Courts are involved in driving social change, albeit often through negative decisions, a High Court judge told a lecture on the relationship between law and social change.
Madam Justice Siobhán Phelan said court rulings can be drivers of social change – when a case concerns a social issue, when courts have made a statement about the need for new legislation, when there is constitutional challenges and in cases involving the compatibility of Irish law with the European Convention on Human Rights or European Union law.
“These are cases where court rulings can be drivers of social change, even if that doesn’t always seem like the case,” she told a law and social change conference on Friday. by the Bar of Ireland.
Case law shows Irish judges have a strong reluctance to develop the law in a way that raises important policy questions, she said.
But this does not take away from the court’s role as a participant in social change, which often occurs in response to negative court decisions.
It may be that “even when you lose, you still win”, in cases where taking the case raises awareness and attracts the attention of lawmakers.
Supreme Court Justice Gerard Hogan said there was a long history of public interest litigation in that jurisdiction, “but there are well-defined boundaries”.
“In any democratic society, it is ultimately the elected representatives who have been 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 are not grateful enough.”
The history of public interest litigation, he said, dates back to 1947, when then opposition member James Dillon sued the Health Act because of the powers it granted to authorized agents to enter people’s homes. The case never went to trial.
Despite all the failures and disappointments over the years, people should remember that there have been over 100 cases since 1937 where a law has been found to be unconstitutional. “So it’s an impressive record in its own way when it comes to public interest litigation.”
On “amici curiae” or friends of the court – where a legal team that does not represent any of the parties involved in the case is allowed to address the court – Judge 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 help.
He said the courts have a track record of lay litigants who have done a fantastic job and won cases at the highest level, “but good legal representation, good advocacy, matters.”
Because of the profound questions it raised, the Supreme Court would have benefited from an amicus curiae being involved in the challenge launched by Gemma O’Doherty and John Waters of the constitutionality of the state’s response to the pandemic of Covid-19.
“The plaintiffs have done a very good job representing themselves, but they are nonetheless not professional lawyers,” he said. The unsuccessful challenge was an example of the type of case where the presence of an amicus in court could be “profoundly helpful”.
The conference was informed by Michael Lynn SC that Ireland is a relatively difficult jurisdiction to pursue public interest cases due to the costs involved and the lack of class actions.
Cathy Smith SC said amicus curiae offered an additional perspective for advancing the administration of justice and the mechanism had been increasingly used here in recent years.