Dr Alan Greene
The ambiguous outcome of the general election has been heralded as an opportunity for a new politics to emerge in Ireland. Dáil reform to deal with this new reality has featured highly in the news cycle as no longer can the Government dominate the legislative agenda and expect all its bills to be enacted. Similarly, it can no longer expect to be able to veto opposition legislation or opposition tabled amendments to Government bills. This has a potential to reinvigorate the Oireachtas, enhancing constitutional dialogue, not just between the legislature and the executive, but also between the legislature and the courts in instances where there may be doubts as to the constitutionality of a proposed bill.
Constitutional Debate and the Oireachtas
To date, the Oireachtas has essentially treated the Irish courts as having a monopoly on constitutional interpretation. Certainly, there is an arguable case to be made that this is a result of the strong form judicial review seen in the Irish constitutional structure which potentially stymies political debate. The Oireachtas has relied heavily on the expert legal opinion of the Attorney General with in the questionable constitutionality of a bill often used as a reason for the Government to vote it down at an early stage. Despite the clear importance that this evidence has in the overall outcome of the debate, the opinion of the Attorney General is never published.
A textbook example of this can be seen in the manner in which the last government voted down Clare Daly’s Bill to allow for the termination of a pregnancy in the case of a fatal foetal abnormality. During the Dáil debate on the Protection of Life during Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013, Taoiseach Enda Kenny argued that the bill was quite clearly unconstitutional. Moreover, he refused to publish the advice of the Attorney General on the matter as, ‘It has been a long-standing situation in this country, where the advice given by the Attorney General of the day has never been published.’
In light of this, judicial supremacy as seen in Ireland has been criticised by political constitutionalists who argue that it takes decisions about human rights away from the legislature. Human rights, according to this conception, are ‘the statement of a political conflict masking as the resolution of it’. Instead, human rights should beconceptualised as political contestations that people invariably agree over. The resolution of such disputes should, as a result, be done by the representatives of the people in the democratic branches of government.
Even notable bastions of political constitutionalism have, however, come around to the idea of some degree of judicial protection of human rights. The UK’s Human Rights Act 1998 (HRA) is seen as conceptualising a ‘third way’ between judicial supremacy on the one hand and parliamentary supremacy on the other. Moving away from this adversarial conceptualisation of the legislature and judiciary, instead, it seeks to foster a dialogue on rights between courts and the British Parliament with the final say resting with Parliament. It does this through requiring courts to interpret legislation compatibility with the European Convention on Human Rights (ECHR) so far as it is possible to do so, and also gives courts the discretionary power issue a declaration of incompatibility when it believes it cannot reconcile the statutory provision in question with the ECHR. The resolution of this incompatibility therefore resides with Parliament. Dialogue is also created through the work of the Joint Committee on Human Rights (JCHR) and the requirement under s19 of the HRA for government ministers to issue a declaratory statement before Parliament that a bill is compatible with the Convention.
Such attempts at constitutional dialogue are not alien to Ireland. Ireland’s equivalent to the HRA – the European Convention on Human Rights Act 2003 – mirrors closely the interpretive obligation and the declaration of incompatibility provisions of the HRA, thus leaving the resolution of such incompatible provisions in the hands of the Oireachtas.
Indeed, a referral of a bill to the Supreme Court for a pre-emptive test as to its constitutionality under Article 26 of the Constitution is also a possibility for dialogue to take place between the legislature and the judiciary in Ireland as to the scope of constitutional rights. This potential for dialogue has, however, been significantly weakened by the Second Amendment of the Constitution Act 1941 which amended Article 34 to prevent bills deemed constitutional under an Article 26 reference from ever having their constitutionality challenged again. As a result, consecutive presidents – themselves constituent parts of the legislature – have been reluctant to make use of this power. This is particularly so in light of the fact that Article 26 cases are based on hypothetical legal argument, thus lacking the force or urgency of concrete facts to illuminate the actual impact of the legislation in question. The Second Amendment of the Constitution Act 1941 was not enacted by referendum but was instead done through a simple legislative procedure in accordance with the transitory provisions of the Constitution.
Moreover, judicial supremacy is not inimical to dialogue on rights. With regards to ordinary challenges to the constitutionality of legislation, while the courts under the Constitution have the final say in an individual case as to the scope of constitutional rights; this does not mean that the courts should or do have the only say along the way. Procedural aspects to constitutional challenges – the presumption of constitutionality, reaching constitutional issues last, and the double construction rule– are all mechanisms by which courts show respect to the Oireachtas’ democratic mandate. In addition, saying that once a judgment of the Supreme Court is issued does the debate stop is problematic. A statement as to the content of a constitutional, convention or other rights provision is rarely, if ever, the final statement as to the condition of law for all time. Human rights do not work like that; law does not work like that. The constitution is a living and breathing document and constitutional dialogue is important for it to evolve.
Judicial Supremacy or Executive Supremacy?
Constitutional dialogue, however, has been stymied in Ireland but this is not the fault of judicial supremacy; rather, this argument overlooks the exceptionally strong hold the executive branch in Ireland has had over the legislature. Strong governments have instead used legal opinion as a justification to avoid contentious issues, halting legislation at an early stage before the Oireachtas has gotten a chance to scrutinise the legislation in earnest.
Returning to the earlier example of Claire Daly’s private members bill on fatal foetal abnormalities, the constitutionality of this bill was not as clear cut as the Taoiseach suggested. There is, at present, ambiguity in Article 40.3.3° of the Constitution as to whether ‘unborn’ extends to foetuses that have no chance of surviving outside the womb. This very point was raised by the Irish Government before the European Court of Human Rights in D v Ireland. In that case the applicant was pregnant with twins and was informed by her doctor that one foetus has stopped developing after 8 weeks’ gestation and that the other foetus tested positive for Edward’s Syndrome, the median age of survival of which is 6 days. The applicant, ‘unable to tolerate the physical and mental toll of a further five months of pregnancy with one foetus dead and with the other dying’ travelled to the UK for an abortion. She did not consider any legal proceedings in Ireland as her various doctors indicated to her that they ‘appreciated that she was not eligible for an abortion in Ireland’ when she informed them of her decision to terminate the pregnancy.
D’s case under Article 3, 8, 10, and 14 was, however, dismissed as inadmissible by the Fourth Section of the Court on the grounds that she had not exhausted all domestic remedies. The Court upheld the Irish Government’s submission that:
It was an open question as to whether Article 40.3.3 could have allowed a lawful abortion in Ireland in the applicant’s circumstances…[A]lthough it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb.
Minority Government and Constitutional Dialogue
In actuality, it is not judicial activism or judicial innovation in Ireland that is stymieing debates on rights and constitutionality in Ireland; rather, it is an overly strong executive that has a stranglehold on both houses of the Oireachtas. Legal advice is used as a convenient excuse to kick apparently contentious issues such as reproductive rights to touch.
Indeed, inaction can sometimes be louder than action. The UK Government’s failure to enfranchise prisoners despite a declaration of incompatibility under the HRA and a finding of a breach of the Convention from the Grand Chamber of the ECtHR is a concrete example of this. Similarly, the failure for over 20 years of successive Irish governments to legislate for the X-Case could be interpreted as these governments disagreeing with the Supreme Court’s judgment that abortions are lawful in Ireland where there is a real and substantial risk to the life of the mother arising from suicide. Two separate attempts to over-turn this judgment (the proposed 12th and 25th amendments respectively) via a constitutional amendment would also corroborate this; however, it also reveals the importance of an additional voice to the dialogue on rights in Ireland: the direct voice of the people through a referendum.
A reinvigorated Dáil therefore has an opportunity to break free from the domination of the executive branch and increase its scrutiny of legislation. No longer can an opinion of the Attorney General act as a de facto legislative veto. Indeed, it may be the case that such evidence may have to be published where it is suitable in order for the Oireachtas to scrutinise its substantive content. Merely claiming that the Attorney General advises that a proposed bill is unconstitutional may convince those subject to the minority government’s whip; however, the opposition benches may require a stronger justification than an appeal to authority. In this way, the Oireachtas can contribute more forcefully to the debate regarding the scope of constitutional rights protection in Ireland.
Ultimately, if the Oireachtas disagrees with a judgment of the Courts, it can submit a constitutional amendment to the people for ratification. This process can act as a safety valve, relieving political pressure that may build up in the face of a particularly contentious decision of the Supreme Court. In this way, the temptation to pack the court with ideological counterparts that may be seen in the United States is avoided as there are simpler, quicker, and more reliable ways to over-turn such a judgment.
The value of political constitutionalism or republican conceptualisations of human rights lies in processes. It requires legislative processes to be fora for disagreement rather than a mere rubber-stamp government decision-making. The prospect of a minority government is perhaps the best opportunity Ireland has had for such a culture of justification to embed itself in parliamentary processes. Time will tell whether this newly invigorated Dáil with grasp this opportunity.
Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. He tweets @DrAlanGreene.
Image credit: https://flic.kr/p/eRVtiA
 JAG Griffith, ‘The Political Constitution’ (1979)42(1) Modern Law Review 1,14.
 Francesca Klug, ‘The Human Rights Act – a “third way” or “third wave” Bill of Rights’  EHRLR 361.
 Prohibition on torture or inhuman and degrading treatment
 Right to respect for privacy and family life
 Freedom of expression
 Prohibition on discrimination
 D v Ireland, para 69.