Justine McCarthy, Writer and Journalist, Sunday Times columnist


Did you know it’s an insult to democracy to hang your jacket on the back of your chair in the Seanad or the Dáil chamber?  If you do, there’ll be an usher out of the traps faster than Usain Bolt ordering you to remove the obscenity.  Leinster House has many sacrosanct rules.  Journalists working there are not allowed to interview elected members in the corridors. Nor are parched reporters covering committee meetings allowed to drink from bottles of water, even though the elected ones arrive showily armed with take-away grande coffees.  As we know from the marathon Dáil sitting for the Protection of Life during Pregnancy Bill, the private members’ bar is untrammelled by the normal licensing hours that apply to the nation’s public houses. Plus, if elected members’ blood alcohol level is above the legal permissible limit after they drive away from their exclusive bar, they can invoke parliamentary immunity to avoid prosecution.

In the Oireachtas press gallery, male reporters are obliged to wear jackets and ties, much to the bemusement of an exquisitely attired Norwegian reporter who was ejected earlier this year for having the temerity to arrive tie-less.  Watching the man’s unceremonious removal from below in the chamber were Luke Ming Flanagan and Mick Wallace, not to mention Michael Lowry, who facilitated Denis O’Brien’s winning of the state’s second mobile phone licence and who, had he been elected to any self-respecting parliament, would have been shown the door years ago.

All of which, you may be thinking, is vaguely titillating but what has it to do with the adequacy or otherwise of this country’s administrative institutions?  The case I want to make is that it has everything to do with the catastrophe that has befallen our country – because self-aggrandizing one-upmanship goes to the heart of the institutional elitism that makes a mockery of this republic.  It was elitism that made Anglo’s Sean Fitzpatrick feel entitled to dictate to the last government on RTÉ’s radio airwaves to cut child benefit in the 2008 budget, just days after his bank’s rescue by the state that would cost Ireland its economic sovereignty.  It’s the same elitism that made Bertie Ahern boast about appointing his buddies to state boards when he was the Taoiseach.  And the same elitism that made John O’Donoghue, the former Ceann Comhairle, feel entitled to charge Irish citizens €472 for a limo ride from one terminal to another at HeathrowAirport. The Celtic tiger turbo-charged that culture of them-and-us, the haves and the have-nots and the Anglo bankers’ attitude that the state existed solely for their enrichment.  Despite all the post-mortems and breast-beating of the past five years, it hasn’t changed.  In some ways, it’s worse.

We’re not fooled by token gestures.  Take the Constitutional Convention which, with 66 randomly chosen citizens among its 100 members, is designed with a patina of inclusiveness. Yet the government brazenly cherry-picks from its basket of recommendations.  When the Convention proposed lowering the voting age, the cabinet thought: splendid idea. But, when the Convention wanted the methods of nominating candidates for the presidency to be broadened so as to open up competition for the job, the cabinet said no way Jose and bounced it onto a committee.  And so the presidency remains firmly in the old boys’ club.

As for Seanad Eireann – we will have a referendum on abolishing it in October but we are not being given the option of reforming its elitist structure, electorate and composition.  It’s as if demolishing the upper house is more palatable to our rulers than having one that genuinely aims to serve the people.

The impasse Ireland has reached now, where we pretend to make profound administrative changes while actually deepening the trenches of inequality, reminds me of Mahatma Ghandi’s reply when he was asked what he thought of modern civilisation.  “I think it would be a good idea,” he said.  Delivering a civilised democratic republic is a lot harder than simply rearranging the administrative furniture – because it requires changing hearts and minds.

Don’t ask me why I should think that mention of civilisation is a natural segue to the Four Courts but let’s consider that citadel of public administration.  This is the place where citizens are promised they will get fairness.   Yet the fingerprints of the justice system are all over the crime scene of the last decade.   Laws are ostensibly made for the good of the people but our adversarial system of justice can have the effect of using the law as a weapon against the people.

During the boom, it was used to stop information being reported about what was really going on. Threatening solicitors’ letters and gagging writs become commonplace for journalists. A gentleman who is currently before the courts and shall therefore remain nameless instructed a big solicitors’ firm to issue defamation proceedings against the Sunday Tribune when I worked there because of something I had written about him.  To their credit, the solicitors refused because, they told the client, the article wasn’t defamatory.  A threatening solicitor’s letter arrived at the Sunday Tribune nonetheless because there was some other solicitor further down the queue willing to do it.

We have often witnessed the silencing effect of the law in and around various tribunals, and in the Catholic church’s response to child sexual abuse.  Ian Elliot, the church’s own recently retired watchdog, was threatened with writs over his report on abuse in the diocese of Cloyne.  Professor Des O’Neill was warned that his legal indemnity might not protect him if he insisted his report on Leas Cross nursing home be published intact. Authors of reports on abuse in Dublin’s Madonna House and on the death of Kelly Fitzgerald, aged fifteen, following neglect and cruelty by her parents, were subjected to the same legalistic threats.

It wasn’t just legal costs that were ratcheted up during the boom years but the levels of aggression and bullying too that become a hallmark of the ‘Celtic Tiger’.  Consequently, a courtroom was one of the most brutalising places citizens could find themselves. Fintan O’Toole is reported as saying here yesterday that there is no corruption in the law; I wouldn’t lightly disagree with Fintan but I do find myself wondering why lawyers are not required to routinely swear an oath to tell the truth in court as is Joe Citizen.  In a results-driven adversarial legal system with the potential to bestow enormous wealth and status on lawyers, it is unimaginable that there are no practitioners who are tempted to tell anything but the truth, the whole truth and nothing but the truth.

With it’s m’lud obsequiesness, its wigs and my learned friends, the courts are even more weighed down with archaic rituals and rules than Leinster House.  In such an atmosphere, lines of thinking that are quite bizarre to the lay person are deemed rational and acceptable.  I’m talking about convicted sex offenders being allowed buy themselves out of jail by making monetary payments, even when the victim objects. Or character evidence given at sentencing hearings when the judge is told leniency is deserved because the convicted child rapist came from a good family, played Gaelic football, is a white-collar professional and goes to mass.

The opposite side of that coin is the preponderance of people in our jails who come from the same socio-economic pool.  John Lonergan, when he was the governor of Mountjoy Prison, never tired of pointing out that the majority of prisoners came from the same handful of postal code areas in Dublin.  Simultaneously, the financially better-off have largely exempted themselves from the civic duty of jury service.  One of the most shocking revelations of Judge Sean Ryan’s report from the Child Abuse Commission was how so many children who grew up in those institutions either emigrated or entered prison because they drank too much alcohol to numb themselves against the pain of what was done to them.  The double cruelty was that, many of those who reported their abuse to gardai, were ignored or the investigation files mysteriously disappeared.   Chapter 20 of the Murphy Report, when it was finally published, recounted that a man who reported his abuse as a child by Patrick McCabe, a former priest, was later the subject of a garda recommendation to the DPP that he be charged with attempted blackmail when he sought compensation.

At a conference last year, Lonergan said:

“When I started working in the prison service, the belief was that all the baddies were on the inside and all the goodies were outside.  The reality was very different.  Most of those in prison were more suited to the county home.  Most had serious mental and behaviour difficulties which were simply not dealt with.”

So, when I hear commentators now lamenting the inability of the justice system in dealing with white-collar crime, I have to say I get angry.  Where was the righteous indignation when bishops and senior clerics went scot free after covering up child sex abuse?  When the DPP applied to have a celebrity chef extradited from America because five paintings went missing from a five-star hotel but decided not to seek the extradition for seven alleged rapes by George Gibney, a rampant child-abusing swim coach, where was the public’s anger?   Last week, a letter was read out in a High Court hearing in which a doctor confirmed that a notorious child abuser admitted to him he had what the doctor called a “sexual relationship” with a 14 year old boy.  It was the first time the admission was made public. That 14 year old, now a 50 year old man, reported the abuser to gardai 9 years ago.  Since then, four criminal trials involving his complaint have collapsed.  The alleged victim spent 14 days being cross-examined and suffered two nervous breakdowns during that period. The accused has appeared before 10 different judges in various criminal and civil trials, judicial reviews and Supreme Court appeals.  Where is the public outcry for his victim?  For the outsider, the courtroom can be the most brutalising place in Ireland.

One of the reasons elitism thrives in Ireland’s administrative cradles is that we are a reactive people.  We wait for the big-bang, final-straw issue before we even start thinking about making changes. And if change doesn’t happen immediately, we shift our attention elsewhere. As long as I have been a journalist, there have been reports of astronomical legal fees but they are the great survivor in our post-boom landscape of widespread unemployment, emigration and severe psychological distress.

The legal system is the Last Man Standing since the IMF came to town.  The Troika has gone through this country like Mac the Knife, slashing everything that had a price tag, but now, as it prepares to pack up and go, promised reforms relating to legal costs, regulation and disciplinary procedures have still not come to pass.  Seven years ago, the Competition Authority’s recommendations for reform met the same fate.  Of course, there is no profession better at arguing its own case than the legal profession. The King’s Inns, the body responsible for the education of barristers, has recently appointed Sean Aylward, the former secretary general of the Department of Justice, as its new Under-Treasurer.  In normal parlance, that means he’s the new chief executive.  Mr Aylward was the man who denied to the United Nations Committee Against Torture that the Irish state bore any responsibility for the incarceration and mal-treatment of more than 10,000 women sent to the Magdalene laundries.  His denial has since been jettisoned by the Taoiseach in his Dáil apology to the women last February.  Before he was the department’s secretary general, Mr Aylward was the head of the Prison Service.  Ireland’s prisons have been repeatedly found in breach of human rights by various bodies, including the European Council’s Committee for the Prevention of Torture and the Irish Human Rights Commission.  Yet, I haven’t heard one lawyer raise concerns about the ethical appropriateness of Mr Aylward’s appointment to the King’s Inns.

In order to make the machinery of our justice administration better serve the people, we cannot be content with tinkering around with it.  We must change its culture. Franz Kafka captured that culture brilliantly when he observed that a lawyer is someone who can write a 10-thousand word document and call it a brief.  What he didn’t mention was the commensurate fee.  In July lat year, Charles Moran, a taxing master of the High Court, described a €2.1m legal bill as “revolting in the extreme”. He reduced it to €393,472.  One of the consequences of revolting legal fees is that tribunals of inquiry are no longer considered affordable as forums for public accountability, in light of the €2,500-a-day fees that were being paid in DublinCastle.

The fact is that many citizens never get near the courts because legal fees are prohibitively expensive and, actually, they may be the lucky ones because, what sometimes passes for justice has more in common with Russian roulette.  For instance, there’s a day every December, shortly before Christmas, when stockpiles of personal injuries cases suddenly get settled so that insurance companies can enjoy the festive turkey comforted by the prospect of starting the new financial year with a clean sheet.  That’s not justice.  It’s accountancy.

Despite reform of our defamation laws, much of the legal advice the media receives is less about libel law and more about the chances that Misters A, B or C, well-known wealthy and litigious individuals, will sue if a story is published and the likelihood of a jury awarding them vast damages, regardless of the accuracy or worthiness of the story.  That’s not justice.  It’s gambling.  It’s what Paddy Power does.

It goes without saying that there are many good upstanding, vocational lawyers and, privately, they will tell you how disenchanted they are with the system.  One counsel told me he had grown to despise what he does because, he said, his job was to destroy the good name of decent people who give evidence in the belief they are assisting the court.  Many lawyers will warn you to stay away from court because, no matter what the outcome, the trauma will be significant.  I know of a senior counsel apologising to another for launching a sustained, vitriolic attack on a High Court plaintiff in his closing speech to the judge. Afterwards, in the barristers’ own restaurant (again, note the privilege) he told his colleague: “I had to do that.  The client was at the back of the room”.  And the client wanted his pound of flesh.  And, sure, wasn’t he paying richly for it?

We inherited our system of justice nearly a century ago.  It revolves around a culture of antagonism and hostility, unlike the investigative, restorative or mediation systems in other jurisdictions. Our adversarial system of justice is an oxymoron that encourages greed and, ergo, malleable ethics.  It is bad for democracy.  It is bad for the people. And it ill-serves a country that calls itself a republic.

Book your Tickets