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Politics often doesn’t protect Rights

Human rights and Equality should be protected by  a special constitutionally-recognised ‘Ombudsman’
Donncha O’Connell

The infrastructure of any civic society is about much more than road and rail networks or broadband connectivity. The invisible and, perhaps, tenuous bonds of common humanity are just as important.

This is, of course, beautifully chaotic but we try to reflect ideals of inter-dependent humanity bonded by vague principles of fairness and fair play in our political infrastructure. It is no longer credible to suggest that there is no such thing as society. In fact, proponents of that view in the UK now profess a belief of sorts in ‘The Big Society’.

In Ireland we were ahead of the virtuous curve on this with our habit of ‘volunteerism’. Since the Special Olympics of 2003 this has been re-commodified as ‘active citizenship’ but it was always, in truth, a mixed blessing, especially if you depended on it. Paradoxically, the Special Olympics have been patented as the high point of Irish volunteerism as if to take the bare look off Celtic Tiger individualism that climaxed around the same time. This ruse requires deeper reflection.

Things like an Ombudsman (or Human Rights Commissions or Equality Authorities) are refinements of the basic political infrastructure established on the basis of serious political reflection in acknowledgment of the fact that simple tripartite division of power with periodic elections from among the ranks of political parties is not, in and of itself, a sufficient guarantee of full or even meaningful citizenship for people living in the state.

The basic narrative for much of this is the 1937 Constitution which must rank with Ulysses for the accolade ‘most referenced but most unread’. But the Constitution is as important for what it does not say as for what it does say, and on state infrastructure, it is laconic. Arguably, we imply and express loyalty to the Irish Constitution because of rather than despite its mystery. The Irish have no monopoly on this. The degree to which the British defend their unwritten (and, presumably, unread) constitution against ‘foreign’ influences is extraordinary and yet banal. Wilde was right: “Ignorance is a delicate and exotic fruit, touch it and the bloom is gone”!

Any constitution depends, for its life and meaning, on sound judicial interpretation and effective political processes that facilitate constitutional change when necessary. The politics of the Constitution float doggedly and unavoidably in the slipstream of Constitutional Law. Those who pretend otherwise are being less than frank. The line between law and politics, however clear to some, is porous. This is a comment on judges and human rights activists.

The apparent disdain for politics on the part of some rights enthusiasts offends judges and others who are alive to the dangers of judicial trespass on the political domain but it may well indicate an astute appreciation on the part of such enthusiasts of the dysfunction at the heart of the Irish polity. Whether this is an intended consequence of the 1937 Constitution or a subversion of that instrument is an open question.

For civil society there is always a tension between the ‘winner takes all’ view of politics and a version of politics that settles for a privileged or even élitist presence for ‘good causes’ or ‘special groups’ in the political firmament. Both views of politics are fixated on tidiness but human rights activism – in all its guises – is a messy struggle that engages politics and law in a most untidy way.

It may be that the effort to create a superstructure for the protection of human rights – through a variety of institutions and structured dialogues – is an attempt to manage dissent tidily. The state is more complex and dimensional than some would like it to be and, despite appearances, this is not entirely accidental. The preference for a neater, tidier state may well be a function of the bonding that occurs between the prolonged and virtually uninterrupted co-existence of one political tribe and the permanent bureaucratic tribe. There is nothing quite so ‘agreeable’ as groupthink passed off as orthodoxy.

Human rights must never be advocated as ideology or proselytised as ‘new civic religion’. Human rights provide a language for discourse that is civilised and civilising and that must assert itself in political debate while emphasising the place of law or even ‘human rights law’. This is not to profess a false modesty for either law or human rights law but, rather, to caution against the risks of overstating the importance of (inevitably subjective) human rights values or overstating the case for international human rights law as a system of codified and authoritative values. To make such a modest proposal is not to internalise criticisms, by powerful voices of certain human rights and of the human-rights community, that are neither well-founded nor well-made.

A more rigorous debate about the relevance of international human-rights standards and processes in the domestic sphere is urgently required. This should not be framed or determined by defensiveness about municipal law in the form of the Irish Constitution 1937. That Constitution, like its architect, De Valera, was internationally aware. The dualism provided for in Article 29 of the Constitution, whereby international instruments to which the state is a party only become part of domestic law when ‘incorporated’ into Irish law by the Oireachtas, is an enabling provision of the Constitution and not ‘an insuperable obstacle’ to a stronger alignment of domestic law and international human rights obligations. The obstacle, such as it is, is political and not legal. The apparent resistance to more robust ‘external’ supervision by international bodies and to more direct recourse to international standards in the Irish courts may indicate a somewhat belated backlash that looks like eccentric nationalism.

Recent controversies involving the office of Ombudsman and the Executive in relation to the ‘Lost at Sea Scheme’ are indicative of a desire – politically, at least – for a simpler and less complex state. So too is the current fashion for attacking ‘quangos’, by direct and indirect means, as if ‘anti-quangocracy’ was some kind of economic theory as opposed to power-play. The current economic crisis provides a perfect cover for those elected and unelected persons whose intentions in this area are less than innocent.

It must surely now be time to consider further the question of ‘constitutionalising’ the office of Ombudsman, a matter that was raised by the Constitution Review Group in 1996. As we approach the seventy-fifth anniversary of the 1937 Constitution in 2012, and as the Labour Party embarks on its innovative constitutional convention in the run-up to the 1916 Centenary, it is time to look more radically at how the Irish Constitution distributes power in the state.

The following issues of potential constitutional reform are in need of serious analysis:
– The reorganisation of various statutory bodies for the protection and promotion of human rights and equality under a ‘constitutionalised’ office of Ombudsman with a clear and strong nexus to Parliament (akin to that of the Comptroller & Auditor General);
– the consequential reform of the office of Attorney General to remove the potential for conflict in the role of that office as notional guardian of the public interest and legal adviser to the Government.

This would have the benefit of protecting the essential infrastructure for human rights and equality in the state from political interference; and appropriate provision could be made, by means of the Constitution, for guaranteeing the independence and effectiveness of such a reconfigured framework institution. It would also – if properly grafted on to the basic constitutional structures – serve to strengthen the Parliament by resourcing the expert knowledge-base of parliamentary emanations and providing a mechanism for reviving the legitimate parliamentary function of inquiry.

Donncha O’Connell is a Visiting Senior Fellow at the Centre for the Study of Human Rights, LSE and Lecturer in the School of Law, NUI Galway. He edits the Irish Human Rights Law Review the first issue of which was recently published by Clarus Press.