Tag Archives: Ireland

Richard Ekins: Defying the law: a reply to Daly

RichardEkins_profileI’m grateful to Paul Daly for bringing to my attention the Irish High Court’s Fleming decision and the Ménard Report.  However, I think he is wrong to censure the former (at least, as harshly as he does) and to laud the latter.

Should the High Court have granted the application to order the Director of Public Prosecutions (DPP) to promulgate an offence-specific policy, with a view to providing ‘foreseeability and accessibility’?  That is, should the High Court have followed Purdy, in which the House of Lords made just such an order (in relation to a different DPP of course)?  Daly implies as much, saying that the High Court had to ‘twist away from Purdy’ and saying elsewhere that ‘the High Court wriggled out of Purdy in unconvincing fashion’.  But the decisions of the House of Lords do not bind the Irish High Court and Purdy is not at all persuasive.  No need then to wriggle out, for the decision should instead just be flatly rejected.

The House of Lords ordered the DPP to promulgate an offence-specific policy in order to guide Ms Purdy in determining whether her husband would be likely to face prosecution if he were to assist her in committing suicide, the relevant act of assistance being the act of helping her to travel to Switzerland in order to there be assisted in committing suicide.  The rationale for the Lords’ decision was that the ban on assisted suicide constituted an interference with Ms Purdy’s private life, per Art 8(1), which interference had to be in accordance with law if it was to satisfy the demands of Art 8(2).  Their Lordships held that the DPP’s code, which framed the exercise of the discretion to prosecute, formed part of the law in question.  As law-abiding persons need guidance as to the legal consequences of their actions, so Art 8(2) required the DPP issue an offence-specific policy.

However, there was never any lack of clarity in the law governing assisted suicide.  Section 2(1) of the Suicide Act 1961 unequivocally proscribed the acts in question (assisting a person to travel to a jurisdiction to commit suicide).  Contra Jeremy Waldron the proviso in s 2(4) that no prosecution was to be brought without the DPP’s consent did not entail that the ban on assisting suicide was unclear or in need of specification.  Rather, this provision, like the 130 or so other equivalent provisions found elsewhere in the law, authorised the DPP to exercise a supervisory control over which prosecutions were to be brought.  The House of Lords ordered the DPP to promulgate an offence-specific policy to help a would-be law breaker in calculating the risk of prosecution.  Thus, Purdy privileges a very odd conception of the law-abiding person.  In truth, a law-abiding person is one who does his or her duty and does not commit offences; the odds of detection and prosecution are irrelevant to him or her.  That is, citizens should do what the law says they should, rather than estimate their chances.

The legal duty was always entirely clear: do not assist suicide.  In granting the application, the court sought to help people decide whether to flout their legal duty, which aims are contrary to the rule of law.  John Finnis makes out this critique of the Purdy decision with illuminating care, first in his ‘The Lords’ Eerie Swansong: A Note on R (Purdy) v Director of Public Prosecutions’, and then in more detail (replying in part to Waldron and considering the DPP’s interim and final policy promulgated in the wake of the Purdy decision) in a paper entitled, ‘Invoking the Principle of Legality against the Rule of Law’, published in my edited collection Modern Challenges to the Rule of Law (LexisNexis, 2011) and, more accessibly, in [2010] New Zealand Law Review 601.

Prosecutorial guidelines are not a specification of the criminal law, providing that, whatever the substantive criminal law may say, some acts are not truly criminal at all.  They are guidelines for prosecutors, not for law-abiding citizens, for whom the criminal law itself is the relevant guide.  It would be unsound to move to stop a prosecution on the grounds that the prosecutor had not followed the guidelines in question; the guidelines are not a de facto defence on which to block a criminal charge.  The DPP does not flout the rule of law if he or she changes the guidelines with immediate effect, such that they apply to cases where the alleged offending predates the guidelines.  Indeed, that a person relies on guidelines to flout the criminal law is itself a reason to prosecute, for the act would involve brazen defiance of – by virtue of calculating disdain for – the criminal law.  And for this reason, if ordered to promulgate offence-specific guidelines the DPP should aim to reserve the option to prosecute any offence, such that the guidelines do not encourage law-breaking.

What of the Ménard Report?  As Daly outlines it, the report’s recommendation seems to me to defy federal criminal law and to flout the constitutionally mandated separation of powers.  I make no prediction as to whether the stratagem would succeed, but take Daly’s own scepticism about its prospects to be telling.  The stratagem should fail because it is flatly unconstitutional and contrary to the rule of law.  It remains somewhat unclear then why Daly lauds the report’s approach, in contrast to the Irish High Court’s approach (refusing to order the DPP to undermine the criminal law).  The reason seems to be that it is ‘the only means to give effect to the desire of the population to permit assisted suicide.’  However, the people of Quebec are not entitled to permit assisted suicide.  The constitution makes the Parliament of the people of Canada as a whole responsible for decision on point.

The merits of assisting suicide aside, which I think irrelevant to the present discussion, there seems much to commend the Irish High Court’s refusal to be party to an effort to undermine the rule of law, and little to be said for the Ménard Report’s apparent attempt to flout the constitution of Canada and federal criminal law.

Richard Ekins is a Fellow of St John’s College, Oxford.

Suggested citation: R. Ekins ‘Defying the law: a reply to Daly’ UK Const. L. Blog (23rd May 2013) (available at http://ukconstitutionallaw.org)

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Paul Daly: Death, Democracy and Delegation

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Decisions on when to end one’s life are unquestionably of the greatest intimacy. Yet there is a clear public interest in ensuring that these decisions are carefully regulated to ensure the safety of the vulnerable. Accordingly, quite what legal framework should govern end-of-life-decisions — if, indeed, there should be any framework at all — is a contested question.

Recent developments in Ireland and the Canadian province of Québec offer a new angle on the question. An interesting contrast can be perceived between the decision taken by the Irish High Court in Fleming v. Ireland, [2013] IEHC 2, and the “Ménard report” commissioned by Québec’s Parliament. In Fleming, the High Court dismissed as undemocratic guidelines which would structure the discretionary power to prosecute. Whereas the Ménard report concluded that prosecutorial guidelines would be the only way to give effect to the Québec Parliament’s desire to legalize assisted suicide within defined parameters.

In Fleming, the High Court, and subsequently the Supreme Court ([2013] IESC 19), upheld the provisions of the Criminal Law (Suicide) Act, 1993 against constitutional challenge. One aspect of the case — which was not appealed to the Supreme Court — was whether the Director of Public Prosecutions could be obliged to issue guidelines explaining the factors to be taken into consideration in deciding whether or not to prosecute the offence of assisted suicide.

As I have explained elsewhere, the High Court did not follow the decision of the House of Lords in Purdy v. Director of Public Prosecutions, 2009 UKHL 45. There, the House of Lords addressed a materially identical prohibition on assisted suicide which left discretion to prosecute in the hands of the Director of Public Prosecutions. The failure to set out in published guidelines the considerations which would be weighed in the balance in deciding whether or not to prosecute was held to violate the legality principle of the European Convention on Human Rights: the necessary foreseeability and accessibility were lacking. Significant contortions were required for the High Court to twist away from Purdy and towards its ultimate (quite odd) conclusion that the Director of Public Prosecutions has no power at all to issue guidelines (a fact which doubtless came as a shock to the Director of Public Prosecutions, who issued a set of general guidelines several years ago).

More remarkable still was another conclusion: that it would be undemocratic for the Director of Public Prosecutions to issue guidelines. This conclusion rested on Article 15.2 of the Irish Constitution. As judicially interpreted, this provision has functioned as a “non-delegation” clause. Sweeping grants of discretion to administrative decision-makers are unconstitutional. Principles and policies must be specified in the governing legislation. In the High Court’s view, requiring the Director of Public Prosecutions to issue guidelines would violate the democratic principle of Article 15.2:

It seems clear to this Court that the effect of any direction requiring the Director to issue guidelines of the kind now sought by the plaintiff would infringe these basic constitutional principles. While the plaintiff asserts that she is seeking no more than a statement of factors which would influence the decision of the Director whether or not to prosecute, the reality of course is that, for her own very good reasons, she wishes to know that the Director will not in fact prosecute in her case. Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’…Once guidelines may be characterised as having the effect of outruling a prosecution, they must be seen as altering the existing law and must therefore fall foul of Article 15.2 of the Constitution…

This conclusion is implausible. The High Court was presented with two options: maintain the status quo, or order guidelines. The status quo involves essentially unreviewable decisions taken behind closed doors in the office of the Director of Public Prosecutions. As a rule, reasons are not given (although a pilot project has been mooted).

Guidelines would involve (possibly) public consultation and (certainly) release to the public of the factors considered relevant in deciding to prosecute. The publication of guidelines could foment public debate. If public opinion were to pitch decisively one way or another, the Irish Parliament could always intervene to more carefully delineate the Director of Public Prosecutions’ discretion. It is very difficult to see how the status quo is more democratic than a world with guidelines. And this is quite apart from the benefits to affected individuals of increased foreseeability and accessibility.

Indeed, the High Court recognized that the Director of Public Prosecutions was bound to take some factors into account in exercising prosecutorial discretion. It suggested that the U.K. guidelines should be taken into account, as well as factors laid out by a Canadian judge. But it did not explain how taking into consideration guidelines developed in another jurisdiction and factors identified by a foreign judge would be more democratic than ordering the Director of Public Prosecutions to issue guidelines.

Of course, this was probably just about as much as the plaintiff could hope for, in the absence of an order striking down the Act altogether. Not appealing was probably prudent, even though the High Court’s reasoning was questionable.

The contrast with the Ménard report is stark. Québec operates in a different legal environment. In Canada, criminal law is the domain of the federal government and s. 241 of the Criminal Code prohibits assisted suicide. This prohibition was (narrowly) upheld by the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. More recently, it was struck down by a British Columbia trial court (Carter v. Canada (Attorney General), 2012 BCSC 886), a decision which is under appeal and is likely to wend its way to the Supreme Court of Canada. This process could take some time, however, and the ultimate outcome is uncertain.

In the meantime, Québec is anxious to find some means of giving effect to a policy of permitting assisted suicide, within carefully defined parameters. The process that culminated in the Ménard report began in 2009. A special commission was struck and set about sounding public opinion. Its recommendations were adopted unanimously by the Québec Parliament in 2012. Subsequently, the three authors of the Ménard report were tasked with providing a legal framework in which the recommendations could be implemented.

The path taken in the Ménard report is interesting, though unlikely to survive constitutional challenge.

In the division of powers set out in Canada’s Constitution Act, 1867, criminal law falls in the domain of the federal government, but health care is indisputably a provincial concern. Accordingly, Québec could certainly pass legislation regulating end-of-life care. But in doing so, it could not impede federal criminal prohibitions. Legislation legalizing, or seeking to legalize, assisted suicide would be plainly unconstitutional.

The ingenious suggestion in the Ménard report is to capitalize on the provincial power over “administration of justice”. Although criminal offences in Canada are set out in the federal Criminal Code, provincial attorneys general are responsible for prosecution. Prosecutorial discretion is, moreover, reviewable only in very limited circumstances.

Accordingly, the Ménard report suggests (albeit without being clear on the precise means of implementation) that Québec could introduce guidelines cabining prosecutorial discretion. These would not be binding and thus would not displace the federal prohibition on assisted suicide. They would seek to regulate provincial discretion, not to undermine federal law. Something similar to the U.K. guidelines is envisaged.

The contrast with the Irish position is stark. Where the Irish High Court rejected guidelines as undemocratic, in Québec, guidelines are proposed as the only means to give effect to the desire of the population to permit assisted suicide.

That is not necessarily to say that the approach taken in the Ménard report will be successful. The precise means of implementation are left unclear by the authors, but would have to be carefully calibrated. The slightest misstep would take Québec into the exclusively federal territory of criminal law. Moreover, given the generous Canadian approach to standing, the courts are unlikely to be impressed by an argument based on the unreviewability of prosecutorial discretion. A general challenge to the existence of such guidelines, on the basis that the provincial attorney general simply had no authority to issue them, would probably receive a sympathetic hearing.

Any Québec attempt to liberalize the rules on assisted suicide is likely to run into significant constitutional difficulties. In Canada, federal law is paramount over provincial law.  Provincial laws (or actions) which frustrate the purpose of federal laws are inoperative. And of course, the very purpose of the provisions — binding or not — envisaged by the Ménard report is to frustrate the operation of the federal prohibition on assisted suicide.

Whatever its ultimate fate, the Ménard report’s orientation is preferable to that of the Irish High Court. Legislators cannot foresee every eventuality. A legitimate response is to vest discretion in administrative actors. Once this has been done, however, decision-making with a public aspect is preferable (from a democratic point of view) to decision-making behind closed doors. Moreover, published guidelines can provoke popular debate and legislative reaction, thereby playing a democracy-enhancing role. Even if the Ménard report proves legally flawed, it has highlighted the democratic potential of administrative guidelines.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at paul.daly@umontreal.ca. He blogs at administrativelawmatters.blogspot.com.

Suggested citation: P. Daly, ‘Death, Democracy and Delegation’  U.K. Const. L. Blog (14th May 2013) (available at http://ukconstitutionallaw.org).

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Mike Gordon: Time for a Citizens’ Assembly on Lords Reform?

After the collapse of the coalition government’s House of Lords Reform Bill in August, the UK Parliament’s upper chamber remains resolutely unreformed.  The substance of this most recent attempt to complete the process of reform which commenced with the first Parliament Act in 1911 has been examined in detail by a Joint Committee on the Draft Bill, in recent contributions to this blog, and elsewhere.  For some, although certainly not all, the demise of the Bill is not to be lamented, yet the reasons for this vary substantially.  Almost every element of the Bill has been criticised by someone, somewhere, with it being surprisingly difficult to identify a key overriding deficiency of the proposed reform (although clause 2, which provided that nothing in the Bill would affect the primacy of the House of Commons is perhaps the leading contender for most frequently considered flaw).  The failure of this attempt at reform thus had an air of inevitability about it, fulfilling the prophecies of the many commentators who confidently predicted that the Bill would not attract sufficient support to progress through Parliament.

The primary purpose of this post is not, however, to reconsider the merits and/or demerits of the Reform Bill.  The innovations proposed in the Bill have already been thoroughly evaluated, perhaps with the exception of the sheer length of time the government’s reform plan would have taken to implement, with three new intakes of elected members envisaged over the course of three general elections.  Indeed, a staggered transition to the new arrangements, with reform of the Lords potentially incomplete until 2025, would in my view have engendered unnecessary uncertainty in relation to the legitimacy of the interim chamber(s), and unduly delayed the development of a distinct political culture and working practices appropriate to the reconfigured house.  And, of course, a three stage process would have left future governments with two convenient opportunities to ‘pause’ reform prior to its conclusion, potentially transforming interim arrangements into a more enduring state of affairs as is almost traditional in relation to the Lords.

Nevertheless, the purpose of this post is to suggest a way forward.  While it has been argued that this most recent proposal represented a once in a generation chance to reform the House of Lords, this seems likely to have been rhetoric rather than reality.  Lords reform has already proved to be an issue of remarkable resilience, remaining a matter of debate for over a century.  All three major UK political parties now accept that the Lords is in need of reform, and committed to bringing about change in their 2010 manifestos (distinguishing this issue markedly, for example, from the also failed attempts to reform the voting system for elections to the House of Commons).  Further, the possibility of Lords reform being re-employed as a bargaining chip between potential coalition partners cannot be discounted.  This is especially the case in an era when a pluralist approach to politics, filtered through a first-past-the-post voting system designed to cater for two parties, leaves the prospect of future hung parliaments more rather than less likely.

Yet even if a need for reform of some kind is accepted in principle, have politicians, academics and other interested parties reached the point of fatigue with respect to the detail of reform of the House of Lords?  The volume of material produced might suggest not, yet as the failed proposals, committee reports, and academic commentaries mount up, it becomes ever more difficult to see how progress which is satisfactory to a large enough contingent can be achieved.  Appeals to international experience cannot in and of themselves offer a clear way forward, due to the diversity evident when the composition and powers of elected second chambers around the world are compared.  How might we move, then, from the wealth of solutions that we presently have, to decide definitively how to put the upper house in order?

One way in which this objective might be achieved is to focus on the methodology of constitutional reform, rather than the substance of the reform itself.  In circumstances of disagreement about the desirability of competing visions of a reconfigured House of Lords, the major political parties could together commit to resolve this disagreement by democratic means.  The Joint Committee on the Draft Bill proposed that a shift to an elected House of Lords was of such constitutional significance as to require that a referendum be held to approve the change.  Yet the three main political parties could go further, and commit to convene a citizens’ assembly after the next general election to settle the issue of Lords reform decisively.

Citizens’ assemblies have been used in a number of countries in recent years to assess options for specific constitutional reforms, and make recommendations which can then be put to the general public for further consideration, and potentially, approval at a referendum.  Citizens’ assemblies were established in Canada to consider electoral reform at a provincial level, in British Columbia in 2004 and Ontario in 2006, with referendums subsequently held (two in the case of British Columbia) giving the electorate the opportunity to accept or reject the assemblies’ proposals.  The Canadian assemblies were comprised of citizens selected at random from the electoral register, with adequate representation of geographical regions, men and women, and aboriginal people ensured.  Further, at a national level, a Civic Forum on electoral reform was convened in the Netherlands in 2006, which was also composed of randomly selected citizens.  This Civic Forum was, however, tasked with making recommendations to the Dutch government, rather than directly to the people via a referendum, in contrast with the two Canadian assemblies (on these citizens’ assemblies generally see G. Smith, Democratic Innovations: Designing Institutions for Citizen Participation (CUP: 2009), Ch 3).

Similar methodology is also imminently to be used in Ireland, where a constitutional convention, with two-thirds of the members to be citizens selected at random, is to be established to consider a number of specific constitutional issues (including the reduction of the Presidential term of office to five years, reducing the voting age to 17, and reviewing the Dáil electoral system) and report to the Houses of the Oireachtas.  Interestingly, for present purposes, the convention will not consider reform of the Irish Seanad, with a referendum on abolition of the upper house instead to be held in the latter half of 2013.

Finally, and most boldly, in Iceland citizens were chosen to form a Constitutional Council to draft a new revised constitution for the state in the aftermath of the 2008 financial crisis.  Following a larger National Assembly held in 2010, which involved a significant number of randomly selected citizens reflecting on the core values underpinning the Icelandic constitutional settlement, a smaller group of 25 citizens were tasked with producing a new constitution, relying extensively on the internet to canvass the views of members of the wider public.  These citizens were selected originally via an election to a Constitutional Assembly, distinguishing this example from those considered above, but this was subsequently invalidated by the Icelandic Supreme Court on technical grounds, leading to the formal appointment by the government of the same ‘elected’ individuals to a Constitutional Council (on the process of reform in Iceland generally see T. Gylfason, ‘From Collapse to Constitution: The Case of Iceland’ CESIFO Working Paper No. 3770, June 2012, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2034241).  Having been considered by Althingi, the Icelandic Parliament, six questions relating to the draft constitution will now be put to a referendum of the people of Iceland in a matter of days, on 20th October 2012.

This necessarily brief sketch is intended simply to demonstrate that citizens’ assemblies (whether comprising of members selected at random or by election) can be, and increasingly have been, employed to consider both specific and general constitutional conundrums.  Such assemblies can be tasked with assessing a variety of alternative solutions, drawing on appropriate expert support and the views of the general public, and ultimately making recommendations for evaluation and approval in the polity at large.  The virtues of such citizen-led deliberation are that it enables a broader range of perspectives to be considered in a public space designed for informed reflection, while enhancing the authority and legitimacy of the proposals developed, which are untainted by any general disillusionment with professional politicians.  As such, and perhaps crucially in relation to the problem of the House of Lords, a citizens’ assembly could be used to bypass deadlock or intransigence among political elites, and provide fresh impetus for constitutional reform.

Of course, the utility of citizens’ assemblies should not at this stage be overstated; they are not necessarily a panacea for all constitutional ills, and while such mechanisms have obvious classical democratic origins, are only gradually re-emerging as a tool which can be used for the implementation of contemporary constitutional reform.  Further, the use of a citizens’ assembly to develop proposals for reform does not guarantee that successful reform will actually be the result, as the Canadian examples clearly demonstrate.  In light of this, the result of the imminent Icelandic referendum will be of great interest to those who find the idea of citizens’ assemblies attractive in principle.

Nonetheless, in relation to Lords reform in the UK, a citizens’ assembly could potentially offer a very useful democratic solution to a problem politicians have been unable to resolve, as well as a normatively appealing way of increasing popular engagement with constitutional issues in its own right.  And if the key objection to the continued existence of the House of Lords is its undemocratic nature, it would be apt for the future of the upper chamber to be settled by a group of UK citizens, potentially subject to the approval of the entire electorate at a referendum.  The time seems right for the UK to experiment with such an approach to constitutional change, and convene a citizens’ assembly to try to solve the problem of Lords reform once and for all.

Dr Mike Gordon is Lecturer in Public Law at the Liverpool Law School, University of Liverpool.

Suggested citation: M. Gordon, ‘Time for a Citizens’ Assembly on Lords Reform?’   UK Const. L. Blog (17th October 2012) (available at http://ukconstitutionallaw.org)

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Patrick O’Brien: The European Fiscal Treaty: Constitutionalising ‘The Road to Serfdom’?

I start with a very old bad joke. A tourist is in Dublin, Ireland. In the midst of pondering the evident decline in the country’s fortunes (empty blocks of new apartments, growing anti-European sentiment, grizzled former bankers by the side of the road holding forlorn signs that read ‘will create dubious leveraged financial products for food’) she forgets herself and gets lost. Finding a friendly native she asks how to get to Grafton St. The bemused native responds: ‘Well, I wouldn’t start from here.’

I was reminded of this joke by the new European fiscal treaty.  The headline of the Treaty does two significant things. Firstly, it requires state parties to observe a balanced budget rule. Once the debt brake has come into full operation each state will be required in general to run their budgets in surplus or balance, and at a minimum to keep their structural deficit (that is, the amount of borrowing required to maintain their day to day operations – hospitals, schools and so on) below 0.5% of GDP. Secondly, the Treaty requires states to keep their overall government debt below 60% of GDP. Those who have exceeded this target are required to reduce their debt by one twentieth each year.

But these objectives are for the long term. Within the treaty there are exemptions for emergencies and severe economic downturns, so we must assume that these targets are not currently applicable to countries in trouble. In the medium term, each state will follow a tailored country-specific plan devised for it by the European Commission with which it must comply as it goes moves towards the twin 0.5%/60% targets. And in the short term, the state parties are required to enshrine these rules, together with a ‘correction mechanism’ in the event that the targets are not met, in domestic law within a year ‘through provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes.’ (Art. 3[2]). In the event that the signatories fail to meet their obligations the Treaty provides for enforcement procedures through the European Commission and the ECJ.

I have two points I want to make about the Treaty. The first is a specific one relating to Irish constitutional law.

Art. 3(2) is tailored to reduce the likelihood of a referendum in Ireland and later in the same paragraph we find the positive sounding but rather otiose: ‘This mechanism shall fully respect the prerogatives of national Parliaments’. But it is very difficult to see how a ‘binding and permanent budgetary rule’ can ‘fully respect the prerogatives of national Parliaments’. The two ideas are opposed. The whole point of the treaty and of the debt brake project is to deprive national Parliaments of some of their prerogatives: at present those prerogatives include the power to run consistent budget deficits. Under the Treaty the European Commission, ECJ and other member states will be empowered to discipline Parliaments that do so.

There is some debate in Ireland as to whether a referendum is constitutionally required and what exactly the case law means. The Crotty case requires a referendum in the event of significant unanticipated change to EU competences. The Fiscal Treaty is not an EU treaty but an international treaty (albeit one that makes liberal use of EU institutions for its administration and enforcement). Suffice to say that we are in uncharted territory. But conversely if a referendum is not held what status will the debt-brake legislation have? There is (normally) no intermediate status in Irish law between ordinary legislation and the constitution and so the legislation will not be constitutionalised, in the sense that the text of the constitution will not have been amended. It is possible that the legislation might have some form of soft-constitutional status, but Irish politics and law rely heavily on the written constitution (as opposed to constitutional conventions) and this would still leave it open to being struck down by a future court as unconstitutional, or to being amended by the legislature as it saw fit. If this state of affairs is compatible with the Treaty and if states other than Ireland can take a similarly loose attitude to ‘permanent’ and ‘constitutional’ is Art. 3(2) a dead letter before it is even ratified?

There is another possibility, although it is a rather convoluted one. Art. 26 of the Irish constitution provides for an abstract judicial review procedure whereby the President, if he is uncertain about the constitutionality of a piece of bill presented to him for signature, can refer the matter to the Supreme Court for determination. If new President Michael D Higgins were to trigger this procedure in respect of the debt brake the supporters of the Treaty might not be entirely disappointed. The (much criticised) quid pro quo of the Art. 26 procedure is that if the Supreme Court gives the bill a clean bill of health it is, in effect, immunised from further constitutional scrutiny in perpetuity. This may be the only way that relative permanence can be assured in the Irish constitutional system without a referendum.

On to my second point. Is the debt brake rule enshrined by the Fiscal Treaty likely to work?

Article 7 of the new Treaty creates a procedure permits a qualified majority of the parties to overrule the Commission’s proposed course of action. When Ireland broke the Stability and Growth Pact early in the last decade by permitting inflation to get too high it was disciplined. When France and Germany did so by running high budget deficits, they persuaded other member states to overrule the Commission and the Pact became a dead letter. On one view Article 7 could create one rule for the big countries and another for the small.

The experience of the Stability and Growth Pact (Mark I) parallels that with debt brakes more generally. These provisions work – like most constitutional rules – when there is broad political and legal acceptance that they should work. Debt rules feature in a majority of US state constitutions and seem in general to work relatively well. But the existence of a debt brake clause did not prevent California from effectively defaulting on some of its debt in 2009, when it issued IOUs to its employees instead of paying them. The US constitution contains a provision to the effect that federal debt shall not be questioned; however this did not prevent the US from effectively defaulting on some of its debt in the 1930s when it pulled out of the gold standard. Switzerland enacted a debt brake in 2000 which has proven reasonably successful, but that replaced a similar provision in the constitution that had become a dead letter. In Germany, the new debt brake rule brought in in 2009 replaced weaker economic rules in the Basic Law that had become ineffective.

Even in Germany, it seems, constitutional debt rules will work only when they work: when they become politically possible. In Greece, in Spain, in Ireland, in Portugal, in Italy these rules will work – well, only if they are accepted. But in political terms the Treaty starts in a very poor position. There is powerful popular opposition to austerity in most states and it seems unlikely that can outrun this for much longer than one electoral cycle (in Greece in particular, where there are elections due in April). Political opponents can pray some strong economic arguments in support of their position. When even The Economist and The Daily Telegraph – those radical lefties – begin editorialising the Keynesian line that European spending cuts have gone too far and have started to create a bigger problem than the one they were intended to solve, it is safe to assume that the policy is ripe for review.

The European project has muddled through with the thinnest veneer of democratic legitimacy since its foundation because it has never really had much direct effect on the lives of citizens. It has been a preoccupation of elites, with glamorous international meetings to enthral politicians and civil servants, and constitutional innovations to intrigue lawyers. For the general citizen it offered mostly harmless or positive things: relatively easy international travel and the occasional new road. Perceived negatives, like the transfer of jobs from wealthier to poorer EU states, were often too diffuse to attribute directly to the EU. But now the imprimatur of the EU is directly associated with cuts to healthcare, salaries and pensions, massive youth unemployment and in some cases perceived national humiliation. All of this without any medium term end in sight, and all to be enforced by the European Commission and the ECJ. It is far from clear that the EU’s shaky political and constitutional legitimacy are capable of bearing the burden that the Fiscal Treaty would place upon them. If the Fiscal Treaty survives its initial Irish battle, the dubious constitutional politics surrounding it suggest that it might not win the war.

‘Well’, as the man said, ‘I wouldn’t start from here.’

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 

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Patrick O’Brien: Judicial Independence and the Irish Referendum on Judicial Pay

If all goes to plan, this week the wording of a new amendment to the Irish Constitution will be finalised. The amendment is designed to permit reductions to the pay of judges and will be voted on in a referendum on 27th October. The reason for the amendment is well known: the Irish government has no money. In the midst of a general financial crisis, the pay of other state employees has been significantly reduced through levies. Thus far judges have been exempt because of Article 35.5 of the Constitution, which is unambiguous: ‘The remuneration of a judge shall not be reduced during his continuance in office.’ The exemption of judges from a general pay cut was never going to be politically palatable and so a halfway house solution was arrived at two years ago a scheme was set up whereby judges could voluntarily forego a portion of their salary in line with the cuts to salaries of other public servants. Uptake of this scheme was, not surprisingly, quite slow although by January of this year a significant majority (125 out of 147 judges http://www.rte.ie/news/2011/0106/judges.html) had signed up to the scheme. When it came into office earlier this year, the new government promised to proceed with a referendum to facilitate formal reductions to judges’ pay. This pledge was popular and the amendment is virtually certain to be approved in the referendum.

The core of the new provision (assuming no further amendments) will be Article 35.5.3:

“Where, before or after the enactment into law of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make reductions to the remuneration of judges.”

If passed, the government proposes to reduce the salary of senior judges by 31%. The judiciary are, by all accounts, unhappy about this proposal and let this be known by a memorandum released in July (much to the annoyance of the Minister for Justice, who insisted that it be removed from the Court Service website – an interesting incident for what it suggests about relations between politicians and judges). The judges’ document, available here: http://www.irishtimes.com/focus/2011/judicialpay/index.pdf, was at pains to point out that the judges did not oppose a pay cut as such, but pointed (amongst other things) to the threat to judicial independence created by the possibility of a reduction to judicial pay.

From the way the new Article 35.5.3 is constructed we can surmise that the drafters are trying to manage a difficult juggling act. They want on the one hand to achieve a legitimate mechanism by which reductions in judicial remuneration may be achieved. On the other hand, they want to avoid the challenge to judicial independence that arises if judges’ remuneration can be used as a means of influencing their decision-making. This is a sensible way to approach the problem. If judicial independence is about anything at its core, it is about protecting judges from the kind of very personal worries – around personal pay and conditions, threats to the person and to family, etc – that might create a risk that they would be afraid to make unpopular decisions.

The drafters’ chosen solution is that a reduction in judicial pay must be coupled to a reduction in public sector pay more generally done ‘in the public interest’. Unfortunately because the wording of Article 35.5.3 is rather loose it is not clear that this is what it actually does. The phrase ‘persons belonging to classes of persons whose remuneration is paid out of public money’ seems unnecessarily vague and obtuse. It could mean almost anything. The putative ‘public interest’ test is also too vague. One would hope that most actions taken by the state should be done in the public interest, but the ‘public interest’ concerns that apply to reducing the pay of a civil servant, for example, are not likely to be the same kind of public interest concerns that apply to a judge. Yet as the wording stands it seems that it is the former standard that must be engaged when reducing the pay of judges.

What else could have been done? Three suggestions:

  1. Nothing. In the O’Byrne case ([1959] IR 1) the Supreme Court applied a purposive interpretation to the meaning of Article 35.5, concluding that a requirement that judges pay income tax was not an attack on judicial independence. It might have been something of a stretch for a court that has become more literalist in recent decades, but it could reasonably be argued that a general reduction in the pay of everyone (not just judges) in emergency conditions is not a reduction to the pay of a judge for the purposes of Article 35.5.
  2. A ‘One-Shot’ amendment. The amendment could simply provide for a once-off reduction to judicial pay, leaving the existing Article 35.5 in place.
  3. Just Word it Better. Why not simply state that judges are not exempt from general pay cuts affecting all public servants but nor may they be specially selected for pay cuts, either individidually or as a group? Why not create an independent means for determining what judicial pay should be?

As it stands, the amendment is a classic example of hard cases making bad law. The new Article 35.5 closely addresses a very specific situation but has uncertain application outside of it. It is a shame that a threat to judicial independence in Ireland, even a minor one, should be created just because of bad drafting.

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 

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