de Londras on Carmody

My interest in the Supreme Court’s decision in Carmody is primarily on the sequencing decision as between the Constitutional and ECHR claims forwarded by Carmody himself. He claimed that the apparent lack of capacity under s 2 of the Criminal Justice (Legal Aid) Act 1962 for the District Court to certify appointment of a barrister was a breach of both Article 6 of the Convention (right to a fair trial) and the due process/fair trial rights under the Irish Constitution. In the end, as we know, the Court focused on the Constitutional arguments but this was done following a consideration by the Chief Justice of the appropriate order in which these arguments ought to be considered.

The questioning of sequencing as between Constitutional and Convention arguments is not new to Carmody. Prior to the Supreme Court’s decision in this case there were conflicting authorities on the appropriate sequencing to be adopted. These questions arise where, as in Carmody, a Declaration of Inconsistency is sought under s 5 of the ECHR Act 2003. Section 5(1) provides:

In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as ‘‘a declaration of incompatibility’’) that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions.

Sequencing decisions are important, in my mind, because of the importance of the doctrine of constitutional avoidance (sometimes termed ‘constitutional self-restraint). It is well established that, in general, Courts will not consider the constitutionality of an impugned measure unless such a consideration is necessary simply because where an enactment is deemed unconstitutional a gap in the law is created which can cause significant difficulties in practical terms (The State (P Woods) v AG [1969] IR 385). In short, the rule of constitutional avoidance holds that constitutional matters that are raised before the Court should be considered only if the non-constitutional arguments had first been taken account of and the dispute could not be resolved on the basis of such arguments (Murphy v. Roche [1987] IR 106). This docrtine of constitutional avoidance is not, however, an absolute principle in Irish law. As early as M v An Bord Uchtála [1977] IR 287 the Court accepted that “there may be circumstances of an exceptional nature where the requirements of justice and the protection of constitutional rights make the larger enquiry necessary”. Section 5 applications call for such a determination.

There is some pre-Carmody jurisprudence that reveals a lack of consistency in approach (contrast the High Court judgment in Carmody [2005] 2 ILRM 1 with the decision of O’Neill J. in Law Society of Ireland v Competition Authority [2006] 2 IR 262). In the Supreme Court decision in Carmody, however, the Court resolved the issue of sequencing on the basis of the nature of the possible remedy. Could, the Chief Justice asked, a s. 5 Declaration of Incompatibility resolve the issues between the parties? No. Such a Declaration would leave the law intact and require only extra-judicial remedies (i.e. the laying before the Dáil of the Declaration within 21 days of it being made); it would not provide any appropriate remedy to the applicant. There was, therefore, a need to except this instance from the general doctrine of constitutional avoidance. However, this decision as to sequencing was not limited to the circumstances of the case alone. As s. 5 allows for a Declaration of Incompatibility to be made only where no other remedy is available,

“the Court is satisfied that when a party makes a claim that an Act or any of its provisions is invalid for being repugnant to the Constitution and at the same time makes an application for a declaration of incompatibility of such Act or some of its provisions with the State’s obligations under the Convention, the issue of constitutionality must first be decided”.

Where then does this leave s. 5 of the Convention? Arguably it removes any incentive for an applicant to make a stand-alone s. 5 argument unless the matter under consideration has been determined from a constitutional perspective in previous jurisprudence. Secondly, it seems that it further reinforces the weakness of the Declaration of Incompatibilty from the perspective of effectiveness of remedy in Irish law. Not only does it give rise only to political obligations and leave the offending law intact, but it is likely to provide little more than a symbolic victory to the applicant. In some circumstances–such as social movements litigation for example–such a symbolic victory can be extremely valuable. However, in cases where someone is in urgent and immediate need of counsel, or housing (for example) the victory is phyrric. In his post Paul notes that s. 2 (the interpretive obligation) is a particularly useful one that could, perhaps, to have resulted in greater satsifaction in a case like Carmody. The Supreme Court’s sequencing decision reinforces that view. The decision as to sequencing is not, I think, reflective of some kind of antipathy towards the Convention or the ECHR Act 2003. Rather it is a result of the ‘design flaw’ of s. 5; a design flaw that the Oireachtas might be well advised to revisit in the not too distant future.

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