WE LIVE in a "parliamentary" democracy. In theory at least, a political system in which the separation of powers, trias politicas, between legislature, executive and judiciary is the organising principle of our political order.
Each acts independently as a check on the others’ excess. Indeed in other polities, the role of an official auditor or of an ombudsman may also function, with a similar standing, as a separate check on authority.
James Madison, the architect of the US’s constitutional order, argued that for a republic to function properly “it is evident that each department should have a will of its own” and that the membership of each should not be beholden for their positions or pay to the other.
Do the Dáil and Seanad live up to such basic standards? No, according to the Ombudsman, Emily O’Reilly, with some justice. Her recent polemic at the Institute of Public Administration in Dublin raises important questions about our democracy. Most trenchantly, precisely to the issue of whether the legislature can be said to have “a will of its own”. With TDs whipped willingly through the lobbies by the Government, “for all practical purposes, parliament in Ireland has been sidelined,” she insists, “and is no longer in a position to hold the executive to account”.
Ms O'Reilly's immediate casus belliis what she rightly saw as the undermining of her office in the refusal of both Houses through procedural votes – straight along party lines – to allow an appeal of hers even to be considered by a committee. For only the second time in the 26-year history of her office, the Ombudsman had resorted to seeking an Oireachtas hearing on a departmental rejection of her office's recommendation. The case concerned compensation to Donegal fishermen under the controversial Lost at Sea scheme.
If the Ombudsman’s office is to function effectively, although its recommendations do not have legal force, they should be “persuasive”, as Ms O’Reilly argues. As her British counterpart, Ann Abraham, the UK Parliamentary Ombudsman, put it bluntly to the Commons last year: “Unless the Ombudsman has gone off her trolley, let us leave the findings undisturbed”.
Ms O’Reilly’s more general point about a stymied legislature, not fit for purpose, is well made.The Ombudsman should be be heard and respected, beyond party whips, in the Oireachtas.
Otherwise, the office is a sham. Ms O’Reilly should be allowed to present her case.