Daly on Carmody

We are delighted to welcome this guest post from Paul Daly of the University of Cambridge to our Symposium on Carmody. You can learn about Paul on the guest contributors page.

No Solicitors on Escalators: Some Thoughts on Statutory Interpretation and Carmody

I intend to take full advantage of the blog format and roam fairly widely here, possibly beyond the traditional confines of a peer-reviewed journal. In this post I will examine section 2 of the European Convention on Human Rights Act 2003 (2003 Act), in the light of Carmody’s case. In doing so, I want to compare and contrast the situation in Ireland with that in Britain – the equivalent provision ‘across the water’ is section 3 of the Human Rights Act 1998 (HRA). My reason for wanting to do so is that a thought experiment which addresses how the UK Supreme Court would have dealt with the issues in Carmody can highlight important aspects of the Irish legislation. I will then conclude by offering some thoughts on statutory interpretation; I intend there to be deliberately provocative.

To being with, it is worth highlighting the rather strange outcome to the case. In response to Carmody’s submission that a failure to allow for the provision of counsel to represent indigent defendants in the District Court breached his right to a trial in due course of law, the Supreme Court held that:

“In order to vindicate the constitutional right of an indigent defendant in the District Court to a fair trial he or she must be entitled to legal aid with representation by counsel as well as solicitor where it is established that because of the particular gravity and complexity of the case or other exceptional circumstances such representation is essential in the interests of justice. It follows that any such defendant must have a right to apply for such legal aid and have the application determined on its merits”.

But the legislation was not struck down:

“There is nothing in the provisions of the Act of 1962, and in particular in s. 2(1), which could be said to prohibit or create an obstacle to the introduction by the State of procedures or means which would enable a defendant in a criminal prosecution before the District Court to apply for legal aid which could, in particular circumstances, include representation by counsel”.

Instead, the Court issued a declaratory judgment to the effect that putting Carmody on trial without allowing him the opportunity to apply for representation by counsel would breach his right to a trial in due course of law. Accompanying the declaration was an order of prohibition preventing any prosecution from proceeding before Carmody could apply for legal aid to retain counsel. Allied to the Court’s decision on the order in which constitutional and Convention claims would be dealt with (rendering a declaration of incompatibility unnecessary) these remedies disposed of the case. What happens next is anybody’s guess: the Oireachtas could pass amending legislation, or the Minister could institute some sort of executive scheme. Until then, Carmody won’t be standing trial for the alleged breach of various cattle regulations. However, if Carmody had posed the same question that he did to the Irish Supreme Court to the United Kingdom equivalent, it probably would have been answered very differently. Section 3(1) of the HRA provides as follows:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.

Section 4, meanwhile, allows a court to make a declaration of incompatibility where a statutory provision is incompatible with the Convention. But, as the late Geoffrey Marshall recognised, a declaration of incompatibility is a “booby prize”: the incompatible law remains on the books and is not disapplied.

By contrast, under section 3, a court may ‘read down’ the legislation to bring it into conformity with the Convention. The leading case is Ghaidan v Godin-Mendoza [2004] 2 AC 557 . Here the legislation in question provided that the surviving spouse of a protected tenant living in a rented property would become a statutory tenant on the death of their spouse. But the protection extended only to “a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant”. Now, the House of Lords had previously interpreted the clause to include non-married spouses, but that hardly required great interpretive gyrations on their Lordships’ part. In Ghaidan, they were faced with a claim that the restriction of the statutory right to opposite-sex couples breached the Convention. The House of Lords accepted that the Convention had been breached by the provision and then turned their attention to the remedy. Would the applicant be given the booby prize of a declaration of incompatibility, or could the legislation be ‘read down’?

At first glance, an outsider might look askance at the argument that the legislation, which pretty clearly referred to opposite-sex couples, could be read in such a way as to remove the discrimination. But giving the leading speech, Lord Nicholls of Birkenhead held that section 3 could apply even in cases where the legislation was unambiguous. In effect, a reviewing court could modify the legislation, by adding or deleting words, to bring it into conformity with the Convention.

Two qualifications were imposed on this broad power of ‘reading down’. First, the modification could not go against the grain of the legislation; it could not make a fundamental change to the legislation. Secondly, the courts should not take decisions “for which they are not equipped”, so where rendering the legislation compliant with the Convention “may involve issues calling for legislative deliberation”, it would leave it to Parliament to do so. In Ghaidan neither of these qualifications was applicable, and section 3 was employed because “the social policy underlying the 1988 extension of security of tenure under paragraph 2 to the survivor of couples living together as husband and wife is equally applicable to the survivor of homosexual couples living together in a close and stable relationship”.

At this point let’s indulge a thought experiment. If Carmody had been decided by the UK Supreme Court (which has recently assumed the judicial responsibilities of the House of Lords), the analysis would have gone something like this: ‘The legislation says that only a solicitor may be appointed. But this blanket exclusion of barristers violates the Convention. However, the underlying policy of the legislation is to provide effective representation to accused persons. No fundamental change to the legislation would be caused by adding the words ‘or barrister’ after ‘solicitor’. And although some increased demands might be made of the public purse if barristers could be appointed to represent indigent defendants in the District Court, we do not think this is an issue requiring significant legislative deliberation; indeed, allowing barristers to be appointed is really the only way to bring the legislation into conformity with the Convention’.

All of which leads one to wonder: why didn’t Carmody seek a remedy like that? Here, the legislation was not struck down, and there wasn’t even a booby prize of a declaration of incompatibility to be had. Probably the reason that Carmody didn’t seek a similar remedy is the wording of the equivalent provision in the 2003 Act. Section 2(1) provides that “[i]n interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions” (emphasis added).

Apart from the highlighted clause, the provision resembles its British counterpart. But the highlighted clause is important because it allows the Interpretation Act 2005 to come into play. And the Interpretation Act privileges literal interpretation, except where the statute is obscure, ambiguous or a literal reading would result in an absurdity. Only if one of these exceptions is satisfied may the court look to discover the “plain intention of the Oireachtas… where that intention can be ascertained from the Act as a whole”.

The conventional wisdom holds that where the text of a statute plainly forecloses a particular result, the provision cannot be ‘read down’ into conformity with the Convention. In Carmody’s case, the statute plainly said “solicitor”; applying normal rules of statutory construction, the failure of the Oireachtas to mention “barrister” (or “counsel”) when it would have been perfectly logical to do so precluded any ‘reading down’ of the statute.

But some caution ought to be exercised. To simplify greatly, two key opposing schools of thought exist in relation to statutory interpretation: textualists, who would celebrate the Interpretation Act, tend to think that the meaning of a statutory provision can be deduced from its plain language. Purposivists, however, tend to think that the meaning of a statutory provision can be ascertained only by reference to the overall purposes of the legislation.

To tease the difference out (albeit imperfectly), consider an old problem. A statute says: “No vehicles in the park”. In a famous debate, HLA Hart claimed that such a statute has a core of meaning: anybody reading the statute would know that snowmobiles were prohibited. Outside the core of meaning lay a penumbra. “There must be a core of settled meaning, but there will be, as well, a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out”. But Lon Fuller claimed in response that the meaning of a statute or statutory provision could only be ascertained by reference to the purpose of the statute or statutory provision in question:

“If the rule excluding vehicles from parks seems easy to apply in some cases, I submit this is because we can see clearly enough what the rule ‘is aiming at in general’ so that we know there is no need to worry about the difference between Fords and Cadillacs. If in some cases we seem to be able to apply the rule without asking what its purpose is, this is not because we can treat a directive arrangement as if it had no purpose. It is rather because, for example, whether the rule be intended to preserve quiet in the park, or to save carefree strollers from injury, we know, ‘without thinking,’ that a noisy automobile must be excluded”.

If you think that Fuller has the better of the argument, then it is clear that a focus on one particular word can never resolve the interpretive issue. Anybody interpreting a statute or statutory provision must also look to the purpose of the statute or statutory provision. Thus, in Carmody’s case, the word “solicitor” on its own does not necessarily resolve the issue. Looking at the statutory provision as a whole, and the statute in general, the purpose is clearly to provide effective representation to an accused person. In most instances effective representation could be provided by a solicitor, but in others a barrister might be required. At the very least, a focus on the text does not indisputably resolve the issue.

The point is made even more clearly by Nigel Simmonds. He asks the reader to consider an injunction that “Dogs must be carried on the escalator”. We all know, upon reading the sign, that we must carry a dog on the escalator if we have one, to avoid it being mangled. Or do we?

“Suppose that we did not possess this background knowledge, and that our interpretation of the injunction had to proceed without that support. The words would seem much less unambiguous. Does this injunction prohibit us from using the escalator if we have no dog to carry? Does it require us to use the escalator (even if we would prefer the stairs) and to find a dog for the purpose? Does ‘Dogs’ imply that more than one dog must be carried? Does the word ‘on’ have a special significance, so that the dog will be considered as being carried ‘on the escalator’ only if it is directly in contact with the escalator surface and is not held in one’s arms? Or does the injunction mean that one who plans to carry a dog must do so on the escalator? If so, does that mean that one is free to let one’s dog walk up the escalator should one have no particular taste for dog-carrying as an activity?”

As Simmonds concludes, “[t]he example reveals to us how much of the apparently clear meaning of simple precepts and propositions is supplied by our shared understanding of context”. In law, context is everything, so when I stop at motorway service stations in the UK or the interstate equivalents in the US, I know that the sign “no solicitors” means to exclude individuals soliciting alms or distributing leaflets, but does not mean to exclude graduates of Blackhall Place. Of course, if such service stations were frequented by lawyers aggressively looking for accident victims, the “no solicitors” sign would mean something else.

My point is that courts should not jump too quickly on apparently literal language to dismiss arguments based on the 2003 Act. And lawyers should not despair in the face of apparently clear statutory language. Arguments based on the purposes of a statutory provision, the purposes of a statute as a whole and maybe even general “shared understandings” beyond the statute, can legitimately be employed to overcome reliance on supposedly literal meanings. I do not mean to suggest that literal interpretation should be dispensed with, because there are good arguments in its favour, but giving proper effect to the 2003 Act may require a more flexible approach to the interpretation of statutory language where a claimant has established that the impugned legislation conflicts with a Convention right.

To go back to Carmody’s case, however, such an argument would have been a bit of a stretch. A solicitor is a solicitor, and other sections of the legislation do allow for the provision of counsel. Talk of dogs on escalators and solicitors at service stations would have been unavailing. But it would be nice in future to see some creative arguments based on section 2 of the 2003 Act.

References:

Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harvard Law Review 593

Fuller, “Positivism and Fidelity to Law: a Reply to Professor Hart” (1958) 71 Harvard Law Review 630

Simmonds, “Between Positivism and Idealism” (1991) 50 Cambridge Law Journal 308

Marshall, “Two Kinds of Compatibility: More about Section of the Human Rights Act 1998” [1999] Public Law 377