Supreme Court dismisses amicus application to prevent broad policy arguments from blurring specific legal issues in deportation appeal.

SUPREME COURT

61/17

O’Donnell J

McKechnie J

Dunne J

Between:

IRM, SJR, and

SOM (A Minor Suing by her Father and Next Friend IRM)

Respondent/Applicants

AND

Minister for Justice and Equality, Ireland and Attorney General

Appellants

Ruling of Court delivered by O’Donnell J on the 7th day of February 2018.

1 This is the Courts ruling on an application made on behalf of an entity known as the Pro Life Campaign to be permitted to participate

as an amicus curiae in the hearing of this appeal which is due to take place in this Court on the 21st and 22nd of this month. Given

the imminence of the hearing date, time was abridged for the giving of notice to the parties to the appeal. The application was made

by motion issued on the 5th of this month, was heard yesterday, and a ruling is delivered today.

2 The proceedings themselves concern an appeal pursuant to Article 34.5.4 of the Constitution inserted by the 33rd Amendment

which permits an appeal, known as a “leapfrog appeal” direct from a decision of the High Court to this Court. The decision of the High

Court in question was delivered on the 29th of July 2016. It will be necessary to consider the detail of what is involved in that

decision and consequently in this appeal, in a little more detail later. It is enough at this point to say that in those proceedings, the

High Court concluded that the respondent Minister for Justice and Equality was obliged, when considering an application for

revocation of a deportation order made pursuant to s.3(11) of the Immigration Act 1999, to take into account the position of any

child of the applicant for revocation unborn at the time of the application.

3 The application to participate in this appeal is grounded upon an affidavit of Cora Sherlock who states that the Pro Life Campaign is

the trading name of a company VIE Limited which is a company limited by guarantee incorporated in 1993. She says that the founding

members of the company were members of the Pro Life Amendment Campaign who campaigned for the introduction of the Eighth

Amendment to the Constitution which inserted Article 40.3.3 in to the Constitution. She says also that among the stated objects of

the company is the prevention of the decriminalisation of abortion and the promotion of the existence and value of human life from

the moment of conception. Ms Sherlock states that the campaign has consultant status at the United Nations Economic and Social

Council. At paragraph 41 of her affidavit it is stated that the Pro Life Campaign has amassed a considerable body of expertise in the

various fields, medical, social and legal, that touch on the rights of the unborn child in the womb, and number among its legal advisors

a named distinguished legal expert. None of this information about the background of the company is sought to be contradicted by

the replying affidavit of Ross Murphy on behalf of the State parties, save that it is observed that more than 4,500 organisations are

listed as having consultant status to the United Nations Economic and Social Council.

4 The affidavit of Ms Sherlock also makes reference to the procedural history of the case, the decision of the High Court, the appeal

to the Court of Appeal and the application to this Court for leapfrog appeal. The affidavit also makes general reference to some public

statements of the Taoiseach and the apparent intention to hold a referendum on a proposal to be put to the People in relation to

Article 40.3.3. To paraphrase the affidavit and oral submissions of counsel on behalf of the Pro Life Campaign, we hope not unfairly,

some concerns are expressed as to the desire apparently publicly attributed to what are described as “sources familiar with

government discussions” that there should be in the forthcoming appeal a comprehensive adjudication by this Court that Article

40.3.3 embodies the totality of rights of the unborn. Further concern is expressed about an alleged or perceived disparity of resources

between the existing parties, the fact that the application for direct appeal was acceded to by this Court, and a timetable set for an

early hearing this month. While not seeking to question in any way the integrity of the lawyers acting on behalf of the respondent

parties it is nevertheless contended that these matters put those lawyers in an invidious position. Concern is expressed therefore that

the interests of the unborn child could be “overwhelmed by the desire of the government to adhere to a particular timetable or

approach matters in particular ways”. Accordingly permission is sought to join this appeal as an amicus curiae in order to “support

and if necessary amplify” the arguments that might be made by counsel for the respondent. We hope that this sets out fairly the

burden of what has been advanced on behalf of the applicant.

Referendum

5 It is necessary to recognise immediately that this application cannot be viewed in isolation from the references made to the

proposal for a referendum in relation to Article 40.3.3. It was of course partly because of the imminence of that proposal that the

State parties for their part sought an early hearing of this appeal, and indeed why that application was acceded to by the Chief

Justice. For her part, Ms Sherlock’s affidavit makes repeated references to the proposal for an amendment to that Article and some

public discussion and commentary in relation to it.

6 It is important therefore to address one factor at the very outset of this application. It is of course not unknown for broadly

political issues to become the subject matter of proceedings in court. By the same token sometimes court decisions become the

source of political controversy. In the particular area of constitutional adjudication, this is particularly so. It is the function and duty

of courts to uphold the Constitution. This necessarily means that courts must interpret the Constitution. When proposals are made to

change the Constitution through the referendum process under Article 46 of the Constitution, discussion often centres around the

interpretation given by courts to the existing provisions of the Constitution which are sought to be amended, and indeed the

interpretation likely to be given to provisions sought to be inserted.

7 To this extent there may occasionally be significant areas of proximity, intersection and even overlap, between the issues discussed

and decided in the political and public arena in the context of amendment of the Constitution on the one hand, and those matters

which are addressed in court proceedings on the other. But it is very important then to understand that there are however very

significant differences in the process in each forum, which flow from the Constitution itself, and the position it accords to the Courts

and the duty it imposes upon them, the constitutional recognition of the political process, and perhaps most importantly the

constitutional role of the People, in particular when engaged in a referendum process when in the words of Article 6 they decide in

final appeal questions of national policy.

8 A court is not free to make observations in general on social, political or even legal issues. Courts may only decide on litigation

between parties and on those issues which those parties brought to the court for a determination. The only issues the court can

decide are the issues which are necessary in order to resolve the litigation between the parties and that is the only part of the court

decision which is binding on other courts and which can be said to have effect beyond the particular case. Inevitably some decisions

of the courts will have wider implications, and that can indeed be a desirable feature, but it is important to understand that a central

and distinctive feature of the court’s function is to decide the law only within the specific context of the litigation before it and for

the purposes of deciding that case.

9 It follows that it is not the function of the court to give advisory opinions or to offer views on matters unconnected to the issues

before it. If the decision of the court clarifies the legal provision for others then that is of course useful, but that is a consequence of

the court deciding the case before it, and explaining its reasons for so deciding. If the observations made by the court in doing so

assist others or hinder them, or bring clarity or confusion, then that is still a consequence of the decision, and not an object in itself.

It is also of course the case that if there is particular urgency in a matter and it was obviously desirable that there is an early

hearing, then courts will attempt to accommodate the interests of justice in that regard. That is a component of the administration of

justice. But there remains the fundamental duty on the court to administer justice between the parties before it. If therefore it was

apparent that one party was not in a position to proceed, or was significantly disadvantaged, so that justice could not be done, then

a court which is obliged to uphold the Constitution and to administer justice, would have to take steps to ensure that case could be

properly and fairly heard and justice done. By the same token, while a court may attempt to provide decisions in early course, in order

to address matters which are plainly urgent, there can be no question of a court hearing a case according to some predetermined

timetable and before justice can be done, or issuing judgment before a case has been properly resolved. The core function of a court

is to administer justice by deciding the litigation before it.

10 With that focus in mind it is necessary to consider what is in issue in these particular proceedings which the Applicant here seeks

to join. It is important to recall therefore, that these are immigration proceedings. In particular they arise in the context of the

application on behalf of the first named applicant who I will call for ease of reference the father, for revocation of a deportation order

under s.3(11) of the 1999 Act. The father argued that the Minister was obliged to take into account the fact that the second named

applicant, his partner, was pregnant and which pregnancy ultimately resulted in the birth of the third named applicant, their daughter.

The Minister for Justice and Equality for her part argued that she did not have to consider the pregnancy or the rights or interests of

the child not yet born. The High Court judge decided among other things that Article 40.3.3 guaranteeing the equal right to life of the

unborn was not an exhaustive statement of the constitutional protection of the unborn, that an unborn child was to be considered a

child for the purposes of the then recently inserted Article 42A of the Constitution, and furthermore that the three applicants

together were entitled to be treated as a family and to benefit from the rights of a family under the Constitution, although the first

and second named applicants were not married to each other. Accordingly, the applicants succeeded and the State appealed that

decision, initially to the Court of Appeal.

11 The High Court judgment was delivered in July 2016, and was recognised as having potentially wide ranging implications, not by

any means limited to the field of immigration important though that is. It is worth noting however that no application was made in the

immediate aftermath of the delivery of the judgment, or in the period thereafter, to join the proceedings notwithstanding any general

interest in, or expertise about, the legal status to be accorded to unborn children in pregnancy. It is therefore we think a reasonable,

indeed almost unavoidable, inference that this application is precipitated by the increased discussion of the case in the context of the

forthcoming proposed referendum to which Ms Sherlock makes reference.

12 That should not be surprising. The potential intersection between the wide ranging decision of the High Court in relation to the

constitutional status of the unborn, and the subject matter of any referendum in relation to Article 40.3.3 is obvious. Furthermore, as

long as the decision of the High Court is under appeal, there is inevitable uncertainty about the correctness of what that court has

decided, and the observations made. Both parties to this appeal accepted, as we understand it, that the appeal was both a matter of

general public importance which meant that the general threshold for appeal to this Court was met, and moreover that the

circumstances for a leapfrog appeal under Article 34.5.4 were satisfied. In those circumstances the application made by the State

parties for an early hearing of the appeal made obvious sense and was acceded to by the court. If the People of Ireland are to asked

to change their basic law, it is at a minimum desirable that, if possible, there should not be avoidable uncertainty about what that law

is. It is of course possible that the outcome of this appeal may not be to the satisfaction of any or all of the parties, may not result in

greater certainty, or may indeed give rise to other unanticipated issues, but there was a clear public interest in the court hearing the

appeal.

The Law

13 There is little dispute about the applicable law governing this application. It is accepted that permitting a person to intervene in

proceedings and address the court as an amicus curiae is a matter within the discretion of the court. The fundamental question to be

addressed in each case is whether the Court is likely to be assisted significantly by the intervention offered. It is also acknowledged

that the fact that a party has no official recognition and is not conferred with public functions in a particular area, and may moreover

have partisan views on a topic, are factors which tend against permitting against intervention. It is also accepted fairly on behalf of

the applicant that those factors are present in this case. However it is also the case that significant expertise and knowledge are

important factors, and realistically it must be acknowledged that any party who is sufficiently interested to seek to intervene may

well have strong views about the outcome he, she or it wishes to contend for. The court must weigh all those factors, in the context

of the issues arising in the case, and the disposition and attitude of the parties. Furthermore, it is right to recognise as the State

parties do in their affidavit, that non governmental organisations, and voluntary organisations play an important role in civil society,

albeit it is also observed that the fact that such organisations occupy a role of public debate should not be conflated with an

entitlement to be necessarily joined to proceedings such as the present.

14 In the exercise of this court’s discretion it is necessary again to focus very clearly on the precise issue to be determined at this

stage. What is before this Court is a pure issue of law. No question of any medical or social issue falls to be determined. The only

expertise in issue is legal. Here however the parties are legally represented. In particular the respondents to the appeal whose

submissions the applicants seek to “support and if necessary amplify”, are represented by an experienced legal team. Furthermore

the core of that team was involved in the High Court hearing, and in all the proceedings thereafter, and succeeded on the legal

argument in the High Court. They are therefore particularly familiar with the argument and the manner in which it intersects with the

facts of this case. Indeed, insomuch as the precise issue raised here is the interests of a child as yet unborn, and of her father who is

subject to a deportation order, then clearly the third named applicant here can raise those issues precisely, since she was the child in

that position herself, who gave rise to the High Court judgment. It is of particular significance therefore that counsel for the

respondents, while taking a neutral stance on the question of the application to be permitted participate as amicus curiae, clearly

disavowed any suggestion that the legal team on behalf of the respondents considered themselves at any disadvantage because of

the manner in which the case had been advanced. Nor is there any concern about resources in this case, the State having agreed to

be responsible for the respondent’s costs. Furthermore, it was made very clear that the lawyers on behalf of the respondent had a

clear understanding of the full extent of the obligation that lay upon them to make all arguments that could properly be made in

support of the High Court judgment which had been given in favour of their respondent. By extension it should be said that if indeed

competent lawyers retained on behalf of the respondent considered that they were at a disadvantage such that justice could not be

done to the argument they sought to advance, then it would follow that they would be under an obligation to bring that to the

attention of the court. If the court was satisfied that to proceed with the hearing would be unfair, then the court in turn would be

obliged to take appropriate steps to ensure that justice could be done. Again, it is important therefore to observe that the

respondents’ lawyers made no such submission, and did not suggest that they needed, or could benefit from the “support or if

necessary amplification” being offered by the applicant in this litigation. On this aspect it is clear that the concerns expressed that

the respondent’s team might be unprepared, outgunned, lacking either in resources or in the real commitment a fully fought case

creates, or disadvantaged by the timescale of the appeal, can all be discounted.

15 Counsel on behalf of the Pro Life Campaign did not identify any particular legal argument which he wished to make or thought that

the Pro Life Campaign could make to particular effect. This is not surprising. There are obvious constraints on any party who seeks to

intervene in litigation. By definition the only arguments that can be advanced, are those which properly arise in the appeal and

normally those which were made in the court below. We recognise that a prospective intervening party may always feel that it could

put the same point better, or in a different way, and furthermore that there is some value to be attributed to the fact that a party

genuinely interested has the satisfaction of knowing that it has advanced its own argument. However it must be concluded in this

regard, that insofar as it is possible to make an assessment of these matters, no measurable concern has been established to the

satisfaction of the court which would suggest that the full range of argument will not be made, or made skilfully and forcefully, on the

issues of law that properly arise on this appeal. Accordingly it seems that the assistance that can be offered at this stage is minimal.

Even then there may be cases where an even remote possibility of assistance could justify permitting a person to address the court

as an amicus curiae or at least to make brief written submissions, particularly if the issue was complex or novel and there was no

possible disadvantage to such a course. In this case however, in our judgment there are notable disadvantages to this course, and

which significantly outweigh any benefit to be obtained. The application in relation to this case is not being made as of July 2016

when the High Court delivered judgment or shortly thereafter when the State parties lodged their appeal. Instead it is clearly being

made against the background an incipient campaign in relation to a referendum. The interest of the potential amicus curiae in this

case, relates to the position of the constitutional position of the unborn. That is not the only issue in the appeal. Moreover, the

proposed applicant in this case is by no means the only group, entity or body which is concerned with that issue. It is well known

that there is a wide spectrum of views and a significant number of groups, organisations, and think tanks who have particular interest

in and views upon the topic. Many of these groups are likely to participate in the referendum campaign. While it is fair to say that no

other group has yet emerged in the context of these proceedings, the application in this case was brought at very short notice. If

this applicant, admittedly partisan, is permitted to participate in the appeal, it would become significantly more difficult to reject any

subsequent application from other groups, entities, or individuals, who wished to “support and if necessary amplify” arguments on one

or other side. This would create obvious logistical difficulties, and at an extreme could give rise to a significant risk of the case being

delayed or postponed even though the principal parties were in a position to proceed. In addition, and more significantly in our view,

is the fact that all such arguments would necessarily tend towards general arguments, unmoored from the specific contentions in this

case. That in turn would likely lead to a blurring of the distinction between legal argument and broader arguments that might be

advanced at the level of policy. It also cannot be ignored that admission to these proceedings and the making of submissions with the

likely publicity which may attach may itself have an impact in the broader sphere. All of this, if it were to ensue, would significantly

blur the important, indeed critical, distinction we have already adverted to, at the outset of this ruling and central to the

constitutional function of the court. This would not help, and might well hinder, the court in addressing the important issues arising

which are necessary for determination in order to resolve the particular dispute raised in this case. Even if the only applicant seeking

admission to the case was the present applicant the consideration would still have force. The desire to advance arguments of more

general application consistent with a group’s generally expressed views, would exert a gravitational pull away from the particular

issues in this case and towards more general matters of public controversy and accordingly away from the court’s central function. In

all the circumstances of this case, and the point it has reached, we would dismiss the application to be admitted to the proceedings.

For our part we are not satisfied that the issues which this Court should itself properly address in this appeal cannot properly,

adequately, and perhaps best, be advanced by the existing parties to these proceedings.