The Courts Make a New Friend? Amicus Curiae Jurisdiction in Ireland

Author:Zeldine O'Brien
Position:Junior Sophister (Law), Trinity College, Dublin
Pages:5-28
THE
COURTS
MAKE
A
NEW
FRIEND?
AMICUS
CURIAE
JURISDICTION
IN
IRELAND
ZELDINE
O'BRIEN*
On
14
July
2003,
the
Supreme
Court granted
an
application
on
behalf
of
the
United
Nations
High
Commissioner
for Refugees
(hereinafter
the
UNHCR)
to
appear
as
amicus
curiae
before
it.
This
was
the
first time
the
UNHCR
had
ever
exercised
this
power
in
Ireland,
though
it
has
proved
an
effective
mechanism before
the
superior
courts
in
other
jurisdictions,
and
it
was
also
the
first
time
the
courts
had
undertaken
a
detailed
examination
of
the
position
of
amicus
curiae
in
Irish
law.
Though
there
is
no
provision
for
such
a
jurisdiction
in
the
Rules
of
the
Superior
Courts,
the
concept
is
not
alien
to
the
Irish
judiciary
who
have had
recourse
to
it
on a
number
of
occasions.
The
courts have
shown
a
willingness
to
extend
the
concept
beyond
its
original
confines' and
this
was
re-iterated
in
the
present
case
of
Iwala
v.
Minister
for
Justice
Equality
and
Law
Reform.
2
This
article
analyses
the
definition
of
amicus
curiae
adopted
by
the
Court
and
the
development
of
amicus
curiae
jurisdiction
in
Ireland.
It
examines the
test
which must
be
passed before
a
party
may
intervene
as
amicus
curiae
at
appellate
level
and
finally,
it
looks
briefly at
the approach
taken to
the
amicus
mechanism
in
other
jurisdictions.
Junior
Sophister
(Law),
Trinity
College, Dublin.
I
wish
to
thank
Dr.
Hilary
Delany
and
Mr.
Roderic
O'Gorman
for their
helpful
comments
on
an
earlier draft
of
this
article. All errors
and
omissions
remain my
own.
1
Brady
v.
Cavan
County
Council
[1999]
4
IR
99;
[2000]
1
ILRM
81;
Application
of
Woods
1970]
IR
154;
Application
of
Mc
Loughlin
[1970]
IR
197.
[2004]
1
ILRM
27;
[2003]
IESC
38,
[hereinafter
Iwala].
C
2004
Zeldine
O'Brien
and
Dublin
University
Law
Society
Trinity
College
Law
Review
Iwala
v.
Minister
for
Justice, Equality
and
Law
Reform
3
The
case
concerned
an
application
by
a
Mr.
Iwala
who sought,
inter
alia,
an
order
of
certiorari
quashing
the
decision
of
the
Minister
to
refuse him
a
declaration
of
refugee
status;
declarations
that
section
16
and section
17(1)
of
the Refugee
Act
1996 (as
amended)
were
repugnant
to
the
Constitution
and
an
order,
if
necessary, extending
the
time for
applying
for
leave
for
judicial
review.
The High Court
4
refused
the
application
but
certified
that
the
decision
involved
a
point
of
law
of
exceptional
public
importance
and
referred
the
following
question
to
the
Supreme
Court:
Is
the
Refugee
Appeal
Tribunal
acting
intra
vires
if
it takes
into
account
the
possibility
of
the
applicant
relocating
within
his
own
country
when
determining
whether or
not the
applicant
is a
refugee
within
the
meaning
of
section
2
of
the
Refugee
Act
1996
(as
amended)?
The UNHCR
sought
leave
to
appear
as
amicus
curiae,
averring
that
article
35
of
the
UN
Convention
Relating
to
the
Status
of
Refugees
1951'
(the
Geneva
Convention)
provides
for
an
obligation
on
the
part
of
states
to
cooperate
with
the
UNCHR
in
the
exercise
of
its
functions,
including
its
duty
of
supervision.
It
submitted
that
the
amicus
mechanism
was
an
effective
means
of
better
ensuring
the
correct
interpretation
and application
of
the
Convention.
In
addition,
the
UNHCR
cited
examples
of
where
it
had
'Ibid.
4
By
order dated
5
th
November
2002.
5
As
adopted
on
28
July
1951
by
the United
Nations conference
of
Plenipotentiaries
Status
of
Refugees and Stateless
Persons convened
under
General
Assembly resolution
429
(V)
of
14
December
1950
(entry into
force
22
April
1954,
in
accordance
with
article
43).
Article
35
provides:
1. The Contracting States
undertake
to
co-operate
with
the
Office
of
the
United
Nations
High
Commissioner
for
Refugees,
or
any
other
agency
of
the
United
Nations
which
may
succeed
it, in
the
exercise
of
its
functions,
and
shall
in
particular
facilitate its
duty
of
supervising
the
application
of
the
provisions
of
this
Convention.
2.
In
order
to
enable
the
Office
of
the
High
Commissioner
or
any
other
agency
of
the
United
Nations
which
may
succeed
it,
to
make
reports
to
the
competent
organs
of
the United Nations,
the
Contracting
States
undertake
to
provide
them
in
the
appropriate
form
with
information
and
statistical
data
requested
concerning:
(a) The
condition
of
refugees,
(b)
The
implementation
of
this Convention,
and
(c)
Laws,
regulations
and
decrees
which
are,
or
may
hereafter
be,
in
force
relating
to
refugees.
[Vol.
7

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