Dr Conor Casey

Drawing on the natural law tradition and arguments developed in his extensive work on administrative and constitutional law, in a series of recent essays the prominent public law scholar Adrian Vermeule has argued the time has come for legal conservatives in the United States to set originalism aside. In its stead, Vermeule argues conservatives should approach constitutional interpretation in an openly morally infused way and open to using state power to promote the common good - an approach to constitutionalism Vermeule dubs ‘common-good constitutionalism’. Vermeule’s proposal immediately sparked extensive and heated responses across both conservative and liberal legal circles. This essay is the first to offer a sustained scholarly analysis of this burgeoning debate. I have two main objectives: one explanatory, one critical. The first objective is to offer a clearer account and appreciation of what proponents of common-good constitutionalism are advocating for. This is necessary as I suggest that, unfortunately, many preliminary critiques of the concept have been awash with analytical imprecision and overstatement. I therefore wish to clarify the core terms and concepts pertinent to Vermeule’s brief essay: by digging deeper into the political context from which the call to adopt common good constitutionalism emerged, before outlining its core operative principles and their broader intellectual underpinning. My second aim is to critically analyse Vermeule’s arguments by addressing the initial wave of criticism hostile to the proposal. Contrary to these critiques, I suggest Vermeule’s proposal is entirely consistent with the natural law legal tradition and emphatically not an argument for authoritarianism unbound from legal and democratic constraint or concern for human rights. I conclude critiques starting from the premise common good constitutionalism is effectively a form of anti-constitutional authoritarianism are not only inaccurate, but deeply unhelpful to fruitful engagement over the core questions Vermeule’s arguments raise for public lawyers.

The United Kingdom’s decision to invoke Article 50 of the Treaty on European Union triggered serious ripples across its constitutional order, including repeat clashes between Parliament and the Government. This friction reached a crescendo in 2018, following the former’s unprecedented decision to hold the latter in contempt for refusing to obey its request to publish the Attorney General’s full legal advice on the Government’s draft Withdrawal Agreement with the EU. One of the many interesting constitutional issues thrown into sharp focus by this event, was the important relationship between executive power and the legal advice-giving role of executive lawyers. Using the UK and Ireland as illustrative examples, this essay considers how the work of executive lawyers interacts with executive authority. I argue that their legal advice can be important in supporting the executive’s political narratives about the basis for controversial policy action or inaction and is deployed by the executive to enhance its perceived legal credibility and political legitimacy. Its relationship to exercises of public power deserves greater positive and normative scrutiny, both in each system and from a comparative public law perspective more broadly.

This essay offers an account of the diverse range of rich insights Professor Finnis’s work offers for several perennial questions of constitutional theory: such as what valuable moral ends constitutional law serves, how best to approach the design of constitutional arrangements and institutions, and how to best approach constitutional interpretation. I proceed in four parts. The first two parts begin by looking at Finnis’s treatment of the purpose of law as a social practice and then, more specifically, the point or purpose of channeling political power through constitutional law. Having outlined the point or purpose of constitutional law and constitutional institutions, I then probe what Finnis has to say about questions of constitutional design. Finally, I give an account of how Finnis’s work approaches constitutional interpretation.

There is evidently uncertainty in the Superior Courts concerning the interactio between the Immigration Act 2004 (the "2004 Act") and the executive pow of the State to operate and regulate residency permission schemes for non-Ir nationals. This article will explore the Superior Courts' treatment of ss.4 an of the 2004 Act, contrasting the approach of the High Court with that of t Supreme Court. While the Supreme Court has not yet definitively ruled on t interaction between ss.4 and 5 of the Immigration Act 2004 and Ministeri discretion, there have been hints in both Bode v Minister for Justice 1 an Sulaimon v Minister for Justice? that these sections do not delimit the ext of that discretion. It is argued below that these cases suggest that the Supre Court has adopted the premise that the Minister for Justice has inherent po to consider and determine an application for residency that is independent any statutory scheme. In contrast, it appears that the High Court, as exemplifi in the recent case of Hussein v Minister for Justice ,3 has taken the view t the arrangements governing entitlement to remain within the State derive fro ss.4 and 5 of the Immigration Act 2004, and thus limit the Minister's discret to refuse residency permission to non-nationals.

“Though a dwelling house is property and often indeed the most valuable piece of property an individual citizen possesses, it would be quite wrong to equate it with other forms of property such as money or money’s worth […] The free and secure occupation of it is a value very deeply embedded in human kind and this free and secure occupation of a dwelling house, apart from being a physical necessity, is a necessity for the human dignity and development of the individual and the family”: per Hardiman J. in The People (DPP) v Barnes. The words of Hardiman J. elegantly express the profound relationship between the secure occupation of a dwelling and basic human needs, both physical and mental. In this piece, we shall consider the extent to which a right to shelter currently exists in Irish law. It has been extensively noted that there is no explicit constitutional or statutory right to shelter or housing in Irish law, save for the State’s duty to children under the Child Care Act 1991 (the “1991 Act”) and Art.42.5—now Art.42A—of the Constitution. However, in this article we explore whether a right to shelter may be feasibly secured or implied through the protection offered by other constitutional provisions or through the jurisprudence of the European Convention on Human Rights (“ECHR”). In Part I we shall consider whether a right to shelter can be secured through the Constitution of Ireland, by examining a number of rights, namely the right to bodily integrity, the constitutional right of the person to protection, the constitutional property right a tenant may have in a lease, and the State’s constitutional duty toward children. Our analysis suggests that there are a number of ways in which the Constitution could afford extensive protection to such a right. In Part II, we examine whether a right to shelter may be grounded in the jurisprudence of the European Convention on Human Rights through the obligations placed on state organs through the European Convention on Human Rights Act 2003 (the “ECHR Act 2003”). The recent work of the Constitutional Convention, and the majority vote of confidence by its members for the recognition of an explicit enumeration of socio-economic rights in the Constitution, once again raise controversial and contentious issues concerning the proper role of the courts in the democratic order and their legitimacy and capacity to grapple with such questions. We hope to demonstrate that although those in favour of vindicating a right to shelter through the Constitution will invariably continue to pursue an explicit enumeration of that right through amendment, the current jurisprudence in the area suggests that there may be other, albeit more subdued, means of vindicating a right to shelter.

Discusses the extent to which executive control of the legislative process (executive dominance) was a feature of the Irish Parliamentary system between 2016 and 2019. Reviews key constitutional features of executive dominance, its operation in the "money messages" procedure of Ireland's 2016 minority government, the methods of opposing legislation, including Attorney General's advice, and the reasons for executive dominance's resilience.

This article makes the case for greater parliamentary involvement over assessments of the compliance of policy proposals with constitutional commitments. It proceeds in four parts. Part I outlines the strongest normative justifications for parliamentary involvement in pre-enactment constitutional review in theoretical ideal-type accounts offered by scholars. Part II outlines the Irish constitutional review process. It traces the predominant role played by the executive and judiciary, and how Parliament is largely excluded from any substantive participation. Part III provides a comparative account of how several other common-law parliamentary systems implement parliamentary engagement with rights issues. Part IV distils the various factors considered in Part III by way of guiding potential institutional reforms aimed at facilitating a more pronounced role for Parliament over constitutional review. It is tentatively suggested that the recent innovation of pre-legislative scrutiny-if accompanied by several additional initiatives-may serve as a good basis for commencing any conversation concerning reform. These amendments include reforming the extremely secretive and opaque process of executive branch legal review, and promoting greater parliamentary capacity to contest and scrutinise executive determinations through the creation of a non-partisan, specialised and well-resourced constitutional law committee. However, Part V concludes on a note of caution and highlights the barriers which may hamper attempts at cultivating greater parliamentary involvement over constitutional review, notwithstanding any reforms.

In this article we argue that the story of Star Wars has much to tell us about perennial questions of constitutional design. The series offers a rich cinematic exploration of some of the most pressing real-life issues of politics and constitutionalism and is, we suggest, a fruitful source of insight for issues of constitutional design and regulation. This article proceeds in three parts. In Part I, we sketch the political context which grounds our analysis, outlining the key constitutional institutions of the Galactic Republic, and their rapid decline and fall as documented across the prequel trilogy. In Part II, we outline the existing contributions commentators have made in respect of Star Wars and its lessons for constitutional design and regulation-the problem with the concentration of government power in one person and the risks posed to political systems by excessive delegation of authority to the executive branch. We then introduce three more nuanced lessons that we think the films offer: the 'Publius paradox'; the hollowness of legalism; and the dangers of confusion at the apex of power. In Part III, with detailed analysis of the films, we show how the Star Wars saga clearly illustrates these lessons: that a constitutionally weak executive, rather than a strong one, can be a cause of democratic decay and autocracy, as it proves incapable of meeting the demands of governance; that commitment to and obsession with law is not per se any bulwark against autocracy; and that unclear lines of constitutional authority pose a huge risk at times of strain and crisis. We argue that the constitutional problem Star Wars illustrates is more subtle and more important than the dominant accounts suggest: that under concentration of power creates the risk of overconcentration of power. If we fear the decay of democracy into autocracy and wish to respond to it, we must be careful not to excessively limit or diffuse power. If we do, and begin to see constitutionalism as solely or primarily a means of restraining government, we may limit government so much that we cause the very problem we seek to prevent.

Political constitutionalism is a major area of inquiry in contemporary constitutional discourse. A significant and increasingly central aspect of political constitutionalism is pre-enactment political review: laws being reviewed for constitutionality or rights compliance by parliament or the executive. This institution is said to be a good augmentation of, or even replacement for, the institution of judicial review, and it is said to bring with it a host of normative benefits. In this article, we wish to highlight an under-explored dark side to pre-enactment review. By undertaking a comparative analysis of functional pre-enactment review in several similar jurisdictions-Canada, New Zealand, and the UK-we contrast these systems, and the ordinary failings they display, with the much deeper problems of pre-enactment review in Ireland and Japan. These latter jurisdictions, we argue, not only fail to instantiate the benefits of pre-enactment review but in fact show that, in the right circumstances, pre-enactment review can have negative effects that are antithetical to the goals and values of political constitutionalism. We call this phenomenon "shadow constitutional review," and suggest that it adds a layer of complexity and nuance to contemporary discussions of political constitutionalism.

Foreword by Sir Robert Buckland KBE QC MP: The Law Officers of the Crown are sometimes described as the submarines of Government, working below the radar and surfacing only when there is a significant issue to be addressed. I agree with this characterisation, but I also think that lively discussion and debate about their role is beneficial, which is why this discussion paper by Conor Casey and John Larkin QC is so welcome. Policy Exchange are once again to be commended for making sure that the debate about constitutional affairs is not entirely one-way. Such a lack of debate led to the flawed Constitutional Reform Act 2005, for example. A lack of balance is also evident in recent criticism of the Attorney General’s announcement that she is considering referring a point of law to the Court of Appeal in the wake of the Colston statue trial. Attacking this announcement as disgraceful political gamesmanship or even institutional racism, as some have, is clearly misconceived. However, it does usefully reveal the difficulty that some people have in thinking about the Attorney General’s role, which this timely paper helps correct. David Mallet, in his 1740 “Life of Francis Bacon”, memorably described the offices of Attorney and Solicitor General as “rocks upon which many aspiring lawyers have made shipwreck of their virtue and human nature.” JP Collier wrote in 1819 that “of all the offices in the gift of the Crown, that of Attorney General is perhaps the least to be coveted for… the person filling that place can scarcely avoid being the object of general dislike”. There is no doubt that both the Law Officers of England and Wales endure some tough moments, but their constitutional value endures, despite change and evolution when it comes to their detailed functions. Having been a Law Officer myself for just short of five years, I can testify to the benefits of Law Officers being in the House of Commons, having to be directly accountable for the organisations they superintend and having the sort of direct political influence that appointed officials simply cannot possess. One aspect of the work of the Law Officers that has not really changed is their involvement in some litigation, either conducting it directly in the Court of Appeal or other senior courts, or advising and being consulted on the course of major litigation where the Government is a party. It is implicit that, in a case involving the Government, its very own submissions reveal its view as to the merits of a case. To make explicit what is implicit by expressing an opinion about a case after its conclusion is not, and cannot be, objectionable. What would be clearly objectionable, however, would be a refusal by the Government to abide by the judgment, which would demonstrate not mere disrespect for the court but complete disregard for the rule of law. Equally objectionable would be personalised comments and attacks on the integrity of judges, who are in no position to answer back. To suggest, however, that Law Officers should be wholly prevented from either disagreeing with or making positive comment about completed cases is to take things much too far. Further, it should be entirely expected for a Law Officer to support the Government’s policy on judicial review or other types of legal or constitutional reform, whilst maintaining scrupulous professional objectivity when conducting individual cases and determining the public interest. The Law Officers are not Ministers who have responsibility for the development of policy, but the making by them of measured contributions to legal debate should not be prohibited. Delivering such views in a legal conference seems to me to be a proper setting too. Although a recent Attorney made a speech at a Party Conference, I would hope and expect that very much to remain an exception, rather than become a rule. Casey and Larkin’s conclusions are the right ones. Law Officers and Ministers should feel confident about making measured and reasonable points without being subject to a barrage of unreasonable criticism that could stifle debate. I firmly believe that the Law Officer model used in England and Wales has worked, and will continue to work, well, and that those who serve in these offices will respect their constitutional boundaries whilst not having to maintain a sphinx-like silence!

The House of Lords Constitution Committee is currently investigating the role of the Law Officers. The Committee have outlined several questions that frame its inquiry, including whether it is “appropriate or helpful for the Law Officers, as Government legal advisers, to be politicians serving in Government?” The inquiry may be the most thorough examination of the Law Officers since the period 2007-2009, during Prime Minister Gordon Brown’s campaign for constitutional reform. It was clear at that time some in the then Labour Government were open for reform, with Prime Minister Brown announcing to the House of Commons that the office of Attorney General “needs to change”. Around the same time, the House of Commons Constitutional Affairs Committee and House of Lords Select Committee on the Constitution both issued reports concerning potential reform, with the former advocating significant change. The Commons Committee recommended reform along the lines that responsibility for providing legal advice to government and superintending the prosecution services should be vested in a statutorily independent career lawyer and not a politician or member of the Government. In the end, however, Government and Parliament did not proceed with significant reform. While some recommendations made by the House of Commons Committee were received positively by the Labour Government (even if not acted upon in the end), its most consequential proposals were rejected. Although the then Government initially appeared enthusiastic about the prospect of reform, in the end they definitively rowed back from the idea. The recommendations of the current House of Lords Constitution Committee – whose members include a former Supreme Court president, Lord Chancellor, and Solicitor General – will no doubt spark renewed debate on the Attorney General and its proper role in the constitutional order. The United Kingdom currently faces a daunting set of challenges, including navigating the complex socio-economic problems and opportunities facing Britain post-Brexit, the ongoing fallout from the Russian invasion of Ukraine, rising food and energy costs, political deadlock in the Northern Irish Assembly, potentially significant legislative reform of human rights protection, and the possibility of Scotland leaving the United Kingdom, to name just a few. These issues will raise countless thorny legal and constitutional issues, about which the Prime Minister and his Cabinet will invariably turn to the Attorney General for legal advice and guidance. The Office plays a critical role in the constitutional order and questions concerning its reform should therefore be subject to serious debate and reflection. This report aims to contribute to ongoing debates by arguing that the Labour Government under Gordon Brown acted wisely by rejecting significant constitutional reform, and that current political actors should follow suit. As such, I offer a defence of the institutional status quo of the Law Officers. I suggest that the current configuration of the Attorney General (and Solicitor General), as a law officer with legal and political dimensions, works well. I also argue that the costs of moving to an alternative model of Attorney General could be steep and not worth incurring given the overall robust health of the contemporary Office. However, my defence is qualified in that I suggest several moderate reforms would be prudent to ensure proper balance is maintained between the political and legal dimensions of the office, so that the former does not compromise the latter. I proceed in five parts. Part I offers an overview of the Attorney General’s Office and its diverse set of functions and responsibilities. This part provides an account of the dual legal-political nature of the office that I defend. Part II outlines the strongest critiques of the office and why calls for reform arise intermittently. Part III offers a defence of the office and argues that successive Attorneys General have, for the most part, maintained appropriate balance when simultaneously carrying out their role as legal advisor and guardian of the public interest and rule of law on the one hand, and their position as a member of government on the other. I also argue that when appropriately balanced, the political and legal elements of the Attorney General are complementary to each other. Part IV analyses several different constitutional systems to probe the potential political risks of alternative models of apex legal advisors. I suggest in light of the overall robust health of the office that such risks are not worth incurring. Part V outlines a slight qualification to my defence, which is that several reforms would be prudent responses to some legitimate concerns raised in part III and would help solidify appropriate balance between the dual dimensions of the Attorney General’s Office. A brief conclusion follows.

Political constitutionalism understood in terms of autonomy of political judgement rather than allocation of powers – Irish case studies as example – Judicial doctrines recognise political discretion concerning rights – However, legalism or legal constitutionalism arises within the sphere of political judgement itself – Legal constitutionalism restricts political autonomy epistemically as well as institutionally

Damache v Minister for Justice concerned a constitutional challenge to section 19 of the Irish Nationality and Citizenship Act 1956. This section outlined the statutory process the executive branch, acting through the Minister for Justice, had to follow before revoking a certificate of naturalisation. The appellant successfully argued this process was an unconstitutional breach of fair procedures. The judgement will be of interest both to Irish and other public lawyers for its treatment of fair procedures, which the Supreme Court approached in a regrettably blinkered way - seeing only one constitutional principle when several others were at stake. The judgment is a stark reminder for both Irish and comparative lawyers of the fact that the concrete demands of fair procedures must be balanced with a range of competing institutional goods and principles equally important to constitutional democracies: from administrative efficiency to structural principles stemming from the separation of powers.

This essay takes stock of the debate over common good constitutionalism and the revival of the classical legal tradition. In doing so, we suggest that several of the most common critiques of that revival are based on serious misconceptions and question-begging claims, especially for the superiority of originalism. Our hope is to clear away these myths so that actual engagement may occur. We hope to inaugurate a new phase of discussion, one in which critics of the classical legal tradition begin with a baseline comprehension of what it is they are criticizing. In a sense, despite all the sturm und drang, the real debate over common good constitutionalism has yet to begin. Part I sketches the largely ersatz debate so far. Part II introduces the essentials of the classical theory of law and of common good constitutionalism, which is nothing more than the core precepts of the classic legal tradition translated, adapted and applied to current constitutional debates. We do not purport to provide a comprehensive statement of the classical theory, but merely offer an introductory mini-primer, with references to more comprehensive literature. As we will see, the myths we will discuss beg even the elementary questions. Part III explains how the myths are incorrect—or, more precisely, beg the questions in controversy. In the conclusion, we invite genuine engagement with the classical legal tradition.

The growth in the power of the executive branch of government has been accompanied by a related growth-heretofore unexplored in the literature on comparative constitutional law-of the role and importance of executive legal advisors. These influential but often secretive advisors can be the first-and sometimes the only-group to review the actions of the executive or legislative proposals before enactment, for compliance with the constitution. In this article, we compare this practice in four similar but somewhat distinct jurisdictions-the United Kingdom, Canada, the United States, and Ireland-to assess its impact on constitutionalism and the executive power. We conclude that the practice of constitutional review by executive lawyers is highly variable, changing between places and over time along four key axes that can either empower or constrain the executive to varying degrees. It can restrain executive action by holding it within constitutional boundaries; it can bolster the executive power by giving legalistic credibility to its actions while providing little restraint in practice; or it can create policy distortion by overly tightly binding executive and legislative action. Constitutional advice from executive legal advisors, then, does not operate as an exogenous constraint on executive power, but can be structured and manipulated by the executive to have various different effects. As such, we argue that this institution requires much more attention from both comparative constitutional lawyers and constitutional designers to map its effects on the constitutional order and to see what structures, processes, and cultural factors might shape it. Finally, we argue for increased transparency in the provision of executive constitutional advice, as without this, even understanding its effects is extremely difficult.