©Copyright Legal Women Limited 2023
Professor Catherine O’Regan’s Hamlyn Lecture
The Hamlyn lectures are delivered annually due to a Trust, created by Miss Emma Hamlyn, in memory of her father, a solicitor and Justice of the Peace in Devon, England.
In creating the Trust, Emma ignored the advice of her solicitors, and sought to apply the income of the Trust to further the knowledge and understanding of the law, of the common people of this country. The solicitor’s advice was that the Trust would be void for uncertainty. However, this concern was resolved, and the lectures have been presented every year since 1949.
The first of the Hamlyn lectures was presented by Lord Denning and continue to be presented by prominent legal practitioners, by academics and other celebrated speakers. This year’s lecturer, Kate O’Regan is a Professor of Human Rights Law and Director of the Bonavero Institute of Human Rights at the University of Oxford. Kate is a former judge of the South African constitutional court where she presided for over ten years, after being appointed by Nelson Mandela. Before being appointed to the constitutional court, Kate worked as a land and labour lawyer in South Africa, where she represented trade unions, their members, and human rights organisations, such as The Black Sash.
The theme for 2022 was ‘Courts and the Body Politic.’ Professor O’Regan’s Belfast lecture was titled, ‘The Expanding Constitutional Role of the Courts.’
The South African Constitutional Court
Professor O’Regan was keen to have the first of this year’s lectures take place in Belfast, not only because she had previously spent some time in Belfast, but also because she has a particular interest in divided societies, drawing parallels between Belfast and her own experiences in South Africa.
In exploring the expanding constitutional role of the courts, Professors O’Regan reflected on her experience in 1994, where the judges of the constitutional court of South Africa, newly appointed by Nelson Mandela, met for the first time.
Professor O’Regan described the tasks that she and her fellow judges faced at that time, she described their agenda in South Africa as ‘long and extraordinary,’ where they decided on the rules of the court but also on more practical issues such as the court building, modes of address and whether to use the traditional scales of justice as their seal. They decided to reject the traditional scales in favour of a woodcut image of a tree, under which people were sheltering, drawing on the African tradition of public hearings being conducted under trees.
The lecture stressed the importance of looking at the past and constitutional traditions when moving forward. In South Africa, one of Professor O’Regan’s fellow Judges said, ‘The South African constitution retains from the past only what is defensible and represents a decisive break from and a ringing rejection of that part of the past that is disgracefully racist, authoritarian, insular.’ Professor O’Regan remarks that this was a delicate balance to achieve.
It was particularly interesting to hear about Professor O’Regan’s experiences in South Africa, and this was one of her key objectives with the series of lectures. She highlights that much of the current debate is based on the experience of courts only in the global North, and in particular the United States, and was keen to give a more global perspective on the role of the constitutional court.
Expansion of Constitution Making and Role of the Court
A key driver in the expanding constitutional role of the courts across the world, Professor O’Regan argues, is the rise of the written constitution, fuelled by the Empire and deviation from it, by World War Two and the necessity to redraw boundaries, rally support and meet fiscal demand.
Professor O’Regan further argues that the expanded role of the court arises from the challenges of building governments. In federal systems, the courts play a key role in resolution and in many jurisdictions have been given the power to determine the constitutionality of legislation.
Courts have also been given broad jurisdiction to determine whether the provisions of the constitution have been lawfully implemented. Professor O’Regan uses the Good Friday Agreement as an example. The Agreement was given effect in the Northern Ireland Act of 1998, which Lord Bingham later acknowledged was a constitution.
Professor O’Regan remarked that a constitutional system founded on the rule of law will find itself before the courts on many occasions and in Northern Ireland, this happened in the case of Robinson v the Secretary of State for Northern Ireland. Peter Robinson, a Northern Irish politician challenged the appointment of two leaders, for the roles of First Minister and Deputy First Minister on the basis that the agreement was reached two days outside of the 6-week period stipulated in the Act. This went in front of the House of Lords, where a contextual approach was taken in deciding that the appointments were valid. Professor O’Regan remarked that this was a very interesting judgment and a sympathetic one. When she spoke with her colleagues at Oxford about it, they said that most public lawyers in the UK find the judgment to be wrong. Where text comes up against purpose, she remarks, this is very difficult.
Professor O’Regan raised two further questions; why courts are given these expanded roles and what determines how they perform them? Both questions are dependent on a range of factors, and Professor O’Regan argues that we must understand that the relationship between law and politics is conceived differently in different places. She adds that culture is a troublesome category, with no precise boundaries and that is difficult to define.
This lecture and the subsequent ones can be found online. Print versions are published by Cambridge University Press.
Enya Hood, solicitor
Caldwell & Robinson