Just Mary

by Mary O'Rourke

  At his Ard Fheis speech of 3 November 2006, Bertie Ahern had pledged his commitment to a Constitutional Amendment on Children. In his successive Ministerial capacities, Brian Lenihan had drafted the detail of the wording of such an amendment as he saw it, and now I was tasked with the job of bringing about that consensus wording.

  Why was there a demand at all for a change in our Constitution with regard to children, one might ask? Weren’t children already in the Constitution? Yes, they were, but always as an appendage of schools, of the community, of a family — never in their own right, as citizens of the land. The role of the family was regarded as paramount — and in many ways rightly so, of course — but this meant that the rights of the family effectively trumped the rights of the child, which in turn had led to decades of timid and tentative incursions by Health Service executives, by Health Board members, by social workers, all of whom were essentially very reluctant to intrude or intervene, even in dreadful cases where children were clearly being abused, out of fear that in doing so they would be acting against the Constitution, and that charges could be brought against them.

  This unwillingness or inability to take decisive action, even when it was clear that something urgently needed to be done, was evident in very many legal cases involving severe abuse, and in report after report. And yet still everyone dithered and dithered about doing something, and the reason for this failure to act was because there was and is and will always be an extreme right-wing element in Ireland which — even though the headlines scream of the shameful abuse of children — will regard any such intrusion as being against the Constitution and contrary to the fundamental rights of the family.

  Happily for me, at the very beginning of our deliberations, we became convinced that the only way forward was to ensure that we equated the rights of parents with the rights of children, in other words, that we made both equal. Now, perhaps that smacks of Charlie Haughey’s long-ago law on contraception — an Irish solution to an Irish problem! But we were convinced that it was the only way forward. It is completely right that the family should be the paramount source of care and support of the child — and that the child is best brought up against the background of his or her family and is best disposed to make his or her way in life with the support, love and care of his or her family — but that is in the normal course of events. This notion of what is right and correct in normal circumstances does not allow for the abnormal or aberrant, and this was what we, through our consensus wording, were set up to address.

  In the course of our discussions, other key points of relevance to our central focus also emerged. One of these, about which I felt particularly strongly, was that the voice of the child should be heard in all matters relating to court cases concerning him or her — such as, for example, where parents wished to part or were involved in acrimonious disputes for custody arrangements. According to the child’s stage of emotional maturity and/or age, his or her voice should be heard, should be listened to and, if possible, acted upon. Of course, within the committee, but particularly within the parameters of the legal opinions offered to us, there were huge disagreements on this issue. We were reminded, for example, of the expense of providing a mentor for a child in such cases and other such financial considerations, but I remained very convinced that it was a strong point and one that I wanted to see implemented.

  In total, the committee produced three reports. The first report, issued on 11 September 2008, set out a proposal ‘to give legal authority for the collection and exchange of information concerning the risk or the occurrence of endangerment, sexual exploitation or sexual abuse of children’. The issue of the handling of ‘soft’ information and the need for the vetting of people working with children had of course arisen initially out of the Holly Wells and Jessica Chapman case in the UK in 2002, where a school janitor had been appointed, despite having a history of initiating inappropriate contact with children at a previous school. Subsequently, and rightly so, it became regarded as essential that proper vetting systems and as well as systems for the effective passing on of relevant information should be in place in all environments in which children were to be found. It had been thought that this item on its own would require a constitutional amendment, but having gone through the matter fully and with the benefit of the input of our legal advisors, the conclusion was that a very detailed piece of legislation would suffice.

  Our second or interim report was published on 7 May 2009, and presented a proposal ‘to give legal authority to create offences of absolute or strict liability in respect of sexual offences against or in connection with children’. The final report was issued on 16 February 2010 and set forth our proposal ‘for a constitutional amendment to strengthen children’s rights’. Each of these three reports was well received and the work of our committee was seen to have contributed significantly to the field of legislation on children’s rights.

  However, having explored and identified the key issues, our clear emphasis now lay in finding the wording and this is where the really intense work was carried out. At Michael Noonan’s suggestion, it was decided that each party would work on bringing forward their own proposals, and that these proposals would then be merged and meshed to see if we could bring about a consensus one. Now, taking into account all of these elements as well as addressing the key issues we had identified for inclusion and clarification was a difficult balancing act indeed. But the end result of all of our hard work and patience was the satisfaction of knowing that the legal clause which we finally issued managed that difficult balancing act, while contributing in some new and important ways to the very worthwhile objective of strengthening and clarifying the rights of children under our Constitution.

  Chapter 18

  RECESSION AND A RECKONING

  By late spring 2008 the Mahon Tribunal was taking more and more of a toll on Bertie Ahern, not only in a personal sense but also in terms of party confidence. There was increasing disquiet among the Fianna Fáil rank-and-file members about some of the revelations which were emerging, and the patently lame excuses which Bertie was offering to the tribunal. Although it seems clear that Bertie had hoped to stay in office longer, as the summer months approached, some of the ‘heavy suits’ in Fianna Fáil went to visit him and he was persuaded that it was time for him to hang up his boots, so to speak.

  Bertie Ahern stepped down as Taoiseach on 6 May 2008. At that time he was still in many senses riding high in the Irish public’s affection and esteem. Before his departure, he did a ‘lap of honour’ in relation to all the work he had done over the years in connection with the Peace Process. He went to Westminster, where Tony Blair invited him to address a combined House of Commons/House of Lords; he then proceeded to Washington where he spoke to Congress, also on the Peace Process. Few could fault him for wishing to finish on a high, but meanwhile at home, throughout Europe and indeed in the States too, the financial storm clouds were gathering relentlessly.

  I just hope that the massive work Bertie did to erase the Northern problem will in due course be truly acknowledged as the huge accomplishment that it was. Of all of the attributes which he showed in relation to this issue, one of the most admirable was his endless patience, particularly in talking and dealing with David Trimble, as the two of them progressed along the path to peace together. Equally, Bertie’s dealings with George Mitchell, himself a hero in the whole Northern context, were truly impressive also, and these two men were a very formidable duo when it came to resolving many issues along the way.

  But I have a fear that events later on in Bertie Ahern’s political life will overshadow his crucial work in the North. This shouldn’t be overshadowed and I hope it won’t, for nobody can ever take from what he did. I will never forget how, during those particularly dreadful years in the 1990s, all of us, both North and South, would wake up each morning, wondering what the latest awful atrocity would be, and we would so often be faced with the endless pictures of women sobbing at gravesides, sobbing and sobbing. I ho
pe in time it will be for that magnificent Good Friday Agreement that people will remember Bertie.

  As to Bertie’s successor, it was the same scenario this time as so often in the past in the Fianna Fáil Party. The incumbent was already in place. Brian Cowen, who was bequeathed to us by Bertie, was to be the next leader and therefore the next Taoiseach. There was no contest for the leadership, no tussle for the job: Brian was seen as the natural successor, it seemed. He had proved his mettle — or so the perception was at the time — during his tenure as Finance Minister since 2004, and the Fianna Fáil grassroots wanted him, the organisation wanted him and the TDS and Senators wanted him. The only puzzle in all of this was — and it was a question which would only emerge much, much later — did Brian Cowen himself want the leadership? It is easy to imagine in retrospect that perhaps he didn’t — that in fact he sleepwalked into the job, buoyed up by the acclaim of all of those who thought he was the right man for the role, and by the goodwill of Bertie Ahern, who liked to represent that he been the one to provide the party with this ready-made successor.

  But real doubts about Brian Cowen’s accession would only begin to emerge later. For the present, on 14 May 2008, the new Taoiseach sallied forth to enjoy a triumphant homecoming in Tullamore and Clara. There was the famous scene in Clara with the hundreds — no, thousands — of people on the open green, and Brian Cowen, clearly in his element, singing and generally being part of the joyful occasion, flanked by his wife Mary and their two lovely daughters. I know the media enjoyed having a snide laugh at it all, because I think it was something unfamiliar to them and which they felt uncomfortable with: after all, the media is Dublin-based.

  This was an early indicator of the uneasy relationship which would soon develop. The media liked Brian Cowen as a person, but they never warmed to him as Taoiseach, and Brian in turn would make no effort to get on with them: he simply refused to acknowledge the value of trying to do so. More or less from the off, he took the line, ‘They know me as I am: I’m plain; I’m ordinary; I don’t put on airs and graces and I’m not trying to be something I’m not.’ Now, these are all very noble and fine sentiments, but they just did not, and do not, fit the bill for a Taoiseach in today’s world. As I know from my own experience in public life, the truth is that the media have to be indulged — not to an enormous extent, but they have to be taken into account. By his own admission at the time, Brian Cowen couldn’t give a fig about them.

  Having said this, it is important to stress again that Brian’s appointment as Taoiseach was hugely welcomed by all elements of Fianna Fáil: the parliamentary party, the National Executive and of course the wider organisation. In hindsight, it remains to be seen whether we were at fault in thinking that Brian Cowen could deliver a continuation of the good times of Bertie, when confronted with what would be some very bad times. Perhaps it was just that we all felt comfortable with him, and we thought, ‘He’s the guy for us — he’s the guy for Fianna Fáil.’ As it would turn out, he wasn’t, and I think early on, Brian recognised this himself.

  Anyway, the new Taoiseach went about forming his new Cabinet. For days beforehand, the rumours circulated as to who would be appointed, particularly in relation to Brian Lenihan — Brian would be Tánaiste; he would be this; he would be that. When the big day was finally upon us, we were all ensconced in our backbench seats when Brian Cowen led his Cabinet into the Dáil. Immediately after him came Mary Coughlan, so we knew she was Tánaiste. Next came Brian Lenihan, which meant of course that he was Minister for Finance, because the Minister for Finance always takes the place next to the Taoiseach and Tánaiste. As Brian sat down, he looked satisfied and happy. So we were set fair from that day for four more years of government — or so we imagined at the time.

  One of the first tasks facing Brian Cowen as Taoiseach was the Lisbon Referendum, which turned out to be the first of two Lisbon referendums. As we know, the issue at hand was the Lisbon Treaty, which sought among other things to streamline and simplify the processes of the European parliament, making them more accessible and comprehensible to the member states. To my mind, it was all very well thought out and had many excellent strategies to it. For most of the other European countries, the process of subscribing to the treaty was relatively straightforward, as it was a matter which could be decided by a vote in parliament. In Ireland, however, the Crotty decision in 1987 had established that any significant changes to European Union treaties would require an amendment to the Irish Constitution and should be taken to a national referendum before they could be ratified by the State. Whether we liked it or not, we were saddled with this requirement and that would mean a full-blown campaign in preparation for a referendum.

  Despite our efforts, however, on 13 June 2008 there was a majority ‘No’ vote against the Lisbon Treaty. There was consternation throughout the land. What was to happen now? It was an almost fatal blow to Brian Cowen at such an early point in his reign as Taoiseach — how was he going to pick himself up from this? But rally himself he did and he went to Brussels, and more or less told them that we would have another referendum. Meanwhile, at home the debate raged. Had the people not spoken, and had they not said ‘No’? And how many times had we had referendums on abortion, only to get the same result? Yet it was clear almost immediately that there was going to be another Lisbon referendum, although a decent period of time — more than a year — would elapse before it actually happened.

  The second time around, the ‘Yes’ campaign was more focused and determined. In political circles, we all set about our business with intent, canvassing locally as if for a General Election. In civic society too, the chambers of commerce and many other various groupings got together — such as Young People for Europe and Women for Europe — and began to preach loudly the message of Europe. In fact, they all began to fight the extremely active, vibrant campaign which should have been fought for the first Lisbon referendum. There was huge relief all round when Ireland voted ‘Yes’ on 2 October 2009. But in the interim, as we know, financial disaster had struck the country on an unprecedented scale.

  Brian Lenihan had not been long in his new role in the Department of Finance when he realised that Ireland was heading downwards fast. Realising the gravity and urgency of the situation, he consulted with Brian Cowen and others in the Department, proposing to bring forward the 2009 budget to October. It was decided that this Emergency Budget, as distinct from the usual December budget, would be delivered to the nation on 14 October 2008.

  Before this however, on 30 September, we had the Bank Guarantee. By now of course, everybody is well acquainted with the Bank Guarantee. There have since been very many public debates held and documentaries produced and economic treatises written about it, so, in a sense, what is there left to say? So many eminent commentators rushed out their bestselling books at the time, purporting to know what happened that night and to give advice as to what action should have been taken.

  For us ordinary backbenchers, who were not party to the Cabinet’s urgent deliberations (although the matter would go to a vote in the Dáil afterwards), the drama of the night of 29 September can only be guessed at. The late-night calls to Cabinet Ministers; the representatives from the banks occupying — literally — the Minister for Finance’s office and later that of the Taoiseach too; the overriding necessity to save the nation from grinding to a standstill, to keep the banks open and, as Brian Lenihan would say, ‘the ATM machines turning over’, so that people could still get out their money.

  It is very easy now, post-event, for people to remonstrate and say what they would have done had they been in the Department of Finance or the Department of An Taoiseach in the throes of the urgency and the pressure of that night, when these momentous decisions were taken. I doubt very much if they would have any made better choices, in spite of what they might claim. When they came, begging to be saved by the Departments of Finance and An Taoiseach, the banks were just at the point of going to the wall. What would have happened in Ireland if the A
TM machines had not worked the next morning? There would have been chaos, of course, and wholesale and outright panic!

  There had been the earlier bank crashes in the us: Lehman Brothers, Fannie Mae and Freddie Mac, Merrill Lynch. There were the English banks too. But somehow nobody believed that our Irish banks, such as Bank of Ireland and Allied Irish Bank — up until then well-respected — could have been engaged in nefarious pursuits. Yet they were, and what they had been mostly hotly in pursuit of was the modus operandi of the Anglo Irish Bank, which was apparently the golden success story of the banking world, inspiring envy in the other ordinary, more pedestrian high-street banks.

  On a human level, I believe that that night of huge burdens on Brian Lenihan and all the many stresses of the time which followed took a massive toll on his health, and may even have sown the seeds of his pancreatic cancer. I do not think I am being fanciful when I say this, because there is a clear link between physical illness and emotional stress. As I have said, the burden placed upon him that night was enormous and in some important senses, he was alone in taking the decisions he had to take. Of course, Brian had at this stage a very wonderful advisor in Dr Alan Ahearne from NUI, Galway: a calm, good man who I am sure was able to be of great assistance to him at that dreadful time. And I know that Brian Cowen was a worthy comrade with him too. But the enormous scale and the import of the choices he was confronted with, along with the very poor, patchy and inconsistent advice from the Department of Finance advisors — all of this added up to a huge cauldron of worry and concern for Brian Lenihan. In the end a decision had to be taken by him on whom the crown had been laid, and which now had become a crown of thorns. This is not at all how it appeared at the time perhaps, but in hindsight, that is how it seems to me and to others who, like me, were on the periphery of the whole process.