2016 Global Review of Constitutional Law

Second, these developments seem to have
been perceived by the judiciary themselves
as an attack upon their position. Most notably,
a representative body, known as the Association
of Judges of Ireland, was found in
2011 to represent members of the judiciary.
That this was a direct response to the political
environment was illustrated by the statement
on the AJI website at the time that:
The background to the foundation of
the AJI was the development, over the
months that followed the change of government
that occurred in March 2011,
of a perceived difficult relationship between
the judiciary and the executive,
from the perspective of many members
of the judiciary. 16
Third, the government that took office after
the 2016 general election is a minority coalition,
the many parties in which are Fine
Gael (the largest party in the previous government)
and the Independent Alliance. The
latter’s most high-profile figure is a newspaper
columnist who had previously criticised
“cronyism” in the judicial appointments
process on many occasions. It has been suggested
that one of his key demands in government
has been reform of the process and,
specifically, that any new appointment body
have a lay majority and a lay chairperson. In
addition, however, he has continued as Minister
to express strong criticism of the judiciary.
He claimed on one occasion that it was
obstructing reform, and on another that a
declaration of judicial interests was required
in case judges might “forget their oaths”.
This prompted criticism from legal and political
circles and an apparent response from
the Chief Justice who warned in a speech
against “inaccurate discussion and misrepresentation
of the position of the Judiciary”.
There are two aspects of this controversy
that are constitutionally significant. The first
is the specific question of how judges will
be appointed (and disciplined) in the future.
As with the law on abortion, this appears to
be an issue where some form of change is
likely in the medium term. The government
is committed to reform, one of its constituent
parts has identified this as a priority, and the
main opposition party has also produced its
own draft legislation (which largely received
a more positive response from legal circles).
Quite what the final details of these reforms
will be is unclear, however. The government
has outlined general principles but no draft
legislation has yet been published. Given its
minority status, it also cannot be assumed
that the government will stay in office long
enough to enact any legislation. However,
the fact that there is broad political and judicial
support for some kind of change means
a commitment to reform (if not the policies
currently proposed) may survive a change of
government.
There also appears to be a degree of consensus
that a judicial council would be useful
but this seems less of a priority at present.
While the judiciary have been vocal in making
the case for the council, it should be
borne in mind that it was first recommended
by a special committee in 2000.
The second aspect of this year’s controversy
that merits attention is the more general
question of whether this episode – following
on from others – is a signal of more profound
change in the relationship between
the judicial and political arms of the state.
Relations between the two sides certainly
seem strained in a way that appears without
precedent since independence. The lack
of trust on both sides and the willingness to
engage in a degree of public criticisms that
would have been deemed inappropriate even
a decade ago are new dynamics in Ireland’s
constitutional structures which raise longterm
issues around judicial independence
and the relative authority of both legal and
political actors. 17 While the precise effect of
this change is a matter of speculation, it does
seem clear—and likely unhelpful—that reforms
with important long-term consequences
are being formulated at a time of unusual
turbulence in this relationship.
MAJOR CASES
The most significant decision of the year was
probably that in Collins v. Minister for Finance.
18 This was a challenge to the issuing
of long-term promissory notes worth €30
billion by the Minister for Finance to two
effectively insolvent banks in 2010 as part
of the response to Ireland’s severe banking
crisis.
Aside from the obvious importance of the
subject matter, the proceedings were constitutionally
significant because they raised
novel issues relating to the separation of
powers and, specifically, the respective roles
of the government and the Dáil (lower house)
in budgetary matters, and of the courts in reviewing
them.
The plaintiff’s core argument asserted the
existence of a general separation of powers
principle that control of national debt and
expenditure must be vested in the legislative
branch. Substantial reliance was placed
in this regard on Article 1.8 of the US Constitution
and on the Federalist Papers. The
specific breach alleged was that the Dáil had
abdicated its constitutional function by conferring
a statutory power on the Minister to
issue debt without imposing either a statutory
“debt ceiling” or, alternatively, a requirement
to obtain legislative approval.
This was rejected by the Supreme Court. The
Court pointed out that the Irish Constitution
contained no equivalent provision to Article
1.8. Rather, “[t]he Constitution’s main control
point on financial matters, is that the appropriation
and therefore expenditure of all
monies is required by Article 11 to be provided
for ‘by law’”.
However, the Court proceeded to hold that
the phrase “by law” required more than a
statutory basis for the act in question. Instead,
it denoted a broader principle of legality
which meant that a law formally enacted
“must [also] be consistent itself with the dictates
of the Constitution, and the order and
16
http://aji.ie/ (accessed March 31, 2014).
17
See Mr. Justice O’Donnell, “Some Reflections on the Independence of the Judiciary in Ireland in 21st Century Europe” (2016) 19 Trinity College Law Review 5.
18
[2016] IESC 73.
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