IT may seem a little gratuitous to be having a go at Nora Owen right now in the midst of her troubles over prison releases it has to be said in her favour, though, that the practice of releasing criminals from jail on condition they take a flight to Australia is an ingenious re invention of penal practices, although what contemporary Australians think about this is not clear.
My obsession with ministers for justice far predates my awareness that four successive ministers for justice authorised the tapping of my home telephone for a period of eight years (February 1975 to February 1983) non stop. (Alas 1 am precluded from telling the full true story, as I now know it, about all that, although I am permitted to join in a deceptive statement concerning it.)
My obsession rather has to do with the injustice dispensed by every minister for justice I have known about, every one of them, including (alas aris) Ms Owen. But it is not her Department of Injustice stewardship that concerns me today, but a separate matter. Ms Owen attended the Committee on Security and Legislation during the committee stage of the Courts and Courts Officers Bill late last year. The Dail committee voted unanimously on an amendment to make solicitors eligible for appointment as judges of the High and Supreme Courts. This was the committee of the nation's parliament voting a legislative provision.
But what did Ms Owen do? She said she would have to consult with her Government colleagues. Nobody paid a blind bit of notice to this extraordinary effrontery by a member of the executive branch of government to a committee of the legislative branch of government.
And not alone that, when Ms Owen returned to the committee and told them that the amendment was not acceptable but a compromise one was that solicitors who had served a certain number of years as a judge of the Circuit Court could become a judge of the higher courts no one on the committee told her where to take her effrontery. They meekly accepted the compromise.
It was an extraordinary manifestation of the extent to which the legislative arm of government has become the creature and tame creature at that of the executive arm, and this has serious implications for the operation of our democracy.
The doctrine of the separation of powers grew out of conditions in the 18th century, when the executive arm of government then monarchies were all powerful. Restraints were imposed upon this power by the growth in independence of the legislature and the judiciary, and the idea was that each of the three arms of government would act as balancing constraints on the other two. More particularly, it was envisaged that the legislative and judiciary would act as constraints on the executive.
But no longerThe legislature no longer holds the executive to account for the operation of executive power and it fails even to act as an independent legislative organ legislation is now formulated by the executive and every dot and comma is approved by the executive and otherwise not passed by the legislature. This may be unconstitutional, for the Supreme Court has repeatedly stated that the notion of the separation of powers is central to our form of government.
Only one Act was passed in the last several decades that did not emanate from the executive this was the Family Law and Judicial Separation Act 1989, instigated by Alan Shatter and accepted ungraciously by the minority Fianna Fail government of the day. That, incidentally (or is it incidental?) was the cornerstone of the case all the Oireachtas parties made to the people in favour of the divorce amendment.
The subjugation of the legislature to the executive has come about through the party system, in part a legacy of Charles Stewart Parnell. Essentially, TDs of the government parties are required by this system to vote for whatever the government proposes or does. Anybody who dissents is removed from the parliamentary party and threatened with deselection and almost certain loss of her/his seat at the following election.
And since by definition (almost) the government parties command a majority, no meaningful exercise of independent legislative authority can take place. This cannot be in accordance with the Constitution, as interpreted repeatedly by the Supreme Court and, by the way, the Constitution is what the Supreme Court says it is, until such time as the Supreme Court says it isn't.
Some enterprising TD might consider asking the Supreme Court about this rigid party whipping system, say a member of the Committee on Legislation and Security. It could be great fun after the fun we are to have in the courts (starting tomorrow) on the validity of the divorce referendum and no one would have any idea how the Supreme Court would decide the issue.
POSTSCRIPT In a letter to this newspaper yesterday, Conor Cruise O'Brien claimed that in last week's column I misrepresented the British position on Irish national self determination, as expressed in the Downing Street Declaration. He went on to quote from the declaration in supposed refutation of what I had written, but he failed to show any inconsistency.
There is not a real issue here. I fully acknowledge that the British recognition of the right" to Irish national self determination is qualified by a re commitment to be bound by whatever a majority of the people of Northern Ireland decide about their constitutional future.
The Cruiser claims that the Provos have never accepted this qualification. No, the Provos have never formally accepted this position, but Gerry Adams, in a joint statement with John Hume in September 1993, acknowledged that any settlement of the Irish problem would have to win the "agreement and allegiance of all sections of the Irish people". This actually goes beyond the British guarantee to the Northern majority. The Cruiser has never acknowledged this extraordinary concession.