GCD – Kings Inns Prep Course 2007 – Supplemental Case-law © Brian Foley, 2007
“New” Cases Referred to on 2007 Syllabus
Part 1 – Separation of Powers to Property Rights
Topic 1: Separation of Powers
The Executive Power
Three additional cases here under the broad heading of “the Executive Power” as per syllabus. These are really cases about the aftermath of Sinnott and T.D. They are Cronin (A Minor) v Minister for Education and Science & Ors [2004] IEHC 255 (6 July 2004), O'Carolan (A Minor) v Minister for Education and Science & Ors [2005] IEHC 296 (15 June 2005), Doherty & Anor v South Dublin County Council & Ors [2007] IEHC 4 (22 January 2007). These will be dealt with in turn.
Cronin (A Minor) v Minister for Education and Science & Ors [2004] IEHC 255 (6 July 2004)
Jerry Cronin suffered from attention deficit hyperactivity, autistic features and/or hearing deficit and speech delay. He sued the State claiming various declaratory relief in relation to his constitutional, statutory and other legal entitlements to be provided with appropriate free primary education and also appropriate free therapies and care. Of course, students should immediately recall theSinnott and T.Dcases here.
Now, this case deals only with the interlocutory stage – i.e. claims for reliefs pending the determination of the proceedings. This means that the tests applicable are, to but it bluntly, not as rigorous as would be applied at a full hearing with the main question being whether a bona fide case was made out for reliefs sought. Nevertheless, various mandatory relief was sought. What is interesting is that Laffoy J held that:-
In reaching this conclusion, I have had particular regard to the decision of the Supreme Court in T. D. -v- The Minister of Education [2001] 4 IR 259, and, in particular, to the observations of Keane, C. J. At page 287. I am satisfied that granting a mandatory injunction does not fall foul of that decision. The relief granted is limited to the particular needs of the Plaintiff and merely extends a programme which the First Defendant has already sanctioned.
Whereas some of the grounds were plead on the basis of legislative entitlements (and not simply constitutional rights) students should consider whether this gives scope to “get around” T.D. Is a “limited” mandatory injunction really ok or is this a development of T.D?
O'Carolan (A Minor) v Minister for Education and Science & Ors [2005] IEHC 296 (15 June 2005)
This case reflects a different approach to Cronin. For the most part the case turns on the question of whether educational provisions put in place by the respondent were adequate for the plaintiff. Lewis O’Carolan was autistic, but his autism vented in severely violent behaviour. Legal proceedings were initiated (like those in Cronin) and the State made certain proposals which the parents of Lewis felt were not good enough. This was the issue before MacMenamin J who ultimately held that the State offers were adequate. Now, what does this tell us about the wider issue? He held that:-
No authority has been cited to the effect that parents are entitled to choose the exact type of care and education which their child receives. Indeed the most relevant authority, O'Shiel v. The Minister for Education[1999] 2 I.R. 321, is to the contrary effect. This authority demonstrates that the test as to whether there is a right to adequate care and education is to be objectively decided.
So, there’s one principle for students – parental choice about adequacy is not the base-line. However, can the Court really make such an objective decision? Or do you think that the decisions in Sinnott and T.D. may have indicated such decisions are really policy choices? Interestingly, the judge cited from Hardiman J’s decision in Sinnott drawing attention to the generally circumspect role the Court should have in dealing with matters which touch upon the public finances. He then held that Sinnott was not really determinative as that case dealt with the question of mandatory relief – not declarations about adequacy of existing offers. However, he then quoted from Hardiman as follows:-
"If the courts were to depart from this imperative requirement (as to the respective roles of legislature and judiciary) in one case, moved perhaps by a great wave of sympathy of a particular plaintiff, they would naturally and even logically be asked to do so in many other cases, by persons whose plight was no less affecting. Such a course would represent the arrogation by the courts to themselves of powers which the Constitution vests elsewhere".
And he concluded:-
On the basis of the findings made herein, and subject to the undertakings that have been outlined earlier regarding their maintenance in being, I consider that the facility now on offer in Woodlawn is objectively adequate and in compliance with the constitutional duties of the respondents.
Students should consider whether the general circumspection which Sinnott urges in these kinds of cases is creeping out into a wider sphere – i.e. the judge here specifically says Sinnott was about a different issue (mandatory relief) but cites its “spirit” to (effectively) support a less than intense scrutiny of the objective adequacy of educational proposals.
Doherty & Anor v SouthDublinCounty Council & Ors [2007] IEHC 4 (22 January 2007)
This case concerned offers of accommodation made to travellers. Now, the offers had made clear that the respondents opinion was that “equivalent standards and specifications required for standard type social housing under Departmental Guidelines and the Building Regulations are not found in, and cannot be achieved in respect of, caravan/mobile home type accommodation …”. Thus “proper” accommodation could not be provided in a manner which travellers wanted – i.e. in caravan form. It was claimed that the failure to provide a proper caravan (i.e. one with heat, plumbing etc) was a breach of numerous provisions including the ECHR and the Housing Act, 1966 as interpreted in light thereof. Charleton J held that (emphasis added):-
I can find nothing in any other decision of the European Court of Human Rights, or of the courts in the United Kingdom or here, which would establish that the particular aspect of family life that requires to be respected in the case of a member of the Irish Traveller Community demands the provision of a new, centrally heated, plumbed caravan with electricity supply. On analysis of the relevant case law under the European Convention of Human Rights, my judgment is that the statutory entitlements of the applicants exceed any benefit that might be available to them on the basis of an interpretation of Article 8 of the European Convention on Human Rights.
I would add that the decisions to date show a reluctance to require State authorities to intervene with forms of welfare as an aid to the exercise of rights. Whether welfare is provided, and at what level, and in what particular circumstances, is essentially a matter of political decision. The discourse of politics in this area tends to move between the poles of urging self-reliance and of offering cradle-to-grave support. Like a family, the resources of any nation are limited and it is a matter for political and executive decision as to what resources should be committed to what problems and with what priority. A breach of legislation prescribing such an allocation, as in housing, calls for judicial intervention. Where, however, a plea is made that the court should declare the absence of welfare support to be wrong in a particular situation of itself, the applicant should show a complete inability to exercise a human right for his or her own means and a serious situation that has set the right at nought with the prospect of serious long term harm. Any proposed intervention by the court should take into account that it is the responsibility of the legislature and executive to decide the allocation of resources and the priorities applied by them.
It is notable that the judge held that had such rights been violated, T.D. would have prevented a mandatory order, but a declaration of such violation could have been made.
The Executive Power: International/ Relations
One new case under this heading. It’s Dubsky v Government of Ireland [2005] IEHC 442 (13 December 2005) which is, essentially, the sister case of Horgan.
Dubsky v Government of Ireland [2005] IEHC 442 (13 December 2005)
Dubsky challenge the decision of the Government to permit aircraft involved in the military action in Afghanistan to overfly the State and/or to land and refuel within the State, without the assent of the Dáil. It is the applicant’s contention that this assent is required by Article 28 of the Constitution. Now, Article 28 – as far as is relevant – says that the State cannot participate in war without the assent of Dáil Eireann. This point had been made in Horgan – i.e. that we were effectively participating in war vis-à-vis Iraq. The question with “heat” here is really the extent to which the Court can say that what was going on was “participation” in “war” taking into fact the presumption that the Government had probably reached a decision that, in fact, whatever they were permitting was not such “participation” in “war”. Macken J noted:-
While both parties suggest the court may not have to pronounce on what is meant by a war, it is nevertheless the case that to be successful in his proceedings, the applicant must present grounds sufficient to establish that what is or has existed in Afghanistan constitutes, in law, a war or ought to be considered to be so. And that must be established by reference to Article 28, 3.1., subject only to the respondent’s contention if successful, that the existence of such a state of affairs, being a matter peculiarly within the ambit of the executive arm of the state, checked in appropriate circumstances, by its legislative arm as provided for in Article 28.3.1, it follows that the courts, in considering the position, should act with great restraint, in conformity with what they contend is the applicable jurisprudence in such matters.
It is interesting that Macken J did not say “the question of whether a war is going on is not a question for the courts”. Rather, she considered the submissions of the applicant on the nature of the conflict. However, she did note:-
On the basis of this argument, it not being for the respondents to disprove that a war exists or existed in Afghanistan, but rather for the applicant to do so, at least to a degree which satisfies the court that it comes within the ambit of Article 28.3.1, the applicant has not, on this ground, established the existence of a war in Afghanistan, such that that Article comes into play, or such that the issue of any participation in such an alleged war requires to be considered.
She did not, therefore, have to consider the question of “participation” but did, in obiter, comment that:-
While permitting certain activities during a war may jeopardise the neutral status of a state, it does not necessarily follows that such acts constitutes participation in a war, as is contended for. If that were so, it would inevitably follow that any state, not being a neutral state, and permitting any such facilities, must ipso facto be participating in a war, a matter which would have, as its result – in international law terms – and not simply by reference to the Irish Constitution – the automatic participation in the war by several states who have declared themselves utterly against the events which have occurred in Afghanistan. No direct statement is made in either Schwartzerberger or in Oppenheim that the activities mentioned constitute participation in a war.
She did, however, note that participation must be established by reference to “objective factors”. That would seem to suggest that a Court could, perhaps, be as well placed as other bodies to make a decision thereupon, but this was only in obiter.
The Houses of the Oireachtas
One new case here; Howlin v Morris [2006] 1 ILRM 440; [2005] IESC 85 (20 December 2005) which deals (in a very limited way) with the scope of privilege afforded to members of the Houses of the Oireachtas.
Howlin v Morris [2006] 1 ILRM 440; [2005] IESC 85 (20 December 2005)
Brendan Howlin T.D. had been tipped off about alleged malfeasance by certain Gardai which would have been very relevant to the Morris Tribunals inquiries into just that matter. Howlin objected to disclosing the identify of the informant which the Tribunal required. Howlin claimed privilege within the meaning of Article 15. That provides, at sub-article 10:-
Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.
A lot of the case concerned the question of what the Committee on Procedures and Privileges could validly do under Article 15.10 and whether this provision created a self-executing privilege in relation to the “private papers” of its members and the meaning of that term (telephone records sought clearly came within this). What had happened was that the Committee had instructed counsel to plead privilege before the Tribunal but had not, in fact, passed any motions or rules relating to private papers of members – i.e. it had assumed that it simply had to instruct one to plead privilege that already existed. For this reason, it was held by the Supreme Court per Geoghegan J (Murray CJ and Denham J concurred, Hardiman & McGuiness JJ dissented) that Article 15.10 simply did not justify the privilege claimed:-
The main purpose of Article 15.10 is to dispense with the necessity for legislation to secure these freedoms and protections by allowing each House to make its own separate rules relating to them. The members of Dáil Éireann might have a quite different idea about how to protect the “private papers” of members than would appeal to the members of Seanad Éireann and indeed there might be good objective reasons for a different approach. Effectively, paragraph 10 is allowing each House to make its own laws in this connection.
Thus without such laws having actually been made, Article 15.10 afforded no privilege to Howlin.
Legislative Power and the Judiciary (Separation of Powers)
Under the sub-heading of “Sentencing & Detention” there is one new case; Osmanovic v DPP [2006] IESC 50 (25 July 2006).
Osmanovic v DPP [2006] IESC 50 (25 July 2006).
This concerned a variation on “Deaton v AG” argument – i.e. that legislation imposed a penalty without judicial choice in relation thereto. S. 89(b) of the Finance Act, 1997 provided that:-
“In s. 186 of the Customs Consolidation Act, 1876, there shall be substituted, in lieu of the penalty for each such offence specified therein (being forfeiture of either treble the value of goods including the duty payable thereon, or one hundred pounds, whichever is the greater) –
(a) on summary conviction, a fine of £1,000, or at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment,
(b) on conviction on indictment, a fine of treble the value of the goods, including the duty payable thereon, or £10,000, whichever is the greater, or at the discretion of the court, to imprisonment for a term not exceeding 5 years or to both the fine and the imprisonment.
However, the argument was not choice as penalty was vested in the discretion of a non-judicial body. Rather, it was argued that the very notion of fixed penalty was unconstitutional. The Supreme Court per Murray CJ rejected reliance on Deaton:-
Contrary to the submissions made by the appellants, that judgment does not support the particular separation of powers argument which is being made on behalf of the appellants on these appeals. In the Deaton case, the court was considering a piece of legislation which had provided for alternative penalties for a revenue offence already declared to be criminal and which went on to confer on an executive authority the power to choose the penalty in any given case.
And it was held that:-
This court cannot accept that because there is a legislative prescription in relation to the fine option there is a breach of the principle of separation of powers. It is quite clear from the judgment of Ó Dálaigh C.J. in the Deaton case that the Oireachtas does have powers to lay down general parameters within which a sentence is to be imposed. There is no necessity in this judgment and indeed it would be wholly undesirable to consider what the limits might be (if any) on the power of the Oireachtas to provide for either fixed sentences or mandatory sentences. One could postulate extreme situations where the sentencing powers of judges were removed altogether and every offence had a mandatory sentence. The constitutionality of such a law would obviously be questionable. But it has always been accepted and indeed was accepted in Deaton that, within reason at least, the Oireachtas has power to lay down those parameters.
It is notable that the Supreme Court emphasised that no fixed penalty was actually proscribed by s.89(b) – rather there was still a discretion as to chose between fine and sentence. The Court held that it would not comment on what the case would be had a penalty been fixed without such residual discretion but, as you can see, the dictum above, suggests that questions of constitutionality may hang over such.
Topic 2: Personal Rights
Under the sub-heading of Privacy and Sexuality there is one new case; R(M) v R(T) & Ors [2006] IEHC 359 (15 November 2006). You might note, however, that in relation to the “right to travel” much of the difficulty caused by Geoghegan J’s comments in A & B (contrasting with Keane J’s dissent in Grogan (No.5)) have been clarified by the High Court in the “Miss D” case which will probably be appealed. Of course, if you recall, Grogan (No.5) is not really dealt with in the manual so…here goes.
In the late 1980’s the students union at Trinity published information about the availability of abortion services in the United Kingdom. Ultimately an injunction was obtained to restrain this publication. We then had the X decision and the subsequent amendments to the Constitution. In SPUC v Grogan (No.5) the question before the Supreme Court was whether the injunction should be lifted. The Supreme Court disagreed on certain points, but all agreed that it should be lifted. The point of disagreement seems to have been on whether it was legitimate to order the injunction in the first place or whether it was simply not appropriate given how the “abortion” law had changed. Our main interest is really in the ideas encapsulated about the right to travel in Keane J’s dissent. See, some of the judges had raised the issue that the information the students union sought to disseminate was not solely related to the kind of abortion which are lawful under X(which was the basis upon which the injunction was granted by Morris P in the first place). Thus, the information would cover abortions lawfully available in, say, the United Kingdom, but unlawful in Ireland. See per Hamilton CJ:-