‘Towards a better Ireland’:1 Donal Barrington and the Irish Constitution

Tomás Finn’s chapter is concerned with the consideration that Donal Barrington, a judge and public intellectual, gave to the Constitution, the basic law of the country, and the balance its Articles struck with regard to relations between Church and State and Northern Ireland. It considers his vision for Ireland, how this changed and the extent to which he influenced attitudes towards the Constitution. Of particular interest is how from the 1950s to the 1970s his stance evolved on the Constitution and specifically on those Articles that related to moral issues and to the national question. The chapter concludes that Barrington’s role was to put forward ideas which he hoped would inform intellectual debate and persuade governmental institutions to adopt new policies.

The Irish Constitution ‘from below’: squatting families versus property rights in Dublin, 1967–71

Thomas Murray’s chapter draws on a critical social theory of law and a range of qualitatively rich primary sources to incorporate heretofore neglected social movement voices into a more complex account of constitutional development in Ireland. The chapter concentrates on the political practices and discourses at stake in a single moment of conflict when property rights were contested from below, specifically the squatting campaigns of the Dublin Housing Action Committee (D.H.A.C.) in the late 1960s and early 1970s. Murray aims to open up a broader terrain of debate about constitutional development and judicial power in Ireland than conventional studies of case-law, legislation or parliamentary politics would suggest.

O’Keeffe v. Ireland: overview and analysis

James Gallen’s chapter reviews the case and the contributions of Adrian Hardiman and Conor O’Mahony to this book. Gallen argues that their discussion reveals the tension between the principle of subsidiarity and the right to effective protection and an effective remedy in the European Convention on Human Rights. The chapter argues that the case of O’Keeffe v Ireland also raises concerns about the European Court of Human Right methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in tort. A further section examines the impact of the decision for victims of child sexual abuse and identifies that the decision provides the potential for an alternative remedy to the challenging use of vicarious liability in Irish tort law.

Judicial appointments in Ireland: the potential for reform

Laura Cahillane’s chapter aims is to consider the current procedure for judicial appointments and put forward some tentative suggestions for reform in an attempt to begin a debate on this area. Part II of the chapter examines problems with the existing system for judicial appointments, including their political nature, the lack of transparency in existing processes, the lack of diversity in existing appointments, and limitations inherent in the process. The chapter then considers several possible avenues for reform, including reducing the number of names which the appointments board can recommend, introducing an obligation to interview candidates, consider the possibility of ranking candidates, require the Government to publish reasons for its choice, involve opposition parties, reform membership of the appointments board, amend eligibility criteria and require the board to consider questions of diversity.

Reappraising judicial supremacy in the Irish constitutional tradition

In his chapter, Eoin Daly casts a sceptical eye on judicial supremacy. Daly argues that the doctrine goes almost unquestioned in Irish constitutional scholarship (and practice) and that its value and potential is vastly overstated, while its costs – particularly its tendency to stultify rights-discourse in the sphere of ordinary politics – go largely under-appreciated. consider how various familiar, principled objections to strong-form judicial review, of the sort typically aired in other Anglophone jurisdictions, may be borne out in the Irish context. Two arguments in particular are salient in the Irish experience. First, the understanding of strong-form judicial review as being ‘good for rights’ conceives of rights narrowly, ignoring the connection between individual freedom and citizenship, and overlooking problems of domination in social and political life. Secondly, rights-based review of legislation undermines democratic citizenship in the Irish context, not because it undermines majority decision-making as such, but rather, because it has meant that ever-increasing areas of political argument are framed in esoteric constitutional terms.

In defence of judicial innovation and constitutional evolution

Fiona de Londras’ chapter argues that judicial innovation is an important and legitimate part of constitutional evolution, taking into account the broader constitutional tradition and structure within which Irish superior courts operate. de Londras defends judicial power generally based on her claims that it leads to better outcomes and that it should be understood as just one part of a broader and ongoing constitutional ‘eco-system’. This chapter mounts a defence of such innovation, arguing that persistent discomfort is founded on (a) an over-weighting of the role of the courts and failure to recognise the ecosystemic nature of constitutional interpretation, (b) a restricted conception of the constitution that underplays its teleological nature, and (c) a misrecognition of judicial pronouncements as ‘the final word’.

Social and economic rights in the Irish courts and the potential for constitutionalisation

Claire Michelle Smyth’s chapter examines the question of socio-economic rights in the Irish Constitution. She argues that it is possible to identify the avenues for constitutionalisation of socio-economic rights without the need for express incorporation by way of referendum. Beginning with an overview of the case which cements the status of social and economic rights in the Irish Constitutional order, this chapter examines the potential of reinvigorating the doctrine of unspecified rights, utilising the power of Article 45 and analysing the legitimacy of the Supreme Court’s reasoning to refuse judicial intervention. It concludes that Irish courts need to re-evaluate their stance and embrace the value of social and economic rights and to actively engage with their obligation to protect and vindicate the personal rights of the citizen.

Article 16 of the Irish Constitution and judicial review of electoral processes

David Prendergast’s chapter looks past the referendum cases to examine judicial development of Article 16, which provides for the composition of, and election to, Dáil Éireann, Ireland’s lower house of parliament. The chapter first introduces a way of thinking about democracy to ground the evaluation of Article 16 case law that follows. The chapter gives an overview of Article 16, rejecting the view that it is a ‘total code’ for Dáil elections. Finally, the chapter defends the restrained yet occasionally creative path the courts have taken under Article 16. Prendergast concludes the courts’ work can be overall characterised as seeking to protect the electoral process, but not perfect it. The chapter concludes that the courts have embraced a role guarding Ireland’s democracy that illustrates in practice the idea that judicial review of electoral processes can be acceptable in democratic terms.

The jurisdiction of the European Court of Human Rights and the case of O’Keeffe v. Hickey

The chapter of Mr. Justice Adrian Hardiman positions the European Convention on Human Rights in the context of the Irish domestic legal system and highlights the political motivations behind the decision to give effect to the Convention in Irish law at a sub-constitutional and interpretive level. The chapter argues that the the principle of subsidiarity is under threat in the decision in O’Keeffe, where, in his view, the Strasbourg Court dramatically expanded its jurisdiction and encroached upon national sovereignty. Mr. Justice Hardiman is particularly concerned that the Strasbourg court entertained a claim that was not presented in the High Court or Supreme Court and that the judgment appeared to merge O’Keeffe’s claims under direct State responsibility and vicarious liability. He argues that this reflects a departure from prior case law for the ECtHR. Mr. Justice Hardiman’s second concern centres on the use by the court of language of ‘objective’, ‘core objective’ and ‘core grievance’, suggesting that use of these terms implies that, at the discretion of the ECtHR, the simple word ‘all’ may mean ‘some’ or even ‘at least one’.

Judges and the idea of ‘principle’ in constitutional adjudication

Tom Hickey’s chapter seeks to reconcile the principles-oriented contribution that constitutional adjudication (or judicial review) can make to overall public deliberation with the fact of reasonable disagreement on rights. Part I assesses the school of ‘legal constitutionalism’ in the context of Irish constitutional law and experience. Part II introduces a distinctive way of understanding the role of principle in judicial review; one that works from a conception of deliberation that – in contrast to contemporary deliberative democracy theory – embraces disagreement and thus, it is argued, better accounts for the political and contestable nature of rights. The chapter then closes by combining the ideas in these parts to argue that the intuition shared by many to support outright judicial supremacy does not stand up to scrutiny, but that the primary cause of that intuition – the principled nature of judicial review – demands and justifies a more constrained form of judicial power.