Vincent Browne and the A case

Once again, in yesterday's Sunday Business Post, Vincent Browne attacked the Supreme Court's reasoning in A v Governor of Arbour Hill. He had done so at least once previously, in his Village magazine, and in his Business Post column. I see to remember an Irish Times piece as well. I'm sure Vincent Browne is a busy man, so I won't comment on his re-cycling of one piece into (at least) three.

The background, briefly, is as follows. In May, in CC, the Supreme Court decided that s.1(1) of the 1935 Act was unconstitutional. In A, the Court had to decide whether the CC ruling meant Mr. A should have been released by the High Court. The five judges all agreed that such a result did not necessarily follow, and ought not in this case. (I summarised the sequence of events here after the Supreme Court announced its decision, but before the written judgments were handed down.)

Here from the July 16th Business Post column is what I take to be the crux of Browne's objection to the judgments in the A case:

"what Murray and the other judges established was that the previous findings of the Supreme Court were correct in declaring that a finding that a law was unconstitutional did not necessarily mean that everything done under that invalid law was itself invalid.There are transcendent considerations to be taken into account. If the entire constitutional order would be thrown into disarray by applying the strict logic of a finding of invalidity, for instance, then the court should recoil from that.Most of us would agree with that proposition. But the judges went beyond that, for reasons that I could not detect in their judgments. They leapt from the position that a finding of unconstitutionality does not necessarily invalidate everything done under the invalid law to a finding that virtually everything done under the invalid law was OK. That seems absurd to me.If this is so, what is the force of a finding that a law is unconstitutional?If everything done under that unconstitutional law until then stands, the only effect of a finding of unconstitutionality is that what is done henceforth under such a law would be unconstitutional - and that doesn’t amount to a lot.Surely, the reasonable position is as it was until the Supreme Court devised its judgments in the A case: that, apart from exceptional circumstances where the constitutional or societal order would be at risk, everything done under an invalid law would be invalid.But it is what the Supreme Court ordered on June 2 that I find incomprehensible. It issued a warrant for the arrest of Mr A on the basis of his conviction for an offence that it had found ten days earlier did not exist.I can anticipate the argument that will be advanced in favour of this: the Supreme Court had found that, although Section 1 (1) of the 1935 act was unconstitutional, it was not prepared to give this finding retrospective effect - that a conviction under this invalid law was unlawful - and that, since this man - according to the court - was lawfully convicted and imprisoned, it was proper that he would serve out the rest of his sentence.But, but, but . . .the man had been freed and here was the Supreme Court intervening to have him imprisoned on the basis of a law it had found was invalid - in other words, a law that did not exist."

A few brief comments. Browne has repeatedly said Mr A was re-arrested and detained under a law that "did not exist". In what sense does a law exist? It exists once promulgated according to the Constituion. It can be repealed by the legislature. Or it can be held unconstitutional by the High Court, or on appeal the Supreme Court. In the former case, where the legislature repeals a statute, the law in question no longer henceforth has the force of law. It cannot be enforced or applied because an appropriate body has said so. The High and Supreme Courts have the right, indeed the duty, to interpret the Constitution. They have explicit power to review legislation when called upon by litigants. If such legislation is inconsistent with the Constitution, the Court can (indeed, must) so declare. The legislation, approved by the people's representatives, may no longer be enforced or applied, because the Court has said so. This is a great power in a democratic state for unelected judicial officers to exercise. According to the Constitution, only laws consistent with it carried over past its enactment in 1937. Thus Browne would argue that since s.1(1) of the 1935 Act has been held (in 2006) to be constitutionally invalid, it can never have existed. Therefore, everything done under it must be void and of no effect.

Browne admits (not that it could be denied) that the facts of Mr. A's offence disclosed "an odious, repellent person who did an unconscionable act: having sexual intercourse with the 12-year-old friend of his daughter, whom he got intoxicated before raping." Though Browne might not like the comparison, there is not a hair's breadth between that comment and Hardiman J.'s remark that Mr. A was a "singularly undeserving candidate" for release. Be that as it may, Browne is troubled by the Supreme Court's decision and reasons: He says that "one of the safeguards we supposedly have of our liberties is that the Supreme Court will always stand by the law, at all times, irrespective of how unpopular or how difficult." (Fiat justitia, ruat coelum. "Let justice be done, though the heavens fall.") Before going on, I may well be guilty of referring to different of the several pieces cited at the beginning. I won't claim he has said anything I don't honestly and fairly think he has argued.

First of all, his argument that it is incongruous to re-arrest a man on the basis of a law that has been struck down approaches the issue backwards. The High Court (in the person of Laffoy J.) ordered Mr. A's release. The State appealed, as it was perfectly entitled to do. The Supreme Court said Laffoy J. had been wrong to do so. It said that Mr. A should never have been released, for the lengthy reasons given in its written judgments. It would be one thing if Mr. A had been arrested for the first time after the CC decision. That could not have been done because the law no longer had any force. There is a difference between that and declining to order the release of a man who pleaded guilty to the substantive offence, did not attempt to bring (and could not have succeeded in) a constitutional challenge along the lines brought by CC, who received a fair trial and a just sentence. Mr. A's lawyers could in fact point to no right, substantive or procedural, constitutional or otherwise, which was being breached by his continued detention. That is, unless one believes in a right not to be tried and convicted under a provision which is later held unconstitutional. Even then, it would have been quite unjust for Mr. A to benefit collaterally from the ruling in CC, given the very different facts of his own case.

Browne's argument assumes, but does not justify, a concept of absolute and complete retrospective effect of findings of consitutional invalidity. Using his logic, would not acquittals under the old s.1(1) now be of no effect? He suggests that the Court's jurisprudence before now was based on the rule that: "If the entire constitutional order would be thrown into disarray by applying the strict logic of a finding of invalidity, for instance, then the court should recoil from that." He does not justify this distillation from the previous case law, principally because, I would argue, he cannot. How does he (I assume) accept the ruling in The State (Byrne) v. Frawley [1978] IR 326 and simultaneously reject the A ruling. In The State (Byrne) v. Frawley as Hardiman J.'s judgment noted:

Michael Byrne had been tried by a jury selected under the provisions of the Juries Act, 1927. He was convicted of receiving stolen goods and sentenced to seven years penal servitude. This occurred in December 1975, and by coincidence the decision of the Supreme Court in de Burca [in which part of the Juries Act 1927 was held unconstitutional]. was given during the course of the trial. But Mr. Byrne made no point based on this decision and went on with the jury that he had. He appealed to the Court of Criminal Appeal but again took no point about the unconstitutional composition of the jury. Some months after this appeal was unsuccessful he instituted proceedings under Article 40.4.2 of the Constitution on the grounds that he was not being detained in accordance with law. He thus asserted a right arising from the declaration of inconsistency made in de Burca.

In Hardiman J.'s words, Michael Byrne's argument "failed, and without any U turn on the fundamental issue of inconsistency". Admittedly Byrne knew (or ought to have known) of the de Burca ruling before the jury was empanelled in his trial, whereas Mr.A's trial took place before the relevant statute was struck down. But why, Mr. Browne, are the following remarks of Henchy J. in The State (Byrne) v. Frawley not sufficient to justify the decision that Mr. A ought not to have been released?:

While it is central to the due administration of justice in an ordered society that one of the concerns of the Court should be to see that prejudice suffered at the hand of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there maybe transcendent considerations which make such a course undesirable impractical or impossible. …. For a variety of reasons the law recognises that in certain circumstances… what has happened has happened and cannot, or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality - even irreversibility - that tends to attach to what is becoming inveterate or has been widely accepted and acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or
otherwise void, law into an acceptable part of the corpus juris. This trend
represents an inexorable process that is not peculiar to the law, for in a wide
variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock. As an eminent historian vividly put it, speaking of the pointlessness of seeking to do or undo or reshape the facts of history: ‘the
statute taken its shape and can never go back to the quarry’.

In what way respect would the "the entire constitutional order ... be thrown into disarray " had Michael Byrne's case succeeded, whereas it would not have had Mr. A's done so? That is what Vincent Browne must answer in order to justify his suggestion that the Supreme Court was wrong to decide Mr. A's case the way it did. And what about McDonnell v. Ireland [1998] 1 IR 134?

Better still, let him justify "an all inclusive statement of a principle of absolute retroactive invalidity" (Chicot County Drainage District v. Baxter State Bank [1940] 308 U.S. 371) save in circumstances where "the entire constitutional order would be thrown into disarray" on its merits. Perhaps he would also like to look at the jurisprudence from other countries, such as India, Canada and the United States, mentioned in the judgment of the Chief Justice (which, to be fair, Browne has praised as an intellectual tour de force) and explain why those countries' courts are wrong and he is right? Does he not agree with these words of Denham J.?:

"There is no express principle of retrospective application of unconstitutionality in the Constitution. I am satisfied that no such principle may be implied into the Constitution. Such a principle would bring disorder into society disproportionate to the benefit to be achieved. Such a principle would render the express power given to the Superior Courts a tool of chaos."

In the end, constitutional law is infused with matters of public policy. The right the superior courts have to review legislation for constitutionality must have a correlative duty to see that that power does not become "a tool of chaos". I have to say though, that while I seldom agree with Vincent Browne, I have begun to read him more frequently, rather than less, not only because reading commentators with I disagree forces me to refine and think through my own arguments, but also that it is good to see the law, particulatly constitutional law, being discussed outside specialist circles. There is much scope, of course, for improvement in regard to the tenor and frequency of such debate, but I think the Irish media would probably be worse off were the likes of Mr. Browne not raising the type of questions he raises about the Mr. A decision, however much I think the Supreme Court was correct, and Mr. Browne not so.

The political spectrum

Tony Blair gave a speech in Pebble Beach, California yesterday on world leadership. He pointed out that "confusingly for modern politicians, many of the policy prescriptions, cross traditional left/right lines ... across a range of issues, there is no longer a neat filing of policy to the left or the right." That's correct; anyone paying attention can see the left/right dichotomy is largely empty and has frayed almost beyond recognition. Mr. Blair went on to say that:

"around the world, a division is opening up, almost as pivotal as the
traditional left and right, and that division is what I would characterise as: "open versus closed". Take the three isms that run throughout most political debates in Europe and the US today. They're not socialism or capitalism. They're: protectionism, isolationism, nativism, by which I mean, to do with migration and national identity.
In each case the issue is: "open or closed". The response to globalisation can be free trade, open markets, investment in the means of competition: education, science, technology. Or it can be protectionism, tariffs, tight labour market regulation, resistance to foreign takeovers. Countries can choose foreign policies that are engaged and activist, seeking to sort out the world's problems; or try to avoid their problems; refrain from controversy or picking sides, isolating a nation from the pain of the hurly-burly of the world's challenges, but also from the opportunity to shape their outcome. And not a major country anywhere is not riven by the debate on migration: do we welcome it as infusing new blood and ideas; or do we fear it as undermining our identity? Where leaders stand on these issues has little to do with being on the left or the right but everything to do with modern or traditional attitudes to a changing world."

This is in a sense a step towards a clearer framework for thought, although such two-part dichotomies are of limited value. Meta-narratives are perhaps best left behind in such complex, interdepedent and rapidly changing times. With that caveat in mind, here is a passage from the speech I thought worth noting. I note that the phrase he uses to describe the European welfare state ("hopelessly inadequate") echoes his description in May of the state of international institutions ("Increasingly, there is a hopeless mismatch between the global challenges we face and the global institutions to confront them. After the Second World War, people realised that there needed to be a new international institutional architecture. In this new era, in the early 21 st century, we need to renew it."). I presume he uses the word hopeless as an intensifier rather than a descriptive of such problems as intractable. In any event here is part of what he said yesterday:

"The truth is that if it is correct that the challenge of rapid change is
enormous; the response has to be fundamental also. But the implications of this are very hard to follow through. The traditional European welfare state and social model is hopelessly inadequate to meet the challenge of the modern competitive global market. Public services that are run by producer interests, indifferent to consumer preference will lose public consent for the funding of them. In the law and order debate, the nature of organised crime or social breakdown in parts of our communities, not to say the threat of global terrorism bent on mass slaughter, mean that traditional civil liberty arguments are not so much wrong, as just made for another age. Let me give one small example. I started a few years ago a DNA database for our criminal justice system and now all those convicted of certain categories of crime are put on it. Its concept was fiercely opposed. Its extension still is, and incidentally by a mixture of Conservatives, the left of the Labour Party and Lib Dems. Yet every month suspects are linked to 26 murders, 57 rapes and sexual offences and 3000 assorted more minor crimes through the database.
Mass migration requires rules. Biometric technology means that countries are increasingly insisting on biometric visas, which in turn mean biometric passports. A biometric ID card is a short step away. It is, to me at least, almost incredible that the proposal to introduce an identity register in the UK should be so extraordinarily controversial. But it is.

So the policy implications for leaders are huge; they confuse natural supporters; and, as a result, the resistance is strong. The most misunderstood speech I ever made was my Party Conference speech of 1999 about "the forces of conservatism". This was taken as an assault on Conservatives. Actually it was an assault on small "c" conservatism, resistance to change, which can be every bit as much from the left as from the right.
In this battle - "open versus closed" - those on the "open" side of the
argument will meet fierce opposition. Yet the "closed" side of the argument in truth has nothing to offer a nation except the delusion that the tide of change can be turned back; or alternatively a weaker version of the same delusion, namely that hard choices can just be evaded.
Faced with leading people through this process of change, the key to winning is to embed the policy in strong values. The reason why Europe has to change the social model is not because we no longer need social justice; but because today's world means that social justice can only be achieved through education, not regulation, through enterprise flourishing and creating wealth, not being constrained. Fairness, equality, opportunity for all - good, progressive values - can't be achieved by old fashioned welfare systems that breed dependency or public services creaking at the joins. The values are constant; their application has to be dynamic."

Iran's hand in Hizbollah's provocation

The question that seems to most exercise most of those reporting on the Israel-Hizbollah conflict raging in Lebanon is: When will Israel stop the bombardment? Leaving aside whether one believes Israel should have launched such a counter-attack, the desire to see the bombing stop is understandable. No one wants Lebanon's government to collapse and Hizbollah to extend its de facto rule from the southern region to the entire country: in other words, for democracy in Lebanon to collapse. But another question has more or less slipped under the radar: Iran's involvement. Hizbollah's missiles, including ones of far longer range and more devastating power than have yet been deployed, come mostly (if not solely) from Iran. Its only ally in the region, apart from Syria, is Iran. The question that must be asked is: Why now? Why was this operation planned for now?

The answer may lie in a desire on Teheran's part to have the international spotlight move from its nuclear programme. Having Israel's air force shelling Lebanon and killing scores of civilians has had that effect. It had the effect, eminently desirable from Iran's point of view, of splitting the Europeans and Americans. Tony Blair is only European leader whose government has not denounced Israel. After all, the matter of Iran's nuclear programme was on the agenda of the U.N. Security Council in New York; it was to be discussed by the G8 at St.Petersburg. This year saw Iran's president Ahmadinejad unilaterally end the suspension of enriching uranium and it saw America's position draw closer to the Europeans', culminating in the offer of negotiations. Pressure was rising on the mullahs of Teheran. And then, as Con Coughlin wrote in yesterday's Telegraph:

"just as world leaders were steeling themselves to confront the threat that Iran's nuclear programme poses to international security (the subject was also due for discussion at last weekend's G8 summit in St Petersburg), two Israeli soldiers were kidnapped by Hizbollah, Iran's proxy militia in southern Lebanon, thereby lighting the current conflagration.
Just how much responsibility Teheran bears for initiating hostilities remains unclear, but certain facts are now emerging that indicate the timing of the Israeli soldiers' abduction was no coincidence. To start with, there is the visit Mr Larijani paid to Damascus last week after his discussions in Brussels with Javier Solana, the EU's foreign affairs representative, ended without agreement. Apart from fulfilling his
duties as chief nuclear negotiator, Mr Larijani, a former Revolutionary Guards
commander, is chairman of Iran's national security council and a close confidant
of Ayatollah Ali Khamenei, spiritual guardian of the Islamic revolution and the
driving force behind the attempts to acquire a nuclear weapons arsenal.
During his stay in the Syrian capital, Mr Larijani briefed Syrian intelligence officers about the nuclear talks and the latest developments in Iran's mutual defence co-operation with Damascus. Mr Larijani then met senior Hizbollah representatives.
The following day, Hizbollah launched its operation against Israel's northern border, kidnapping two soldiers and killing eight others. The operation had been more than a month in the planning, and Teheran dispatched a team of 20 Iranian Guard commanders to southern Lebanon in mid-June to oversee the preparations. There were also shipments of military equipment, including surface-to-surface and anti-ship missiles: the Iranians were well aware that Israel would not tolerate an attack on its northern border with impunity.
Apart from helping Hizbollah to carry out the initial attack, the Revolutionary Guard contingent has remained in Lebanon to operate the sophisticated Iranian-made weapons systems that are being used against Israeli military and civilian targets. They have worked with Hizbollah to direct the missile barrages that have caused havoc in the northern Israeli port of Haifa, and Revolutionary Guards fired the Chinese-made Noor anti-ship missile that hit an Israeli warship, killing four sailors."

Compassionate conservatism

A new essay published by the U.K. think tank Policy Exchange, entitled "Compassionate Conservatism: what it is; why we need it" has set out the vision David Cameron will be presentin the electorate at the next U.K. general election. One of the authors, Janan Ganesh, the note at the end discloses is a writer and researcher for Zac Goldsmith, who in turn is what the newspapers would call a "close aide" of Cameron.

Bobbitt: 7/7 a year on

On the first anniverary of last year's London bombings by al-Qaeda, Philip Bobbitt, author of The Shield of Achilles (2001) and of the forthcoming Wars Against Terror (due 2007) had an article in the Spectator, which is essential reading - as is everything the man writes on the subject - for anyone interested in understanding the current conflict.

Judgments online

The five judgments of the Supreme Court in A v Governor of Arbour Hill were put up on courts.ie in double-quick time. They are available here, for anyone who wishes to read the detailed reasoning. The appeal centred on a very interesting legal question, namely the effect of a declaration that a statute is constitutionally invalid. The declaration of invalidity was made in CC on May 23rd. Worries about the effect of that declaration caused the political uproar that followed. The Court has now explained in full why it decided on June 2nd to order that Mr. A be re-arrested and returned to prison.

I haven't read them all yet. If you intend reading them, be warned - it'll be an hour and a half's work at least.

Irish Legal Affairs

Anyone with a passing (or greater) interest in legal affairs should check out a new blog, Irish Legal Affairs. It is the brainchild of a friend of mine, Paul Daly. It was launched today. I highly recommend it. First up - after the Yeats-inspired introductory post, that is - is a post about the Privacy and Defamation Bills published by the Government last week. Rumour has it that the written judgments in A v Governor of Arbour Hill Prison, released today having been awaited with bated breath by constitutional lawyers across the land, are to be the subject of a soon-forthcoming post.

Roberts' record

Found an interesting post on Slate this morning, albeit from last week about U.S. chief justice John Roberts' leadership since assuming office. It makes the interesting point that few U.S. supreme court justices have lately served their time arguing many cases before the same court. That, the writer suggests is why he was so well prepared for the job. The piece also notes that Roberts has many to agree with his colleagues on the "conservative" wing of the court more times than his late predecessor William Rehnquist, and agree more times with the "liberal" wing. That says something for his powers of persuasion I suppose.