Opinion: could we see a return of legal measures which might be seen as a form of political interference in how the courts operate?

The recent ESRI and Department of Finance predictions for Ireland’s future post-Brexit make for grim reading. The envisaged loss of up to 80,000 jobs is evocative of the recession and economic downturn in 2008/09. If the anticipated losses are to be believed, Ireland can expect catastrophic financial repercussions.

But that is just one of many post-Brexit scenarios to be considered. Another is the potential dynamic between the Oireachtas and the courts in post-Brexit Ireland. If our post-Brexit economy is as fragile as the recession years, it might precipitate the re-introduction of a short-lived, exotic legal animal: the legislative recital.

Financial legislation enacted in the immediate aftershock of the economic downturn was a high stakes game. The whole banking sector required root and branch surgery. With this in mind, the Oireachtas began to enact legislative recitals, which outlined the "purpose" of financial statutes. That is, a section which explicitly stated the reason behind the legislation and potentially provided a solution for the courts in situations where difficulties in application arose. The notable thing about these recitals is that they didn’t appear anywhere else.

From RTÉ Radio 1's Today With Sean O'Rourke, Tanaiste and Minister for Foreign Affairs and Trade Simon Coveney discusses no deal Brexit legislation

In order to explain how these legislative recitals work, it will be necessary to briefly sketch the relationship between the Oireachtas and the courts, as determined by the Constitution. Under Article 15.2.1, the Oireachtas is the "sole and exclusive" law-making institution of the state. The Oireachtas "makes" law and the courts "apply" the intended aims of the legislation, as found in the statutory text. This assumes that the courts interpret statutory language in a literal manner, giving effect to the "ordinary and natural" meaning of the words of individual sections therein. As such, the courts are conceived as a conduit, through which the Oireachtas carry out their statutory aims.

Understanding statutory language is pretty straightforward most of the time. The courts use a long-standing presumption that the Oireachtas intends to create the very statute that is enacted: that is, "the legislature is taken to say what it means and mean what it says". This assumes that the statutory text sets out a legal state-of-affairs which represents the law as applied in the real world. The courts thus apply the ordinary meaning of words to carry out the aim(s) which the Oireachtas intends to achieve.

So far, so plausible, but we know that language can be tricky. Consider the current situation with electric scooters. When we hear the word "vehicle", we automatically envisage cars, lorries and motorbikes. However, an electric scooter is considered to be a "vehicle" for the purposes of the Road Traffic Act 1961, as it is self-propelled. One way of resolving this would be through amending the Act and providing a clear exception that an electric scooter is not a "vehicle". Another would be through judicial intervention, a decision negating a conviction/fine for example, on the basis that the Oireachtas did not intend electric scooters to be treated as "vehicles".

From RTÉ 1's Six One News, a report on the confusion over the legality of electric scooters on public roads

In situations where the courts are confronted with difficulties in the application of statutory language, judges are expected to consider the "purpose" of legislation. They will step-back from the literal meaning of the statutory text and consider the motivation behind the Act. That is, the judge(s) will consider the broad aim the statute was intended to achieve through a consideration of the Act as a whole.

This consideration of statutory purpose is said to be a uniquely judicial role. In the case of Maher v A.G. [1973] IR 140, Fitzgerald CJ stated "the usurpation by the judiciary of an exclusively legislative function is no less unconstitutional than the usurpation by the legislature of an exclusively judicial function." Thus, there is an assumed symbiosis at play in the respective roles of the Oireachtas and courts – the legislature makes law, the courts interpret it.

However, the legislative recital weakens this assumed institutional harmony. A raft of financial legislation from the core years of the financial downturn included such provisions. These include s.2 NAMA Act 2009, s.4 Credit Institutions (Stabilisation) Act 2010, s.3 Irish Bank Resolution Corporation Act 2013 and s.2 Strategic Banking Corporation of Ireland Act 2014.

From RTÉ Radio 1's The Business, Nick Ashmore, ‎CEO of the Strategic Banking Corporation of Ireland, and Cormac Lucey, economics commentator with the Sunday Times, discuss the Strategic Banking Corporation of Ireland

It is established practice that the legislature can enact interpretative guidelines for the courts. Section 5 of the Interpretation Act 2005 suggests an interpretative roadmap in cases where statutory language is unclear, ambiguous or absurd. This provides that the courts consider the "Act as a whole", to elicit the intentions of the Oireachtas, where difficulties in application arise owing to the language of the statute.

This requires that the task of interpretation and the consideration of statutory purpose is an adjudicative process. The key difference here is that the legislative recitals in financial legislation in the years following the financial meltdown explicitly state the purpose of legislation. Providing a conceptual, interpretative roadmap is one thing, but providing an unequivocal answer is another.

These legislative recitals could tentatively be regarded as a form of legislative/political interference in the judicial realm. In its 2000 Report on Statutory Drafting and Interpretation, the Law Reform Commission sounded a note of caution on the use of such recitals, observing "a danger of conflict between the actual provisions contained… and its politically-motivated purpose."

The legislature sought to pre-empt any potential lack of clarity by inserting a purpose failsafe

Again, this is where the historical context is significant. The country was on red-alert in 2008 and 2009. The legislature wanted to provide an absolutely clear statement of the statutory objective, namely providing for the rehabilitation of the financial system. They sought to do so by pre-empting any potential lack of clarity and inserting a purpose failsafe.

This is not necessarily a bad thing, but it does raise separation of powers questions, insofar as one must ask whether the Oireachtas is doing the Courts’ job in enacting such. In the event that things go as badly as predicted on the Brexit front, it will be interesting to see whether this curate’s egg is re-circulated into legislative currency.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ