Still talking about the Presidency…

It’s Saturday, so it must be Stephen Collins, and what’s he at this week? Well, some musings about the role of the Presidency in the wake of Norris. Hmmm…

Much of it is unsurprising boilerplate about Robinson, McAleese which one can take issue with to a greater or lesser degree. But what of his interpretation in the following?

The one occasion when a president resigned after a disagreement with the government of the day showed the damage that could be inflicted by a clash between the two institutions. Back in 1976 President Cearbhall Ó Dálaigh resigned at a time when the foundations of democracy were under attack. The episode tarnished the country’s image and was potentially destabilising for the State.

Let’s stop there immediately. Destabilising to the state? Highly highly unlikely. Given the limited scope of Presidential powers and the fact that O Dálaigh was an agreed candidate it’s very very unlikely that it could cause a political rupture between parties. Indeed, truth is, it didn’t to a great extent though bad feeling remained.
But here’s an outline of the issue.

It happened after the shocking murder by the Provisional IRA of the British ambassador to Ireland, Christopher Ewart Biggs, on a quiet road in south county Dublin. The Fine Gael-Labour government brought in emergency legislation that allowed for seven-day detention but Ó Dálaigh, a former chief justice who was an agreed candidate for the presidency after the death of Erskine Childers in 1974, insisted on referring it to the Supreme Court.

Now let’s note that Ó Dáiaigh wasn’t a political or legal neophyte. As Collins says, he was a former chief justice. But in Collins interpretation… well read on…

He took this action even though he was warned at a meeting of the Council of State by the then president of the High Court, Thomas Finlay, that the Bill was constitutional. In due course the Supreme Court proved Finlay right and approved the legislation.

And then…

Minister for defence Paddy Donegan then described the president as “a thundering disgrace”.

Well, I think we all know what the second word in that sentence was. But what of the following?

Most of the focus then and since has been on the unprecedented insult to the president that led to his resignation but the episode reflected badly on all concerned.

Really? On ‘all concerned’? Collins conveniently forgets that it was entirely within the Presidents legal and constitutional powers – indeed arguably was the function of the President – to refer this legislation – or similar – to the Supreme Court and that he might have had some special expertise in doing so which would position it well above the frivolous. And granted we now, unfortunately, live in a world where long term detention acceptable, but at the time this was a significant rubicon. There’s another problem with Collin’s interpretation. It took the referral to prove Finlay right, in other words only by acting as he did did Ó Dálaigh bring focus to bear on the constitutional implications.

In recent years Ó Dálaigh’s private papers, which have become available in the UCD archive, show that some time before he resigned he had already written draft resignation notes, one of them in protest at a decision of the Supreme Court to approve the Bill.

So what? This was an issue of principle for the man. His decision, whether he did decide or not, to resign only indicates that. What was done by others was the true act that ‘reflected badly’, to put it at its very mildest. And what of the following little dig?

The shock of Ó Dálaigh’s resignation prompted the political parties to come together and agree on a successor who could be relied on to carry out his duties without histrionics. The country’s then EU commissioner, Paddy Hillery, a former senior cabinet minister, was chosen even though he had no desire to leave active politics for the office.

So, Collins believes that referring legislation to the Supreme Court was ‘histrionics’. Some of us would beg to differ.

For an example of same let’s briefly consider Joseph Lee’s analysis of this in Ireland, 1912 – 1985, where he notes:

The President, Cearbhall Ó Dálaigh, a distinguished former Chief Justice, quite correctly referred the Emergency Powers Bill to the Supreme Court before signing it on 16 October once the court declared it constitutional. At a meeting of army officers, Cosgrave’s Minister for Defence, and close colleague, Paddy Donegan, denounced the President, who was under the Constitution, Commander in Chief of the Army, in language which was part of Ireland’s glorious Anglo-Saxon heritage, but had not yet acquired official parliamentary status, for his temerity in presuming to refer the Bill to the Supreme Court at all. When Donegan offered to resign, on learning of his departure form the expected standards of constitutional propriety, Cosgrave refused to accept the resignation indicating that a letter of apology was quite sufficient. Ó Dálaigh then resigned, on 22 October, ‘to protect the dignity and independence of the presidency as an institution’….

At one level the whole affair appeared a masterly Cosgrave move in the party political game. Donegan, a publican by trade, was not renowned for a fastidious sense of language. He may not have deliberately insulted the President to provoke the resignation of a man known for his fastidious sense of integrity. Whatever Donegan’s motives, if any, Cosgrave handled the ensuing controversy as a purely party political matter. Hillery appeared at that moment the most dangerous potential leader of FF from Cosgrave’s viewpoint…

Lovely stuff, but not a hint in all this talk about the Presidency and ‘no desire to leave active politics’ of any of this. But more importantly note what Collins says above about the events that led to the resignation:

It happened after the shocking murder by the Provisional IRA of the British ambassador to Ireland, Christopher Ewart Biggs, on a quiet road in south county Dublin. The Fine Gael-Labour government brought in emergency legislation that allowed for seven-day detention.

Here, by contrast is what Lee says:

Cosgrave began to behave with growing confidence, not to say arrogance, in the year before the election. The assassination on 23 July 1976 of the British Ambassador, Christopher Ewart-Biggs, by the PIRA, led the government into over-playing its strong hand by declaring a state of emergency. The declaration was delayed, so the immediate sense of public concern had faded by the time the Dáíl made the Declaration on 1 September.

At which point Ó Dalaigh ‘correctly’ referred it to the Supreme Court and signed it on 16 October.

In other words, rather than there being some immediate obtuseness on Ó Dálaigh’s part, this was a measured response across an extended period of time, and the point being that the situation extant on 23 July was different to that on 1 September. And different again on 16 October. And it was between 1 September and 16 October that Ó Dálaigh referred it to the Supreme Court. And again, Ó Dálaigh was simply doing what was required of him as President. But to Collins somehow this ‘reflects badly’ upon him. I’ve suggested before the Collins rarely sees an orthodoxy he doesn’t agree with, but in this case he’s tipping towards an highly revisionist interpretation of these events.

By the way, by way of contrast a sensible piece by Noel Whelan on the Norris issue which notes the foolishness in not facing up to the letters but also has a much more human understanding of how they might have come about.