Félim Ó Maolmhána: The legislators behind the legislation

Félim Ó Maolmhána
Félim Ó Maolmhána

Félim Ó Maolmhána examines, in response to an earlier Irish Legal News article, how many lawyers have served in the Oireachtas.

I was struck by Mr Benjamin Bestgen’s piece, “The Ship of Fools” (8 April 2020) featured in this publication. Mr Bestgen makes some very valid points regarding the quality of those tasked with creating our laws and references how ‘the Greek thinkers emphasised the value of education and expertise in matters of political rule and pursuing the common good in a society’. The argument is made that people seem cynical or complacent when it comes to deciding who is fit to legislate, govern and inform us today.

The legislative process can often appear complex and unapproachable. Legislators are in the often unenviable position of drafting and implementing legislation. Bearing Mr Bestgen’s argument in mind, how many of these legislators are, in fact, well versed in the workings of the legislative process?

Generally, those with experience in the legal profession have an understanding of how legislation works. Although it is important to emphasise that this understanding is not exclusive to this group. Hence, I thought it would be interesting to conduct a brief overview of just how many legal eagles have served in the modern day Irish legislature (Dáil Éireann) since its establishment in 1919.

There have been approximately 139 Teachtaí Dála (TDs) with legal qualifications (White, A., 2018. Irish Parliamentarians: Deputies And Senators 1918-2018. 1st ed. Dublin: The Institute of Public Administration). This number is divided almost evenly when it comes to qualified solicitors versus qualified barristers. Three graduates of law elected TDs did not qualify into the legal profession. 131 Seanadóirí with legal qualifications have served in Seanad Éireann. The breakdown between solicitors and barristers in the upper house, is similar to that of the Dáil with two law graduates not obtaining professional legal qualifications. 29 lawyers have served in both Houses – 14 of them barristers, 14 solicitors and one law graduate.

In a time where emergency legislation is required to combat the COVID-19 pandemic worldwide, Ireland has introduced the likes of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and the 1947 Health Act (Affected Areas) Order 2020. These have been described in some quarters as “draconian and punitive” measures. Our legislators are tasked with formulating a coherent response to this epidemic and it is in instances such as these that Bestgen’s writings on the quality of those chosen to legislate become especially relevant.

As constitutional rights are invoked during the discussion on combatting COVID-19, the Attorney General’s advice is key and has often served to reinforce the legality of controversial legislation proposed by previous administrations. Of the 32 Attorneys General appointed since 1922, ten served as members of the legislature. The Department of Justice and Equality also has its role to play in situations such as these and 16 of the 37 TDs that have headed the department since 1919 have possessed legal qualifications– including the incumbent Charlie Flanagan.

Of the fourteen Taoisigh to serve, four have served their time in the legal profession:

  • John A. Costello served as Taoiseach from 1948-1951 and again from 1954-1957. Described as the “reluctant” Taoiseach, he was the first Taoiseach that did not serve as leader of his respective party. He qualified as a barrister.
  • Jack Lynch was Taoiseach from 1966-1973 and from 1977-1979. Outside politics, he was known for his outstanding success as a Cork hurler but was also a qualified barrister.
  • Liam Cosgrave was a barrister and served as Taoiseach from 1973-1977. He was the son of W.T. Cosgrave, considered Ireland’s first Taoiseach.
  • Brian Cowen practiced as a solicitor before becoming Ireland’s twelfth Taoiseach and qualified with a BCL from UCD.

A further three Taoisigh studied at Kings Inns - Charles Haughey, Garrett Fitzgerald and John Bruton.

To include the number of legislators that have served as judges of the courts, as President of the Law Society and as legal academics would require an entire other article.

The point that I am seeking to illustrate, in light of Mr Bestgen’s article, is that there is and always has been a strong connection between the legal field and the legislative arena. When it comes to drafting and passing legislation, prior knowledge of the process and its effects, particularly in times such as these serves as a significant advantage.

Prior knowledge of the legislative process is very beneficial to any fresh-faced parliamentarian. That prior knowledge is often thanks to the legal education that some have obtained. Whether this legal expertise is a positive or negative reason for voters to elect any individual to the office of legislator, improving on any cynicism or complacency in their selection process - is a whole other question.

  • Félim Ó Maolmhána is a trainee solicitor at Dillon Eustace and a graduate of Maynooth University.