Supreme Court judge says Oireachtas should have more power

Mr Justice Frank Clarke says Constitution envisaged active role for parliament

Supreme Court judge Frank Clarke said the Constitution had given “an unusually strong” role to the courts. Photograph: Alan Betson

Supreme Court judge Frank Clarke said the Constitution had given “an unusually strong” role to the courts. Photograph: Alan Betson


The Oireachtas has turned out to be a weaker institution than was envisaged by the Constitution, a Supreme Court judge has suggested.

Mr Justice Frank Clarke said that, while the 1937 Constitution seemed to set out a separate, active role for the parliament as a centre of power, in practice the vast majority of legislation was formulated by the Government and its departments.

“It may be a consequence of Irish political culture and, in particular, the strong power of political parties and parliamentary whips,” he said.

“We are perhaps getting to the stage where parliamentary committees are doing useful work, but I still think we’re a long way away from the constitutional model that the Constitution itself seems to suggest we should have, which is a separate parliament as a separate centre of power exercising its own role.”

The judge was speaking yesterday at the Burren Law School in Ballyvaughan, Co Clare, as part of an address on links between the Constitution and Irish identity.

Strong role for courts
He noted that the Constitution had given “an unusually strong” role to the courts. Whereas the separation of powers between Government and parliament had not turned out to be as extensive as the theory built into the Constitution, the division between political institutions and the judiciary had created a “true separate source of decision-making” which citizens often turned towards when they were unhappy with Government decisions.

“Whether that frequent recourse to the courts is a good thing or not I leave to others to debate. But there can be little doubt but that the creation of what was, certainly for the common law world, an unusually strong role for the courts in the Constitution has assisted our view of a country where there may be multiple sources of power.”

Judge Clarke noted Irish people’s strong attachment to the Constitution, which was advanced for its time in setting out an array of guaranteed rights and giving the courts a significant role in ensuring they were enforced.

Focus of debates
He said it was striking that the primary focus of debates over issues such as divorce and the right to life of mothers and the unborn was in the constitutional domain.

“There is little doubt but that we see the Constitution as a place where our position, whatever it may be, on those important issues is likely to be defined.”

He added: “The fact that people see a degree of ownership in the Constitution by their regular involvement in voting on its contents seems to me to be an important part of the current Irish identity.”

On EU treaty referendums, he remarked that there would be “no formal difficulty” in crafting a constitutional amendment which would not require the Government to go back to the people for approval on every treaty, but the suspicion was that any government would have difficulty persuading people to vote for such a change.

For that reason, it looked like Ireland would “for the foreseeable future” have a constitutional regime which recognised the European part of our identity “but keeps the extent of our ceding of sovereignty to European institutions under the control of the people.”