Monday 16 September 2019

Emily O'Reilly: Parliament only subverts our Constitution

This is an edited extract from the 13th Annual John Hume Lecture delivered on Sunday at the MacGill Summer School by Emily O’Reilly, the Ombudsman and Information Commissioner.

THE republic that was created from the ashes of the Rising was a perversion of the human rights ideals of 1916. To this day, we as a people are not yet fully cognisant of what a real civic republic actually looks like. Prof Gerard Quinn of NUIG, speaking at an Amnesty International event in the wake of the publication of the reports on institutional abuse, stated: "The sheer weight of history would surely justify one in questioning whether there ever was a coherent moral and political vision behind the origins of the State." Indeed, it might, he argued, with some plausibility, that the State had an explicit ethnic rather and an ethical base. He further argued that the failure of the fledgling and adult State "were not simply failures to vindicate rights to adhere to the rule of law, and to ensure democratic processes worked; rather, they undermined the very idea of a republic".

I will base my comments primarily as Ombudsman over the past 10 years and on how I have observed the interplay as between citizen, administration, executive, parliament and judiciary in this country. As a general observation, I would say that it can be difficult at times for many people who live in this state – described, but not constitutionally named as a republic – to remind ourselves that, theoretically, we are the ones in charge. It is even at times hard for parliament to realise what its actual role is, and at times the executive itself and the judiciary even struggle.

This latter point was made quite starkly by former Attorney General Peter Sutherland in a lecture delivered earlier this year when he publicly fretted about the courts being forced – in his view – to involve themselves in the kind of fundamental decision-making that the Constitution never intended for them.

He said: "The respect among the branches of government is undermined, for example, where measures are adopted by the legislature, where the Oireachtas knows, or ought to know, will, through their ambiguity or lack of clarity, require the judiciary to determine what they actually mean.

"Effectively delegating to the courts decisions which legislators would rather not address themselves, particularly when the issue is one which is controversial politically or morally, is quite wrong. It may bring the judiciary into the centre of debates which they have neither the competence nor the democratic legitimacy to determine, and it is a denial of respect for the separation of powers."

Mr Sutherland's core assertion is that the courts are inappropriately asked – in the absence of any clues – to divine what the elected representatives of the people think about those values and what their intentions are when they cobble together not just deliberately ambiguous laws, but at times deliberately ambiguous constitutional amendments.

I would submit that while the courts – in Mr Sunderland's view – feel they have too much unwanted power, parliament itself spends too much of its time ducking and diving and pretending that it has no power whatsoever. Meanwhile, the executive, when it's not ducking and diving itself in relation to weighty matters of the sort noted by Mr Sutherland, is planting its boot far too firmly on the neck of the parliament and wielding power in a manner never envisaged by the Constitution.

Speaking at a conference in March 2010, I said some rather critical things about how our parliament works – or, rather, does not work. I asked if parliament was anything other than a charade – whether its members have lost all sense of parliament being an independent entity acting in the public interest? I suggested that parliament has become no more than a rubber stamp agreeing to decisions already made elsewhere.

These criticisms are commonplace. The views of some commentators on the impotence of our constitutionally mandated legislators were recently endorsed in a study of new TDs undertaken by Dr Mary Murphy of University College Cork and published by the Hansard Society.

She noted their frustration at government unresponsiveness to opposition amendments, their perception of a poor degree of accountability and openness, the spectacle of Question Time spent "taking lumps out of each other".

The TDs' ability to contribute, to influence, to oversee and to promote reform is, she stated, checked by the operational parameters of the institution, the dominance of the executive and the power of political parties. Yet, rather incredibly, given the apparent horror of their lives as they themselves described it, 84pc see politics as a long-term career, while 82pc, want to become a minister.

On the latter point, Dr Murphy noted, the desire to become a minister is symptomatic of a culture that places little value in a career as a legislator. I would suggest that the swift exit of George Lee from the Dail was not the act of a deluded celebrity as it was sneeringly characterised at the time, but rather a perfectly rational response to what he encountered once the heady joy of being elected wore off.

In some respects, the very fact of having these criticisms of the actual workings of a parliament reiterated week in and week out has dulled our sense of discomfort and unease. The fact is that our parliament is functioning in a manner which in all likelihood subverts the Constitution.

As our parliament, as a matter of general practice, is not a forum in which decisions are taken, there is no reason why government should take it seriously. The nub of the problem is that parliament does not take itself seriously.

As Ombudsman, I have always attempted to take the parliament seriously. I have taken my own pledge of independence and made an assumption, at times clearly naively, that if I accept the constitutional role of parliament at face value, then I will get the non-partisan hearing that not I, but rather the people who use my office deserve.

In other words, the citizens and residents of this State.

Irish Independent

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