Cassandra Voices

Tag: Oireachtas

  • OPLA: An Oireachtas within the Oireachtas

    Since my last article detailing the manner in which the Office of Parliamentary Legal Advisor (OPLA) has been eroding Irish democracy, I have become acquainted with the Dunning Report (Capacity Review of the Office of the Parliamentary Legal Advisor (OPLA) of the Houses of the Oireachtas) of December 2016.

    This recommends a very modest expansion to the Office. Its main recommendations have, however, been ignored. The Office we are left with is an authoritarian, over-sized entity that inhibits the capacity of elected representatives to ask parliamentary questions, at a significant cost to the exchequer and in breach of the separation of powers.

    Moreover, there is little evidence, as we will see, that its ostensible purpose of assisting Dáil deputies – unaligned or from minority groupings – to pass private members bills is being fulfilled.

    The key recommendations of the Dunning Report are as follows:

    • That OPLA, which then had eight legal staff, should not be put on a statutory footing.
    • That OPLA should remain an independent entity.
    • That OPLA should be expanded incrementally, over a number of years
    • That this should be reviewed eighteen months after its modest expansion.
    • That it would go from the eight legal personnel in 2016 to a maximum of eleven, and that two additional administrative staff should also be assigned.
    • That the cost of this modest expansion should not exceed a quarter of a million euro per annum.

    The Dunning report allegedly emerged out of a sub-committee on Dáil Reform, chaired by Cheann Comhairle Seán Ó Fearghaíl in 2016. The sub-committee met for the last time in May 2016. Dunning worked on their recommendation. The key recommendation was for a modest expansion to OPLA to assist with Private Members Bills.

    However, by 2018 OPLA had already taken on an additional sixteen legal personnel – from eight to twenty-four, thirteen more than Dunning had recommended. The high cost of this was signed off on by the Department of Public Expenditure and Reform, under Robert Watt as Secretary General and Accounting Officer.

    OPLA appears to be the creation of the Dáil Clerk Peter Finnegan and the incumbent Cheann Comhairle Seán Ó Fearghaíl, who have completely departed from the Dunning recommendations.

    Remarkably, the required legislation received no scrutiny and there were no committee stages. It was signed into law by the President on December 27, 2018. Its effect is that the Oireachtas is now often limited to rubber-stamping bills.

    I have written to Seán Ó Fearghaíl several times since last November regarding my own inability to have the Dáil records corrected, where parliamentary questions have been undermined for over two years now. He has not replied.

    Constitutional Crisis

    It is no exaggeration to say we are in the midst of a constitutional crisis, and that the Cheann Comhairle, the Leas Cheann Comhairle and the Dáil Clerk are all involved.

    In its current configuration OPLA is an unconstitutional, legal hit squad, sabotaging the operation of the Oireachtas. It has no business involving itself in parliamentary questions or committees. Its role ought to be confined to giving legal advice to members drafting Private Members Bills.

    Having failed to conform to the Dunning recommendation, it should now be disbanded forthwith. Its chief officer Melissa English should not be working with and reporting to the Dáil Clerk, and nor according to Dunning should she have statutory powers.

    It seems that anyone now raising parliamentary questions (PQs) on any matter that senior civil servants wish to hush up are being undermined by the Cheann Comhairle, the Leas Cheann Comhairle and the Dáil Clerk, as well as OPLA.

    I previously (unsuccessfully) attempted to ascertain via PQs how many bogus doctors have been used across state agencies over the past three decades. This caused the legal heavy gang to fire off threats in an area over which they have no jurisdiction.

    Standing Orders were infringed in the replies to my PQs. I tried to have that infringement rectified by the Committee for Parliamentary Oversights and Privileges (CPPO). However, members of the Committee informed me that my submission was never circulated or heard.

    I even wrote to Micheál Martin as Taoiseach to make him aware of this. His response was to say that the Cheann Comhairle is a constitutionally independent office.

    Melissa English, the head of OPLA in an article for Eolas Magazine in March 2019 said the OPLA had been extended and put on a statutory footing following the Dunning report of December 2016.  The Dunning report allegedly followed on from recommendation of a “final report of the Sub-Committee on Dail Reform in May 2016.”

    The case for OPLA’s expansion was, according to Dunning, based on a huge increase in the number of Private Members Bills (PMBs) tabled by opposition TDs, especially independents. OPLA was conceived of as an entity that would assist all non-Government TDs and Senators in Leinster House to perform their jobs.

    The overall argument for the expansion of OPLA was to speed-up the through-put of such bills to legislative completeness, so that the legislative process would operate more smoothly. It was felt to be unfair that legislation brought in by Government had the resources of the office of the Attorney General and expert parliamentary drafters, while opposition TDs from small parties and groupings had no such legal expertise at their disposal.

    The focus of the Dunning report is on the role of OPLA in private members’ bills. He noted that there may be issues with opposition groupings and independents taking up the services of OPLA. For that reason Dunning recommended that it was vital that that OPLA remain independent. He also explicitly recommended that it should not be put on a statutory footing as previously stated.

    Even more to the point, he recommended that the operation of a modestly expanded OPLA be “implemented incrementally”, when referring to an OPLA with only three additional legal personnel – that is eleven in all.

    It begs the question: how did it go from eight to twenty-four personnel in two years, and why was it put on a statutory footing in defiance of Dunning’s recommendations? Its growth is certainly not commensurate with an increase in the number of private members bills. Instead, it has become a sinister entity designed to muzzle democracy.

    Dunning also recommended that it should be reviewed eighteen months after implementation, rather than being guillotined onto the statute books just before Christmas 2018, after virtually no Dáil debate, and certainly no pre-legislative scrutiny.

    Rapid Expansion

    Furthermore, Dunning recommended that the head of OPLA should be upgraded to Assistant Secretary rank and for the appointment of three legal experts in the rank of Principal Officer (PO) and a third in the rank of PO, who would be an expert legal drafter. Dunning also recommended two additional administrative staff at middle ranking civil service grades. 

    At the time of Dunning report there were already eight lawyers, two legal researchers and two further administrative staff. Thus, the report recommended a total of eleven lawyers and four administrative staff. Yet by 2018 OPLA had expanded, according to Melissa English in the Eolas article of March 2019, to twenty-four legal personnel creating a total staff of thirty-five, along with a further eleven administrative staff.

    Dunning also recommended that the head of an expanded OPLA (upgraded to Assistant Secretary rank and pay scale) should be filled through an open competition. This also didn’t happen. The murky legislation in the 2018 Houses of the Oireachtas Commission Amendment Act provided for the appointment to be made by the Dáil Clerk himself.

    Perhaps the most alarming aspect of all this is the manner in which legislation putting OPLA on a statutory footing was passed into law: the Houses of the Oireachtas Commission Amendment Act 2018 does not seem to have gone through a committee stage, or pre-legislative scrutiny.

    A member of the sub-committee I spoke to claims it didn’t go through the Dáil or any pre-legislative scrutiny and suggested that this was done by the Houses of the Oireachtas Commission. However, the Houses of the Oireachtas Commission is not vested with the authority to pass legislation.

    The Houses of the Oireachtas Commission was established in 2004 following the passing of the Houses by the Oireachtas Commission Act 2003. It made provision for a committee of eight members of the Dáil and Seanad, along with the Cheann Comhairle, and Cathaoirleach of the Seanad.

    Crucially, Dáil Clerk Peter Finnegan is also an ex-officio member of this Commission and, even more importantly, he heads the management board of the Houses of the Oireachtas Commission – a civil service entity, comprising the Clerk of the Dáil, the Clerk of the Seanad, Martin Groves, and four more Assistant Secretaries, one of whom is, since 2018, Melissa English as head of OPLA, one external member and one Principal Officer.

    To add to the confusion, the Houses of the Oireachtas Commission also has an audit committee, comprising three different TDs and four more senior civil servants. Prior to the Houses of the Oireachtas Commission being established in 2004 the Houses of the Oireachtas was run and staffed in accordance with the Houses of the Oireachtas Act 1959 and the Civil Service Commissioners Act 1954.

    Cheann ComhairleSean Ó Fearghaíl

    Stages of the Bill

    Having by-passed the committee stage the bill was deemed to have passed a series of almost phantom stages in the Dáil and Seanad in late December 2018 at a point when the Dáil was rising for the Christmas recess, although the then Fine Gael junior minister in the Department of Expenditure and Public Reform did announce the Bill in the Dáil and Senator Gerard Craughwell backed it in the Seanad.

    It was deemed to have passed the first stage in the Dáil and Seanad on Monday 10 December 2018 yet, bizarrely, the Dáil record shows neither House sat that day!

    Nonetheless, all five stages of the bill were deemed to have been passed on Tuesday December 18, and the Dáil website supports this, despite the Dáil sittings record showing the bill was not even considered.

    The President of Ireland, Michael D Higgins signed the Act into law on 27th December 2018. The entire process was a violation of the Constitution, as legislation appears to have been  slipped in via the channel of the Houses of the Oireachtas Commission, a body entirely dominated by a supporting management committee of civil servants under the auspices of the Dáil Clerk, Peter Finnegan. To be clear, the Houses of the Oireachtas Commission has no constitutional authority to pass legislation.

    Two personalities are a constant in this constitutional travesty: Seán Ó Fearghaíl as Cheann Comhairle and chair of the sub-committee leading to Dunning’s review, and Peter Finnegan, Dáil Clerk. Ó Fearghaíl chaired the sub-committee on Dail reform, which allegedly provided the justification for OPLA’s vast expansion on a statutory basis under the Dail Clerk, in defiance of the recommendations of the Dunning report.

    Ó Fearghaíl and Peter Finnegan are also members of the Houses of the Oireachtas Commission, of which Finnegan is the Manager, as well as being head of the management team of the Houses of the Oireachtas supporting the Commission, comprising five top civil servants.

    It would appear that the Houses of the Oireachtas Commission has un-constitutionally created an Oireachtas within the Oireachtas.

    Violation of Separation of Powers?

    Very grave questions arise from the use of OPLA as a legal heavy gang punching down unlawfully. It has regularly exceeded its remit since the passing of the Houses of the Oireachtas Commission Amendment Act 2018.

    Arguably, this amounts to a constitutional crisis. Mr Finnegan has been reported to SIPO and to the TLAC civil service Commissioners who have not acted. But then he’s on the SIPO Commission, which is another conflict of interest.

    Apart from the unscrupulous expansion of OPLA, well in excess of Dunning’s recommendations, the take-up of the OPLA services in Private Members Bills (PMBs), anticipated by Dunning, has not happened. Nor has there been any discernible increase in the passing of PMBs.

    A glance at the Houses of the Oireachtas annual reports reveals no expansion into service by OPLA in PMBs. In 2021 there were a total of 113 PMB, but OPLA only gave advice on 56 of these, and only provided drafting service to 36. None of the bills successfully passed.

    The statistics for OPLA’s work show that most of its “advices” are to the Houses of the Oireachtas service itself and of the 639 “advices” it provided in 2021, 493 were to the service itself and 143 were advice to committees.

    In addition, they are heavily involved in Protected Disclosures, FOI requests and Employment Law. None of this was envisaged by Dunning.

    So, how did a vastly bloated, OPLA pass into law in a manner contrary to the recommendations of the Dunning report? How and why was it put on a statutory footing under the Clerk of the Dáil in 2018, when Dunning recommended that it shouldn’t be put on a statutory footing?

    It seems as if OPLA has become an unconstitutional, authoritarian entity designed to snuff out an essential feature of Irish democracy. Under the pretence of a pressing need for legal assistance in PMBs, a legal monstrosity has been installed in the Houses of the Oireachtas.

    OPLA violates not just the Dunning report, but the Separation of Powers under the Constitution, as it has been integrated into the executive wing of Government under the Dáil Clerk, all at vast cost to the taxpayer.

  • 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.