Is the Irish presidency actually a non-political role?

How successful has been the velvet gag of the presidency in subduing Michael D Higgins? Or his wife, Sabina Coyne Higgins, for that matter?

It is a long-standing convention that presidents of Ireland and, by association, their spouses, are expected to keep their political opinions to themselves.

They are “above politics” as the saying goes. That means they cannot be subject to criticism from parliament or the executive. The other side of the coin is that they stay above the fray, refrain from entering the crucible where the maw of partisan politics occurs.

In theory, they have parallel constraints to those of the doomed young man in Seamus Heaney’s Station Island: “a clerical student home for the summer, doomed to the decent thing. Visiting neighbours. Drinking tea and praising home-made bread”.

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From his election more than a decade ago, few believed that the velvet gag could contain the current President, given his reputation as an outspoken firebrand during his long parliamentary career.

His immediate predecessors — Mary Robinson and Mary McAleese — had tested the boundaries on the limits of the presidential role. At times, Higgins has pushed those boundaries to breaking point.

Article 13.7 of the Constitution provides that the president may, after consultation with the Council of State, communicate with the Houses of the Oireachtas by message or address on any matter of national or public importance. The president may, after consultation with the Council of State, address a message to the nation at any time on any such matter. Every such message or address must, however, have received the approval of the government.

[ Sabina Higgins ‘dismayed’ by criticism of her view on Ukraine peace talks ]

[ Taoiseach says ‘time to move on’ from Sabina Higgins controversy, defending right to free speech ]

[ The Irish Times view on the Sabina Higgins letter ]

This has given rise to the perception that the president’s public speeches must align perfectly with the prevailing views of the government and not diverge from them in any way. Perhaps for 50 years after the establishment of the role in 1937 that might have been the case, as all the presidents were members of the de-facto ruling party, Fianna Fáil.

“It was pretty much a retirement home for long-standing politicians who were invariably male,” says Dr Jennifer Kavanagh, a lecturer in constitutional law at the South Eastern Technological University.

However, she says there is no constitutional bar on a president expressing his or her views.

“The Constitution is pretty clear that if it’s an address to the nation, that that needs to go through the Cabinet. They don’t need the speech checked every time they open, for example, a GAA club or a prefab for a primary school,” says Kavanagh.

“So the whole idea of the president being above politics is convention, it’s not constitutional. It’s the way the role developed because they were basically taking the place of the governor general [under the British system]. So it’s a convention. We will have to see how long it actually lasts, because everyone has an opinion on things.”

None more so than the incumbent. During his first term he sailed close to the wind with philosophical criticism of Ireland and Europe’s approach to the financial crisis, expressing his opposition to market-based solutions in favour of what he called a “social Europe”.

During his second term, his interventions have been more blatantly political. He declined an invitation in September 2021 to attend the centenary of the establishment of Northern Ireland on the basis that the event had become politicised.

The President said the title of the event, with its reference to ‘partition’, had “troubled” him. He said it was a problematic word for him because it raised the issue of coercion during the 1921 Treaty negotiations.

Nor was there any escaping the overtly political nature of his comments earlier this summer when he criticised the housing policies of successive governments.

Speaking at the opening of a housing development, he said: “I have taken to speaking ever more frankly in relation to housing because I think it is our great, great, great failure.”

Constitutionally, there was nothing preventing him from saying what he said as it was not an address to the nation — and indeed his comments were unscripted. But there was no mistaking the pointedness of the rhetoric.

“It isn’t a crisis any more; it is a disaster and I think we have to really think about meeting the basic needs of people in a republic, be it about food and shelter and education.”

He excoriated what he saw as the housing market being left to the marketplace.

“It is the mad speculative money that is destroying our country, which we are welcoming, which we shouldn’t be.”

The Government’s public response was relatively muted. Higgins is hugely popular with the public and any Minister criticising his remarks would be immediately pilloried. Minister for Housing Darragh O’Brien did say the President was entitled to his view but he disagreed with it.

Sabina Higgins’s letter to The Irish Times last week was slightly more complicated. It was widely criticised because it contained no criticism of Russia, which gave the impression there was an equivalence of blame between the Russians and the Ukrainians for the war.

“Until the world persuades President Putin of Russia and the president of Ukraine [Volodymyr Zelenskiy] to agree to a ceasefire and negotiations the long haul of terrible war will go on,” she wrote.

“How can there be any winner?”

Russian ambassador to Ireland Yuri Filatov responded to its publication very quickly, saying it tallied with what the Russians were trying to do to end the war. Ukrainian groups and politicians condemned it, saying it made no reference to Russia as the aggressor, or its unilateral invasion of Ukraine.

The role of the partner of the president is not an official role. In that sense, they are private citizens entitled to their point of view. What complicated the matter for Sabina Higgins is that the letter was posted on the official website of the presidency, which gave it a different status.

“It is a difficult issue to address,” says Prof David Farrell of the school of politics in UCD. “Sabina Higgins is a citizen and writing the letter should not be the issue. The problem is it was posted on the official website. There should have been good protocols or guidelines to govern that. It was a lesson to be learned.”

Kavanagh is of a similar view: “Sabina Higgins’s own thoughts and opinions should not be posted on the presidential website. She can have her own blog if she wishes to do so. Putting it there [effectively] gave it the imprimatur of the President.”

In a statement this week, Sabina Higgins clarified her actions but did not apologise. She defended the fact of the letter being posted on her section of the website and also suggested her condemnation of Russia should have been implicit to everybody who read the letter.

Politically, the private reaction to these incidents has been much stronger than the public one, where very few politicians have been willing to voice criticism. It has been left to a number of Government and Independent senators, including Malcolm Byrne (Fianna Fáil); Martin Conway and John McGahern (Fine Gael); and Michael McDowell and Gerard Craughwell (Independent). Some believe their views are proxies for those of Government Ministers.

Certainly, among senior figures in Merrion Street, neither the letter nor the subsequent statement went down well. “It’s been completely over the top,” said one Minister, speaking on the basis of anonymity. “Gone way too far,” was the perspective of another figure who also said the posting of the letter on the website could not be seen as anything other than the holding of a shared view within the Áras.

In Higgins’s former party, Labour, nobody was willing to go on the record with a view on the letter. One of its parliamentarians said: “There is not much support for what she has said or the letter. There’s a loyalty there to them. That’s the reason for silence.”

Another senior Labour representative said: “It needs to fizzle out. I think they probably know that a mistake was made. Her role is not as simple as that of a Minister’s partner. She is afforded the trappings of office which make her not as independent in my mind. Putting it on the website added to it.”

Michael D Higgins is not a total outlier. That ‘above politics’ concept has been breached a number of times. In 1976, then minister for defence Paddy Donegan described then president Cearbhall Ó Dálaigh as a “thundering disgrace” after he referred emergency terrorist legislation to the Supreme Court. Donegan offered to resign but when taoiseach of the day Liam Cosgrave refused to accept his resignation, Ó Dálaigh felt he had no option but to resign because his constitution role had been undermined by the government. It sparked a huge crisis.

Mary Robinson, in a way, found herself in the role of the eldest sibling rebelling against strict parental rules, paving the way for the others. After she was elected in late 1990, then taoiseach Charles Haughey initially tried to curtail her role. He refused to allow her to deliver the Dimbleby lecture in London in 1991. Afterwards, he brought a legal opinion to her setting out the limits of her role. However, as a constitutional lawyer, she was able to rebut the argument. Haughey then threw the papers on the floor, saying in exasperation: “Ah, that’s lawyers, you get what you pay for.” After that she had no problems with him. She also defied the advice of Haughey’s successor Albert Reynolds by shaking hands with Gerry Adams in west Belfast in 1993.

Mary McAleese was also highly political but played her hand very softly, focusing on working and finessing things behind the scenes, particularly in relation to the peace process. However, in a speech shortly after the bank crash of 2009, she harshly criticised the Government’s policy of ‘soft-touch regulation’.

Her husband, Martin McAleese, was a senator for the last six months of her term. But, despite being a public and political figure, he steered clear of any controversy.

“It’s uncharted waters,” says Clare senator Martin Conway of the current controversy. “The Constitution does not have a role in defining the role of the president’s spouse. “Perception is an amazing thing. When a spouse decides to speak one would imagine that — even in a personal capacity — if they are active in the presidency it does cause issues. It’s a conversation that needs to happen for future presidencies.”