Higgins expenses are not beyond scrutiny by the Public Accounts Committee
A modern reading of the constitution would allow the PAC look at Presidential expenditure
President Michael D Higgins pictured at UCD, Belfield, Co Dublin. Photograph: Tom Honan/The Irish Times
The secretary general of the Department of the Taoiseach, Martin Fraser, is due to appear before the Public Accounts Committee (PAC) on Tuesday as part of its examination of spending by the President’s office.
He does so despite querying the standing and constitutionality of the investigation last week in a letter that was couched in language which would be more appropriately used in addressing only the most recalcitrant or obstinate. It will be interesting to see if he retains this tone when he appears in person before the committee.
The PAC, it must be remembered, is the principal committee of the Oireachtas, with a long-established constitutional mandate. The Oireachtas is the body to which the Government, including its servant, Mr Fraser, is responsible. And the Oireachtas comprises the elected representatives of the people.
As regards the main issue of the President’s expenses, two questions arise. Has the PAC the power to investigate the President’s finances, and secondly, if so, may it do so just before a presidential election?
At base, the first question is one of accountability. Attitudes to accountability have changed substantially since the 1930s when the office of President was established. The approach then was to appoint a qualified person to a position of power and then leave them, substantially uncontrolled, to get on with the task.
Usually the only sanction for failure or disobedience was the ultimate one of removal – that is theoretically impeachment in the case of the office of President.
This approach is used in the central constitutional provision, that is, Article 13.8: “The President shall not be answerable to either House . . . for the exercise and performance of the powers and functions of his office or for any act done . . .”
There is a substantial culture clash between the policy underlying this provision and contemporary thinking which has produced a lot of “integrity bodies”, such as ombudspersons and regulators, to keep authority figures honest and responsible.
There was a recent example of this clash in Britain a few years ago. Prince Charles has been in the habit of writing to British ministers, lobbying them on matters on which he feels strongly, frequently the environment. A newspaper sought to have these letters published under the Freedom of Information Act. This was rigorously opposed on behalf of the British government, by the attorney general. The courts upheld the newspaper’s plan and the letters were published and proved to be disappointingly unembarrassing.
Returning to Ireland – the normal practice is that at the end of the year under review the accounts of Government departments and other public bodies are checked by the Comptroller and Auditor General against tests such as whether an item of expenditure was authorised in the Estimates, voted on earlier by the Dáil; whether it was truly spent, and if it represents value for money. As a matter of policy, one might think that it would not be unreasonable that the President too should be subject to this discipline.
In short, a lawyer might think that, reading the Constitution literally, the President’s expenditure should not fall within the sweep of the PAC. But on the other hand, the developments of the modern era might require a different reading of Article 13.8.
The other question concerns the fact that the presidential election is imminent and that the PAC received the Comptroller and Auditor General’s report several months ago. The crux of the matter is whether there is any law or convention which prevents or restrains one institution of Government using its powers to embarrass one of the candidates at a forthcoming election.
This situation is rather analogous to that which occurred in the US presidential election of 2016. The FBI announced only weeks before the election that it was reopening its investigation into the fact that Hillary Clinton had been using her personal email account to receive official communications relating to her role as secretary of state.
The law in relation to this field, in Ireland and elsewhere, contains next to nothing preventing public institutions from being used to interfere in elections. Moreover, even as regards conventions, one could probably say that there is nothing restraining this sort of practice.
The best one can do is to quote the wise words of a British judge and hope that they might prevail here: “The preferable outcome depends less upon a simple statement of principle than upon the actual facts of the situation and the good sense and political sensitivity of the main participants.”
Finally, there is plainly at least a legal doubt here and it is strange that the PAC has not taken legal advice, especially as the Oireachtas has had its own legal adviser for the past decade or so. This leads on to the question suggested previously: what happens if the PAC insists on going into the President’s finances?
Assuming that there is a good legal case to be made under Article 13.8 as quoted earlier, where should the case be taken? The answer is the courts. As regards who should bring the case, assuming the President was reluctant to do so, and no concerned citizen came forward, then I suggest the Attorney General. For his duties go beyond being the Government’s principal legal adviser to include a distinct role as guardian of the Constitution. This second role would seem to make him a good fit.
David Gwynn Morgan is an emeritus professor of law at UCC.