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.

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  • kensei

    That seems a confused extract.

    The courts do not change the Constitution. They interpret and clarify it. Any rights the courts rule you have you’ve always had, it is merely made explicit.

    Scrutiny is important to produce good law, and under-resourcing of committees is a bad thing. But I’d imagine such a system should result in less challenges to the Constitution, and less laws that “test the limit of Constitutional tolerance”. That seems a somewhat dubious goal unless there is some purpose behind it. If the Dail wishes to change the Constitution, it should propose an amendment and put it to the people.

  • Yes and no Kensei. It might be that, strictly speaking, a constitutional court can rule in a way that makes rights we always had explicit. But even then, as happened most famously in the States in Griswald v Connecticut, they are rights that nobody enjoyed. Nor did anybody expect to enjoy them as constitutional rights.

    On committees, it’s not just the institutional issues that Gallagher mentions that are the problem. There’s also a lack of an ethic amongst TDs that distinguishes between how they ought to behave on committees and their loyalties to party. See, for example, Seán Ardagh’s complaining over not getting a junior ministry last week. He was the chair of the Joint Oireachtas Committee for Justice, but seemed to think that he should be admired because he had “always gone out to bat for the Taoiseach, for Fíanna Fáil [and] for the Government.” His comment is worth comparing with members of Westminster committees who, putting party affiliations aside, regard themselves as being very much in the business of holding governments to account.

  • George

    The Supreme Court have been very timid in the last 10 years and have rowed back from the judicial activism that started in the 1960s.

    As for Dev, I find it strange to argue that he never intended the Irish Constitution to be ….. the Irish Constitution. On what premise is this argument based?

    He deliberately rooted it in the will of the people and therefore put it beyond challenge with an independent judiciary as its guardians.

    And what happened? The judiciary guarded it.