AS A REPUBLIC, WE HAVE THE MORAL OBLIGATION TO DEVELOP FIRST CLASS HUMAN RIGHTS

 

 The 13th Annual John Hume Lecture

 

 AS A REPUBLIC, WE HAVE THE MORAL OBLIGATION TO DEVELOP FIRST CLASS HUMAN RIGHTS

 

Emily O’Reilly, former Ombudsman and Information Commissioner, European Ombudsman

 

It is a great privilege to have been asked to deliver this year’s lecture in honour of John Hume. While his life’s work is normally viewed through the prism of politics North and South I think, more rightly, his contribution should be seen through the prism of human rights as to me he is the pre-eminent human rights defender of his generation.  His struggle was a struggle for the assertion of basic humanity, of basic human dignity and we will betray that great legacy if we do not ground our own lives, our own politics through that same clear-sighted vision.  My remarks this evening will reflect on how we fail at times to do so.  If they are critical of a country that has achieved much for its people and which continues to assert itself proudly in the world, they reflect a belief that this still gifted and privileged place that we inhabit could achieve so much more for its own people with those gifts and with that privilege and bring the human rights standards championed by John Hume to bear much more forcibly on a world that still struggles to meet the most minimal of those standards for so many people.

The question posed in this year’s Summer School is ‘How stands the Republic?’.  The answer to that perhaps – like the apocryphal tale of Chou en Lai and the French Revolution – is that it’s too early to tell. Have we ever actually lived in a real one?  In 1916, Padraig Pearse and his colleagues declared that the Republic they imagined they were now ushering in would guarantee religious and civil liberty, equal rights and equal opportunities for all and would pursue the happiness and prosperity of the whole nation.

When we did eventually achieve our independence, the successors of Mr Pearse and others of that vintage, promptly franchised the state to a private organisation called the Catholic Church, shedding in particular its responsibility for the education and health systems and thereby allowing little actual space for the elected leaders of this republic to play THEIR role in pursuing the happiness and prosperity of the nation.

As recently as last week, the State and the Catholic Church were still squabbling over who should pick up the tab for the distinct non-cherishing of the nation’s children that endured for much of the lifetime of this republic.  Meanwhile, our current Education Minister continues gamely to pursue his attempt to reclaim the state education system from the control of that same private organisation.

The republic that was created from the ashes of the Rising was a perversion of the human rights ideals of 1916.  To this day, we as a people are not yet fully cognisant of what a real civic republic actually looks like. Professor Gerard Quinn of NUIG, speaking at an Amnesty International event in the wake of the publication of the reports on institutional abuse, stated, “The sheer weight of history would surely justify one in questioning whether there ever was a coherent moral and political vision behind the origins of the state. Indeed it might be argued, with some plausibility, that the State had an explicit ethnic rather than an ethical base.”  He further argued that the failures of the fledgling and adult state “were not simply failures to vindicate rights to adhere to the rule of law, and to ensure democratic processes worked; rather they undermined the very idea of a Republic.”

I will base my comments primarily on my experience as Ombudsman over the past ten years and how I have observed the interplay as between citizen, administration, executive, parliament and judiciary in this country.  As a general observation, I would say that it can be difficult at times for many people who live in this State – described, but not constitutionally named – as a republic to remind ourselves that, theoretically, we are the ones in charge.  It is even, at times, hard for parliament to realise what its actual role is, and at times the executive itself and the judiciary even struggle.

This latter point was made quite starkly by former Attorney General Peter Sutherland in a lecture delivered earlier this year when he publicly fretted about the courts being forced – in his view – to involve themselves in the kind of fundamental decision making that the Constitution never intended for them. He said, “The respect among the branches of government is undermined, for example, where measures are adopted by the legislature, which, the Oireachtas knows or ought to know, will, through their ambiguity or lack of clarity, require the judiciary to determine what they actually mean.   Effectively delegating to the Courts decisions which legislators would rather not address themselves, particularly when the issue is one which is controversial politically or morally, is quite wrong.  It may bring the judiciary into the centre of debates which they have neither the competence nor the democratic legitimacy to determine, and it is a denial of respect for the separation of powers.”

He added, “On difficult moral and ethical issues in particular, where attitudes are changing, the superior courts may be drawn into making decisions that may not merely have profound consequences but on which the Courts are not particularly well qualified to make judgments.  Where are judges to seek the essence of the values to be upheld in the determinations related, for example, to the commencement of life or the right to terminate one’s own life?  Is the Christian and democratic nature of the State to be the benchmark and to be defined by the Courts or by the legislature also?  We are also living in a time when the fundamental values of the dignity of man and the equality of man are defined in widely different ways and the Courts should not be left alone to make these determinations, particularly at a time of profound change and debate about moral issues.  At the end of the day, one is left with the impression that the Courts sometimes simply find and define these rights on the basis of broad concepts of justice and fairness on which differences may exist even between the judiciary themselves.”

Sutherland’s core assertion is that the Courts are inappropriately forced to decide not alone what our values in this republic are or should be, but also – in the absence of any clues – to divine what the elected representatives of the people think about those values and what their intentions are when they cobble together not just deliberately ambiguous laws but at times deliberately ambiguous constitutional amendments.

I would submit that while the Courts – in Sutherland’s view – feel they have too much unwanted power, parliament itself spends much of its time ducking and diving and pretending that it has no power whatsoever. Meanwhile, the executive, when it’s not ducking and diving itself in relation to weighty matters of the sort noted by Sutherland, is planting its boot far too firmly on the neck of the parliament and wielding power in a manner never envisaged by the Constitution.

The republican concerns of Michael D. Higgins, as a Dáil deputy, are best known from what was his valedictory Dáil contribution on 26 January 2011.  Now that he is President, his views carry considerably more weight than previously.  And I hope it is not disrespectful to comment that, as a TD, his contributions on this issue were sometimes regarded by colleagues on all sides as academic or esoteric or, perhaps, both.  Leinster House, at the time, may not have been quite ready for Jurgen Habermas and his theories on communicative rationality and the public sphere.

But there is an important point to be made here and it is one Michael D. Higgins continues to make as President and that is that there is a deep-seated anti-intellectualism prevalent in Irish public life.  He did not quote Isaac Asimov on that subject, as it relates to the United States, but let me do so instead.  ‘Anti-intellectualism’, said Asimov, has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that ‘my ignorance is just as good as your knowledge’.

And it is undoubtedly true that despite our supposed love of learning and the historic echo of the island of scholars, ignorance – or at least the absence of any visible high intelligence – has been a much more prized virtue.  The late Brian Lenihan was warned never to play Chopin at a party function; Garret Fitzgerald was sneered at for being an “intellectual”.  For many decades, our thinking was also franchised out to the Catholic Church without the need for the sort of heavy lifting engaged in by others who have struggled without the aid of an off-the-shelf bag of beliefs and absolute certainties. At least the aftermath of our economic collapse has allowed us to release our inner Jurgens as we struggle to make sense of what happened and why.

In his January 2011 Dáil speech, Michael D. Higgins concluded that we have failed to create the kind of society that could justifiably call itself a republic.  He said: “I was conscious in 1969 [when he entered politics], however, of the great failure of a country that then called itself a Republic. I believe no real republic has been created in Ireland.  The failure has been of three kinds.  There has been a failure in making political power republican, a failure in making republican any kind of administrative power and a failure with regard to communicative power. Without being technical about each of these, I think those who wanted Ireland to be independent would have envisaged a country in which there would be far greater distribution of power, that it would not be confined solely to the exercise of parliamentary democracy.”

But, if we are, as the President suggests, stuck with “the exercise of parliamentary democracy” alone, how well does even that measure up?  I propose now to offer my own assessment using a number of events that occurred during my tenure as Ombudsman to illustrate my points.  Some of these issues may seem relatively minor compared with the sort of weighty matters that Sutherland talks about the courts unhappily having to wrestle with, but I think they can serve to highlight nonetheless the fault lines in our republic, the failure of parliament to assert itself, our poor grasp of the concept of the public good, and a sort of public indifference to matters of human rights until the latest bill for the latest litany of abuse pops through our national letter box.

Speaking at a conference in March 2010, I said some rather critical things about how our Parliament works – or, rather, does not work. I asked if Parliament, as I then observed it operating, was anything more than a charade?  Whether its members have lost all sense of Parliament being an independent entity acting in the public interest, I suggested that Parliament has been demonstrably sidelined by the Executive and has become no more than a rubber stamp agreeing to decisions already made elsewhere.

These criticisms of Parliament are now commonplace and feature in our current affairs media virtually every week. The views of some commentators on the effective impotence of our constitutionally mandated legislators were recently endorsed in a study of first time TDs in the current Dáil undertaken by Dr Mary Murphy of University College Cork and published by the Hansard Society.  And I would like to thank Noel Whelan for bringing this to public attention in his Irish Times column.

From their own mouths, she noted their frustration at government unresponsiveness to opposition amendments, their perception of a poor degree of accountability and openness, the spectacle of Question Time spent ‘taking lumps out of each other’.  The TDs’ ability to contribute, to influence, to oversee and to promote reform is, she stated, checked by the operational parameters of the institution, the dominance of the Executive and the power of political parties.

Yet, rather incredibly, given the apparent horror of their lives as they themselves described it, 84% see politics as a long term career while 82% – touchingly – want to become a Minister at some stage.  On the latter point, Murphy noted, the desire to become a Minister – despite the small number who ever reach that point – is symptomatic of a culture that places little value in a career as an ordinary parliamentarian, a legislator.  And I would suggest that the swift exit of George Lee from the Dáil was not the act of a deluded, out of his depth celebrity as it was sneeringly characterised at the time but rather a perfectly rational response to what he encountered once the heady joy of being elected wore off.

In some respects, the very fact of having these criticisms of the actual workings of parliament reiterated week in and week out has dulled our sense of discomfort and unease.  The fact is that our Parliament is functioning in a manner which in all likelihood subverts the Constitution. Article 28.4.1 says: “The Government shall be responsible to Dáil Éireann”. Quite clearly, this is not the case.  Successive Governments have generally taken the Dáil and Seanad for granted.  As our Parliament, as a matter of general practice, is not a forum in which decisions are taken, there is no reason why Government should take it seriously.  The nub of the problem is that Parliament does not take itself seriously.

As Ombudsman, I have always attempted to take the Parliament seriously.  I have taken my own pledge of independence and made an assumption, at times clearly naively, that if I accept the constitutional role of parliament at face value, then I will get the non partisan hearing that, not I but rather the people who use my Office deserve, in other words the citizens and residents of this state.

I should say that, in recent years, prodded by the public debate and demand for reform, I have found the committee system beginning to work as it should, with members slowly realising that the power is there if you actually plug it in.  Certainly the pledges to act in a non-partisan way have been made but those pledges have not yet been seriously put to the test.  I do not doubt the bona fides of those that have made them but I have had far too many experiences of what happens when things get a bit hot for the predecessors of those Committees to completely trust in their ability to withstand the flames.

Some years ago, I went before a committee to give my views on secrecy, or non-disclosure provisions within domestic legislation.  The committee also received reports on the same provisions from every Government Minister.  Without going into the entrails of what happened, at a certain point, it was crystal clear that the Committee accepted my view that many of the nondisclosure provisions should be made subject to freedom of information legislation. That would have meant, for example, that reports of school inspections carried out by the Department of Education could potentially be accessed by those deeply subversive beings called ‘parents’.

I pointed out to the Committee the perverse nonsense of allowing records of such obvious public interest to remain secret. In a real republic, a public space, with equal rights for all, it would be inconceivable that state collected information of vital importance to the well-being of its citizens, would be so arbitrarily denied.  On this, and on other important matters of public interest, it was very obvious that the Committee, en masse, agreed with my arguments.  Such was the anticipation that they would publicly support me that the media began to take a greater interest in what was otherwise a rather dry topic.  And with that the mood music changed.

The Government whip was swiftly applied and in every single instance where a Minister disagreed with me, the Government members sided with the Minister.  The Committee Report consisted of multiple appendices which helped to take the bare look off the rest of it – the rest of it being a single paragraph that stated, without any rationale whatsoever, that where the Ministers disagreed with the Commissioner, the Committee agreed with the Minister.

As a post script, two members of that Committee apologised to me for what had happened.  A senior civil servant later told me, that ‘the system had to act’.  It was a fascinating use of language, one part House of Cards, one part The Thick of It.  Who or what exactly was the system?  Was it, he, acting alone?  Was it he and a few other senior civil servants?  Was it a Minister, or Ministers?  Was it the Government?  The AG?  The ushers?  Who was dictating this play?  What was abundantly clear of course was who was not dictating the play – the mere elected representatives of the people of this republic.  That sad little episode told me everything I needed to know about the actual as opposed to the constitutional position of parliament at that point in time.  I suspect that it is entirely possible that some of the Ministers had no idea of what was going on and that the impetus to ignore not me, but rather the views of the elected representatives, came from the civil servants although perhaps after correctly intuiting the unspoken wishes of their political masters.  Who knows?

The system was only enabled to act of course because the Committee offered no resistance, not even the pretence of one.  It is said that you begin to lose power on the day you think you don’t have any and that was precisely the case with this and indeed other Committees I appeared before.  While there were indeed shining light TDs and Senators who had read my reports and asked intelligent questions about them, my appearances invariably left me frustrated and despondent.  It was as though I had prepared mightily for the Leaving Cert and on the day, the exam papers got lost in transit or they just decided to scrap the whole exam on a whim.  I felt that I was fulfilling my part of the constitutional bargain but few of those I went before could be bothered even to pretend to play theirs.  On many occasions, it really was a charade.  And on the two occasions in ten years in which I effectively challenged Parliament to act as it is supposed to, and not to bow the knee to the executive, Parliament declined the challenge.

The second occasion was in 2010 when I attempted to have a report on the failure to allow a Donegal fishing family access to a scheme to – in effect – compensate them for the loss of a fishing livelihood, discussed by Parliament.  The issue had developed a party political dimension and the Government’s response was simply to refuse even to have it discussed by the relevant committee.  The relevant committee wasn’t consulted about this and as far as I recall, made no attempt to have itself consulted either.

As this was happening in the middle of the economic collapse, few people paid much attention to this little episode.  I recognised, however, that in it lay the seeds for potentially the slow erosion of the Office of the Ombudsman – an outcome which, in turn, would gravely affect the right of the people to seek redress for the maladministration of Government departments and of public bodies by way of an independent watchdog.  As I have spoken about this on many occasions, I’ll spare you the details of everything that happened next.   But I made the decision to name what was actually at play here; not a lazy, late afternoon decision by a Government played out to a largely indifferent Dáil, media and public, but the improper assertion of executive dominance – the effective sacrificing of the citizen’s watchdog on the altar of what might well be characterised as political cronyism.

And so, I named it, at a speech to the IPA.  Thankfully, the speech got traction, and under pressure from the Green Party, the Government did allow my report to go to Committee.  Again, I did my bit, and the Committee did theirs but any Pollyannaish hope that I had of getting a favourable resolution or of the committee acting as a non partisan unit – and not a disparate group of opposing factions – were pretty swiftly dashed.  Nonetheless, I like to think that that episode and the debate it fed into, did inform some of the thinking of the current Government in relation to political and administrative reform and I would like to take this occasion to congratulate Minister Brendan Howlin and his officials for the genuine efforts they have made and are making in this area and notably through the recent significant extension of the remit of this Office, the proposed liberalisation and expansion of Freedom of Information legislation and other initiatives such as the enabling and protection of whistle blowing in the public interest.

But it takes a long time for an entrenched culture completely to leech out of a system and at this point I would like to talk about another issue that has received very little attention to date but to me is one of no little public importance.  In some ways, this appears to be a complex issue which is perhaps why it has been largely ignored, yet at its heart it speaks to the essence of what the MacGill deliberations this week are all about – the disparity between where power is supposed to reside and where it actually does in a democratic republic.

I have already quoted Michael D. Higgins’ critique of our republic.  One of his comments strikes a particular chord with me.  He remarked that there had been “a failure in making political power republican, a failure in making republican any kind of administrative power” and that there is a need for a “far greater distribution of power”.   A recent experience I have had suggests that we have a way to go yet in meeting this deficit.

Late last year and for a part of this year, I had the honour of chairing an independent panel tasked with selecting members, as well as a Chief Commissioner, for the proposed Irish Human Rights and Equality Commission.  This is the body which is to replace two existing statutory bodies, the Irish Human Rights Commission and the Equality Authority.  It will be a very important element of what, hopefully, will be a much improved human rights infrastructure.  One of the new members-designate recently voiced the ambition of the body, when it is finally up and running to be that of “transforming how public bodies function and to address the pressing issues of integration, inequality and exclusion facing society.”  That vision speaks precisely to true republican values but I’ve no doubt also that it sent more than a few shivers up more than a few bureaucratic spines.

On the face of it, it was a progressive move to take the selection of the proposed Commission out of the hands of the Executive and leave that task to a panel of independent people.  In President Higgins’ language this was an exercise in the wider distribution of power.  We took our task very seriously and indeed took the unusual step of suspending our work pending an opportunity for an Oireachtas Committee to ratify the choice of panel members, a choice made originally by the Department of Justice.

The selection of the ordinary commission members was not an overly difficult task given the calibre of the very many people who applied. There was, however, one slight stumbling block. As the Irish Human Rights and Equality Commission legislation had not been and is still not enacted, the Commissioners would in the interim be appointed to the existing separate bodies. However, under their statutes, anyone who had served two terms on either body was not to be eligible for a third term.  But under the proposed legislation this was not an issue.  So, in submitting our 14 names to the Department, we included the name of one individual of outstanding merit, who technically could not be appointed to the two bodies as the law currently stand, but who was perfectly eligible for the merged body under the proposed legislation –  the end point after all of our task. The person in question, Michael Farrell, a highly regarded human rights lawyer and now a member of the Council of State has given me permission to name him in this address.

There were a number of ways in which this difficulty could be dealt with, but the Department chose not to engage and requested another name which we supplied.  I should say at this point, that the individual who we replaced him with, is an individual of great ability and high calibre and who thoroughly justifies their position on the Commission but, to my mind, the exclusion of Michael Farrell is a great pity.

At the same time, we informed the Department of our difficulties in selecting a Chief Commissioner.  In our view, none of the relatively small number of people who had applied, had the right combination of professional and personal qualities needed to front an organisation likely to meet many challenges in its work not least from the Department itself.  We told the Department that we wanted to begin the search again using different methodology. The Department, initially, agreed.

We then requested that the Department-imposed ban on recruiting as Chief Commissioner anyone who had previously served on either of the two bodies be removed so that no one of calibre could be excluded from the search.  This ban – supposedly justified by the sensitivity of the merger – appears nowhere in the proposed legislation. It meant again that Michael Farrell would be excluded from the possibility of selection and indeed someone of the calibre and standing of Senator Katherine Zappone.  Once again, the Department refused our request but this time it pulled the plug.  We were immediately stood down.  Our work we were told was over. The Department would regain complete control of the process.

As Chair of the Panel I then requested a hearing with the relevant Committee in order to give our account of what had happened.  I felt that it was important to account for our work.  This has so far not taken place. The Committee did offer a date which did not suit the panel and one Committee member voiced concern about any discussion that would prompt partisan criticism of the Minister.  I said that was not our intention, but as we had been tasked by the Committee to make our selection, we felt it appropriate that we would return to account for our actions.  The Committee is now on holidays.  I understand that the new commission members designate have asked the Department to re-instate the selection panel procedure but so far this request has been declined.

On one level this might appear as a thing of little consequence, a bureaucratic spat involving squabbling elites.  But to my mind, it speaks to what this year’s summer school is about.  It speaks not only to President Higgins’ ideas of where power ought to reside in a true republic but also the value we put on the human rights obligations of this State to its citizens and to those who live within and even outside its borders.  The hand wringing we have indulged in as a nation over the institutional and other abuse of our own people, the hundreds of millions we have and are paying out in compensation – all of that is the stuff of human rights and if we are not to repeat our history through modern forms of oppression and abuse then we, as a republic, have an overwhelming moral obligation to develop first class first world human rights infrastructure.

Let me go back again to 1916 and the proclamation and the bright human rights stripe that crossed that historic page.  The purpose of a human rights commission is precisely to prod governments and public administrations into living up to those very principles that they have signed up to.  Yet the recent experience of the Irish Human Rights Commission and the Equality Authority is that the more they prod, the more they validly and ethically do their duty, the more they are stripped of resources and independence, the more in effect that they are nobbled.

Both bodies are now limping along with skeleton staffs.  The IHRC has just 6 staff, down from a high of 21.  The Equality Authority has 29 staff, down from 55 and has taken on 66% fewer cases than it did in 2008.  Across the board public service cutbacks account for some but clearly not all of this. There is something more at play.

Some of you may recall the report issued by the former Irish Human Rights Commission in 2008 on Shannon airport and the possibility that rendition flights were refuelling there.  It called on the Government to inspect aircraft landing at Shannon to make sure that Ireland was not inadvertently colluding in torture of individuals. The then Minister for Justice rejected the request and the Commission was left in no doubt as to its displeasure at its work.

Skip forward a few years and the release through WikiLeaks of a communication from US Ambassador Thomas Foley in which he relayed to his bosses in the US details of a meeting he had had with the then Justice Minister  Dermot Ahern.  In recent days, wrote Foley, Ahern has damped down the public reaction to a report of the IHRC on extraordinary renditions.  Ambassador Foley, continued the report, thanked Ahern for his staunch rejection of the IHRC demand that the Government inspect aircraft landing in Ireland that are alleged to have been involved in so-called extraordinary rendition flights.

The Ambassador also noted that an Oireachtas Foreign Affairs Committee hearing on the report was “barely reported” and got “no traction”.  Critically, he fretted that, while Ahern’s public pronouncements were “rock-solid”, in private he seemed “less assured”.   He stated that Ahern was “quite convinced” that three recent flights had been coming from or going to rendition missions.

I am not naive.  I appreciate the moral challenges that face Governments – balancing out the need to keep important political and economic allies like the US on-side with abiding by the human rights obligations of an ethical and moral state.  But if it is the case that official displeasure at the IHRC on that stand influenced the subsequent emasculation of its role and function, then that is a matter that we the people should take very seriously indeed.

I do not question the bona fides of the current Justice Minister in relation to the proposed new IHREC, but I have concerns about the influence of that mysterious thing called the “system” that I got a fleeting glance at a few short years ago.  We have much to pride ourselves on in this Republic but we should remember that our failures are essentially human rights failures and we should be particularly alive to the fact that never more so than at a time of recession and austerity are bodies such as a Human Rights Commission and an Equality Authority needed to make sure that in a decade’s time we won’t be weeping our way through another pitiful cataloguing of state inflicted abuse, albeit with a modern twist.

John Hume valued the sanctity and dignity of human life above all else – his legacy is vast but we should recall that the creation of Human Rights Commissions North and South were part of it. Let us continue to honour that legacy by keeping a very beady eye on what is happening here and now and very much in plain sight.

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