Saturday 1 October 2016

Time for us to develop a healthy lack of deference towards the judiciary

Published 12/11/2015 | 02:30

The Four Courts, Dublin: The judiciary is the only unelected branch of government in Ireland and, because it is more powerful than in other democracies, needs more scrutiny
The Four Courts, Dublin: The judiciary is the only unelected branch of government in Ireland and, because it is more powerful than in other democracies, needs more scrutiny

Deference is unhealthy. Too often it allows the powerful a free pass. The decline of deference in Ireland over recent decades has been a very positive development, ensuring greater scrutiny of more wielders of power and influence.

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The abject, if not grovelling, apology issued by a civil servant to the judiciary earlier this week highlighted a significant source of power in the State that is still treated with deference.

Although it is not the place of bureaucrats to criticise judges to lawmakers (the Department of Justice official suggested to an Oireachtas committee that judges didn't take burglaries seriously) the principle that the judiciary should be scrutinised, and criticised when someone believes that is warranted, should be upheld.

But that very rarely happens.

The lawyerly classes themselves are very satisfied with their performance ("the judiciary has served the State well" is a common claim they make) and, to my knowledge, there has been only one scholarly critique written about the way the judicial branch of government exercises its powers.

It is not insignificant that the author, David Gwynn Morgan, was not Irish.

A comparison with the US also underscores the point. There, robust discussion and debate goes on endlessly about the decisions of the Supreme Court, which, incidentally, is similar in its powers to its Irish counterpart.

The Washington DC court comes in for ample criticism, as do its individual members, whose political leanings are dissected in detail and at great length in the media.

Such scrutiny is both healthy and warranted.

The judiciary is not only one of the three branches of government - in Ireland it is the only unelected branch.

Another reason it needs scrutiny is because it is more powerful than judiciaries in many, if not most, other democracies.

It can, for example, strike down laws both before and after enactment, something that judges in many other countries cannot do, or are limited in doing. This comparative strength is captured in the EU Justice Scoreboard, which ranks Ireland second out of 27 countries for judicial independence.

It is widely agreed that the Oireachtas is an unusually weak legislature vis-à-vis the executive branch, something highlighted yet again yesterday by the OECD when it launched a study of the role of the national parliament in the budgetary process.

But it is rarely - if ever - suggested that the judiciary is too powerful with regard to both of the other branches of government, or even more seriously, that it encroaches into the spheres of the other branches.

There are no shortage of examples showing that it does just that - and it is the subject of little or no comment when it does.

Among the points made by Prof Gwynn Morgan in his book 'A Judgement Too Far' was that the courts had made rulings in areas of taxation and spending that would be more appropriately made by the other branches of government.

As it happens, shortly after his book was published at the beginning of the century, another case arose.

In 2001, the courts decided that State nursing home charges had been unlawfully applied over decades. The upshot, despite an absence of controversy on the issue prior to the decision, was a bill being landed on the taxpayer for €500m, or approximately 0.5pc of gross domestic product at the time.

If, say, the US Supreme Court suddenly imposed an equivalent bill on American taxpayers - which would come to around $70bn in relative terms - they would very likely revolt against it (to put the figure in context, the hugely controversial bailing out of Wall Street in 2008 cost $87bn).

If Ireland's judiciary has crossed the line in fiscal matters, it has been no less willing to do so in foreign policy matters.

The Crotty judgment on European integration in the 1980s has left the Irish Government in the position of having to hold referendums on changes to the EU's founding treaties - something that no other government feels obliged to do.

Two other examples show that the judiciary is just as prepared to encroach into the sphere of the legislative branch of government.

The first is the Abbeylara case, when the Oireachtas tried to hold an inquiry into a fatal shooting by gardaí.

Here again, the judiciary, using its powers to interpret the Constitution, found that the holding of the sort of parliamentary inquiries that are the norm in other democracies could not happen in Ireland.

Elsewhere, such a decision would be considered as encroachment into the legitimate sphere of elected parliamentarians by unelected judges.

Another example is when Ivor Callelly was censured by his parliamentary colleagues for abuse of the Oireachtas expenses regime.

He took a case to the courts claiming that he was being unfairly treated, and the judges found in his favour. It is very hard to think of any other democracy, particularly in the common law world, in which the judiciary would interfere in the internal housekeeping affairs of the legislature in such a way.

That there is so little questioning of the role of the judiciary in the broader functioning of the State suggests that judges are viewed as Delphic oracles who are largely beyond criticism.

The deference shown towards them may be a reflection of what has elsewhere been called the "cult of the lawyer".

When the Finnish civil servant Peter Nyberg came here to conduct an inquiry into the banking fiasco one of the things that struck him most, he said, was the prevalence and power of lawyers.

It was a well-made observation.

It is worth noting in that regard that legislation to reform the more arcane aspects of the legal profession still languishes in the Oireachtas, five years after it was included in the very first round of conditions that the Troika demanded when it arrived.

Moreover, during that half-decade, the profession achieved a considerable watering down of the more radical aspect of the Bill.

Judges are human. They err, just like everyone else. They deserve respect - again, just like everyone else. They do not deserve deference.

Irish Independent

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