The Doctrine of Proportionality: An Examination of Constitutional Decomposition by the Irish Judiciary

THE DOCTINE OF PROPORTIONALITY: AN EXAMINATION OF CONSTITUTIONAL DECOMPOSITION BY THE IRISH JUDICIARY

Adam O’Leary

Introduction

The doctrine of proportionality is a theory reflecting the consideration of public policy in judicial decision-making. It has three streams of application in Ireland, the stream for discussion here being its role in constitutional and administrative law. It is clear by how the test has been applied by the Irish Courts that it will allow for the express (albeit minimal) infringement of constitutional rights. This will be dependent on there being a sufficient public benefit operating in tandem with that infringement.1 From this definition, a number of issues arise relating to clarity and the roles the proportionality test seems to create. For instance, by what metric is public benefit measured against the fundamental protections afforded to citizens, and which institution is supposed to determine this? Indeed, the more suitable language within the academic literature refers to justifications under proportionality as mere ‘claims of the common good’2 rather than well-reasoned arguments of tangible benefits.

The manifestation of this doctrine in the Irish jurisdiction, while impactful, has not been extreme in the sense of dismantling constitutional provisions. In that sense at least, we have not been faced with some explicit incursion into other aspects of the separation of powers. Alternatively, the proportionality test has been primarily applied to the Court’s evaluation of legislative decisions made by the Oireachtas rather than their own judicial decisions.3 The point to be brought forth in this article is therefore that while the test seems to form an essential, functional role across procedural law, the underlying issues with its adoption and hopelessly vague application must be addressed. The problem lies not with the impact it has already had, but what that impact and these issues indicate about how the doctrine could be used in the future.

1 Heaney v Ireland [1996] 1 IR 580, WJSC-SC 3768. 2 Eoin Daly, ‘Reappraising Judicial Supremacy in the Irish Constitutional Tradition’ in Laura Cahillane, James Gallen and Tom Hickey (eds), Judges, Politics and the Irish Constitution (University Press Scholarship 2017) 29. 3 Brian Foley, ‘The Proportionality Test: Present Problems’ (2008) 1 Judicial Studies Institute Journal 67.

The Heaney Decision and its Consequences

In the trailblazing case of Heaney v Ireland the Supreme Court examined a specific provision of the Offences Against the State Act.4 This piece of legislation provides for crimes related to treason and terrorism. The proportionality test was applied to validate provisions which would require detained persons to give ‘a full account of such person’s movements and action during any specified period’.5 This is not exactly a shocking revelation, and it is doubtful that there would be much protest to a provision which so rightly assists in the uncovering and criminalisation of these serious criminal offences.

However, the devil resides in the details. The decision in Heaney makes much reference to the importance of protecting the public and how the Act in question achieves this.6 In doing so, it appears to create a distinction between the interests of the public and the separate interests of the State. The ‘entitlement of the State to protect itself’7 was actually the primary rationale used by the Court in identifying proportionality. This is an excessively broad justification, and this particular wording opens up dangerous opportunities for overreaches of power. It creates precedential force which could permit drastic measures relating to law enforcement and civil defence. There is no definition of what government and legislature has the right to protect itself from, and indeed a dangerous assurance that the Courts may be lenient in protecting these non-specific interests against fundamental rights.

If this were not enough to point out the problems associated with proportionality, the doctrine represented a practically baseless rationale which was quickly overturned. In the subsequent case of Heaney v Ireland8 before the European Court of Human Rights, it was held that the provisions defended by the Irish Supreme Court violated the concept of fair trial as provided by Article 6 of the ECHR.9 The Act was found not to be proportionate, with the threat of terrorism not being enough to invalidate the rights to silence and non-self-incrimination. This disagreement from the Courts at a supranational level demonstrates how proportionality provides a weak rationale which,

4 Heaney v Ireland (n 1). 5 ibid s 52(1). 6 Heaney v Ireland (n 1) [32]. 7 ibid [35]. 8 Heaney and McGuinness v Ireland (34720/97) [2000] 12 WLUK 685 (2001) 22 EHRR 12. 9 European Convention on Human Rights 1950 Art.6 27

as it is subjective in nature, can be easily overturned where a higher court holds a different opinion on the imaginary balance to be struck.10

Further Case Law on Proportionality

Another decidedly proportional area of criminal law is that which informs the procedure behind ‘breath-test’ checkpoints set up by An Garda Síochána. While they have been approved by the Courts, concerns over their constitutionality have been considered by the High Court in Weir v DPP. 11 The very essence of such checkpoints are that they are randomised in terms of the citizens that are selected for testing. In a strict application of the Constitution, this activity is entirely unlawful. With the right to freedom operating in this jurisdiction, it would typically be absurd that a law would enter into force that allows Gardaí to invasively halt people without probable cause or reasonable suspicion. The proportionality rationale here lies in the need to combat high rates of intoxicated driving and fatalities arising from that societal problem.

With respect to that case, proportionality has created two additional changes to life in Ireland. In a more everyday sense, it has firstly allowed for a more practical manner for identifying those driving after consuming alcohol. However, its negative aspect lies with how constitutionality has been substituted with this practicality. Again the problem is a lack of precision as drink-driving is most definitely a consequential offence as are many others. If the Courts are willing to allow this legislation without outlining limits or express directions for the legislature, what is to stop the passing of laws with broader effect and perhaps even increased invasiveness.

One cannot consider the development of proportionality without reference to the decisions in Meadows.12 This pivotal case resolved discrepancies over judicial involvement in the administration of the State, and the relevance of the proportionality test in such interference. The most significant consequence of the decision is that it created a mechanism for judicial involvement in administrative decisions where the court itself is satisfied that they go beyond ‘fundamental reason and common sense’. The court introduced this as an extension of judicial interpretation and argued that it does not give them any additional jurisdiction. However, the assumption of further

10 Clary Ovey and A J Ashworth, ‘Heaney and McGuinness v Ireland’ (2001) 6 Criminal Law Review 481 . 11 Weir v DPP [2008] IEHC 268. 12 Meadows v Minister for Justice, Equality and Law Reform [2010] 2 IR 701, [2011] 2 ILRM 157

responsibility which is usually reserved for other state organs can only be seen as an attempt to broaden their influence and discretion.

Conclusion

What has been explored in this article is a doctrine that requires prompt qualification before there is a chance to abuse it from a position of political influence. This is not saying that the proportionality test has been developed in line with some undesirable agenda, but it has been used somewhat arbitrarily in protecting the State and public while omitting to protect the Constitution at the same time.

As pointed out within specific cases of judicial review, the test has a clear requirement for definition and limits. If the legislature is going to be allowed to constrain constitutional rights with the approval of the judicial branch, the test cannot be a vague one based on the abstract notion of striking a proper balance.13 As with many judicial tests then, for example, there could be multiple stages with explicit items to be considered. In the spirit of questioning the test itself, however, it could also be questioned why its existence has been allowed to continue despite how legislative and administrative practice has evolved since its inception. Indeed, proportionality exists on the very boundaries of acceptable judicial law-making if not breaking them. Would it be prudent to place more emphasis on this overall issue at the pre-legislative and parliamentary stages, with heavier consultation from the legal and judicial community on proportionality specifically?

Moreover, if the test should continue to be used, it can be contended that the requirement of minimal infringement of rights is neither sufficient nor intelligible enough to provide the limits needed. In the wider world that exists outside of the pre-existing case law, there is an unquantifiable number of stakeholders and groups to be considered under the context of constitutional rights. This is just one of the deficits which makes the doctrine entirely unsuitable for the resolution of rights issues, whether or not these rights are seen as indispensable absolutes.14

In examining the problems with Heaney, one must also take issue with the nonrepresentative judiciary being the body to weigh the interests of those stakeholders against one another. This of course brings up a wider debate on popular appointment of

13 Niall Buckley, ‘Merging Principles of Public Law: Towards Proportionality in an Irish Context’ (2004) 39(1) Irish Jurist 161. 14 Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(7) Int’l J Cons 709. 29

judges, but that discourse does find particular relevance in this discussion. The rights mentioned in this article and the wider corpus of international human rights protect those in less fortunate and sometimes desperate circumstances, who currently do not have a say in how those rights are interpreted and protected. In extended reform, there would need to be a greater focus on representation and consultancy in all matters evaluating the measure of rights against important laws, and certain safeguards to protect those groups and individuals that could be potentially disenfranchised.

Either way, there is clearly a need for change, to protect the Irish State of the past 100 years for another 100 years, and beyond.