Cassandra Voices

Tag: democracy

  • Judge the Strength of a Democracy by its Treatment of Whistleblowers

    In light of recent developments, not least, the announcement of Michael McGrath as the next EU Commissioner, it is timely to look again at the infernal plight of workers of conscience – those noble people who blow the whistle on wrongdoing, and who strive to keep a corroded system from descending further into the abyss.

    Until 2022, Michael McGrath was Minister for Public Expenditure, National Development Plan Delivery and Reform (referred to henceforth as DPER). Under his Ministry, new EU protected disclosures legislation of 2014 was advancing, and also EU Directive number 2019/1937 of the European Parliament and of the Council of Europe of 23 October 2019 was set to be transposed into Irish law.

    The provisions of this Directive give significant further protection to persons who expose breaches in EU law as provided for in the Irish Protected Disclosure Amendment Act 2014. The aforementioned EU Directive was only finally transposed into Irish law in January 2023 and the new Act became known as The Protected Disclosure Amendment Act 2022.

    This provision was, however, effectively sabotaged long before it was transposed, and Minister Michael McGrath was central to that. The entire Protected Disclosure Act is under the remit of DPER.

    Cynical Collusion

    The now sinister OPLA – Office of the Parliamentary Legal Advisor was exposed on these pages before in November 2022 and again in March 2023. Its rapid expansion appears to have been in anticipation of the significant effectiveness of this EU Resolution on Protected Disclosures to stem corruption and protect whistleblowers. Two things happened to neutralise and sabotage this EU provision before it was transposed:

    • The vast expansion of OPLA involved OPLA being placed, unconstitutionally, on the statute books in December 2018, just as the Dail was rising for its Christmas recess. It occurred with no committee stages, or debate. This was in defiance of the Dunning Capacity Report, into OPLA which was not sent back to the sub-committee on Dail reform for consideration in December 2016 by the Dail Clerk who received it from Dunning. Thus, Dunning’s report was effectively suppressed. The integration of the OPLA into the Houses of the Oireachtas as rank-and-file civil servants, under the Dail clerk (a civil service appointee) in the Executive Arm of Government, is, as pointed out, a violation of the constitutional Separation of Powers. The discovery that OPLA was secretly involved in the investigation of Protected Disclosures in defiance of the provisions of the Act since 2013, and that it was all set to escalate as per Dunning, exposes a sleight-of-hand to virtually cut the legs out from under whistleblowers, striking a lethal blow at an integral part of democracy. 
    • The unlawful appointment of the Ombudsman by the civil service body – the PAS (Public Appointment Service) – is a violation of the Ombudsman’s Act 1980, and subsequent amending acts. The Ombudsman Act specifically disallows the Ombudsman from being appointed by the civil service. The Ombudsman was also appointed as Commissioner for Protected Disclosures, another canny moved within DPER while Michael McGrath was Minister. The Ombudsman knew full well that the OPLA – since 2018 a civil service body – was already involved in the investigation of Protected Disclosures since 2013, and that this was considered the main area of “growth and challenge for OPLA.”

    I have been in email contact with the CEO of the PAS about this unlawful appointment of the Ombudsman. I accused her of stepping outside of her remit in the appointment of the Ombudsman and pointed out that the Ombudsman’s Act 1980 specifically excluded it as a civil service appointment. To this she replied that it was done by PAS as “sanctioned” by the then Minister, Michael McGrath.

    He has no power to unilaterally alter legislation. The competition for the Ombudsman’s job was held by the PAS in August 2021, when the Dail was in recess and during the holiday season. The only Irish applicant was Ger Deering. On the appointment board was David Moloney, SG in DPER who was central to the entire legislation, as it was progressing at Committee stages in the new Protected Disclosures Act. David Moloney merely continued what Robert Watt, whom he replaced, had commenced.

    Both David Moloney and the Ombudsman appeared before the Finance Committee, which was responsible for the deliberations into the Protected Disclosures legislation, and which met several times in 2021 and 2022 to discuss the enhanced the Protected Disclosure Bill 2014, and the EU Directive about to be transposed.

    David Moloney effectively misled the Finance Committee in failing to inform the Chair and members that the PAS, with the apparent collusion of Minister Michael McGrath, after unlawfully taking over the appointment of the Ombudsman, whom it was also decided would become the new Commissioner for Protected Disclosures.

    Ger Deering’s appointment is a Constitutional one, and it thereby had to be ratified by the Dail before he went to the Aras to get his seal of office from the President. Mr Deering appeared before the Finnance Committee and made a speech on his appointment in December 2021 for the purpose of his appointment being ratified by the Oireachtas.

    I contend that Deering also misled the Committee, whose members and Chairman seemed to have been unaware that the Ombudsman should not have been appointed by the civil service body – the PAS – by law. Deering knew that he would be using the unconstitutional OPLA as new Commissioner for investigating Protected Disclosures, but he never revealed that at the Finance Committee despite the fact that John McGuinness, the Committee’s chairman, discussed the plight of whistleblowers with him fairly extensively and name checked a number of better known ones.

    McGuinness and his committee approved Deering’s appointment on behalf of the Oireachtas and he duly went to the Aras to receive his seal of office from the President.

    Whistleblowers – The Walking Wounded

    The dual strategies of the newly expanded OPLA – an unconstitutional entity since 2018 – and the sabotage implicit in the appointment of the Ombudsman utterly neutralised the provision of the EU Directive on Protected Disclosures, even before the full transposal of the EU Directive in January 2023.

    It was all done by DPER under Michael McGrath as Minister. The senior civil service have dealt a mortal blow to democracy, with full ministerial collusion and, above all, have commenced the ongoing campaign against whistleblowers – the walking wounded in a deeply corrupt system.

    In 2022, at a meeting of the Finance Committee, which McGrath attended with his senior civil servants, including David Moloney, and where a number of whistleblowers were also present, the civil servants backed by McGrath managed to get the provision of the EU Directive on PDs known as ‘The Presumption of Causation’ excluded from the EU Directive as transposed.

    This had provided for the presumption of victimization of a whistleblower, who reports wrongdoing without the whistleblower having to prove victimization is as a result of whistleblowing. This, of itself, was a significant blow to the effectiveness of the EU Directive.

    Democracy Under Threat

    Democracy depends on five major planks:

    • A free, robust and independent press.
    • A free and independent judiciary.
    • A robust and independent police force.
    • Robust whistleblower legislation.
    • A functioning democratic parliament where issue of major public import can be raised under privilege.

    The combined forces of the OPLA and the unlawfully appointed Ombudsman has dealt a direct, mortal blow to at last three of the five planks listed above. OPLA is unlawfully involved in Protected Disclosures and in the Workplace Relations Commission (WRC) and the Labour Court – both courts are subordinate to the High Court and a significant number of whistleblowers prosecute their claims, or aspect of their claims, in the WRC/Labour Court.

    Above all, OPLA has dealt an absolute mortal blow to the Dail itself. Arguably it has paralysed our parliament: there are numerous examples of OPLA muscling in, in a very heavy handed way on Dail Committee, especially in cases brought under privilege by whistleblowers to the Committees.

    The Committee Chairpersons are gormlessly allowing this, and are being bullied by the Committee Clerks who, in turn, are taking their instructions from the Dail clerk, Peter Finnegan, himself the chief architect of the draconian new OPLA in December 2018.

    In a case I had with the CPPO Committee, the OPLA took over the case from its clerk designate. I pointed out to the head of OPLA that no Standing Order (SO) of the Oireachtas allowed for it and asked what allowed it. I received no reply from Melissa English, the Chief Parliamentary Legal Adviser, whom I have accused of unlawfully and unconstitutionally trespassing into the sacrosanct area of the Oireachtas and the Ceann Comhairle, in a violation of the Separation of Powers, and a blow to the prudent use of Dail privilege.

    Irish Prison Whistleblower Sean O’Brien. Image: Daniele Idini.

    Protected Disclosure Legislation Disabled

    As OPLA operates in secret in addition to its listed function in Dunning’s capacity report of December 2016 as listed below, it may well be involved with the Gardai, and indeed with media enquires as fielded by the more robust elements in the media. I know from personal experience that the Gardai co-operate with the Ombudsman, attempting to sideline one complaint of a criminal nature I made to the Ombudsman. The Ombudsman cannot investigate suspected crimes.

    The table below from Dunning’s Capacity Report (Dec 2016) includes all the secret areas OPLA are involved in where they have no jurisdiction:

    OPLA, and indeed its boss, Peter Finnegan (Dail Clerk) have no remit in at least four areas of growth as listed above. OPLA’s remit is ostensibly confined to the tripartite functions of 1) Advices to the houses of the Oireachtas and its staff, 2) Defending the Houses of the Oireachtas in Court and 3) Help with drafting Private Members Bills (PMBs). Enhanced Protected Disclosures legislation and the whistleblowers who rely on it have been taken out with military precision.

    ‘A Whistleblower’s Motive’ by Matthew Butterly. Image: Daniele Idini.

    The Whistleblowing Industry

    I have raised the OPLA and the unlawful Ombudsman appointment with John McGuinness, Chairperson of the Oireachtas Finance Committee unsuccessfully. I have also made a complaint to the Relevant Section in the EU, responsible for the transposal of the EU Directive on Protected Disclosures into Irish law, backed by a number of other whistleblowers. The EU passed the buck back to the Irish courts. As if any whistleblower can afford to go to Court!

    Several whistleblowers (myself included) have appealed to mainstream media outlets to expose the OPLA in its unconstitutional reconfiguration since 2018 and its unlawful involvement in PDs. They have all refused to act.

    Transparency Ireland have become a quangoistic arm of state, which now fully funds the organisation. Dr Lauren Kierans, the Maynooth academic in the area of PDs who wrote the new Protected Disclosures Act for DPER has been informed that her act was sabotaged as outlined above. She passed the buck to Transparency Ireland and is now on maternity leave.

    The retaliation against and destruction of whistleblowers is all set to escalate as OPLA continues to expand. As Transparency Ireland expands too, and academic departments and units on whistleblowing mushroom in Maynooth and Galway Universities, whistleblowing has now become a lucrative industry, where everyone is well-remunerated bar the destroyed whistleblowers themselves – for whose welfare these organisations ostensibly exist.

    Whistleblower, Shane Corr (where OPLA also interfered) was suspended as a Principal Officer by Robert Watt in the Health Department. Watt was himself central to the creation and the funding of the OPLA since 2018 when he was SG in DPER until replaced by David Moloney in 2021. Corr was threatened by Watt with a criminal breach of the Official Secrets Act after OPLA deemed his submissions to the PAC were not covered by privilege.

    Whistleblower and very senior official, John Barrett, the Garda Head of HR according to a Village Magazine article some time ago, was subjected to tyrannous retaliation by Drew Harris for exposing the Templemore Garda slush funds scandal. He is awaiting a hearing in court. This is to name but two of an army of destroyed whistleblowers.

    In a deeply compromised, dysfunctional democracy, everyone will be rewarded bar whistleblowers. The Finance Committee is in a state of paralysis and the Minister who colluded all the way, Michael McGrath becomes an EU Commissioner in circumstances where he actively incapacitated the EU’s own Directive for the protection of whistleblowers.

    The irony of this cannot be overstated. What part the early announcement of his departure has to do with my rigorous challenged to the CEO of the PAS in recent days, Margaret McCabe, is anyone’s guess.

    After all, the vacancy for the EU Commissioner does not arise until October. Meanwhile, whistleblowers will continue to be condemned, vilified and relegated to the ranks of public pariah, while endless amounts of public money will be thrown at the industry and the army of persons who have colluded to destroy them. Foremost among these is OPLA and the Ombudsman. According to the Law Society Gazette in July 2018 OPLA’s Melissa English believes she’s worth it. Our democracy meanwhile, which can always be measured by the treatment of whistleblowers, was never more undermined.

  • OPLA Erodes Irish Democracy

    The Office on the Parliamentary Legal Advisor (OPLA) was placed on a statutory footing in 2018, by amendment to the Houses of the Oireachtas Commission Act 2003, without so much as a press release, let alone media coverage of an important development. This entity is delivering a hammer blow to Irish democracy.

    In the midst of the pandemic in 2021, Marc McSharry TD – an ardent supporter of whistleblowers – tabled a number of parliamentary questions (PQs) on my behalf. These mostly concerned the apparent widespread use of bogus medical doctors across state agencies.

    All of these questions were shot down, however, under Standing Order (SO) 45, which inaccurately claimed they weren’t questions of ‘fact of policy’.

    The final PQ was euphemistically ‘amended’, but was in reality an entirely new PQ, drafted so as effectively to give legislative approval to the practice of using bogus doctors, fraudently claiming to hold medical council registrations.

    These doctors are used, in particular, in the Department of Employment Affairs and Social Protection (DEASP) and are paid a sum for each client they cut off disability payments. All doctors reviewing cases in the DEASP are obliged to be registered with the medical council.

    Signing Off

    The PQs raised on my behalf were signed off on by Leas-Cheann Comhairle, Catherine Connolly whom I implored not to put the replies on the Dáil record, as I explained it would be a violation of Standing Order 45 to alter a PQ without consent.

    However, Catherine Connolly doubled down, claiming PQs can be ‘amended’ under SO 45.

    Yet the provision of SO 45 states that PQs can only be amended in ‘consultation’ with the Deputy raising them, which did not occur.

    Despite being furnished with a copy of standing order 45, Catherine Connolly bizarrely wrote to me and Deputy McSharry that the replies were going on the Dáil record, and she was ‘not re-visiting’ the matter. This effectively gave Dáil blessing to serious malpractice.

    I was entitled to an appeal before the Committee for Parliamentary Oversight and Privileges (CPPO) but, before I could make a submission, I received an unsolicited letter from the Cheann Comhairle Seán Ó Fearghaíl erroneously claiming I had no right to an appeal to the CPPO.

    I then engaged the service of a solicitor (at my expense), and only after two solicitors’ letters was my right to a CPPO hearing established with the Cheann Comhairle, who wrote to say he had given my submission to the clerk of the CPPO.

    Matters did not end there. After this I encountered the sinister entity that is OPLA.

    Seán Ó Fearghaíl TD

    Case Closed

    I had requested that another committee member chair the CPPO for this case, as the usual chair Seán Ó Fearghaíl, and his deputy, Catherine Connolly, had questions to answer. My request was refused, however, by the Office on the Parliamentary Legal Advisor (OPLA).

    Then I sought to appear as a witness. This too was denied. Finally, I received a brief email from the Committee clerk, a middle-ranking civil servant, saying the case had been heard on April 6, 2022, and had found against me, and that the Cheann Comhairle had chaired it.

    I received no reply from the Committee clerk to further enquiries such as whether the requisite quorum of eight committee members were in attendance. I did, however, receive a high-handed reply from a ‘legal counsel’ in OPLA, conveying what I now know to be an inaccurate account of the hearing.

    Having checked with members of the Committee, it appears my case was never heard and, my submission was not circulated to the Committee members. This is a breach of Standing Order 118.

    OPLA circulated a number of further authoritarian letters defending the Cean Comhairle’s right to chair the meeting, while maintaining that there had been a hearing by the CPPO in the first place.

    On June 10, 2022, the deputy head of OPLA, Ramona Quinn wrote a letter to me citing ‘laws and conventions going back to 1923.’

    In response, I challenged Ms Quinn and OPLA as to what Dáil Standing Order allowed the unit to intrude on – and indeed unconstitutionally usurp – the work of any Committee of elected representatives of Dáil Eireann? To this I received no reply.

    I did, however, receive a number of further, intimidating, letter from OPLA, thereafter unsigned.

    In response, I put them on notice to the effect that this constituted harassment and pointed out that they were trespassing into the constitutionally sacrosanct domain of the Ceann Comhairle, and the Oireachtas. I asked the head of OPLA for the Dáil Standing Order allowing for it. To this I again received no reply.

    OPLA

    Further enquires reveal that the OPLA quango evolved from containing just one legal advisor, Melissa English, in 2007, to twenty-four legal experts in 2018!

    English had been a sole independent legal advisor in the Houses of the Oireachtas but, according to a March 2019 article in Eolas magazine, ‘under her stewardship it is now a statutory office comprising a multi-disciplinary team of barristers, solicitors, legislation drafters and specialist researchers.’

    The article goes on to quote English saying, ‘the OPLA unit had to be structured and resourced over the last 12 years.’

    Eolas magazine reveals further that OPLA emerged from ‘a report of a retired civil servant Dunning in December 2016’, and it led to a Dáil sub-Committee headed by the Cheann Comhairle for the establishment and vast expansion of OPLA, including the provision for the head of OPLA to be appointed a deputy Secretary General in the Houses of the Oireachtas.

    The function of OPLA is supposed to be tripartite: to give legal advice to Oireachtas members; to help draft legislation in Private Members Bills; and to defend the Houses of the Oireachtas in court challenges.

    However, given English and her unit are part of the Oireachtas, and as she is a civil servant reporting directly to the civil servant and Top-Level Appointments Committee (TLAC) appointee, Dáil Clerk, Peter Finnegan, how can she defend herself and her unit in court, as it is now an integral part of the Oireachtas?

    Furthermore, English flagged the ‘colliding rights of parliamentarians to absolute privilege in respect of their speeches in the Dail and the, sometimes competing rights of outside persons whose personal constitutional rights can be adversely affected by this speech’ as part of the justification for her bloated unit.

    I maintain that English and her legal heavy gang have copper-fastened gross medical malpractice implicit to the use of unqualified medical practitioners by State departments and agencies.

    So much for the constitutional rights of citizens, English appears to have seen no problem giving parliamentary blessing to a seriously problematic practice.

    Furthermore, English appears to have seen nothing irregular about government Departments and Oireachtas civil servants distorting PQs, or the Cheann Comhairle apparently misleading me in correspondence.

    The Leas Cheann Comhairle Catherine Connolly who signed the PQ responses ought to be aware that OPLA has exceeded its remit, violated the Oireachtas and conveyed falsehoods about a phantom hearing at the CPPO in April this year. I argue that she is deepening her original violation of SO 45, and failing to correct the records of the Dáil arising from the distortion of the PQ. She is also failing to correct the erroneous assertions of OPLA.

    Four Courts Quay.

    Violation of Separation of Powers

    I wrote to Melissa English on October 15, 2022 regarding the intrusions of OPLA into the workings of a Dáil Committee.

    English defines herself as ‘being central to the defence on behalf of parliament of the cornerstone of the constitutional separation of powers’, but she seems unaware that OPLA violates the constitutional separation of powers. As a civil servant under the Dáil Clerk, English is obliged to respond in ten working days to queries from the public.

    Yet, to date, I have received no response from her to these questions I raised.

    1. What is your defence of the violation by OPLA of Dail SOs and the Constitutional Separations of Powers in taking over the CPPO committee from its clerk designate and its elected members?
    2. Sinead Fitzpatrick, legal counsel, conveyed un-retracted inaccuracies in two formal letters to me and my solicitor on 20 April 2022 to the effect that the case was heard by the CPPO on 6 April 2021. It was not heard and, the submission was not even circulated in further violation of SO 118.
    3. Why am I still being harassed by unsolicited and unsigned communications from OPLA whom I have requested to remain outside of my dealings with elected members of a Dáil Committee – a constitutional process in which OPLA has no role or jurisdiction?
    4. Are the Cean Comhairle and the Leas Cean Comhairle being consulted and informed about these communications, and do they approve of the ongoing communications I am receiving from OPLA at your direction?

    I have separately put these questions to the Cheann Comhairle and the Leas Cheann Comhairle, similarly without reply.

    Constitutional Crisis

    I notified Taoiseach Micheál Martin in late 2021 to the effect that there is a constitutional crisis in the Oireachtas because of the ongoing conduct of the Cheann Comhairle and Leas Cean Comhairle. I also informed him that OPLA and the Dáil Clerk are violating the constitutionally sacrosanct realms of the Cheann Comhairle and the Oireachtas.

    Micheál Martin responded that the Cheann Comhairle’s office was independent. It begs the question: who exactly will deal with the constitutional impasse that has emerged in this case?

    It appears that OPLA is ensuring that in certain circumstances a PQ cannot be asked on behalf of a citizen. Nor can a citizen access a Dáil Committee to redress the injustice of a wrongful PQ.

    How, one wonders, did the Oireachtas ever function before the recent creation of OPLA and its band of twenty-four legal heavy hitters?

    The answer seems obvious. OPLA is designed to muzzle the Oireachtas. That is perhaps why no press release attended its creation on a statutory footing and its wide expansion in 2018.

    It is an authoritarian quango which has mushroomed from one legal advisor to twenty-four in the space of twelve years. Masquerading as a helpful entity, its real purpose is to snuff out a crucial function of our parliamentary democracy.

    A Legal Monster

    So how did the legislation creating OPLA slip through parliament in 2018 and, how much does it cost the taxpayer? Having spoken to a number of TDs, none seem to recall the 2018 legislation creating OPLA in its current guise passing through the Houses of the Oireachtas.

    Given OPLA’s total staff, including clerical and twenty-four legal officers amount to thirty-six, we may assume it costs at least €5 million per annum.

    The spend was signed off on by the Department of Public Expenditure and Reform under Robert Watt as Secretary General and Accounting Officer. Perhaps this explains Robert Watt apparent contempt for Dáil Committees.

    Democratic accountability compels a total dismantling of OPLA in its present guise. One does not need to be a constitutional lawyer to see that it is glaringly unconstitutional.

  • Unenumerated Constitutional Rights Erode Irish Democracy

    John Philpot Curran

    When the Federal Convention of 1878 had completed its work on the U.S. Constitution in Philadelphia, Benjamin Franklin described its result as, “A Republic, Madam, if you can keep it”.

    Not much later, John Philpot Curran gave a similar warning, now usually summarised as “Vigilance is the price of liberty”.

    Each was saying that a written Constitution describes how a country should be governed, but does not promise that it will be. If we want to keep the system we have chosen, we must be vigilant. A single departure may not seem very significant, but if we ignore it we may realise too late that it was a step in undermining our system of government. It is not enough for political leaders to be alert. In a democracy we are all political leaders, our system of government and the freedoms it promises belong to us, and if we want to keep them we must be vigilant to protect them.

    This country has a democratic Constitution. Article 5 declares that it is to be a democratic state, and other Articles, read together, deliver on that promise. The Dáil is to be the dominant power in the Oireachtas.  Elections for it must be held at regular intervals, so that we can dismiss political leaders who do not serve us as we wish.  Elections must be by single transferable vote.  The “sole and exclusive power of making laws for the State” is vested in the Oireachtas, the only limit being that its laws may not be “repugnant to the Constitution”.  Laws are made in public, at sittings the public can attend and the media can report.

    That our only lawmakers are those the People choose is the foundation of our democracy, as of every representative democracy. By adopting a Constitution that said that the only people who could shape the country by making law were those we had elected, we gave ourselves a democracy in 1937 – if we could keep it.

    Leinster House the meeting place of Dáil Eireann.

    Have we? Partly seems to be the best answer. The Oireachtas is no longer our sole and exclusive lawmaker. In the 1960s Irish judges began to adopt what is called “judicial activism”, the view that judges should play an active role in shaping the law.  In 1965 the High Court advanced that view in the Gladys Ryan case. The Oireachtas had decided that it would be good for our dental health if piped drinking water contained a tiny proportion of fluoride, and enacted the Health (Fluoridation of Water Supplies) Act, 1960, under which piped drinking water was and is fluoridated. Mrs Ryan complained that this meant she and her children had to drink contaminated water, and took High Court proceedings to have the Act annulled. After a hearing lasting many months Judge John Kenny decided she had not proved that fluoridated water was injurious to health and dismissed her claim.  But he made it clear that if he had formed a different view he would have annulled the Act.

    That the case went to hearing is surprising. As we noted above, our Constitution vests in the Oireachtas the “sole and exclusive power of making law for the State”. Those words seem to mean that if a citizen thought an Act was defective her only resource would be to campaign to have the Oireachtas repeal or amend it. If another authority within the State could examine the reasons that led the Oireachtas to pass the law, disagree with them and annul the legislation, the power of the Oireachtas to make law would not be “sole and exclusive”. Those words seem to mean that the judge should not have heard the claim, because he had no authority to interfere with legislation that was consistent with the text of the Constitution. The Attorney General seems not to have made that argument. If so, he effectively abandoned the Constitutional authority of the Oireachtas as our sole and exclusive lawmaker.  It seems never since to have been asserted in any Court.

    The Judgment was a blow to the authority of the Oireachtas in another way. The effect of Judge Kenny’s decision was: “The Constitution includes a list of rights it guarantees to citizens, and the list is clearly not intended to be complete. Other rights may be added. The Oireachtas can add them. So can judges. A judge of the High Court or Supreme Court may decide to recognise a right that a citizen claims but the Constitution does not mention and deem that right to be part of the Constitution, as though it had been included in the document the People adopted in 1937. An Act of the Oireachtas or a Section of an Act that is incompatible with a right a judge has decided to recognise will be annulled as if it were repugnant to the Constitution, even though it is not”. (Rights so identified later came to be called “unenumerated rights, and we will use that term, for simplicity.)

    The Ryan decision changed how we are governed, in three ways. First, judges could examine why the Oireachtas had passed legislation and interfere if they disagreed with its reasons.  Secondly, the Oireachtas’ authority to make laws was no longer sole and exclusive, because judges might decide to recognise and enforce an “unenumerated right”. Thirdly, such a decision by a judge would override legislation enacted by the Oireachtas. That may seem to be a transfer of power from one organ of State to another, but it was an erosion of our democracy, because representative democracy depends on laws being made by those we have elected and by nobody else. Authorising people we had not elected and could not get rid of to override decisions of those we had elected was and is inconsistent with our claim to be a democratic state.

    The Ryan decision also undermined our authority in a less obvious way. Our Constitution provides that only we, the People, may amend it, but when judges import “unenumerated rights” into it they in effect amend it. Our authority to do so is no longer sole and exclusive.

    Separation of Powers.

    Finally, it effectively changes the meaning of “separation of powers” and “separation of functions”. These used to mean that each of the three organs of government, the legislative, executive and judicial, had its separate function in which neither of the others should interfere. It now seems to mean only that the legislature and executive may not interfere in the judicial function.

    There was no protest. We did not show vigilance in defence of our freedom.

    Judges have invoked the “doctrine of unenumerated rights” (a “doctrine” is more impressive than a “theory”) many times since 1965. Unlike legislators, judges deal only with issues others bring before them, so they produce new “doctrines” or “rights” only if litigation gives them the opportunity. However, a substantial number of unenumerated rights have been established and a substantial amount of legislation annulled in the last thirty-six years. For example:

    • Although all of the rights the Constitution lists except Habeas Corpus are promised only to citizens, that is only to people who, as it says, owe loyalty to the Nation and fidelity to the State, the Supreme Court decided to grant an “unenumerated right” to a non-citizen. (V.H. v. Minister for Justice Supreme Court No 31 & 56/2016)
    • It forbade the Government to participate in a referendum campaign. (McKenna An Taoiseach & ors IESC 11; [1995] 2 IR 10.)
    • It forbade the Dáil to conduct an inquiry into matters of public concern that might call for legislative intervention. (Maguire and others Seán Ardagh and others [2001] No. 329 JR; S.C. Nos. 324, 326, 333 and 334 of 2001] – the “Abbeylara case”.)
    • On dubious grounds it invalidated legislation designed to protect young girls from sexual exploitation. C. v. Ireland & ors [2006] IESC 33
    • It refused to hear a Habeas Corpus claim by a citizen who claimed to be unlawfully imprisoned, although the Constitution promises that right to anyone to making such a claim. (Edward Ryan v. Governor of Midland Prison [2014] IEHC 338)
    • In a puzzling decision, it held that a police officer who is asked to approve a search warrant must act “judicially”, and that an officer involved in the relevant investigation cannot do so. The essence of us acting judicially is hearing both sides before reaching a conclusion.  That does not seem to be what the Court meant, but it did not explain what it did mean. (Damache V. DPP {2012] IESC 11
    • Although tradition and the Constitution both say that elected legislators in the Dáil or Seanad are to be free to perform their duties without judicial oversight, the Supreme Court decided that someone who claimed to have been injured by what had been said to her in a Dáil committee could pursue a claim. Kerins v. McGuinness & Ors.  [2019]  IESC 110
    • One Supreme Court judge, Judge O’Donnell, complained in a written Judgment of the quality of legislation, in language reminiscent of an irritated employer complaining about incompetent subordinates. (Clarke  O’Gorman [2014] IESC 72)

    Each of these decisions further undermined the Oireachtas, and, through the Oireachtas, the Irish People’s power to shape the country we live in. Two of them, N.V.H.  and Edward Ryan, are incompatible with the text of the Constitution. The list shows how much of our lives, which we agreed in 1937 should be governed by our elected legislators are now subject to the Court’s intervention – or interference. Again we have not shown vigilance.

    Nor did those we elected to represent us. On the contrary, they have recently enacted the Judicial Council Act, which, after bringing the Council into existence, invited it to prepare “Guidelines” for compensation to be paid to successful plaintiffs in personal injury claims.

    Superficially, that may have seemed rational. Individual judges decide what money should be paid as compensation for injury, so why should not judges as a group agree Guidelines to be applied, or at least consulted, in all cases? The answer is simple. Deciding what compensation should be paid to an injured plaintiff is administering justice, which is the role of judges.  Guidelines to be consulted in all cases have the effect of law, even if they are given another name. Judges have no role in making law. Only the Oireachtas has. So in passing the Act the Oireachtas declined to perform a function that the Constitution imposes on it, and delegated it to a body that has no authority to perform it. This also meant that questions that elected parliamentarians should have teased out will not get the attention they need.  Here are some examples. Readers may think of others.

    • Personal injuries actions operate on an assumption that pain, past present and prospective, can be compensated for by money, and only by money. Is that assumption valid?
    • If it is, is it right to assume that the extent of the pain, not the circumstances of the sufferer, determines the amount of compensation? €10,000 might seem a life-saver for a young couple struggling with high rent or mortgage and household bills, but be next to useless to a retired person living on an adequate pension.
    • Our system protects a wrong-doer from having to address and acknowledge the consequences of his or her wrong-doing, because insurance companies forbid any contact between their insured and his or her victim. Does that serve us well?  Would we drive more carefully if we knew we would have to confront personally the consequences of any carelessness? 

      The criminal court of justice, Dublin. Daniele Idini/Cassandra Voices

    Most Superior Court judges nowadays are “Judicial activists” as described above. The concept is obviously attractive to judges and perhaps to others who believe trained intellects shape a society better than “ordinary people” could. But it is incompatible with democracy. That the Oireachtas invited a Council of judges to make law and the judges agreed tells us how far this country has travelled from the democratic ideals set out in our Constitution. Incidentally, the Guidelines emerged only after judges had circulated among themselves documents that they discussed in private, and that we did not get to see. With limited exceptions, our Constitution requires the Oireachtas and the judges to do their work in public, but, understandably, it did not consider how judges should do the work of the Oireachtas.

    This article is critical of judicial decisions, and might seem to be hostile to our judiciary. Not so. Most of our judges are admirable men and women, with a deep understanding of the law and a strong commitment to justice. The purpose of each decision mentioned above (except the refusal of Habeas Corpus, which still seems incomprehensible) was to do justice. For a dedicated judge to deny someone justice, because our legal structure does not permit it must be disagreeable, almost like a physician refusing treatment to someone who needs it. Most judicial decisions were well motivated and most were beneficial to the community.

    So, the argument that our precious democracy has been and is being eroded by decisions of judges does not mean we should denounce them. It would be wiser to suggest to them, politely, that our country would be better served if they respected the authority of our legislature more than they do at present, recognising that even a little judicial activism risks putting the judiciary in competition with the legislature and that carried to extremes it is inconsistent with democracy. If judges came to accept that, we can be sure they would act to address the problem. They are used to examining and evaluating evidence and arguments, and if the arguments stand up and are supported by the evidence, we should expect our judges to accept them, consider what they need to do to remedy the situation, and do it.  If they accept that an imbalance has grown up between our organs of government that threatens our democracy, we can be confident that change will follow.

    But if they do not, we should remember what Franklin and Curran taught us.