Constitutional review is too timid, even by its own standard

IN MOST people's estimation, including mine, the Constitution has worked reasonably well. In addition, the people who have to operate the system of government which it establishes have become comfortable with it.

Accordingly, the conservatism of the first instalment of the review group's work was to be expected. Yet in some areas it seems that this conservatism has been taken too far.

Thus, while it is certainly correct to propose establishing the office of ombudsman in the Constitution, why is the same proposal not made for the Dail Eireann Constituency Commission?

Anyone who remembers the bad old days of the Tullymander would surely agree this commission is the lynch pin of our participatory democracy and that it is high time it was given its rightful place in the Constitution. Plenty of less important institutions are mentioned there.

Take, next, the Attorney General. The po faced respect with which the recommendation that the Constitution should be amended to allow for delegation of the functions of the Attorney General is remarkable.

The report's discussion in this area amounts mainly to saying that the Attorney is a very busy person (which no one can deny, as the song puts it). But delegation is an important issue, not merely for the Attorney, but for other offices and institutions.

But the question of delegation is no more significant in regard to the Attorney than in respect of the other offices or institutions mentioned. What is peculiar to the Attorney is the danger of a conflict of interest arising because of his roles first his office as legal adviser to the Government and second, his independent role as Guardian of the Public Interest.

One example of the type of strain which arises from this duality concerns the Attorney's decision to seek an order before the High Court and then the Supreme Court, to restrain evidence from being given before the beef tribunal regarding what had transpired at a government meeting.

While the decision to apply for this order was taken by the Attorney in his capacity as Guardian of the Public Interest, many lawyers, never mind lay people, did not follow this distinction and assumed wrongly that here was a high official of state using his office to cover up an episode which was politically embarrassing to the government. This assumption was undesirable.

The conclusion I draw from this and other episodes is that the political significance of certain types of legal case has now become so great that the combination of these two roles in the same office amounts to an accident waiting happen. The function of guardian of people's legal rights ought to be vested in its own officer, possibly even a part time officer.

IN the third of its three pages dealing with the Attorney, the committee does remark that there has been "some concern that the public interest role of the Attorney General may run counter to the obligation to act as legal adviser to the government". (Some of this concern was expressed by this writer on these pages).

The committee's response hardly seems to measure up to the level of seriousness of this difficulty. It notes that the function of Guardian takes up at most 5 per cent of the Attorney's time.

The report states: "The volume of work does not require the creation of a separate office, and there are practical advantages in combining the two roles." There would, of course, be even greater practical advantages in, for example, combining the roles of judge, prosecution and defence counsel in a criminal trial: but this is not, I think, a reform which commands much support.

The report concedes rather tepidly that there may be a problem here and then states: "The review group considers that the discretion whether a conflict arises should be left with the Attorney General, who will have to act in the full glare of publicity and under the closest of scrutiny in the courts . . .

"If he or she decides a particular issue presents such a conflict, he or she should be able to assign the task to one of a small panel of senior lawyers".

I regard this as better than nothing, but far from adequate. In the first place, as a matter of law, the courts can probably not be involved in reviewing the Attorney's decisions. Secondly the publicity shone upon the Attorney is often not very glaring or well informed. Thirdly, one wonders what the expression "small panel of senior lawyers" means.

Possibly it will fit in with the general power of delegation mentioned earlier. In any case it seems extraordinarily vague and flimsy. Fundamentally the success of this system depends upon an Attorney's capacity to decide that there is a conflict in regard to his dual roles as government's legal adviser and "Guardian of the Public Interest" (a term which is not defined here or in any other jurisdiction) and to decide to go off to the small panel.

It bears noting that, of the 15 members of the committee, one is the Attorney, another is his principal civil servant and five of the remainder are practising barristers. The Attorney is leader of the Bar, and barristers are known to be conservative and extraordinarily tenacious and skilful when it comes to holding on to their prerogatives.

This was demonstrated as recently as last month by the pressure from the Bar ("something wonderful to behold" according to one insider) which led to the evisceration of the Courts and Court Offices Bill which would have made solicitors qualify for appointment to the Higher Courts. It seems possible that we have here a further demonstration of this forensic firepower.

A WIDER problem to which the committee, more understandably, proposes no definite solution is that of the too frequent general elections and changes of government over the past 15 or so years.

This is an especially significant problem in the light of the fall of the previous two governments in 1992 and 1994. It takes on particular significance for the committee since the remarkable circumstances of the fall of the last government were the main inspiration for the committee's establishment.

At first sight, one way of dealing with this problem might seem to be to change the system of elections in order to ensure that the governing party enjoys a more secure majority.

The difficulty with this is that the configuration of votes between the parties is such that if the British first past the post system were adopted here, the result would probably be a permanent Fianna Fail government. The committee reviews the British and other electoral systems and comes down, very convincingly, in favour of the present system.

There are two other possible ways of at least discouraging too frequent general elections. One would entail giving the President a greater discretion in deciding whether to accept the Taoiseach's advice to dissolve the Dail.

The committee recommends "the prescription of a fixed term for Dail Eireann and provision for a constructive vote of no confidence".

But these suggestions arise in connection with an article of the Constitution which is to be examined in the committee's final report.