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The Supreme Court: the judges, the decisions, the rifts and the rivalries that have shaped Ireland

RUADHÁN MAC CORMAIC
Penguin Ireland
€27.99
ISBN 9781844883400

Reviewed by: Vincent Browne

In this superb history of the Supreme Court, author Ruadhán Mac Cormaic describes the casual transference of the English legal system and ethos—the common law tradition—into the ethos of the new state, with a few minor and insignificant changes that occurred right at the beginning of Irish ‘independence’. He writes that in early 1923 the then head of government, W.T. Cosgrave, created a special judicial committee to draft an outline of the justice system that should prevail in the newly independent Ireland. He appointed as chairman Lord Glenavy, who had been elected to the House of Commons as a Unionist MP for the constituency of St Stephen’s Green and was later appointed, in controversial circumstances, lord chancellor of Ireland. The other members of the committee were nationalists, but also barristers already imbued with the ethos of the English common law tradition. Cosgrave wrote a note to the committee, probably drafted by Hugh Kennedy, who was to become the first chief justice in the new Supreme Court, starting:

‘In the long struggle for the right to rule in our own country, there has been no sphere of the administration lately ended which impressed itself in the minds of our people as a standing monument of alien government more than the system, the machinery and the administration of law and justice … The body of law and the system of judicature so imposed upon this Nation were English (not even British) in their seed, English in their growth, English in their vitality. Their ritual, their nomenclature, were only to be understood by the student of the history of the people of southern Britain.’

That promise—or rather expectation—came to nothing, aside from changes to the lower courts system.
So hostile was the legal mind-set of the time to any radical departure from the prevailing legal system and culture that even an attempt to change the pantomime attire of judges and barristers (horsehair wigs, black gowns, white bibs and starched collars) and the servile practice of addressing judges as ‘my lord’ evoked an adamant refusal of the legal profession (inclusive of nationalist lawyers) to change. The traditionalists won—the pantomime attire still remains, aside from the horsehair wigs.

Ruadhán Mac Cormaic tells how, almost surreptitiously, the judicial committee decided that English common law jurisprudence would remain as the basis of law in the new Irish state. It means, for instance, that the property ‘rights’ of those who had acquired vast tracts of land through colonisation, plantation and the rest were protected from legal disturbance; that the profiteers from that colonisation would also remain enriched; furthermore, that the rigours of contract law would remain unchanged, indifferent to the unequal status of contractees; that the status of women would remain legally subservient; and that the entitlements of workers to a just share of the profits from their labours would remain legally unacknowledged.

The book gives the background to many of the most significant cases in Irish law, for instance the challenges to the Offences Against the State Act in 1939 and, later, the Sinn Féin funds case, which clearly signalled the robust independence of the Supreme Court from the executive arm of government. Of great interest is how the Supreme Court under Cearbhall Ó Dálaigh as chief justice became almost aggressively interventionist in a way that recent appointees to the Supreme Court regard almost as unseemly.

Ruadhán Mac Cormaic rightly records the influence of a senior counsel, Tommy Connolly, in inspiring some of the most innovative judgements of the court. Undoubtedly the most significant of these was the Ryan case of 1964. Gladys Ryan challenged the 1960 Fluoridation Act, introduced into the Dáil in 1960 by the then minister for health, Seán MacEntee. Her legal team, which included Tommy Connolly, focused on Article 40.3 of the Constitution, which states:

‘The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate, the personal rights of the citizen (and) … the State, in particular, by its laws protect, as best it may, from unjust attack …’

They argued that the words ‘in particular’ conveyed that there were other unstated (or unenumerated) rights protected by the Constitution, including the right to ‘bodily integrity’. Gladys Ryan lost her case, but by adopting the reasoning of her legal counsel she was responsible for the opening up of a realm of constitutional law that was previously unrecognised.

Ruadhán Mac Cormaic gives a fascinating account of the background to this ground-breaking case, as he does of another, the McGee case, which found that married couples had a right (another unenumerated right) to contraception, which sparked off political shenanigans over contraception law and promoted the alarm over abortion that led to the abortion referendum of 1983.

This is an important work in dealing with one of the most important institutions in the state, one that is entirely (or almost so) unaccountable, in revealing the internal politics of the court over the years and in setting out the background to decisions of the court that have had great significance for this society. Inevitably, the book could not deal with all issues of significance to the work of the Supreme Court or to all the decisions of the court that raise concern.

I cite two such cases here. The first is Patrick Meehan v. Commission to Inquire into Child Abuse, on which the Supreme Court issued a unanimous decision on 31 July 2003. This case involved an extension in 1997 to the terms of reference of the Commission to Inquire into Child Abuse, which was established in 1993 (initially the Laffoy Commission, latterly the Ryan Commission) to encompass ‘an inquiry into the circumstances, legality, conduct, ethical propriety and effects of the subjects’, the subjects being 58 children in mother-and-baby homes and in reformatory institutions on whom three drug trials were conducted on behalf of a pharmaceutical company (two in the early 1960s and the third in the early 1970s). It seems that none of the children on whom these drug trials were conducted suffered any long-term effects and it also seems probable that in no case was there any valid consent proffered for the trials. It would seem, therefore, that, at the very least, their constitutional right to ‘bodily integrity’, an unremunerated right acknowledged in the famous Ryan case of 1964, was infringed. The 58 children were guinea pigs.

The person who conducted each of these trials was Patrick Meenan, who had been Dean of the Faculty of Medicine at UCD and chairperson of the Irish Medical Council. He was remunerated by the pharmaceutical company for the trials he conducted. The trials were of significance, for they concerned the discovery of treatments or cures for polio and other diseases then common in Ireland and elsewhere. When Patrick Meenan was asked to give evidence to the inquiry, he was aged 86 and infirm. Lawyers on his behalf informed the Commission that he was unfit to give oral evidence. The Commission wanted to hold a public session to determine his incapacity or at least to state that he was unable to give evidence because of his infirmity and that, in connection to this, reference might be made to medical reports that had confirmed his infirmity and his unfitness to give evidence. An application was made first to the High Court and then to the Supreme Court to quash the decision of the Commission to conduct such an inquiry, as it involved a breach of his bodily integrity and his privacy rights.

It might have been expected that the Supreme Court would weigh the seriousness of the apparent breach of the constitutional right to bodily integrity of the 58 vulnerable boys against the right to bodily integrity and privacy on the part of the 86-year-old, infirm Patrick Meenan. Neither of the two written judgements did that and concerned themselves solely with the entitlements of Patrick Meenan. I think it is relevant to point out that the five judges who agreed unanimously with this outcome were all the products of expensive private schools and that class solidarity might have played a part, however unconscious, in the decision.

The other case not to go to the Supreme Court but which was informed by its jurisprudence concerned property rights. The information that follows comes from Thomas Murray’s ‘The Irish Constitution from below: squatting families versus property rights in Dublin 1967–1971’, in Laura Cahillane, James Gallen and Tom Hickey (eds), Judges, politics and the Irish Constitution. This essay, clearly, has contemporary relevance. In the Dublin of the 1960s there was a housing crisis, resulting from austerity cut-backs in the 1950s and an increase in the city’s population. There were 10,000 on an ‘approved’ housing list and a further 10,000 awaiting housing. The situation was worsened by the collapse of some tenements, causing the loss of life. A squatter, Denis Dennehy, moved into a house on Mountjoy Square owned by a landlord, Ivor Underwood, who owned 70 Georgian houses. Underwood obtained an injunction requiring Dennehy to leave from the High Court judge Seán Butler. Dennehy represented himself in court. The judge said that he had no option but to uphold the Constitution, holding that squatters had no right to be on the premises. Dennehy replied:

‘There seems to be a contradiction in the Constitution between what this injunction is asking me to do. The State has a duty to protect the family, according to the Constitution, and this injunction means the family’s going to be broken up … I think the family is more important than the rights of private property.’

Denis Dennehy was sent to prison.

The standing monument of alien government has remained intact. Ruadhán Mac Cormaic’s book should be read by every lawyer in the country and by everyone else interested in how we got to where we are now.

Vincent Browne is a journalist.