Republic’s courts more effective than legislature…

If Gordon Brown signalled a return to taking parliament more seriously than the media by doing his hiring and sacking at Westminster rather than Number Ten, there is a sense that Dublin’s legislature is further behind both in terms of the status of the Oireachtas and its capacity to scrutinise legislation. The current slimline committee system has only in place since 1997, with each overseeing the activities of a given department, much in the way that the Stormont Assembly does, with six house keeping committees besides. In the 2002 edition of Politics in the Republic of Ireland Michael Gallagher noted that “committees are generally under-resourced, often having to share clerks and lacking research resources”. Today’s Irish Times in its celebration of 70 years of the Constitution, notes that whilst the state’s Supreme court judges have been more proactive, the Dail lags substantially in keeping up with the creation of new law.

The courts, arguably, have had a greater success in changing the Constitution than the Oireachtas has managed, either by proposing constitutional amendments, or by using legislation to test the limits of constitutional tolerance. The roll call of legislative failure is familiar. Reform of the laws on contraception came only after the Supreme Court had established a right to marital privacy. Since 1992, following the X case, the Oireachtas has never attempted to legislate for what the Supreme Court had decided: namely, where a suicide threat represented a real and substantial risk to the life of an expectant mother, then abortion was permissible.

The late Professor John Kelly once noted that Mr de Valera undoubtedly saw the fundamental rights articles in the Constitution merely as headlines for the Oireachtas. They became guidelines for the courts. Mr de Valera’s Constitution has succeeded in a way that he never imagined and, undoubtedly, certainly never intended.