were liable under general law because the harm was to a degree where it went from non-criminal consensual violence to criminal.[39] Hence the court sought to establish a border between the two, thus the level of harm appears in Brown’s ratio.[40] Lord Slynn raised his concerns on this matter stating if a line is drawn “to be workable, it cannot be allowed to fluctuate within particular charges”.[41] This has been evoked in recent works which ask ‘are the courts to start evaluating the validity of consent on the basis of some undeclared judicial barometer of the severity of harm?’[42] Perhaps the qualifying level of harm is arguably determined by judicial creativity on a case by case basis?[43] If we look to preexisting examples of applying the level of harm principle the negative answer becomes arguably more concrete. The Brown practices have been equated with those in R v Emmett,[44] where a man tied a plastic bag over the head of his partner and on another occasion poured lighter fluid over her and set it alight in the pursuit of sexual gratification, and was therefore deemed to cause harm of too high a level to be legal. But this is debatably wrong, because the risks posed and harm caused in the latter were arguably much higher than those in Brown, including loss of consciousness and serious burns.[45] The European Court of Human Rights subsequently distinguished R v Wilson,[46] which concerned the branding of a woman by her husband for sexual gratification but was deemed legally exempt under assault due to the exceptional category of body modification (specifically tattooing), because the injuries in that case were considered ‘not at all comparable in seriousness’[47] with those in Brown or Emmett. Yet in Wilson the injuries themselves amounted to ABH namely the level of harm incurred in Brown. Hence if we are to look at how the precedent of Brown has been interpreted it solidifies the argument that Brown is an inherently poor judgement with respect to the factors considered in its determination.

Conclusion

R v Brown and the subsequent criminalisation of the sadomasochistic behaviour therein under the Offences against the Person Act 1861 coupled with the legal precedents it created are inherently flawed. As established within this critique the Court’s characterisation of Brown as ‘violent’ is questionable given the compelling evidence and arguments that is is better understood in a ‘sexual’ context. Had it been viewed within this context the consensual nature of the sadomasochistic behaviour could have absolved the appellants of criminal culpability. Furthermore, if accepted as ‘sexual’, then Brown’s potential inclusion under Dica becomes notably less objectionable and thus the question of allowing one to consent to GBH but not ABH sheds light on the Court’s normative approach to Brown. Additionally, the dissenting judgements in Brown present insight into the Court’s potential manipulation or misconstruing of the Act of 1861 in their efforts to criminalise the aforementioned actions and express a notable concern over the usage of a ‘level of harm’ principle in a legal setting. As evidenced by the subsequent case examples provided they were undoubtedly and assuredly correct to voice such worries. Hence the legal weaknesses in Brown are apparent and it is my assertion, with these in mind, that the criminalising of sado-masochistic activities in this case was plainly wrong.

[1]Halsburys Laws(5thedn, 2010) vol 26, para 125.

[2][1993] UKHL 19.

[3] R v Brown[1993] UKHL 19.

[4]Paul Roberts, ‘The Philosophical Foundations of Consent in the Criminal Law’ [1997] 17 Oxford Journal of Legal Studies389, [413].

[5]R v Brown[1993] UKHL 19.

[6]R v Brown[1993] 2 All ER 75.

[7]Ibid.

[8]Ibid.

[9]Ibid.

[10]Ibid.

[11]Ibid.

[12]Halsburys Laws(5thedn, 2010) vol 26, para 125.

[13]David Ormerod, Smith & HoganCriminal Law(12thedn, OUP 2008).

[14]  Sharon Cowan, The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic ‘Assaults’ in Andrew Ashworth and Eric M. Clive Essays in Criminal Law in honour of Sir Gerald Gordon(Edinburgh Studies in Law) (English University Press 2010).

[15]Nicholas Bamforth, ‘Sadomasochism and Consent’ [1994] Criminal Law Review661, [663]

[16]Komisaruk, Barry & Wise, Nan & Frangos, Eleni & Liu, Wen-Ching & Allen, Kachina & Brody, Stuart,  Women's Clitoris, Vagina, and Cervix Mapped on the Sensory Cortex: fMRI Evidence (2011) The Journal of Sexual Medicine 8 <https://www.researchgate.net/publication/51529414_Women's_Clitoris_Vagina_and_Cervix_Mapped_on_the_Sensory_Cortex_fMRI_Evidence> accessed 17 October 2019.

[17]Aerts, Enzlin, Verhaeghe, Poppe, Vergote, Amant, Long-term sexual functioning in women after surgical treatment of cervical cancer stages IA to IB: a prospective controlled study (2014) International Journal of Gynecological Cancer <https://www.ncbi.nlm.nih.gov/pubmed/25180463> accessed 17 October 2019.

[18]Durso, Luttrel, Way, Over-the-Counter Relief From Pains and Pleasures Alike: Acetaminophen Blunts Evaluation Sensitivity to Both Negative and Positive StimuliPsychological Science26(6), 750–758. <https://doi.org/10.1177/0956797615570366> accessed 17 October 2019.

[19]Zaria Gorvet, Why pain feels good, (BBC Future,1 October 2015) <https://www.bbc.com/future/article/20151001-why-pain-feels-good> accessed 17 October 2019

[20]Nafsika Athanassoulis, ‘The role of consent in sado-masochistic practices’ (2002) 8 Res Publica141.

[21]Kimberly Kessler Ferzan, “Clarifying Consent: Peter Westen's The Logic of Consent”, [2006] 2 Law and Philosophy25.

[22]Peter Westen, The Logic of Consent: the diversity and deceptiveness of consent as a defense to criminal conduct (Ashgate 2004).

[23]Kelly Egan, ‘Morality-based Legislation is Alive and Well: Why the law permits consent to body modification but no sadomasochistic sex’, [2007] 70 Albany Law Review1615, [1616].

[24]Rosemary Hunter, Claire McGlynn and Erika Rackley (eds) Feminist Judgments: From Theory to Practice(Hart Publishing 2010).

[25][2004] EWCA Crim 1103.

[26]Sharon Cowan, The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic ‘Assaults’ in Andrew Ashworth and Eric M. Clive Essays in Criminal Law in honour of Sir Gerald Gordon(Edinburgh Studies in Law) (English University Press 2010).

[27]Roger Pebody, ‘Life expectancy for people living with HIV’ (Aidsmap, May 2018) <http://www.aidsmap.com/about-hiv/life-expectancy-people-living-hiv> accessed 17 October 2019

[28]R v Dica  [2004] EWCA Crim 1103.

[29]Natalie Connor, ‘A contemporary critique of R v Brown and the legal status of consensual sado-masochism’ The Student Journal of Law

[30]Natalie Connor, ‘A contemporary critique of R v Brown and the legal status of consensual sado-masochism’ The Student Journal of Law

[31]Sharon Cowan, The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic ‘Assaults’ in Andrew Ashworth and Eric M. Clive Essays in Criminal Law in honour of Sir Gerald Gordon(Edinburgh Studies in Law) (English University Press 2010).

[32]R v Brown[1993] UKHL 19.

[33]Ibid.

[34]Ibid.

[35]David Ormerod, Smith & HoganCriminal Law(12thedn, OUP 2008).

[36]R v Brown[1993] UKHL 19.

[37]Ibid.

[38]Ibid.

[39]Ibid.

[40]Ibid.

[41]Ibid.

[42]David Ormerod, Smith & HoganCriminal Law(12thedn, OUP 2008).

[43]Natalie Connor, ‘A contemporary critique of R v Brown and the legal status of consensual sado-masochism’ The Student Journal of Law

[44]Times, October 15, 1999.

[45]Ibid.

[46]R v Wilson[1996] Crim LR 573.

[47]Laskey, Jaggard and Brown v United Kingdom (1997) 24 E.H.R.R. 39.

 

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First Year Tip Series: Introduction to Case Notes

First Year Tip Series: Introduction to Case Notes

Ben Conlon, Senior Editorial Board (Online Editor)

A case note is something that every law student is asked to write at some point in their studies and, without some direction, can be a daunting task. This article aims to briefly explain what a case note is, what the benefits of writing a case note are, and how to actually write a case note. Further information is also included at the end of the piece about the Gernot Biehler Case Note competition.

What is a Case Note?

A case note is a summary and analysis of a single case, as opposed to an article, which examines an area of law. A case note should outline the facts of the case, as well as its ratio decedendi, and also provide a critical analysis of the decision. The analysis should concern the correctness of the decision, with reference to case law, accepted logic and academic opinion. A good case note usually contains analysis of the effect that the decision may have on future cases, especially if the decision is a departure from a previously settled point of law.

What to Keep in Mind when Selecting a Case

If you have the option of selecting the case you would like to write on, below are some factors you should keep in mind:

  • Try to pick an area of significant concern or a topical issue
  • Does the case seem to ignore reason/common sense?
  • Is there a recent case where the court departs from precedent or a position accepted in other jurisdictions?
  • Does the decision which may have significant extra-legal repercussions.
  • Will this decision prompt interesting results in future cases?
  • Was this the first case in a newly-legislated area?
  • Has there already been substantial academic commentary written on this case? Often it may be better, for originality’s sake to write on a new case, or one that has not been subject to as much discussion.

How to Write a Case Note

(A) Research

As with any piece of legal writing, the first step in writing a case note is conducting the necessary research. Read the case multiple times and note down the facts and the ratio decedendi. The case should be read in the context of the area of law as a whole; understanding how the case relates to existing principles and case law is key in forming a critique and analysis. Further consideration should be given to whether the law is still relevant, and whether it is still considered to be a strong precedent. While a case note tends not to rely on academic sources as much as a legal essay, it is still worth exploring academic commentary around the case, from which a greater perspective can be gleaned.

(B) Writing

There is no rigid structure for how a case note should be written, but this article will attempt to lay out a basic structure and guide for writing the case note itself. It is worth noting that many brilliant case notes do not follow this structure, and can often depart from it dramatically, so there is no pressure to follow this structure.

As is the case in most legal writing, it is generally recommended that the piece is broken down into separate headings. This can make the case note easier to follow, and direct the reader to the important elements of the piece. When writing a case note for a legal journal or a university assignment, regard should be had for the word-count when deciding on how specific the headings are; if there is a lower word-count, it might make sense to merge some of the headings together.

(i) The Introduction

The introduction of a case note should introduce the case and indicate the court in which it was decided. It should lay out the structure of the case note, explain the significance of the case (i.e. the change in the law brought about by the case), and briefly outline your opinion of the case.

(ii) The Facts of the Case

The second section of the case note should briefly outline the facts of the case. It is important to keep in mind that a case note is not simply a summary of a case; the facts simply set out the background for your analysis. Due to this, this section of the case note should not be too long, and the aim should be to illustrate the facts that were relevant in the court’s reasoning, rather than the entirety of the factual circumstances. This is generally a good place to mention the decisions of the lower courts in relation to the case at hand.

(iii) The Decision and the Ratio Decidendi

This section of the case note should deal with the reasoning that lead to the court’s decision, and specific emphasis should be placed on the key decisions and the ratio decedendi. Here, detail should be provided on the case law that the court either relied on or moved away from, and a short explanation of the reasoning behind such moves should be given. The way that the decision was handled should also be mentioned (e.g. was the judgment suspended to allow the government to amend the issue?), as this is often indicative of the attitude of the courts in relation to the issue at hand.

(iv) Critical Analysis/Further Discussion

The primary aim of a case note is to critically analyse a particular decision and the effect it has on the law. “Critically analyse” can be a confusing phrase, so considering some of the following questions may be a useful starting point:

  • Is the logic of the judgment sound? Do you agree with it? Why or why not?
  • Does the judgment differ or depart from previous decisions? Does it follow some aspects but not others?
  • How does the judgment compare with international precedent?
  • Does the judgment reflect political/economic/cultural tensions?
  • Does the judgment fail to acknowledge any legal or extralegal repercussions it may have?
  • Has the judgment failed to address any important questions?
  • Do you agree with the decision? Why?

It is worth noting that “critically analyse” does not mean you have to disagree with a judgment; the best critical analysis praises some aspects of a judgment, and attacks others. Commentary on previous related decisions may help to inform your opinion on a case, and help with the critical analysis. It is recommended that some thought is given to how the case may have a lasting impact, and it should be acknowledged whether or not the case might be open to appeal. However, as in any legal piece, it is advisable that a certain degree of critical analysis is woven throughout the piece, rather than isolated to one section.

(v) Conclusion

The conclusion should very briefly summarise the decision, the flaws and achievements that have been discussed throughout the case note, and your overall opinion. A general rule for any piece of writing is that new substantive arguments that have not been discussed in the body of the piece should not be introduced in the conclusion. Finally, some concluding remarks could be offered about the effect of the case on that area of law, and how future cases may be influenced by it.

Some Final Tips

As is the case with any piece of legal writing, there should be a cohesive thread of argument that runs through the case note, but this may be difficult to  pick up on  after several hours of writing by yourself.  As a result, the argument you have crafted might make sense to you, but not to a new reader. One of the best ways to deal with this is to ask someone else to read over the piece and offer some of their own comments.

While it is always advised to read through previous academic pieces written on your chosen area, make sure when citing academics that you are also evaluating their arguments to the reader. Do you agree with what the academic has said? How does their argument bolster yours? Or, how would you refute what the academic has argued? Analysing the academic commentary you have utilised is key to presenting critical analysis in your piece.

In the same vein, when presenting your arguments, it is recommended that you recognise ‘the other side.’ This is particularly important in controversial areas of law, like socio-economic rights, where presenting a one-sided argument will reflect poorly on the author’s critical analysis.

As a final note, the TCLR Online has published many case notes, and reading over these can help you to form a picture of what a case note looks like, and what a case note should contain. Many longer case notes have also been published in the print version of the TCLR, which can be found on the legal article database Heinonline.

The Gernot Biehler Case Note Competition

The Trinity College Law Review runs an annual case note competition in honour of Dr. Gernot Biehler. Dr. Biehler was a distinguished fellow of Trinity College and a lecturer in international law and conflicts of law, who died aged 48. Dr. Biehler was a keen supporter of the work of the Law Review.

The competition is open to first and second year undergraduate students from all universities. Case notes are subject to a word limit of 3,000 words excluding footnotes, and the deadline for submitting your entry is the 17th January 2020. The winning entry is published in the print journal of the Trinity College Law Review, and the winner receives a cash prize of €250. More information on the competition can be found at www.trinitycollegelawreview.org/submissions/ .

 

 

 

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The Future of Climate Litigation in Ireland: An Appraisal of Climate Case Ireland

The Future of Climate Litigation in Ireland: An Appraisal of Climate Case Ireland

Eoin Forde, Senior Editorial Board (International)

Introduction

On September 19th, Mr Justice Michael MacGrath delivered the much-anticipated ruling on Friends of the Irish Environment’s (“FIE”) action against the Irish government, in a dispute known as ‘Climate Case Ireland’. Submissions were delivered in January to a High Court chamber filled with supporters of FIE’s cause,[1] and their legal arguments considered numerous points of law not limited to constitutional rights, separation of powers and the extent of justiciability of executive actions. FIE’s central claim was that the Government’s National Mitigation Plan 2017 failed to adequately respond to the targets set in various UN accords such as the Kyoto Protocol and 2015 Paris Agreement, and that this inaction was endangering the fundamental rights of Irish citizens.

In dismissing the judicial review claim, MacGrath J considered the National Mitigation Plan 2017 to come within the realm of policy-making, which is exclusively reserved for the executive branch of government. Furthermore, it was held that even if such governmental climate policy was found to be justiciable, it could not be held to be impermissible due to the wide margin of discretion given to the government in formulating the 2017 Plan as per the  [2] Over the course of his ruling MacGrath J also clarified the precedential status of locus standi for non-natural persons in environmental cases, and raised issues regarding the separation of powers doctrine and more recent developments in ECHR jurisprudence.

Background - National Mitigation Plan 2017

This judicial review application concerned the government’s implementation of the National Mitigation Plan 2017, which was enacted pursuant to s3 of the Climate Action and Low Carbon Development Act 2015. The 2015 Act, according to its Long Title, was enacted by the government for the purposes of ‘pursuing the transition to a low carbon, climate resilient and environmentally sustainable economy’[3] – the achievement of this by the end of 2050 is referred to in this Act as the ‘National Transition Objective’.[4] To achieve this National Transition Objective, the Minister for the Environment is empowered to formulate and submit to the Government for approval a ‘National Mitigation Plan’, and a ‘National Adaptation Framework’.[5] The first of these measures, the National Mitigation Plan, was the focus of this case.

The National Mitigation Plan is a series of policy recommendations that are geared towards achieving the previously mentioned National Transition Objective, and its formulation is guided by s 4(7) of the 2015 Act. According to this section, the Minister, when formulating a National Mitigation Plan, must have regard to:

  • State obligations under EU law;
  • The promotion of sustainable development;
  • Cost-effectiveness;
  • Relevant scientific advice; and the
  • Recommendations of an Advisory Council set up under the 2015 Act.[6]

When the National Mitigation Plan is submitted to Government for their approval, the Government is obliged under s3(2) to have regard to the United Nations Framework Convention on Climate Change 1992, governmental policy on climate change, climate justice, relevant EU law and the Environmental Protection Agency’s projection of future greenhouse gas emissions.

Arguments of Friends of the Irish Environment

In their submissions, FIE considered the 2017 Plan enacted by the Minister to be:

  • An ultra vires employment of Ministerial power under the 2015 Act;
  • A breach of Constitutional and ECHR rights.[7]

Pursuant to this, FIE submitted that the 2017 Plan be quashed, along with seeking various declaratory reliefs outlining the inadequacy of the 2017 Plan, and a declaration from the government of their intention to enact a plan under the 2015 Act that more effectively responds to the issue of greenhouse gas emissions.[8] In support of these arguments, FIE also asserted that the 2017 Plan would fail in reducing Ireland’s greenhouse gas emissions by 25-40% by 2020, an obligation stemming from Ireland’s position as an Annex I country under the Paris Agreement 2015. The two arguments can be dealt with sequentially.

(1)   Ultra Vires the 2015 Act

FIE’s first claim came under the argument that the Minister’s enactment of the National Mitigation Plan 2017 was ultra vires the 2015 Act. The argument goes as follows – the Minister is only empowered to produce a National Mitigation Plan that conforms to the 2015 Act; if the 2017 Plan is considered to be incongruous with respect to the aims of the 2015 Act, it is therefore not a plan the Minister was empowered to make. Following this, it may be quashed.

The first issue to be decided is if the 2017 Plan is even reviewable by the court in the first instance. This question of justiciability – that being, whether or not the 2017 Plan is amenable to judicial review - stems from considerations of the separation of powers doctrine. MacGrath J explained this simply as, ‘The Government and the Government alone may exercise the executive powers of Government’.[9] The powers conferred to the Government are numerous and often ill-defined, but it is enough to say that the most relevant executive power to consider in this case is that of policy-making. Policy-making is considered one of the core functions of the executive branch of government, and cannot be exercised by any other branch. This was illustrated clearly by Hogan J in the case of Moore v Minister for Arts, Heritage and the Gaeltacht:

‘The system of separation of powers provided by the Constitution is quite clear, namely, that matters involving policy and political choices of this nature are matters for elected representatives and must therefore by definition be either executive or legislative powers which cannot appropriately be discharged by an unelected judiciary’.[10]

This principle is even more appropriate in cases that consider the appropriation of public funds in relation to the national interest; MacGrath J points to the ruling of Charleton J in the case of Garda Representative Association v Minister for Finance on this point:

‘The Government has the power to set policy on areas of national interest and to disperse funds in accordance with that policy. These decisions are, in my view, in a category beyond the scope of judicial review’.[11]

What this means for the 2015 Act and subsequent 2017 Plan is that if such documents are found to be an extension of Governmental policy-making as opposed to more regular executive function, they may be non-justiciable. Furthermore, the fact that the 2017 Plan also considers disbursement of public funds may put it out of reach of judicial review regardless, according to the judgment of Charleton J in Garda Representative Association. As a result, the exact wording of the 2015 Act and 2017 Plan was considered by MacGrath J.

In reference to the reduction of emissions by 2050 (the National Transition Objective), the Government’s duty according to the 2015 Act is to ‘endeavour to achieve’ it, not just ‘achieve’ it. Similarly, the purpose of the 2017 Plan according to the 2015 Act was merely to provide ‘policy measures’ that ‘in the opinion of the Government’ may manage greenhouse emissions.[12] As a result, this appears to amount prima facie to deal with issues of policy and public funds – categories of Governmental activity which are traditionally all but out of reach from judicial review. Stemming from this, it would seem that the 2017 Plan was prima facie non-justiciable. However, MacGrath J did not formally state this, instead opting in the interests of comprehensiveness to analyse the legitimacy of the 2017 Plan as if it were justiciable.

If justiciability is assumed, the difficulty in FIE convincing the court to intervene in the enactment of 2017 Plan is still considerable. To warrant judicial interference in the policy-making sphere of the executive, there would have to be a ‘clear disregard’ shown by the executive for the Constitution in its actions. This was noted in the case of TD v Minister for Education,[13] where Murray CJ ruled that actions taken by the executive are presumed to be compatible with the Constitution, unless a litigant can show that the Government acted in ‘clear disregard’ of its constitutional obligations.[14] According to Murray CJ, ‘clear disregard’ meant a ‘conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness’.[15]

Following this, it is clear that the policy considerations of the 2017 Plan were unlikely to have ever reached this high watermark. As a result, MacGrath J rejected this line of argument from the applicant without needing to determine definitively if the 2017 Plan was even justiciable to begin with.

(2)   Breach of Constitutional and ECHR Rights

The other line of argument pursued by FIE came in the form of alleging a direct breach to the Constitutional and ECHR rights of Irish citizens. Firstly, the court had to consider the locus standi of Friends of the Irish Environment in this case. Normally, the inability of a non-personal body such as Friends of the Irish Environment to be interested in rights such as bodily integrity and life would have precluded them from taking this challenge. However, following the rulings of Merriman v Fingal County Council[16] and Digital Rights Ireland v Minister for Communications,[17] this rule has been relaxed in cases relating to environmental issues and those where the body corporate has a bona fide interest in its members and the public at large. On this basis, MacGrath J noted that he was ‘satisfied to accept… that the applicant has established that it has locus standi’.[18]

Turning firstly to the Irish Constitutional rights – FIE alleged ‘an infringement to the right to life, right to bodily integrity, and right to an environment consistent with human dignity’.[19] These were all quickly dismissed by MacGrath J, with the judge noting that ‘it cannot be concluded that it is the plan which places these rights at risk.’ It would appear that the lack of specificity in the 2015 Act and 2017 Plan which precluded it from constituting an ultra vires policy also ensures its inability to be considered causative in infringing constitutional rights. In the words of MacGrath J, the 2017 Plan is ‘but one, albeit extremely important, piece of the jigsaw’.[20]

Following this, MacGrath J considered the alleged breaches to Articles 2 and 8 of the European Convention on Human Rights – the right to life and the right to respect for family and private life. On this point, MacGrath J was invited to consider the recent ruling in the Dutch case of Urgenda.[21] In Urgenda, the Dutch Court of Appeal found the State to have acted breached Articles 2 and 8 of the ECHR. The ruling in Urgenda was especially surprising due to the active role the Court appeared to take in intervening in government function, and its invocation of scientific literature in reaching its conclusion. In Urgenda, the Court noted that the Dutch government’s failure to put in measures to ensure it was likely to reach a 25% reduction in greenhouse gas emissions by 2020. What was especially notable about this ruling was that even though the government had submitted that they estimated greenhouse gas emissions to fall by 19-27%, this wide ‘margin of uncertainty’ was considered unacceptable by the Court.[22]

However, MacGrath J did not consider such a ruling to be applicable to the case at hand. Noting that ‘This court knows little of the duty of care under Dutch tort law’, MacGrath J noted that the separation of powers in the Dutch constitutional order may be different to that of Ireland’s and that causality was not a major factor in the ruling of Urgenda. As a result, it was found that there was nothing in Urgenda that made the ruling binding in this case. Furthermore, one of the factors that determines a violation of Article 8 ECHR rights is the legality of the impugned legislation. As a result, with MacGrath J having already considered the 2017 Plan to be prima facie lawful, an appeal to ECHR rights on this point was unlikely to ever be fruitful.

MacGrath J noted further that because the case of Urgenda considered an issue relating to articles of the ECHR that have not directly addressed by the European Court of Human Rights itself, Irish courts are not necessarily obliged to follow it. This principle was enunciated in McD v L & M[23] with Fennelly J noting that:

‘It is vital to point out that the European Court has the prime responsibility of interpreting the Convention… The courts of the individual states should not adopt interpretations of the Convention at variance with the current Strasbourg jurisprudence’.[24]

Following this, MacGrath J noted that wider arguments such as general national policy in relation to climate change were not made by FIE – after all, this case was merely a judicial review application concerning the executive’s action of adopting the 2017 Plan. In this case, the purpose of the 2015 Act itself was not called into question for its efficacy, nor was there an argument made that the Irish government was failing its citizens in general in relation to its perceived nonfeasance in the issue of climate change. According to MacGrath J, this is all to say that in relation to the issues that FIE’s judicial review application could raise, the Government could not be compelled to quash or alter its current climate change policy as enunciated in the 2017 National Mitigation Plan.

Discussion – What Next?

On the face of it, this ruling is a heavy blow to Irish climate activism, and  a reinforcement of the deferential attitude of the judiciary towards actions of the executive that has been a constant in recent Irish jurisprudence. Climate activists may find some solace in the fact that the Court seemed to explicitly recognise the issue of climate change in a manner not yet seen in the Irish courts, with MacGrath J going as far as to say in the first page of his ruling that ‘The threat to the earth, its inhabitants and ecosystems, posed by the effects of climate change is well documented. The need for action is undoubted’.[25] That being said, it does appear that if the Government is to be held to task on its climate change policy, it does not seem likely that the Irish Courts are going to be arena in which this fight is won.

However, all is not lost for Irish environmental activism. Firstly, MacGrath J’s endorsement of the idea that it is a party’s interests – not necessarily its enjoyed rights – that gives it locus standi suggests that environmental interest groups such as FIE will have little issue in having their legal standing recognised in future cases. This is a welcome advancement in the Irish judiciary’s appreciation of the concept, and may open the door for future cases to be taken by representative groups.

Secondly, implicit in the judgement is the suggestion that a constitutional challenge to the 2015 Act itself may be a possible avenue of litigation.  While the scope of this judicial review limited the Court’s focus to the 2017 Plan in relation to the goals of the 2015 Act, there is nothing stopping an interest group challenging the 2015 Act in relation to its inadequacy in dealing with the climate crisis. However, this approach may run into numerous issues, such as nonfeasance on a policy level being a difficult ground for a court to reach a finding of unconstitutionality. There is also the further issue that it could be argued by the State that the 2015 Act is not the extent of the Government’s policy in relation to tackling climate change, and as a result this may be a difficult route to take.

There is also the suggestion in this ruling of the possibility of taking a free-standing challenge to the constitutionality of the Government’s action by means of a proportionality analysis, notwithstanding any particular legislative developments. Such an approach may force the judiciary to consider more seriously the ruling in Urgenda, but the nature of the Irish separation of powers may yet again persuade the judiciary to grant enough deference to the executive on this point, notwithstanding ECHR considerations.

This is all to say that the Court may be effectively hamstrung in dealing with an issue as multi-faceted and policy-oriented as climate change, according to the Irish constitutional order – if the Supreme Court could not be persuaded to intervene in the case of TD which brought with it clear alleged impingements of fundamental rights by the Government and a cost to the state of (mere) millions, it is unlikely that the an Irish court could be convinced to intervene in an issue which less clearly affects fundamental rights, and would cost at least hundreds of millions. Such issues, it would seem to the court, should be left to the Dáil.

Conclusion – Right Words, Wrong Place

In summation, it appears that the efforts of climate activists in Ireland may not have garnered such judicial support as to trigger a High Court rebellion against the executive. Nor, it should be stated, would such a response have been particularly welcomed. If there is a silver lining to be taken from the ruling in this case, it is that Irish interest groups may be better informed that the Dáil itself might be more responsive to a reformulation of Ireland’s climate change policy. After all, it is the elected representatives in the legislature and executive that the Irish citizenry have given this power to, to be checked by the judiciary in situations of the most ‘clear disregard’ for our Constitution.

The ruling of MacGrath J in this case was noted by Suryapratim Roy to be ‘clearly articulated and accessible’,[26] an observation with which this commentator agrees. While FIE have indicated their dissatisfaction with the ruling and mooted the possibility of an appeal,[27] it would seem that a more successful result would come from a separate case against the 2015 Act itself, a freestanding proportionality challenge against the executive, or at the very least a rephrasing of the arguments in this case with more weight being placed on the decision in Urgenda and its ECHR implications.

As our constitutional order matures and our branches of State settle into a more fixed division of power, it may be seen that the avenue in which social concern expresses itself becomes just as, if not more, important than the prominence of the social concern itself. Taking this to its logical conclusion, the argument could be made that the petitioning of the government for a policy change, or even a citizens’ assembly on climate issues with the possibility of a constitutional referendum, may be the best avenues for Irish environmental activism.

[1] Mary Carolan, ‘Ireland ‘completely off course’ in meeting carbon reduction targets – court told’ The Irish Times (Dublin, 22 January 2019).

[2] Climate Action and Low Carbon Development Act 2015.

[3] Climate Action and Low Carbon Development Act 2015, Long Title.

[4] Climate Action and Low Carbon Development Act 2015, S 3(1).

[5] Climate Action and Low Carbon Development Act 2015, S 3(1).

[6] Climate Action and Low Carbon Development Act 2015, S 4(7).

[7] Friends of the Irish Environment v Ireland [2019] JR 793, [12].

[8] ibid.

[9] Friends of the Irish Environment (n 6), [88].

[10] [2018] IECA 28, [55].

[11] Garda Representative Association v Minister for Finance [2010] IEHC 78.

[12] Friends of the Irish Environment (n 6) [112].

[13] TD v Minister for Education [2001] 4 IR 259.

[14] ibid, 337.

[15] ibid.

[16] [2017] IEHC 695.

[17] [2010] 3 IR 251.

[18] Friends of the Irish Environment v Ireland (n 6) [131].

[19] ibid, [132].

[20] ibid.

[21] State of the Netherlands vs Urgenda Foundation [2018] ECLI:NL:GHDHA:2018:2610.

[22] ibid, [73].

[23] [2009] IESC 81.

[24] ibid, [104].

[25] Friends of the Irish Environment (n 6) [2].

[26] Suryapratim Roy, ‘Is climate change an issue of human rights?’ The Irish Times (Dublin, 15 October 2019).

[27] Tony Lowes, ‘Friends of the Irish Environment to consider grounds for appealing High Court ruling in historic climate case’ https://www.friendsoftheirishenvironment.org/climate-case/17703-friends-of-the-irish-environment-to-consider-grounds-for-appealing-high-court-ruling-in-historic-climate-case Accessed 17 October 2019.

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