Executive Lawyering Under De Facto Political Constitutionalism in Ireland

Hilary Hogan

European University Institute Florence

In a field such as constitutional law, it is unusual for scholars to break entirely new ground. Yet this is precisely what Conor Casey and David Kenny have accomplished in their sustained examination of executive lawyers, highlighting their role as key constitutional actors whose actions have largely escaped the attention of public law scholars. In this response, I propose an alternative perspective on how we can understand the role of executive lawyering in Ireland. I argue that Ireland has been operating under a system of de facto political constitutionalism. Political constitutionalism and legal constitutionalism are, of course, highly varied and contested concepts but they are a useful shorthand descriptor to contrast systems where the interpretation of the Constitution rests with the judiciary versus those where political actors, such as members of the legislature and the executive, can advance their own understandings of the Constitution. In some highly contested subject-matters, the constitutional interpretations that have guided Government law and policy-making reveal a marked divergence from judicial interpretations of the Constitution. This suggests that, rather than a rigid and over-cautious adherence to case law, political actors and their legal advisors are abiding by their own understanding of the constitutional text. A further indicator is that these understandings are regularly revised, and, critically, these revised interpretations do not appear to be in response to any identifiable judgment or pronouncement by the courts, but occur internally, without any apparent external prompt. Finally, the framing of de facto political constitutionalism rather than rigid legal constitutionalism also helps us to understand why the Government are not equally cautious across all areas of policy: they adopt a far more conservative approach when it comes to the protection of private property rights, for example, than they do when it comes to other subject -matters. 

Executive Lawyering in Ireland

Casey and Kenny’s argument is straightforward and compelling. Executive lawyers – usually, the Attorney General and his office – are often the first port of call for a proposed law or policy. Executive lawyers have enormous potential for influence as ‘gate keepers’ who can endorse or reject proposals on the basis of their legality: in particular, their unconstitutionality. They can empower and legitimise government action with assurances of constitutionality, or constrain the government’s capacity to act by deeming certain proposals as unconstitutional. Of course, the advice provided to the Government by executive lawyers in Ireland, as Casey and Kenny highlight, is virtually never published, on the basis of legal privilege. But the Government frequently publicly states that particular courses of action are unavailable because of constitutional constraints. The diagnosis provided elsewhere by Casey and Daly is that the political system suffers from a ‘culture of legalism’ that is highly deferential to legal advice, and driven by an overarching desire to avoid a finding of unconstitutionality by the courts. Defensiveness to the prospect of a finding of unconstitutionality leads to excessive caution in how the State formulates law and policy. One possible solution is to allow political actors to advance their own good faith interpretations of what the Constitution demands. This would be a shift from legal constitutionalism to political constitutionalism, as, generally speaking, the latter envisages that the exposition and elucidation of the Constitution is not confined to the courts. The Government can issue a White Paper on a particular contested policy area, for example, outlining what it understands its constitutional obligations to be, and identifying any constitutional constraints on a proposed course of action. 

De facto Political Constitutionalism?

However, another way to understand the approach adopted by the political branches in Ireland is that they are already operating under a system of de facto political constitutionalism. Political actors, and the executive lawyers who advise them, have long been engaging in their own (unofficial) interpretations of constitutional text. This has closely guided the initiation and – crucially – the abandonment of several Bills and policy proposals. Why is de facto political constitutionalism a preferable diagnosis? First, if legal constitutionalism was strictly adhered to, then the Government would be closely mirroring the interpretation given to the Constitution as given by the courts through judgments. In many instances, of course, it does. But what is striking about the Irish example is that in certain contested areas of policy, the Government’s understanding of what the Constitution requires is markedly different to that of caselaw. For example, successive Governments have long refused to countenance implementing not just temporary eviction bans, but abolishing existing upward-only rent review clauses, introducing general rent controls, vacant property taxes, greater security of tenure and a host of other measures designed to regulate the housing market on the basis that it would represent an unconstitutional interference with private property rights. This has been widely criticised as significantly underestimating the scope that the State has to regulate private property rights in the public interest.

Second, if rigid legal constitutionalism was observed, then this caution would be equally evident across all subject-matters. However, it is possible to identify divergent attitudes to particular policy areas where the Government is prepared to take a broader view of its constitutional capacities. As noted above, the Government has tended to abide by a highly constrained understanding of the State’s capacity to regulate private property rights. Yet the Government is more intrepid when it comes to its own internal capacities, such as the use of the money message, which has long been criticised, or the continued practice of appointing junior Ministers of State who attend cabinet, despite the clear upper limit of fifteen identified clearly in Art. 28.1. Third, these understandings are not only notably different, but they have altered significantly over time, such as the Government’s longstanding resistance (and eventual capitulation) to allowing adopted persons to access their birth information. But, critically, these altered legal understandings do not seem to be in response to any identifiable judgment or pronouncements of the courts. These evolving interpretations seem to be entirely internal, prompted by a change in the officeholder of the Attorney General or the Government’s own assessment of the political climate, rather than in reaction to any exogenous legal standard articulated by the courts. The Government recently agreed to the introduction of a temporary moratorium on evictions in October 2022. Just weeks prior, the Taoiseach (i.e. the Head of Government) had publicly stated that an eviction ban would pose serious constitutional concerns. What changed? There were no new judgments from the courts that added further clarity to the circumstances in which private property rights could be regulated in the common good. It seems as though, from the Government’s perspective, there were now several other pressing factors to take into account, including a rising cost of living and an acute shortage of rental and emergency accommodation: in other words, circumstances had reached such a dire level that they are now entitled to take radical action. This also seems to have been the justification adopted for the temporary eviction ban introduced during the Covid-19 pandemic: the housing crisis alone might not have warranted the introduction of an eviction ban, but needed to be coupled with some other external emergency. This recalibration serves to underscore the very argument advanced here. These are political value judgements, not the requirements of any legal doctrine outlined by the Constitution or the courts. The Constitution does not demand the existence of several, acute crises before the State can act decisively to regulate private property rights in the public interest. In fact, there is no need for an emergency at all. It has always been within the State’s power to robustly regulate the housing market, but successive Governments have hidden behind constitutional constraints that are entirely of their own making. This has meant that some of the more robust bills designed to tackle the housing crisis have been abandoned before becoming law, and have never been tested before the courts. It is the Government’s interpretation of the Constitution that has, for all intents and purposes, dominated the response to the housing crisis, and thus the legislative response to it has been operating within the confines of the narrow boundaries the Government has set for itself. 

The normative merits of political constitutionalism are contestable. But even if it was accepted that good faith, rival constitutional interpretations from political actors are desirable (and that is far from self-evident) this is clearly the worst of all worlds: a process which claims to be operating by one system when it is, in reality, entirely responsive to and driven by another. One might add that in the current system, one supposed advantage of political constitutionalism is avoided entirely. It is sometimes suggested that widening the scope of who may offer interpretations of the Constitution avoids the scenario where the judiciary thwart democratic legislative agendas by insisting on highly restrictive readings of the constitutional text. Yet in the present day, the declarations of unconstitutionality stymieing the response to the housing crisis have not come from the Four Courts, but from Leinster House. The very least we should demand, as Casey and Kenny have so persuasively argued, is transparency into how that situation has come about. 

Hilary Hogan, Ph.D. researcher, European University Institute Florence. Stipendiary Lecturer, Worcester College, University of Oxford
Suggested Citation: Hilary Hogan, ‘The Failures of Political Constitutionalism’, IACL-AIDC Blog (09 February 2023) https://blog-iacl-aidc.org/wmps-gatekeepers/2023/2/9/executive-lawyering-under-de-facto-political-constitutionalism-in-ireland-dte29-jr27g.