Diarmaid Ferriter: Department of Justice has history of dismissing challenges

I rang the Department of Justice last week, not as a commentator or outraged citizen, but as a curious historian. After reading the account by Stephen Collins in this newspaper about an exhibition the department was hosting to mark the assassination of the State's first minister for justice, Kevin O'Higgins, in 1927, based on files from the National Archives, I wanted to know what arrangements had been made for public access. None, I was told; it was a private exhibition for one night only.

I wondered was the reluctance of the department to share these files with the public part of its wider problem with file sharing, but was assured the files will be returned to the National Archives in the new year where they will be available to the public. So at least we will have transparency in relation to that information.

But the department should have made this exhibition public at this of all times, to invite the public into its orbit and to illustrate the difficulties of its early years and its first minister. O’Higgins was one of the most intriguing characters of the Irish revolution and the subsequent counter-revolution of which he was in the vanguard. Shot dead by three IRA men acting independently on his way to Mass in 1927, he is often regarded as the uncompromising “hard man” of Cumann na nGaedheal in the 1920s. In many respects he was, but he was no unthinking militarist with a lust for blood, and even during the Civil War was anxious legal normality take the place of martial law.

‘Screaming through keyhole’ He was instrumental, however, in fashioning the Free State narrative of who was to blame for that Civil War and in doing so, by way of an address at Oxford University in 1924, he left the memorable image of a young government under siege in City Hall whose members could not even stay in their own homes: “Eight young men, standing amidst the ruins of one administration, with the foundations of another not yet built, and wild men screaming through the keyhole”.

He was accurate about the anxieties of the period, but the young government had weapons at its disposal – powers of internment and public safety legislation – which it used ruthlessly: “There are no real rules of war”, O’Higgins insisted, in defending the execution of anti-Treaty republicans: “The safety and preservation of the people is the highest law”. The attempt to dehumanise his Civil War opponents was propagandist caricature and ignored the sincerity and depth of their feelings of betrayal; just as he, in turn, was caricatured as a man whose heart had turned to stone. It had done nothing of the sort. In his colleague Eoin Mac Neill’s memoir of these fervid years, finally published last year, Mac Neill recalled how he witnessed the assassination O’Higgins in 1927. As Mac Neill cradled him, O’Higgins told him “I want you to say that I forgive my murderers”.

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This was all the more remarkable given that four years previously during the Civil War, O'Higgins had buried his father after republicans killed him during an attack on his house. That revolutionary generation – on both sides of the Civil War – were obviously experiencing a lot of turmoil, politically and emotionally; as O'Higgins put it succinctly: "I think 1922 and 1923 could count for ten years in the lives of most of us". His friend and fellow minister Paddy Hogan had written to him in early 1923: "Two months more like the last two months will see the end of us and the Free State".

Political interference O’Higgins had also been a busy

minister for justice – legislating for an unarmed police force, censorship and women’s exemption from jury service among other things – while also attending imperial conferences and facing down army mutineers. In most of these tasks, as in other departments, civil servants played a key, stabilising role and also generated much power for themselves. As JJ McElligott, assistant secretary of the department of finance in 1923 saw it, one of the advantages of the inexperience of O’Higgins and his colleagues and the distraction of the Civil War was that it allowed civil servants to get on with State building without too much political interference.

Excessive centralisation

It is no harm to remember this heritage in light of the turmoil witnessed this week. A viable democracy and effective Civil Service emerging in the most difficult of circumstances were two of the main achievements of that era. Another enduring legacy of that period was excessive centralisation, too much power in the hands of individual civil servants and contempt for those who sought to expose wrongdoing or ask troubling questions. It was a problem more pronounced in certain government departments, including justice, which seems to have clung to the convenient myth that those who challenge abuse of power are unreliable and treacherous malcontents, “screaming through the keyhole”.