Responding to a recent article by Michael McDowell, DONNACHA O'CONNELLl argues that the legal vindication of rights is a necessary last resort when politics fails
TWO WEEKS ago in these pages, Michael McDowell argued trenchantly against a society dominated by law and, in particular, against framing policy claims in terms of human rights.
He questioned “over- legalising”, especially in areas of economic activity, and made the case for a version of the separation of powers that would remove large areas of socio- economic activity from the jurisdiction of review by the courts.
The particular dogma of separation of powers that McDowell sees as so central to the integrity of Irish constitutionalism is, paradoxically, a most loaded political concept and far from the guarantee of “continence” that he claims.
It sits happily with contentment about executive-centred government while protesting – perhaps too much – about the proper role of parliament.
There is an attractive neatness to his metadiscourse that should not be confused with coherence, but it is good that he is still a presence in the public square where these issues ought to be amplified.
The untidiness of the alternative view that judges can and should intervene where necessary reflects the authentic chaos of “real life” liberal democracy as opposed to its idealised presentation.
To argue for statutory or constitutional rights with meaningful remedies, or for legally conferred “status” to attach to such rights-holders, is not a manifesto for boundless judicial activism or stealthy democratic bypass.
Recourse to the courts to vindicate, for example, socio- economic rights, is always proposed as a last resort for when politics fails. It is a way of ensuring that the courts, acting independently, can check the power of the political branches of government when necessary.
But this is not, as McDowell would have it, some kind of “omnipresent and intellectually suffocating orthodoxy” about human rights. Far from being intellectually suffocating or even an orthodoxy, human rights are heterodox to a fault and intellectually permissive to a degree that invites some sceptics to suggest that they lack any meaning at all.
Such scepticism spans and transcends ideological boundaries. In fact, sceptics of the left can be more trenchant in their critique of rights than their counterparts on the right.
McDowell’s occasional commentaries seem akin to an objection to human rights at a more fundamental level. Couched as they usually are in a robust defence of separation of powers Irish-style, his interventions can seem like narrow Dublin 6 nationalism passed off with remarkable confidence as “continence”.
Perhaps continence is a synonym for what in any other country would be proclaimed by its adherents as conservatism. If it is no more than the benign virtue of self-control, his claim to such “continence” wears a bit thin when one considers his record as one of the more hyper-legislating ministers for justice.
The elevation of separation of powers as a superordinate constitutional value is the real orthodoxy that might become intellectually suffocating in discourse on constitutional law.
What McDowell is defending is not a marginal idea ahead of its time but, rather, the authoritative position of the superior courts that looks pretty unassailable given the current composition of those courts. It is surely to be welcomed that some commentators question this judicial orthodoxy, even if from a position of less power and influence.
Those who disagree with McDowell’s views on separation of powers and the proper role of the courts are not missing the point, they are just disagreeing! His assertion that we miss the point of cases like Sinnott and TD which, in his view, were centrally about the separation of powers fails to recognise that they were also (and perhaps quintessentially) about the rights of children.
McDowell’s observation that “legal activism” has resulted in a movement from status to contract back to status again is trite and has been standard fare in, for example, labour law books for years. What is missing from his application of this observation more broadly is the concession that it was achieved by democratic means.
Parliaments choose, in their democratic wisdom, to legislate for “status” (eg in relation to pregnant workers). This is not some kind of latter day à-la-carte feudalism, but a tempering of the excesses of absolute contractual freedom – popular for a time – grounded on an appreciation of the complex inequalities that exist in society and require to be addressed by law.
If the remedial component of such interventions by parliament is to “judicialise” redress mechanisms – even in the soft sense through the establishment of quasi-judicial or informal redress mechanisms – this is a legitimate decision of elected politicians.
In the Irish context, this does not involve any subversion of the directive principles of social policy contained in Article 45 of the Constitution. If anything it is a fulsome expression of the constitutional mandate, broadly understood.
As Michael McDowell knows from experience, timing is everything in politics. It is perhaps strange that he chooses this time to decry over-regulation or hyper-legislating when the world is reaping the whirlwind of precisely the kind of laissez-faire approach to economics that is most consistent with his politics.
Now is surely “the season of some humble continence” for those whose political consciences were hydrated by the fizzy water of market fundamentalism!
McDowell’s views are founded on a wilful optimism about the potential of classical liberal democracy that is quaintly naive and politically self-serving. No one is arguing for the kind of rampant judicial activism that he seems to fear. It is elementary that the separation of powers is a means of achieving the rule of law and not an end in itself. The idea of a balance of powers as between the branches of government is as important as separateness.
This can hardly be achieved by weakening one branch – the judiciary – to the degree proposed by McDowell, especially when one considers the peculiar dominance of the executive over the legislature in Irish politics.
He is right to say that parliament is not just a legislature but an accountability mechanism as well, but he could go further and acknowledge that it is not even a legislature.
It is, therefore, extraordinary that he would like to weaken the accountability of both political branches by way of review by the courts when he must know and appreciate the degree to which parliament is controlled by the executive in terms of both its legislative and accountability functions.
That is to say nothing of the degree to which other dysfunctions, arising from the funding of political parties and weaknesses in the electoral system, are disturbingly concentrated in an executive-centred polity.
If politics is where it is at for the swathes of social and economic activity that McDowell argues should be beyond the scope of attention of the courts he simply must address why politics fails – endemically – for those who are marginalised.
It is not enough to protest one’s belief in “a can-do society” when all the evidence suggests this is a fantasy. McDowell is at least honest in his previously uttered admission that inequality is inevitable and necessary, but we need to hear his views about how politics might address this, instead of just why the courts should not.
There simply must be more to constitutional law than a rather narrow version of the separation of powers.
Life is full of contradictions but it is touchingly paradoxical that the “legal activism” which so offends Michael McDowell arises directly from the kind of politics that he espouses.
Donncha O’Connell is the former dean of law at NUI Galway where he teaches constitutional law and European human rights. He will be a visiting research fellow at the Centre for the Study of Human Rights, London School of Economics, from September onwards.