Brian Hunt

Last week the Ceann Comhairle of the Dáil and Cathaoirleach of the Seanad each received a letter from President Michael D Higgins. While the letters highlight some issues that point to failings in the legislative process, in many respects those concerns are not new.

Michael D Higgins has already served almost 10 years as President and prior to being elected to serve as head of State, he served as a member of the Dáil for approximately 25 years – the President is undoubtedly well-accustomed to the uneven flow of legislation.

The prospect of the Council of State having to meet over Christmas is not new – over the past three years (and indeed in the many years prior to that), the Dáil and Seanad have been passing legislation up until the days leading up to Christmas. Similarly, the practice of the incumbent Government rushing to pass legislation in the weeks leading up to the summer recess or the Christmas break is not new – it is a practice that has been prevalent for many years now. But that is not to say that it is a practice that should be continued.

While the President’s obligation to consider the constitutionality of any proposed legislation does necessitate an in-depth consideration of each Bill’s proposals, the day on which the President is presented with legislation for his signature is presumably not the first time he lays eyes on the legislation.

The wonders of the internet mean that we all now have the opportunity to read the text of a Bill soon after it is published, and we can follow the Dáil and Seanad debates live online and we can read a transcript of the debate online the very next day. The progress of legislation can be tracked in real time and it is not unreasonable to suggest that legislation that contains proposals which are in any danger of being unconstitutional will attract a heightened degree of attention long before the Bill is presented to the President for his signature. The President also has the comfort of knowing that no Attorney General of contemporary times would knowingly sign-off on a piece of legislation which he or she knew to be likely to be found to be unconstitutional.

Legal experts

It seems reasonable to assume that when considering the constitutionality of any piece of legislation, in addition to having access to the transcripts of the debates that took place in the Dáil and Seanad, the President also has ready access to legal experts who are available to advise him on the key aspects of any Bill and that therefore he is not required to consider the constitutionality of Bills in the isolation of his study.

Interestingly, in his letter, the President seemed to stray beyond issues relating the volume of legislation into the adequacy of the scrutiny of legislation by the Dáil and Seanad. The practice of subjecting draft Bills to a level of parliamentary scrutiny (termed “pre-legislative scrutiny”) is relatively new in Ireland. However, in spite of its introduction, the level of scrutiny to which legislation is subjected remains inadequate. Again, this is far from new.

Our TDs are elected on the basis of their prominence and achievements in their local constituencies where their repute is often based on their effectiveness as local “fixers”. This is the basis upon which we as electors select them, and so inevitably that is the standard by which they seek to perform. The particularities and merits of a piece of legislation under consideration by our parliamentarians (and this is particularly true of the Dáil) will often be overlooked in favour of tenuous connections that the subject matter of the legislation has with the constituency which the speaker represents. Invariably the national interest is largely overlooked by individual members of the Houses and consequently the really core aspects of legislation often do not receive the kind of detailed scrutiny that they deserve.

Added to this is the party whips system which in practice means that irrespective of the well-grounded concerns that individual TDs and Senators may have about a particular piece of legislation, they are compelled to cast their parliamentary vote in the matter determined by the party. This also impinges on the quality and extent of scrutiny that most legislation receives.

Several of the concerns highlighted by President Higgins are symptomatic of more fundamental shortcomings of the legislative process, few if any of which seem especially novel. It is this consideration more than any that makes the President’s letters to the Houses of the Oireachtas perplexing.

Unprecedented

Almost 10 years into his term, the President has shone a welcome spotlight on the parliamentary processes involving the scheduling and scrutiny of legislation, however, the fact that he felt so strongly about this issue that he was moved to write to the Houses of the Oireachtas was unprecedented and the manner in which this was done seems uncharacteristic.

While a more well-dispersed throughput of legislation might ease the pressure on the President in fulfilling his constitutional duties, the fundamental issues with the parliamentary and legislative process which the President has highlighted cannot be fixed easily or quickly – but this does not mean that we should not now seize the opportunity to try.

A more straightforward and more immediate means by which the President could address his frustrations with the uneven throughput of legislation would be to have put in place a facility under which he can engage additional support and expertise at a time when it is likely to be most needed, after all, the glut of legislation in the lead-up to the summer and Christmas recesses is entirely predictable.

• Dr Brian Hunt is a partner at Ronan Daly Jermyn. He served as the inaugural parliamentary fellow at the Houses of the Oireachtas. This article first appeared in The Irish Times.