Denis Riordan should not have had to put his home at risk to test the constitutionality of the Government's nomination of Hugh O'Flaherty to the European Investment Bank.
It is wrong that the only way the constitutionality of this nomination could be challenged was for an individual citizen to take the risk of going to court himself.
It is wrong that citizens should have to take huge financial risks in order to vindicate the Constitution. It is also wrong that someone should have to demonstrate a personal interest before they have locus standi in a constitutional matter. Citizens, as citizens, have rights.
We must urgently devise improved means of vindicating and upholding the Constitution and of ensuring constitutional procedures are followed in all government business.
The Constitution should be a living document guiding Irish democracy rather than an obscure paper, read only by lawyers whose concern is to use bits of it as an argument in particular cases. It is also wrong that a major nomination should have been made in the manner of the O'Flaherty one. The Constitution, for example, says the Government shall "act as a collective authority". Cabinet procedure instructions set out detailed guidelines to ensure important decisions are taken collectively, with all ministers involved.
Article 2.21 of Cabinet procedure instructions says: "Where an appointment by a minister to the board of a State-sponsored body (or the like) is envisaged, the minister should mention the matter at government at least two weeks in advance to allow colleagues the opportunity of making recommendations. The Taoiseach, the Tanaiste and any other party leader in government should be informed separately, in advance of such proposals."
It is quite clear this carefully drafted procedure was not followed in the O'Flaherty case; the matter was not discussed by the Cabinet. Two weeks' notice was not given to all ministers, notwithstanding that the High Court has now found that this appointment was an "executive decision" of the Government and, as such, was covered by collective responsibility.
In light of this I believe a serious question mark remains over the EIB appointment. This shows we must have much better methods of questioning major appointments by government.
I wish to make the following proposals: 1. The Government should reaffirm that all major appointments at home and abroad will be approved at a cabinet meeting, with two weeks' notice to all ministers before the appointment. If necessary, legislation should be introduced defining those appointments that should require a full government decision.
2. Major discretionary appointments by the Government should be the subject of an all-party questioning procedure. Proposed appointees should appear and be questioned before an all-party Oireachtas committee. The questioning should be in public. The Government would not be bound by any conclusions the committee might reach.
Indeed, the committee might not be required to reach a conclusion at all.
However, the simple existence of a process of questioning would in itself ensure appointments of the kind which has just been made to the EIB would be considered more carefully by the Government.
3. We should appoint a constitutional ombudsman or constitutional council which would act as a guardian of the Constitution in all its articles. It is not satisfactory that the only way the constitutionality of a government action can be questioned is by a private citizen taking a case all the way to the Supreme Court, or by the President referring a Bill to the Supreme Court.
The Constitution is, after all, the supreme document which governs all arms of government. It is the foundation of our democracy. It is superior to all legislative or administrative decisions, yet the truth is it is not consulted on an ongoing basis as a guide to action by government. It is seen solely as a "problem to be avoided" in particular cases.
The mere existence of a constitutional council or constitutional ombudsman would change all this. Such a body could receive complaints and could review actions by all arms of government on an ongoing basis, to check on their compliance with the letter and spirit of the Constitution.
Its opinions, while not legally binding, would have a strong persuasive effect. Practices or legislation which were deemed to be questionable would have to be transparently justified. That would greatly strengthen Irish democracy.
John Bruton is leader of Fine Gael
