The elected executive-legislature should be permitted some freedom of control by the judiciary

The trouble around the Ceann Comhairle’s decision to rule out a debate on the inquiry into allegations of Garda misconduct and, instead, to let the issue through on a bare vote has a legal root.

There is no need here to go into the details of the Ceann Comhairle's decision. These are ably discussed in an article in The Irish Times, (January 31st), by Ruadhán Mac Cormaic. Under the heading "Sub iudice is not necessarily the ultimate conversation-stopper", he wrote: "Public comment will rarely amount to a contempt unless it is plainly intended to influence a case or where it is likely to prejudice a jury trial."

But the major point of principle in relation to the Ceann Comhairle’s decision is that the separation of powers does not begin and end with the vital concept of the independence of the judiciary. It also has a second limb, namely that in political-policy areas the political organs, that is, the elected executive-legislature – should be permitted some freedom from control by the judiciary.

In line with the idea of the separation of powers, the Constitution takes the protection of free discussion and internal autonomy in the Oireachtas very seriously. The relevant provisions include the requirement that “the members . . . shall not in respect of any utterance in either House be amenable to any court or any other authority.”

Yet it is notable that while the powerful impact of judicial interpretation of almost every other provision of the Constitution has been to give the right an extended reading, the Article just quoted has been “read down” by the courts. The result is that the independence and autonomy of the Oireachtas has been reduced by a number of judicial decisions.

In the light of such decisions, one should certainly not criticise the Ceann Comhairle or his advisers, who have to take the law, uncertainties and all, as they find it.

Conditions

But one may usefully query how we reached this point. In large part, the judiciary has produced the conditions which have led to this sort of result by extending to the Oireachtas, comparable standards and procedures developed by the courts for their own use. And this has been done without sufficient attention to the difference in contexts.

An important point about this development is the fact that a choice has been made and a fork taken which was not followed in other constitutional democracies, has gone largely unnoticed by anyone. Distinguished exceptions aside, the news media usually do not discuss and question in an informed way questions of legal policy coming from the courts. It would certainly comment energetically on a Government’s economic policy or even a major football match. But coverage of court cases is usually suffused in either a warm glow of patriotic enthusiasm (since the judiciary is usually regarded as one of the success stories of the Irish State) or, at worst, bafflement diluted with implicit trust. The puzzled, tentative, Christmassy treatment of the Redmond Planning Tribunal Case provided an excellent example of this.

As regards the practising legal profession’s reaction to this line of development it usually goes unquestioned in counsel’s arguments before the courts. This is natural given the precedent doctrine and because making challenges to fundamental assumptions is not usually the way to win a case.

The notion that the judiciary has applied its own standards to very different and particular institutions without regard to the different context was made by the present writer in reference to public inquiries in an article on the Redmond case. (The Irish Times, December 28th, 2014.)

It could be said the same point also applies in regard to the court’s reaction to judicial review cases brought against professional disciplinary tribunals, such as the fitness to practise committees for vets, solicitors or other professions.

Several features of these professional tribunals make them unusual, so that they probably warrant special treatment. First, each is part of a long-established professional body which has always been independent of the Government, and, so, different from a part of the state bureaucracy such as the HSE.

Second, usually the sanction at the end of a disciplinary action is an admonishment, rather than a striking off. Next, the practitioner is almost invariably represented by a team of lawyers, paid for by an insurance company at a court-style hearing held in public. This should be enough.

Privilege

Finally, the purpose of the disciplinary hearing is not to punish the practitioner but to protect the public, who justifiably expect that those who enjoy the privilege of practising a profession will be worthy of the trust placed in them. Despite these features, strict procedural rules have been imposed on these professional tribunals. These include even a requirement of proof beyond reasonable doubt, a test which was developed to protect an accused, facing a jury trial, from going to prison for a criminal offence. In summary, the judges seem to be creating more and more situations in which responsible persons are not trusted to get on with their duties and, more important, doing so even where there are exceptional circumstances which would require a difference from the courts’ own standards.

David Gwynn Morgan is emeritus professor of law at UCC