Unless readers have been observing the sensible but minority tradition of ignoring the news over Christmas, they must have noticed two of the central stories in recent days: the High Court cases involving, first, the planning tribunal case and, second, in tragic circumstances, the decision to switch off a pregnant woman’s life-support machine.
The point of this article is not to consider the detail of these cases, but to examine the big question of how, after more than three decades’ experience of constitutional- political cases, we let ourselves get into these legal messes.
First, in the case brought by George Redmond, the court held that the tribunal had withheld from him material which, if it had been disclosed, would have been of assistance in the cross-examination of a key witness. It thus breached his right to constitutional justice and so the tribunal’s adverse findings must be quashed.
There are also probably implications, for the award of costs, in respect of a number of witnesses. Here I need to refer to only two general points, which were not at issue in the case but were very much part of the background to it.
First, as regards costs, normal court proceedings last a matter of days or, at most, weeks, so legal fees are fixed by reference to a daily rate.
This daily rate has to allow for the fact that quite often a lawyer will not be paid, most frequently when there is a “no foal, no fee” agreement and no progeny. So the level of fee agreed has to be sufficient for the income on the sunny days, when a fee is paid, to compensate for the rainy days when there is no fee.
Fee anomaly
Yet when tribunal fees were negotiated, it was not sufficiently noticed that here was a meteorological impossibility: several years of sunshine.
Latterly, attempts have been made to correct this anomaly, but the Chief State Solicitor’s Office was starting from a position of disadvantage and the Bar is adept at hanging on to its vested interests.
The other issue hovering over the Redmond case was the very strong measure of constitutional justice rights imposed by the Irish courts in the case of public inquiries.
These are almost as strong as those that protect the position of an accused person at a criminal trial, despite the fact that the consequences (damage to reputation but no possibility of imprisonment) are quite different. In addition, an inquiry is said to be inquisitorial, in contrast to a criminal trial, which is accusatorial.
This means an inquiry has its own team of lawyers who may ask questions impartially in order to cover all aspects of a case. This system is considered to be quite sufficient, without witnesses having their own separate representation in inquiries, in other comparable jurisdictions. A high-profile example was the British Leveson inquiry into the conduct of the press.
In the other headline case of the past couple of weeks, it was held that – to quote The Irish Times – "doctors are free to end life support to a brain-dead pregnant woman because there is virtually no chance of her baby being born alive".
Of seven doctors who gave evidence to the court, not one argued that the treatment should continue. Legal experts with different outlooks on abortion agreed that the case need never have been brought. The three-person High Court seemed to take the same view.
No one suggested that an appeal was necessary. Again, there have been other similar episodes that have not led to a court case.
Avoiding decision
Why then was this case brought to court? The obvious explanation is that someone at a high level in the Health Service Executive (HSE) or among the lawyers advising the HSE decided that the best way of avoiding taking a decision themselves was to leave it up to the court.
In short, from a legal perspective, the two cases briefly mentioned here are each in a newish and rather alien field. The natural approach of lawyers when confronted by a new situation is to try to extend or adjust already existing principles.
Ordinarily, there is much to be said for this approach, but where the political objectives are radically different from conventional law or legal institutions, legal assumptions need to be rethought.
Examples of this, arising from the above cases, are, first, that the system for settling legal fees ought to have been reconsidered much earlier in the history of tribunals and with greater determination.
Second, in relation to the life-support case, the literal approach to legal interpretation, which is standard in applying Acts of the Oireachtas, needs to be modified when it comes to the Constitution.
The judgment showed that the High Court well understood this, but someone, probably a lawyer in the corridors of power leading to the unnecessary High Court hearing, seems not to have done.
David Gwynn Morgan is an emeritus professor in the UCC faculty of law