25th July 2001

IT was a pretty disgraceful act by the Government to appeal the Sinnott case to the Supreme Court. They have never explained clearly why they have done so.

As I understand it the Government appealed on the basis that the High Court had interfered with its right to make policy, in this case education policy.

Mrs Kathryn Sinnott fought her case on the basis that Article 42.4 states that the State should provide free primary education.

It really is worth it at this point to directly quote what 42.4 says in this regard.

“The State shall provide for free primary education”.

That’s it.

There’s no mention of age. In all of Article 42 there are only three references to children. One mentions “the child”. Another mentions “their children”. And the last mentions “the children”.

So no mention of age at all.

From this small mix the Supreme Court decided that the State wasn’t obliged to provide free education to Jaime Sinnott after his 18th birthday.

I simply don’t know how they came up with that one.

Is he not Kathryn Sinnott’s “child”? Does she not have to look after him? In a situation where primary education is not defined, wasn’t it reasonable to conclude that Jaime Sinnott needed primary education?

Apparently not. Let’s leave that argument there as everyone can make up their own mind about it.

Let’s move on to something very curious about the judgement. A number of the judges pointed out that Kathryn Sinnott could get redress under a number of Acts of the Oireachtas.

Acts like the Equal Status Act and the Education Acts.

These acts grant people like Jaime Sinnott certain rights. Presumably rights to education. And these acts are constitutional.

So the State appealed against a finding which it already passed laws to carry out in practice.

Bizarre or what?

I believe this is part of a campaign by successive Governments to emasculate the role of the Constitution and to retain the maximum powers for the executive.

There were mutterings about the cost to the exchequer if the High Court ruling held. But no-one mentioned a figure. Then Michael Woods said that he had a blank cheque to spend on disability facilities.

So far from trying merely to technically find out where the powers of the Government and the judiciary start and end, this is a case of the Government trying to strip the Constitution of its flesh.

And the Constitution is the only direct role the population plays in the running of this country.

For all that, I’m glad that the Supreme Court made the judgement it did for the simple reason that rights for the disabled should not be included in the Constitution on a technicality.

What is actually required is an amendment to the Constitution to enshrine these rights. Then we can have a proper debate about it and the pros and cons of the text can be teased out.

The worst thing that could happen is for the Supreme Court to go off on some judicial activism trip. Then we’ll be faced with ‘liberal’ judges and ‘conservative’ judges interpreting the Constitution according to their ideology. The result is that the democratic process is sidelined while judges and their dinner-party friends decide fundamental State policy.

An example of this process was David Norris coming home with a ruling from the European Court of Human Rights which effectively changed the laws here on gay rights.

Good for David. And fair play to him for getting rights for the gay community that they should have had anyway.

But the normal process to changing people’s minds was circumvented. There was no debate, no appeals to the broader public and no endorsement from the public.

In the Sinnott case we might have wanted the Supreme Court to make the “right” decision. But really their job is to interpret the text that we put into the Constitution. If we want the Constitution to say something we should vote to put it in.

As well as that…

Supreme Court – no plebs need apply

IT must cost about £10,000 to put your hand on the knob of the door on the way into a Supreme Court hearing. Then the charges go up.

You have to be some sort of fanatic to approach the courts to have your rights vindicated. Either that or extremely rich.

We’re not talking about mere millionaires here. We’re talking about Denis O’Brien or J.P. McManus type of wealth. Anything else and you’re facing destitution if you lose.

Which makes Kathryn Sinnott’s personal journey to the High Court all the more remarkable. She was fanatical about her son’s rights and she put everything she had on the line.

The State only came along with the cash after she had won. Don’t forget that.

This is a ridiculous situation. The Supreme Court is the final arbiter of what the Constitution says. Yet ordinary citizens have no realistic access to it (or to the High Court).

We need a system where ordinary people could have access to the higher courts without betting your house on the outcome.

Perhaps we could reserve 10 cases a year where the costs would be paid by the State. The cases could be taken on the basis of petitions from the public. The more signatures, the greater the concern.