Last week’s exchanges in the Dáil between the Taoiseach and Clare Daly were the latest demonstration of the impoverished nature of constitutional discourse in our national parliament. It is becoming increasingly clear that very few TDs have much knowledge or understanding of our Constitution and that the prevailing political approach to constitutional controversy leaves little scope for overcoming this deficit.
All of this is profoundly unhealthy for our democracy.
Daly described the claim that her Bill was unconstitutional as “100 per cent false”. This was a dramatic overstatement; as she forcefully argued in her own Dáil speech, only the courts can make this determination and there are competing arguments on either side.
Identified constitutional difficulties
For the same reasons, the Taoiseach’s statement that article 15 of the Constitution precluded the enactment of the Bill once the Attorney General had identified constitutional difficulties also went much too far. If, for example, an attempt were made to lower the age at which a person may run for the presidency to 21 without a referendum, this would be a clear and obvious breach and the Taoiseach’s point would make sense. However, apart from such clear and obvious breaches, no one knows for sure whether a law is unconstitutional until a court has declared it to be so. If matters were as clear-cut as the Taoiseach suggests, no unconstitutional laws would ever be enacted in the first place.
In a constitution full of vague language, the Eighth Amendment is notoriously difficult to interpret. There are respectable arguments on either side of the question of whether it allows for terminations in cases of fatal foetal abnormality. The mere fact that the Attorney General finds the argument that the Bill is unconstitutional to be more convincing does not preclude the Oireachtas from enacting the law and inviting the courts to clarify the matter.
President referred the Bill
On several notable occasions, the courts have issued rulings that ran directly contrary to an Attorney General’s advice. For example, Mary Harney cited advice that her Bill retrospectively authorising the deduction of nursing home charges from pensions was constitutional. The President referred the Bill to the Supreme Court, which found otherwise.
In a healthy democracy, the task of determining constitutional meaning would be shared between parliament and the courts. The fact that the courts are the conclusive arbiters (subject only to the people overturning a decision by referendum) does not mean that elected representatives have no role in constitutional interpretation. On the contrary; on matters of deep moral controversy, where the text of the Constitution rarely provides clear answers, the courts tend to have a strong preference for deferring to the interpretation arrived at by the legislature. This is because elected representatives enjoy a democratic legitimacy not shared by unelected judges.
Constitutional interpretation
However, in order for judicial deference to the legislature to work, there must be something to defer to. The Oireachtas must have actually considered the issue of constitutional interpretation involved and arrived at a deliberate conclusion. Unfortunately, this is rarely the case.
Tuesday’s exchange was a classic case of a Dáil debate over constitutional meaning being brought to an abrupt halt by reference to advice to the Attorney General – advice which is not published or even sketched in outline detail. The message is simple: constitutional interpretation is a job for lawyers, not politicians, so let’s drop the issue and move on. Even when TDs do make claims about the constitutionality of Bills, they rarely back them up by reference to constitutional text or case law.
Judicial deference to the legislature can’t work under such conditions. The courts would not be deferring to a deliberate decision reached by elected representatives; they would be deferring to a legal opinion drafted by the Attorney General (and doing so without even seeing the text of that opinion).
Instead of seven unelected Supreme Court judges deferring to 166 elected TDs, they would be deferring to one unelected lawyer. And unlike the Supreme Court and the Oireachtas, the Attorney General does not have a formal constitutional role in either constitutional interpretation or the legislative process.
Constitutional interpretation will always be a primarily legal exercise, but there is no reason why the ultimate interpretation should not be informed by a dialogue between the Oireachtas and the courts (with Bills being enacted in grey areas and then tested in the courts being one form of that dialogue). This would be a positive thing; it would be harder for politicians to avoid tackling difficult issues by hiding behind opaque legal advice, and some of the most important issues in our society would no longer be decided solely by a handful of unelected judges. But it can only happen if TDs are willing to embrace this responsibility, and would be much easier if the content of advice from the Attorney General was a less closely guarded secret.
Dr Conor O’Mahony is a senior lecturer in Constitutional Law at University College Cork.