Analysis: High Court ruling has potential for political scare

Minister for Justice Frances Fitzgerald and Minister for Finance Micheal Noonan at Trinity College yesterday for discussions with Fianna Fáil. Photograph: Cyril Byrne

Minister for Justice Frances Fitzgerald and Minister for Finance Micheal Noonan at Trinity College yesterday for discussions with Fianna Fáil. Photograph: Cyril Byrne

 

Shortly after 3.30pm yesterday, the Department of Justice issued a perfunctory statement.

“The department can confirm,” it read, “that the consequences and implications of today’s ruling by Justice Moriarty are currently being examined in consultation with the Attorney General”.

Even by the taciturn standards of the department, it was short and uninformative. But it pointed to the increasingly difficulty for the current Government to act, and to react to events. What if criminals currently imprisoned under the impugned section immediately sought release, as one lawyer suggested they might? Would the decision be appealed? What if emergency legislation was required?

Could the Government push it through a Dáil where it no longer has a majority?

The ruling in question, striking down provisions of the criminal laws which enable judges to return to jail criminals who have had parts of their sentences suspended, has the potential for a proper political scare.

It reminded some in legal circles of the “A” case that exploded underneath Bertie Ahern’s government in 2006. Then, a man, “Mr A”, walked free after the High Court ruled that his continuing detention was unlawful after a Supreme Court decision striking down the law on statutory rape.

Public furore

He had been jailed for three years in 2004 after pleading guilty to unlawful carnal knowledge of a 12-year-old girl, but was freed after an aspect of the law was found unconstitutional. His release led to a public furore. Labour leader Pat Rabbitte said it was disgraceful that young people were at risk and there was now a “gaping hole” in the law.

The government sought a hasty appeal – which was successful – and immediately launched emergency legislation. Amid warnings that the doors of the jails could be thrown open for people convicted of sex crimes against children, the taoiseach assured the Dáil and the public that the government would do everything necessary to keep people safe.

Political authority

But were such a crisis to emerge in the current circumstances, it would highlight the temporary nature of the current administration, and its lack of political authority.

Lawyers say it will take some time for the implications for the judgment to be clear. But some political sources say it demonstrates the urgent and growing need to form a government.

There is, of course, a government; legally, there is never not a government. But the current Government, acting in a caretaker capacity, is functioning only in its bare essentials.

No doubt Minister for Justice Frances Fitzgerald was being briefed on the court’s decision yesterday and is taking it extremely seriously.

But she also had other things on her mind. She is also part of the Fine Gael team negotiating the formation of the next government with Fianna Fáil. That process appears a little more urgent today.