The politics of the judiciary

Both the courts and the political domain have a role to play in addressing marginalisation, writes Donncha O'Connell

It is vital to challenge the presumption (made by some) that there is always a neat or even clear distinction between law and politics as a means of addressing the problems faced by people on the margins of society. Law – when manifested as statutes or statutory instruments – is the outcome of a political process called legislating. Because politics is narrated essentially as gossip, we tend to take our eye off the core business of politics, which is, in fact, law-making. Politicians themselves do this. It is now almost a cliché of political criticism to condemn politicians for focusing unduly on constituency business (ie, getting re-elected) and no less a cliché in their swift defence to put forward "committee work" as alibi evidence in response to the charge of no law-making or excessive seasonal absences from Leinster House.

The political story seems to be told on the basis of a presumed low level of literacy on the part of the public (the sovereign people!) of the mechanics of law-making and is, thus, a half-told story.

Law – in the form of a court decision – is the outcome of a legal process called litigation. But the courts in which this process takes place are staffed by judges appointed by politicians who can only be removed from office – and we know that this is not an uncomplicated process – by politicians. The appointments process is, of course, entirely Executive-driven.

This is not to suggest that the courts are presided over by political proxies lacking in independence or, indeed, competence to deliver just and legally sound solutions to legal disputes that happen to end up in court.

Again, the story of what goes on in court tends to be told in somewhat de-contextualised terms. Apart from a ground-breaking piece in Magill in 1985 by Colm Tóibín ("The secrets of the Supreme Court"), there is very little journalistic writing and practically no academic writing on the inner workings of the Irish judiciary.

There are occasional colour pieces when a judicial vacancy is about to be filled, detailing the educational backgrounds and hobbies of senior judges, but this rarely stretches beyond the tedium of outlining their attendance at one of four or five private schools followed by UCD as well as indicating their perceived previous political affiliation. On a good day, you might discover who they are married to, how many children they have and which elite sport is favoured by the family.

It is as if the presumed public interest in political gossip is reversed in the case of the judiciary to reflect the aspiration that the business of judging is a politics-free zone.

So, regardless of how the narrative seeks to reinforce a mythology, it is clear that the law-politics distinction is more apparent than real.

Michael McDowell, senior counsel and TD, makes much political hay out of a version of the separation of powers when he argues against litigation as a means of advancing aspects of the public interest. As the living embodiment of the law-politics nexus he brings unique insight to this dilemma. There are many reasons to be grateful for the existence of a Michael McDowell. For a man of remarkable confidence, who could hardly be described as coming from the Left ideologically (unless that was a subtle way of indicating that he was heading towards the Right) he is unusually insightful about middle-class self-loathing.

This treat in social psychology, centred around what he called "the Irish Moral Inquisition", was unveiled at this year's MacGill Summer School and is a progression from his earlier characterisation of human rights activists as high priests of new civic religion (address to the Irish Social Policy Association Annual Conference on 12 September 2002).

On other occasions the Minister has gone further in suggesting a certain contempt for democratic processes on the part of unnamed egalitarians who call for justiciable social and economic rights.

McDowell argues "passionately" for the political domain – in which, presumably, elected politicians are the key players – as the space within which issues of redistribution and socio-economic equity are to be settled. Recourse to the law (ie, the courts) as a means of addressing inequalities is disdained as some kind of democratic bypass that could lead ultimately to the rule by writ of unaccountable judges. This is hardly a surprising perspective, given the Minister's view that inequality is a necessary economic stimulus in any free society.

It is curious, in this connection, that the Minister appears to operate on a presumption of high risk when it's hardly the case that the Irish judiciary are eagerly waiting to render a transformed egalitarian society by means of some new or newly-revived constitutional doctrine. Perhaps his real fear is that an activist judiciary appointed by a differently constituted government might attempt to do just that, which, of course, speaks volumes about the supposed separation between the business of politics and that of judging.

However, the one issue that Michael McDowell never squares up to is the demonstrable failure of politics to address – in any comprehensive manner – the condition of those on the margins of society.

It is highly unlikely, for example, that homosexual law reform would have progressed as rapidly as it did without the external stimulus of the European Court of Human Rights in the Norris case. It took five years for the Oireachtas to respond to that decision and one can only speculate how long it would have taken to reform the law without the European Court's decision. Strangely, in Ireland, it was a crime to incite to hatred on the basis of sexual orientation before homosexual conduct itself had been decriminalised. The State is now moving towards the legal recognition of "slightly constitutional familial arrangements" in the form of same-sex unions. Again, it is evident that the political stimuli driving this reform are underpinned by the highly significant case being taken by the lesbian couple, Katherine Zappone and Ann-Louise Gilligan, seeking recognition of their Canadian same-sex marriage.

Similarly, recourse to the courts by parents of children with special educational needs arose as a direct consequence of the failure of successive governments to provide for such education in the terms required by the Constitution. The seminal case taken by Kathy and Jamie Sinnott may, ultimately, have failed, but it did clarify the existence of a specified socio-economic right to primary education (albeit one terminating at the age of 18) and the momentum generated by that case undoubtedly contributed to the introduction of disability-specific legislation.

The law has yielded decidedly mixed outcomes for the Traveller community. In the area of Traveller accommodation, the law has made a negligible impact, probably because the legal obligation was devolved to local authorities. On the equality / non-discrimination side there is evidence of incremental progress despite the best efforts of certain lobby groups to stem that progress on the basis of spurious assertions of imbalance on the part of the Equality Tribunal.

Professor Gerry Whyte of TCD has argued that when marginalised people have recourse to the courts, it is usually as a last resort when political processes have failed to deliver or where despondency exists about the capacity of politics to deliver. It is all very well to be tough on litigators, but the Minister – who proclaims himself to be a radical from time to time – must also address the causes of litigation if he means to be taken seriously by other radicals.

To be fair to Michael McDowell, he does at least set out his ideological stall with pride and some coherence even if, at times, he tends towards hubristic rationality. His political detractors – and they must exist – seem happier to focus on the style of his delivery rather than on the substance of his thoughts. His personality gets in the way of their political opposition. They struggle to define him long after he has defined them by caricaturing their perhaps abandoned ideological framework. The Left appears not to have the courage of its convictions, because the convictions ascribed to it by McDowell and others are probably not its convictions at all.

McDowell has acted as a handy cartographer of the ideological landscape. His map has been read by a man with a mighty political compass and a good nose for the direction of political wind, Bertie Ahern. The Taoiseach's brazen appropriation of "socialism" for what most objective commentators would call populism underscored the extent to which (to borrow Eric Hobsbawm's phrase) there was so little left of the Left in Ireland.

Of course, much of what McDowell and Ahern have said is clever rubbish but, between them, they have spotted and revealed a weakness on the Left. As the Left has counted heads and decided that the predominance of middle-class heads calls for a shift in emphasis from the rights and ambitions of working-class people, Ahern has spotted that the new middle classes might still have working class values. Sinn Féin, of course, have been on to this for some time and have managed to pull off the splendid stroke of appealing to a section of the middle classes while mobilising the working class whose voter participation rates have usually been low.

Ahern's re-positioning of himself as a socialist is, of course, a bold challenge to the Labour Party (in its Pat Rabbitte phase) to define itself in precisely the terms it wishes to abandon. In effect, he is saying: "are you a socialist political party or just a trendy dinner party?" Labour's response to this challenge was to lampoon the apparent lack of sophistication of the Taoiseach and howl at the hard neck of a politician so obviously connected to the vital forces of big business as well as the powerful trade union lobbies with which Labour has such an uncomfortable marriage of inconvenience.

Of course, nobody seriously believes that Bertie Ahern is a socialist. If your clothes are stolen it would be normal to claim them back on the basis that they are yours. If someone steals your least appealing item of clothing they may be challenging you to ask for it back. It doesn't matter that it looks silly on them or that it's out of fashion if it looks no less silly on you or no less out of fashion.

Nobody seriously believes that Pat Rabitte is a socialist (least of all himself) but in the adversarial game of politics he cannot tell Bertie to keep the shiny suit and polo-neck of socialism even if he has stopped wearing it himself.

Those on the progressive Left in Irish politics must connect, in a more real way, with the marginalised groups whose common interests they represent in order to become the legitimate and authoritative voice of those experiencing marginalisation. This must involve opening up the policy development processes of their organisations and hearing the valid input of marginalised groups.

In order to succeed, solidarities between groups experiencing marginalsiation must be established and embedded organisationally to construct a progressive policy platform around which many people can coalesce. This would have a unifying impact that should contribute positively to social cohesion (paradoxically) by focusing on difference.

Such a platform would see the law as one but not the only component of progress. It is in addressing the role of law and examining transformative models of law-making as a means of advancing a progressive policy platform that clear differences could emerge between the kind of politics espoused by Michael McDowell (and practised by Bertie Ahern) and parties of the Left.

It's not as if the Labour Party has not got a credible legacy in the area of progressive legislation. The Employment Equality Acts 1998-2004 and Equal Status Acts 2000-2004 are an enduring example of good law as an instrument of social change.

This legacy has been steadily eroded and stealthily undermined by the FF-PD Government through a variety of passive-aggressive interventions. If parties of the Left wanted to find a credible starting-point upon which to embark on a progressive policy venture it might be in a more robust defence of the equality infrastructure that they themselves built.

Donncha O'Connell is the Dean of the Faculty of Law at NUI, Galway. This is an abridged version of a paper presented to the Parnell Summer School 2005