We should cherish our independent institutions
Charles Haughey and Neil Blaney at the Four Courts during the Arms trial, circa October 1970. The Office of the Director of Public Prosecutions was established in 1974 after criticism of the prosecution of Charles Haughey. Picture: Tom Burke/Independent News And Media/Getty
One of the many lamentable features of US president Trump’s second term is the way in which constitutional devices — some of which have had limited presidential power, for nearly two and a half centuries — have failed to work.
To take only two examples, he recently fired a member of the non-partisan Bureau of Labour Statistics and in January, the Supreme Court will examine whether the president has the power to dismiss a member of the Federal Reserve board, to which critical authority in promoting the stability of the financial system is entrusted and which enjoys quasi-constitutional status.
On the whole, successive Irish governments have had a reasonably good record in respecting what are coming to be called independent institutions. Here, I am not thinking of our robust court system, whose centrality in maintaining a limited government is well established. Instead, I am collecting and suggesting we respect and, if necessary, protect, a selection of other public bodies whose independence from pressure from government, media, and possibly other directions, is vital to the health of the State.
Especially, this month, one should start at the top and mention, as the first example, one of the president’s roles, that is as ‘guardian of the Constitution’.
This title, coined by Mr de Valera during the debates on the draft Constitution, refers mainly to two specific, discretionary powers, namely: to refer to the Supreme Court a bill which s/he suspects may be unconstitutional; and to refuse advice to call a general election from a Taoiseach, if he (or, some day, she) lacks a Dáil majority.
The president’s independence, in respect of this second power, came prominently to public knowledge during the 1990 presidential election and involved the Fianna Fáil candidate, Brian Lenihan Sr.
What emerged then was an episode that had actually occurred, in 1982, when President Hillary was considering whether to accept advice to call an election, proffered by Garret FitzGerald, a Taoiseach who had lost his majority.
Mr Lenihan sought to telephone the president to urge him not to call the election. The president refused to take the phonecall, and called the election.
In 1990, a few days after this disclosure, Mr Lenihan lost the election to Mary Robinson. So, this episode is a sort of constitutional morality tale.
A second example of an independent institution is the machinery for the selection to basic posts, and therefore a career, in the civil service; as well as managerial posts elsewhere in the public service. This is the Public Appointment Service, whose forerunner goes back to the 1920s, and which has received the following tribute from Professor Joe Lee: "It was perhaps the major achievement of the early years… The new government was naturally deluged with importunities for jobs. The imposition of a high degree of integrity verged on the miraculous."
Another pillar of the State which it is vital should be above suspicion is the Revenue Commissioners. (Older readers will perhaps recall that one of the counts in the impeachment of president Nixon was causing the US equivalent to make discriminatory investigations of his enemies’ tax affairs.)
A more recent generation of independent institutions starts with the Director of Public Prosecutions, whose task is to bring or supervise the bringing of all serious prosecutions. Initially, this was done by the Attorney General.
One of the reasons for its establishment in 1974 was that the involvement of the Attorney, with his amphibious political-legal character, had come under criticism following the prosecution of Charles Haughey in the Arms Trial. Put simply, the suspicion was that this prosecution was motivated by an attempt to be rid of an unwanted minister.
A more general practice was typified in a letter from the Limerick state solicitor, complaining of being plagued by "representations", with, in one case, the same deputy lobbying for both accused and victim.
The terms and conditions of the Office of DPP were devised so as to raise her above any suspicion of governmental pressure: long term (10 years), with a declaration of independence, and a good pension. And, to quote from a memo from the minister for justice of the day, "no expectation of a judicial position following their term".
Considering the difficulties which have sometimes arisen in the case of Attorneys General, this seems far-sighted.
Apart from Government, other sources of pressure are possible here. For instance, victims (or in the case of a homicide, their families) may, with the assistance of the media, put on pressure for a prosecution. Yet the DPP is obliged to follow the principle of: no prosecution unless there is a reasonable prospect of a conviction.
The best known role of our Ombudsman is as the overseer of the public services, in securing justice where a citizen has been disadvantaged by maladministration by a public servant. Sometimes, a complaint may start with an individual, but ripple out to cause a good deal of expense, embarrassment, and possible upheaval in, say, the administration of a grant scheme.
This may thus serve as quality control in the public interest, but, equally, this may be unpopular with politicians or senior civil servants and, in extreme cases, has required the intervention of the Oireachtas on the Ombudsman’s side.
Realistically, the Ombudsman has been provided with a firm, institutional pedestal, giving him or her the necessary security, and there is a clear understanding of this on all sides. The chairperson of the Oireachtas committee on finance, which examined the present Ombudsman before his appointment, ended the interview in the following way: "I encourage Mr Deering to be fearless — he is at a stage in his career when he can be fearless".
Finally, recall the gerrymandering in the 1970s and before. This was the period before a Boundary Commission, chaired by a judge, was established. This experience means that it is unnecessary to labour the need for the Electoral Commission.
What emerges from this whistlestop tour is that, at first sight, these institutions do not appear to have any conventional legal characteristics in common. And there was a danger that they might have been treated as orphans, lacking even, as they did until recently, a generally accepted title (always a powerful aid to political and legal recognition, media headlines, and public loyalty).
But what they do share is that they discharge an important and sensitive function — and so, it might sometimes be in the interests of the Government or possibly others (multinational business?) to subject one or other of them to some improper influence.
The important point is that they are the vital nuts and bolts in protecting the rule of law. So it makes sense to establish them in truly independent institutions. And this is now accepted generally, with the PAS and the Revenue Commissioners celebrating their centenaries, whilst the DPP, Ombudsman, and the Electoral Commission have entered respectable middle age.
To sum up, apart from the early decades and the overhang from Northern Ireland, constitutionally, things have gone reasonably well in independent Ireland. There has been a good balance between liberty and sound government.
But smugness is not a wise attitude and, to look across the Atlantic, very few saw Trump coming. The price of liberty is eternal watchfulness. It is a sensible precaution to keep those independent institutions well-maintained and well-respected.
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