Michael McDowell (Independent) | Oireachtas source

I was one of the people who participated as a guest speaker at the Constitutional Convention in Malahide when all of this started. When I got there, all of the dice were already heavily loaded in favour of this being the outcome of the convention. Papers had been put before the delegates by people who were interested in social and economic rights being put into the Constitution. Even though I did my best to point out some of the difficulties, it was a one-way street as far as the so-called debate was concerned. It was not a considered debate. It was an emotional one-way street.The point is that to include in the Constitution, "that the State shall progressively realise [economic, social and cultural] rights, subject to maximum available resources and that this duty is cognisable by the Courts" presupposes a lot of things. What are the maximum available resources at any given stage? Who decides that the Abbey Theatre should get €2 million to provide an extension and that such money should not be spent on a particular service in a hospital in Waterford? Who makes such decisions? What possible function could the Judiciary have in becoming involved in such matters? These are matters of judgment, but not of judgment by the courts or the judges in the courts. As Members of the Oireachtas, we are elected by the people of our democracy to make judgments on such matters. It is a difficult for anyone to choose whether to spend €2 million on the Abbey Theatre or on the provision of a service in a hospital in Waterford. Politicians have to make such choices around the Cabinet table, in the lobbies of Dáil Éireann and - to some extent - in this House. If we decide to extend statutory rights to welfare and housing, etc., in a particular way, a cost will be attached to that policy and resources will have to be marshalled to finance it.

The inclusion in the Constitution of vague-minded and, in my view, dishonest language of this nature would achieve absolutely nothing other than the politicisation of the Judiciary. I have spent most of my life practising before Irish judges. Our Constitution gives them massive power to look at and reverse any act of the Executive under the rubric of judicial review. They even have the power to annul Acts of the Oireachtas by reference to the Constitution. These immensely strong powers are given to Irish High Court judges sitting alone, subject to the right of appeal. The British judiciary does not have these powers. The American judiciary has them to some extent. We have accorded our Judiciary immense powers under our Constitution. When Éamon de Valera was drafting the Constitution in 1937, he distinguished between the areas of public life and vindication of rights which should be justiciable on the one hand, and those which should be matters for judgment by the Oireachtas, on the other hand. He and the draftsmen of the 1937 Constitution saw a need to draw a particular line between those two areas. That is why Article 45 of the Constitution sets out directive principles of social policy for the guidance of the Oireachtas and states that those principles "shall not be cognisable by any Court". Éamon de Valera understood the separation of powers issue that lies at the bottom of this issue.

Having appeared before judges in every type of court, including the Special Criminal Court, the District Court, the Circuit Court, the High Court, the Court of Appeal and the Supreme Court, I know that the courts are not suitable for deciding on the allocation of resources. They can decide that a particular pensioner is entitled to have a Social Welfare Act operated in a particular way because the Oireachtas has set up the Act and has provided the resources to do it. In certain circumstances, the courts can inform the State that an Act says that some particular pension must be provided to an individual, and instruct the State to get the resources to facilitate this, on the basis of the law of the land that has been put in place. It has never been the case that the Judiciary has been accorded the right to say to the State, "You may not do X or Y and you may not diminish the budget here or there because we believe resources are available to enable you to carry out this function".

I agree entirely with what has been said to date. While I have no objection to this proposal being considered by a committee, I believe it is half-thought-out and ill-thought-out. It strikes at the heart of the constitutional order. The political class in this country has one vice. It is a virus which I have had myself. I refer to its capacity to play down the role of democratic politicians and to play up the role of Joe Duffy, the media, the courts and everybody else for the purposes of diminishing its own function in our democracy. That is the beginning of the end of the set of values that underlie our Constitution. Politicians should not see themselves as anything other than the judges of the issues to which this proposed amendment relates. Politicians should insist on taking responsibility for solving the housing crisis, for example, because such issues are matters for resolution in this House and not under any circumstances down in the Four Courts.