The Gist: Exercising their Prerogative

This week we were given a rare gift from the Government’s new attorney general. The AG was asked to produce a paper examining (for which we may read ‘defending’) the government’s longstanding habit of dragging wronged people through the courts and settling before they lose a test case, so as to enable the same delaying tactics to continue to be applied to other similarly wronged people.

This was a matter of systemic importance to the State. In its 100 years it has done a lot of harm to its citizens and, as the AG pointed out, the potential liability for all those harms has reached hundreds of millions.

“It is understood that the Department of Health calculated (in 2010 figures) that, if the State Defendants did not succeed in defeating claims in the private cases, there would be a very substantial potential maximum exposure on the part of the State, in excess of €7 billion.”- AG report, Paragraph 118

It’s notable that the report never considered the consequential corollary of that sum- that the State, if it lost the cases, would have been proved to have inflicted billions of euros of losses on elderly citizens who qualified for medical cards, in the last days of their lives, and have removed that same sum from the finances of their families. Lifetimes of savings, of assets paid for and built up, lost.

It is that blindness, or disinterest, to the harms done to individuals which characterises the AG's report and which makes it an unlikely piece of political dynamite as the Government has started to realise.

Every Minister, of every party, who had held the offices of Minister for Health had endorsed (for which again read ‘acquiesced’. This is an area where euphemism abounds) the State’s approach. The Attorney General takes a special little detour in his report to explain that it doesn’t matter who the Ministers might be, or even if they are aware of a policy, their Department’s actions are their responsibility (and not, say, their Department's).

The report represents a rare statement of the true multi-generational policy of the Government of Ireland when it comes to addressing harms done to its citizens by it.

From the point of view of the State, as articulately set out by the AG, the interest of the executive is the same thing as the public interest. In a zero sum game where losses are either those of individual citizens or the States, the state’s rights to more money should always come first.

The logic of presenting “the public interest” as being identical to whatever is the Government’s interest is to simply forbid anyone suing the State.

The Attorney General’s argument is an effort to reinvent the Royal Prerogative to restore legal immunity to the Irish State.

This was actually the law for the first 50 years of the Irish State, as inherited from the UK doctrine of the Royal Prerogative.

It's my Prerogative

The idea of the Royal Prerogative was that the Crown, as the sovereign and personification of the Executive, could not be liable to civil claims. Therefore the sovereign’s Government could not be sued by citizens.

From 1922 the Irish State enjoyed this comfortable insulation too.

It was not until 1972-incredibly- that the Irish State was made fully answerable to its citizens before the courts.

In Byrne v Ireland the Supreme Court dismantled the Royal Prerogative by finding the Free State and subsequent 1937 Constitutions has split the Crown from the executive

The Supreme Court took the argument back to the 1922 split, despite the ambiguities of that Free State Status

“Although the Crown had not ceased to participate in governmental acts, and the state was not a republic, executive authority ceased to be identified with the Crown.”^[1] 

The Attorney General’s argument is, effectively, an effort to recast the legal theory of the Royal Prerogative which would assign the government immunity from suit on the basis of it being the Executive acting on behalf of the Sovereign People as opposed to a monarch.

This argument- as the Supreme Court’s 1972 judgment recognised- has no place in a republic and is repugnant to our Constitution.

An Executive which can reject its duty to answer for its wrongs, on the basis that its decisions are automatically “in the public interest” is a dangerous expression of autocratic power.

However there remains a very strong constituency for restoring exactly that insulation which was stripped from the Irish State by Byrne v Ireland (see the journal article cited above as an example).

The most enduring source of that backwards impulse remains the State itself.

The Royal We

While it is completely understandable how reporting on events as they happen is the definition of news in the eyes of most of its practitioners, it is a pity we do not also have an equal tradition or outlet aiming to put events in a longer historical context.

I think knowing the monarchical, autocratic root of a Prerogative argument adds understanding as to the vision of the State and citizen being advanced.

The AG’s report closes with a statement which crystallises this demand for an unfettered state, unbound by the petty rights of the individual.

In truth, it is to be welcomed  that public expenditure decisions were determined by Government, having regard to the totality of the situation, rather than being dictated to by fact-specific judicial decisions on individual cases in a manner that is divorced from the state of the public finances.”- Paragraph 191

It is common to say something like “that’s not the state I would like to live in" in response to this sort of thing, but it is more important to recognise that this is an accurate description of the state we do live in.

This is the permanent tank and water that every generation of politicians swim in and through, until they don’t even see it surrounding them any more.

The AG has given plain voice to the administrative state’s hostility to the citizens they think it exists to serve.

By holding it up to the light, and inviting us to admire its cruel sharp edges, he has made the invisible State visible.