13 Conclusion

This chapter attempts to sum up the conclusions that can be drawn about the Irish Supreme Court from the surveys and analyses in foregoing chapters. It highlights the constraints placed on the Court’s decision-making, especially its lack of power to turn away many appeals. Some of the Court’s principal achievements are reviewed but some of the opportunities it has failed to exploit are also referred to. The future of the Court is considered, especially in light of the creation of the Court of Appeal in 2014. Attention is given to the importance of strong leadership at the Chief Justice level and to the need for more public pronouncements from the judges in lectures and conference papers. Final remarks are made on how the Court compares to supreme courts in other common law countries.

9 Criminal Justice

This chapter selects five issues within the sphere of criminal justice to exemplify how the Irish Supreme Court has made its mark in the field. It looks first at the Court’s approach to the principle that prosecutions should be ended if they are unfair to the defendant and then moves to related issues surrounding use of the Special Criminal Court. It considers whether the Supreme Court has done enough to police the Special Criminal Court and whether reforms are necessary in that domain. In examining the Supreme Court’s views on the right to bail and on the admissibility of evidence which has been obtained unconstitutionally or otherwise illegally (with particular reference to the Damache and JC cases), comparisons are made with other common law jurisdictions. A final section looks at the Supreme Court’s position regarding the retrospectivity of declarations of incompatibility in criminal cases.

7 The Supreme Court and Northern Ireland

This chapter begins by considering the arms trial in the early 1970s and outlines the gist of the Sunningdale Agreement in 1973 before considering the challenge to that Agreement dealt with by the Supreme Court in the Boland case. There follows an examination of the Court’s views on the constitutional status of Northern Ireland in McGimpsey v Ireland, decided in the wake of the Anglo-Irish Agreement of 1985, and on the constitutionality of the Belfast (Good Friday) Agreement in the Riordan case. There is an analysis of Law Enforcement Commission’s report and of the Court’s views on resulting Criminal Law (Jurisdiction) Bill 1975. The focus next moves to the shifting views of the Supreme Court on when it is appropriate to extradite suspected terrorists to Northern Ireland. Cases concerning Dominic McGlinchey, Séamus Shannon, Robert Russell, Dermot Finucane and Owen Carron are examined, as is the state of extradition law today.

3 The Supreme Court and the Irish Free State

This chapter considers the performance of the Irish Supreme Court during the life of the Irish Free State (1922–37). It charts the way in which the right to appeal from the Supreme Court to the Privy Council was abolished (comparing the position in other Dominions) and shows that, despite the rhetoric of Irish politicians at the time, the judges were keen to uphold the British approach to the doctrine of parliamentary sovereignty. The chapter then describes some of the emergency legislation enacted in the Free State to combat republican violence and examines how it was viewed by the Supreme Court, most notably in the very deferential (albeit split) decision in The State (Ryan) v Lennon. The chapter sums up the Court’s performance during the existence of the Irish Free State as disappointing and uninspiring.

1 Introduction

This chapter sets out the aims of the book, which are to evaluate the performance of the Irish Supreme Court through its 94 years of history to date and to assess what contribution it has made to Irish legal culture. It considers the difficulties in undertaking that task and surveys some of the evaluative literature which already exists on supreme courts in other common law countries such as the USA, Canada, Australia and the UK. It posits that the most important assessment criteria are clarity, fairness, efficiency and respect. The chapter then refers to existing literature on the Irish Supreme Court and explains what will be covered in subsequent chapters of the book.

6 The Supreme Court and the Constitution

This chapter focuses first on the power of the President of Ireland to refer draft Bills to the Supreme Court for review under Article 26 of the Constitution. It analyses the most recent instances of this practice and queries whether the ‘one judgment’ rule and the ‘immutability’ rule (whereby a decision that a Bill is constitutional can never again be challenged in court) are necessary or desirable. The chapter then looks at how the Supreme Court has—or has not—extended the reach of constitutionalism into the realm of socio-economic rights, in particular in situations where the expenditure of public money is a key issue. This moves into a section on unenumerated rights and the natural law theory of rights. The chapter acknowledges that significant steps have been taken by the Supreme Court to develop the 1937 Constitution but suggests that significant opportunities to do more have been missed.

5 The Judges of the Supreme Court

This chapter begins by considering the eligibility requirements for appointment to the Irish Supreme Court before tracing the history of the system for selecting the judges. Particular attention is given to whether the judges selected have been politically independent. The work of the Judicial Appointments Advisory Board is analysed, as are the current proposals to create a Judicial Appointments Commission and a Judicial Council. A section charts the rise in judicial salaries and examines the controversy over the constitutionality of asking judges to take a pay cut after Ireland’s financial crisis in 2008. After a brief section on retirement ages there is a narrative of who has succeeded whom in the Supreme Court from 1924 until today (57 judges in all). The chapter concludes with an analysis of the extent to which Supreme Court judges have been representative of Irish society.

2 The Origins of the Supreme Court

This chapter provides relevant historical context by explaining how Southern Ireland broke away from the United Kingdom in 1922 and became a Dominion under the name of the Irish Free State. It describes how the court system developed before and after the partition of Ireland, focusing on the transition from the Dáil Éireann courts to the proposals in the report of the Judiciary Committee in 1923, which led to the Courts of Justice Act 1924. The nature of the proposed Supreme Court of Ireland is compared with that of Supreme Courts in other dominions at that time, with particular regard to the judicial power to subject legislation to constitutional review. Despite references to Canada in the Irish Free State’s Constitution, few lessons were drawn from the experience of Canada’s Supreme Court or any other top national court.

4 The Jurisdiction of the Supreme Court

This chapter focuses on explaining the kinds of cases which Ireland’s Supreme Court is authorised to deal with and how it has had very little choice over which cases are brought to it. It analyses relevant legislative provisions, some of which date back to 1924. The relationship between the Supreme Court and the Court of Criminal Appeal is covered, as are the reasons for the rise in the Supreme Court’s workload since the 1990s. The history of reform proposals is set out and the impact of the new Court of Appeal is considered. The chapter also examines the point that pre-1922 legislation is presumed to continue to apply in Ireland unless Parliament has changed it and shows how the Supreme Court has been careful to ensure that people other than judges do not exercise what is in effect a judicial function. The ‘non-justiciable’ principle is also considered.

12 The Supreme Court and the European Convention on Human Rights

This chapter examines the engagement of the Irish Supreme Court with the European Convention on Human Rights. It reviews all of the occasions on which decisions of the Supreme Court have been reviewed by the European Commission or Court of Human Rights, cases such as Lawless, Norris, Open Door, Keegan, Heaney, Murphy, Independent News, Bosphorus Airways, McFarlane and O’Keeffe. The argument is made that, like the UK Supreme Court, Ireland’s top court has not been as committed to adopting the ECHR’s standards as it might have been and that the Court is still not adapting its own judgment-writing to take proper account of the jurisprudence of the European Court of Human Rights. That Court has frequently highlighted the inordinate delays which plagued the Irish Supreme Court in the 1990s. More could be done to integrate the European Court’s thinking into the way the Supreme Court goes about developing Ireland’s human rights law.