Courts can be drivers of social change, says High Court judge

The courts are participants in driving social change, although often by way of negative decisions, a High Court judge has told a conference on the relationship between the law and social change.

Ms Justice Siobhán Phelan said court decisions could be drivers of social change — where a case involved a social issue, where the courts made a statement about the need for new legislation, where there were constitutional challenges, and in cases involving the compatibility of Irish law with the European Convention on Human Rights or European Union law.

“These are instances where the decisions of the courts can be drivers of social change, even though it doesn’t always seem like that,” she told a conference on the law and social change on Friday, organised by the Bar of Ireland.

Case law shows that Irish judges have a strong reluctance to develop the law in ways that raise significant issues in terms of policy, she said.

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But this doesn’t detract from the court’s role as a participant in social change, which often occurs by way of the reaction to negative decisions made by the courts.

It can be the case that “even when you lose, you still win”, in instances where taking the case raises awareness and gets the attention of the legislators.

Mr Justice Gerard Hogan, of the Supreme Court, said there was a long history of public-interest litigation in this jurisdiction, “but there are definite limits to it”.

“In any democratic society, ultimately it is the elected representatives who were chosen by the people who must make decisions for society.”

He said the 1937 Constitution was “a profoundly democratic document for which we should be very, very grateful, and perhaps we aren’t sufficiently”.

The history of public-interest litigation, he said, goes back to 1947, when a then-member of the opposition, James Dillon, took a case against the Health Act because of the powers it gave to authorised officers to go into people’s homes. The case never went to trial.

For all the failures and disappointments there had been over the years, people should not forget that there have been more than 100 cases since 1937 where a law has been found to be unconstitutional. “So that is an impressive record in its own way of public-interest litigation.”

On the topic of “amici curiae” or friends of the court — where a legal team that is not representing any of the parties involved in the case is allowed address the court — Mr Justice Hogan said there have been cases where the courts did not have the benefit of an amicus curiae but one would have been of great value.

He said the courts had experience of lay litigants who have done a fantastic job and have won cases at the highest level, “but good legal representation, good advocacy, does matter”.

Because of the profound issues it raised, the Supreme Court would have benefited from an amicus curiae being involved in the challenge taken by Gemma O’Doherty and John Waters to the constitutionality of the State’s response to the Covid-19 pandemic.

“The applicants did a very good job of representing themselves, but nonetheless they are not professional lawyers,” he said. The challenge, which was unsuccessful, was an example of the type of case where the presence of an amicus in the court could be of “profound help”.

The conference was told by Michael Lynn SC that Ireland is a relatively difficult jurisdiction in which to pursue public-interest cases because of the costs involved and the lack of class actions.

Cathy Smith SC said amicus curiae provide an extra perspective for the advancement of the administration of justice and that the mechanism had been increasingly used here in recent years.