Why democracy must reassert itself

Fintan O'Toole suggests (Irish Times, October 21st) that Mr Justice Peter Kelly's attempt to make three named Ministers personally accountable to him for the State's failure to care for a disturbed child is evidence of a failure of democracy.

He claims that, in a properly functioning parliamentary democracy, the ministers would be called to account in the Dail, not the courts. He expresses anxiety about the trend of dealing with difficult issues in the courts, rather than in the Dail.

As a politician, I am deeply concerned that citizens have been forced to turn to the courts to get the State to meet its obligations. This is a clear sign that my profession is not doing its job.

Although the lack of secure places for disturbed teenagers was raised in the Dail three years ago, nothing was done. ail did not force action. This required Mr Justice Kelly to champion the cause of these troubled children in his court. For that we must all be grateful.

Judges are, of course, not elected by anyone. Quite properly, they cannot be defeated at election time either. Nor are they accountable, in the fullest sense, for the practical, financial or broad social implications of decisions they may make in particular cases.

For every right that a court asserts in a judgment, there is an obligation placed on someone other than the judge to vindicate that right in practice. The obligation may be placed on the State or it may be placed on a family, on an employer or some other subsidiary institution. Indeed, it would be wrong to assume that the State alone bears the burden of vindicating legal or constitutional rights.

For every human right there is a corresponding human obligation. Citizenship itself implies obligations as well as rights. The means available to the person on whom the obligation is placed will vary with circumstances and over time. Other competing rights may have to be considered.

I believe these balanced judgments are, generally speaking, better made in the Dail by elected politicians than by the courts. That is why it is legitimate for Fintan O'Toole to throw the ball back to the political system.

It is true that the number of lawyers has increased more rapidly in recent years than the number of TDs. ail. This additional focus of collective brainpower on the courts system may have tilted the balance of attention towards the courts and away from the Oireachtas.

Members of the Dail and Seanad work, with antiquated procedures and few resources, to supervise an increasingly complex administrative environment. The number of State employees per Dail deputy is far greater than it was when the State was founded. But these are just explanations of failure. They are not excuses. Democratic accountability must reassert itself.

The failure of democratic accountability is one that Fine Gael has tackled head on in our recent policy statement, A Democratic Revolution written by Jim Mitchell TD and myself. I believe we have assembled a package of measures that will eliminate many of the flaws in our democratic system that Fintan O'Toole has identified.

We propose that, rather than having to rely solely on the courts to assert constitutional rights, citizens should also have access to a newly created constitutional council. This would quickly examine complaints of disrespect for constitutional obligations and rights, and issue annual reports. These would be debated in the Dail.

The highlighting in the council's reports of unconstitutional behaviour would have strong persuasive effect in getting action taken to vindicate constitutional rights and meet constitutional obligations.

They would influence the annual budget process. They would warn the political system of issues that might soon become the subject of constitutional court cases. This would prompt action before the case had to go to court.

Making a complaint to the constitutional council would not involve the costly process of hiring trial lawyers, or the risk of losing a court case and having to pay huge costs. It would simply involve making a written complaint, similar to the process whereby complaints are received, filtered and acted upon by the Ombudsman. The constitutional council would work closely with the existing administrative Ombudsman.

I believe we must also strengthen the Dail committee system, appoint a parliamentary examiner to prepare reports for committees, and guarantee that a full oral answer is given to every Dail question. This would achieve the level of government scrutiny that would avoid the spectacle of ministers being hauled before the courts for non-performance of legal duties.

We must also strengthen the role of the Ceann Comhairle, as upholder of the rights of the Dail. He or she should be given a crucial new role of ensuring that ministers are diligent in answering questions in the House, and that committees of the House perform their duties conscientiously.

At the moment, the Ceann Comhairle has no control over ministerial answers to Dail questions. This allows laxity and evasion in the preparation of answers. Fine Gael policy also makes proposals for enhancing the accountability of the courts themselves, and for a more transparent and effective system for the appointment of judges.

We make proposals to reduce legal costs, so the public can have readier access to the courts if that is necessary. But our principal objective is to make the political system more responsive, thereby reducing the need to go to court.

John Bruton is leader of Fine Gael