Braving out the storm, but then what?

Regarding the latest hiccup in Irish jurisprudence, I’m with Simon: ie, the political consequences for the election are still hard to discern. If the coalition continues to take a battering on other things, this episode may weigh heavily on their credibility in a crisis. But, as Fionna has argued, the policy issue at the heart of this crisis should not go away.

The lack of public understanding of the respective roles of two key institutions of the state has been staggering. Perhaps it is simply a long term effect of a leave-it-to-us, populist political culture and a general unwillingness of parties to meet difficult policy issues head-on.

However, the Minister has come out fighting in the Sunday Independent today arguing that a lot of the muck thrown at him in the last week and a half was at best insubstantial, and at worst seriously misleading:

It was falsely asserted that I was taking a leisurely view of the time needed to legislate in the aftermath of the Supreme Court decision. As Friday’s proceedings showed, time was necessary to get the legislation right, and I was very uncomfortable with the guillotining of the Dail debate while worthwhile amendments were under discussion.

However, I was lectured from newspaper columns with the argument that by taking my time, I was out of touch with reality. In the end, both the Dail and the Seanad passed legislation which will continue previous protections and allow for a period of further reflection on broader issues such as the age of consent. An all-party committee is to be established to arrive at a consensus on these issues.

Richard Delevan in the Tribune notes that though the criticism was shrill, the practical alternatives springing from the opposition were few. More interestingly, he questions the idea that the Supreme Court’s hands were tied in delivering the verdict it did on the 23rd May:

In its 41-page judgement on 23 May the Court rejected the argument that it was not required to strike down the 1935 law, decided that it would leave it up to the legislature to come up with a statutory rape law that passed constitutional muster and leave it at that.

And, as we know, jurists are not supposed to live in the real world, not supposed to ponder the consequences of its decisions outside the courtroom. This is a fiction, for the most part a useful one, and one we are conditioned not to question.

But there is also an unwritten understanding that behind the rhetoric of lofty whiterthan-white independence, at least some considerations of the public good . . . dismissed with a snort as ‘utilitarian’ arguments by sharp trainee solicitors . . . might creep into the minds of people sitting on the bench when deciding, in effect, to free rapists. It’s not as if such considerations are unheard of.

Was it not a utilitarian reasoning that kept the Supreme Court from ruling in 1976 in the de Burca case, when it struck down the 50 year old jury law that barred women from serving on juries, that all persons convicted by juries empanelled under the old law would have to be freed?

Or that prevented the Massachusetts Supreme Court, when it struck down that state’s civil marriage law in 2003 because it excluded same-sex unions, from declaring every existing marriage in the state to have never occurred?

Or, as I revise this late Friday afternoon while . . . farcically . . . a warrant is issued for the rearrest of Mr A, can there be any doubt that the Supreme Court listens to Liveline? And was any of this insanity strictly necessary?

It seems the new legislation has got holes in it. It is hardly surprising, considering the breakneck speed McDowell was frogmarched into the re-draft at the frantic behest of an assorted band of opposition parties, Fianna Fail backbenchers, and if today’s Tribune is to be believed, several of his Cabinet colleagues from the more populist end of FF. Bertie’s steadying ‘ward boss’ hand was noticeable by its absence.

Of all the senior commentators writing about this case, Tom McGurk is one of the few to point out the danger for the opposition in going for McDowell’s apparently exposed jugular:

No matter how much the opposition tries to talk it up, or how the airwaves produce instant constitutional legal experts, the facts remains the facts. What has happened has been the sole prerogative of the judiciary and not of the legislators, who can only subsequently address the new legal situation post-judgment.

The most compelling fact of all is that, even if the implications of this case had been widely known at government level, the notion of having ‘emergency legislation’ drafted and ready to deal with the crisis, with the opposition claiming it should have been in place already, is nonsensical.

How could legislation designed to address a specific constitutional problem, as outlined in a specific Supreme Court judgment, be drafted before that specific judgment was made?

In particular, the Supreme Court judgment addressed the concept of mens rea, and its consequential constitutional implications, concerning the age of those involved in a sexual act.

Mens rea - guilty mind - refers to the state of a person’s mind when a criminal act is perpetrated.

Without knowing what the Supreme Court was now saying in relation to mens rea in this new context, how could new legislation have been drafted to deal with the new context? And then who could have foreseen Friday’s Supreme Court move?

Whether this was a genuine political crisis, or a constitutional crisis brought on by a judiciary (temporarily?) convinced of the primacy of abstract legal principle over tangible societal outcomes is probably now beside the point. According to Pat Leahy and Kieron Wood in the SBP, Fine Gael and Labour smell blood:

Senior Fine Gael and Labour figures are spending the weekend analysing the government’s changing responses over the past fortnight with a view to putting them on the defensive when the Dail returns.

But they would be well advised to tread very carefully. There has been a deal of obfuscation and confusion over the real issues of the last week - some of it originating from the opposition’s desperation to land a blow, any blow, on Minister McDowell.

When the smoke finally clears, serious policy questions will remain to be addressed consistently, and in such a way that politicians, as a class, can bring the Irish public along with them.

Anyone ‘playing politics’ with this particular fire is likely to get their hands burnt. Badly.