Tuesday, November 1, 2011

Shatter's "Arrogance" and The Eight Former AGs

Much has been written about Alan Shatter's dismissal of the eight AGs' opposition to the constitutional referendum proposals on cutting judicial pay and Oireachtas inquiries ("nonsense" and "simply wrong"). These pieces - mostly attacking the Minister (e.g. The Independent: "Alan Shatter, the star of the 'No' campaign, whose arrogance contributed to the defeat of the Oireachtas Inquiries referendum ...") - imply that the intervention by the AGs is owed some deference. That is, their status confers more weight to their views than those expressed by others. Some have even made references to the fact that Mr. Shatter is a "family law solicitor" setting it up as a marker of contrast to the AGs - as if that puts him at a disadvantage in the expertise stakes and therefore entitles their opinions to greater weight.

I am a bit bemused by this deference and by the severe condemnation of the Minister for labelling the former AGs' views as "nonsense." Why should the opinions of a group of eight former AGs be given any more weight than lay opinion? Note that I am not referring to the substance of the arguments advanced by the AGs at this time. My question is limited to whether their status as former AGs entitles their opinions to superior weight. This question might be posed in respect of the privilege granted to most kinds of expert opinion. However, there is a key difference here: expert privilege is usually earned in some form - e.g., a Ph.D. or some credential that is the product of sustained activity in a technical discipline. The AGs are in a slightly different position - they were appointed politically, and earned expertise of the same sort cannot be automatically assumed.

Setting aside this problem and assuming that they are experts, are their opinions entitled to any deference by virtue of status? It would be a mistake to grant anyone such deference. Experts can also be wrong. If the opinions of putative experts are taken at face value, with sole reliance upon their status, there is inadequate examination of the substantive arguments. Expertise becomes a device to chill debate by insulating opinions from scrutiny. It denies the same privileges to non-experts and seeks to denigrate and ultimately to exclude. We also erroneously substitute examination of the substantive arguments for a superficial evaluation of the purported expertise. To be sure, expertise might be rationally privileged when the issue is one of technical complexity and where the average person is unable to arrive at a sound decision following reasonable effort. However, the questions submitted by the referenda only involve political choices - not technical issues - and are not of a level of complexity that is beyond the average voter. The trend in modern societies is for elites to seek to transform simple political choices into complex technical arguments to exert disproportionate influence over the democratic process and advance their interests. Coevally, we might be seeing the substitution of deference in Ireland in favour of experts and away from institutions traditionally accorded such privilege - such as the Church. Whatever the reason, such deference is antithetical to a republic founded on equality, serves to promote herd-like behaviour, stymies robust debate, and fosters error.

It is a pity that the media blithely deferred to the opinions of the eight former AGs. Their opinions should be examined for substance - except that there is not much of it beyond urging rejection of the proposals upon pleas about independence etc. One assumes that the average voter was able to see this and did not place much importance to the AGs' views. Even if their views had any influence, it is likely that just as many - if not more - voters chose to vote against their advice, as did in favour, thereby not affecting the net result. This conclusion - admittedly, impressionistic and not empirically sound - is supported by the many hostile letters published in the major newspapers following the AGs' intervention. It is also consistent with the massive majority in favour of cutting judicial pay despite the AGs opposing the proposal. Equally, the defeat of the Oireachtas inquiries proposal might not have been influenced by their letter; rather it was probably becaused the government did not do enough to explain the issue to the public.

In any event, the defeat of the inquiries proposal is not a big deal. It was always going to be a poor mechanism for getting to the root of the banking crisis - one of the justifications offered by the government for adopting it. As I've argued before, here, here and here, an independent commission would be better suited to that task. For other types of matters of public importance, the Abbeylara case does not prevent Parliament from conducting inquiries, as I've argued here. This referendum was entirely unnecessary and the government need not have followed the ultra-conservative legal advice that canvassed for spending public money in this way.