Referendum move to reverse Abbeylara one step closer

Post by David Farrell (September 13, 2011)

The Irish Times reports today (here) that the proposed constitutional amendment to reverse Abberylara — a move that was promised in the Programme for Government — was published yesterday. This will give Oireachtas committees the sort of scrutiny powers that are common in other democracies. The referendum on this will be held on October 27, the same day as the Presidential election.  As the Irish Examiner reports (here), in presenting the amendment to the Dail, Minister Howlin said that, if passed, this would open the way for a parliamentary investigation of the banking crisis.

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49 thoughts on “Referendum move to reverse Abbeylara one step closer

  1. The wording was released yesterday (see http://per.gov.ie/2011/09/12/publication-of-the-thirtieth-amendment-of-the-constitution-houses-of-the-oireachtas-inquiries-bill-2011/ ).

    The proposed constitutional amendment is as follows:
    “1.1. Referendum Bill
    The Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 sets out the wording of the proposed Referendum.

    The existing Article 15.10o would be renumbered 15.10.1o
    Three new Subsections would be inserted as follows:-

    2º Each House shall have the power to conduct an inquiry, or an
    inquiry with the other House, in a manner provided for by law, into any
    matter stated by the House or Houses concerned to be of general public
    importance.

    3° In the course of any such inquiry the conduct of any person
    (whether or not a member of either House) may be investigated and the
    House or Houses concerned may make findings in respect of the conduct
    of that person concerning the matter to which the inquiry relates.

    4° It shall be for the House or Houses concerned to determine the
    appropriate balance between the rights of persons and the public interest
    for the purposes of ensuring an effective inquiry into any matter to which
    subsection 2º applies.”

    The proposed new subsections 2 and 3 seem reasonable enough to me. Would allow the Oireachtas to launch inquiries with tribunal-style powers and make findings of fact (basically overturning Abbeylara). Am no legal expert but I’d be a lot more dubious about proposed subsection 4. I can understand the reasoning behind it. We don’t want tribunal-level costs for Oireachtas inquiries. Maybe the balance between the public interest and private rights should be tilted more towards the public interest. But subsection 4 seems to hand over complete control to the Oireachtas as to where to draw that line. It seems to allow huge scope for private rights to be trampled over in the “public interest” (as defined purely by the Oireachtas) with little or maybe no recourse to the courts. Probably something more subtle and nuanced was called for. Seems like a rushed and rather lazy carte blanche to me. Surely some better and more complex wording could have been arrived at?

  2. Finbar’s ‘rushed and lazy’ judgement on sub-section 4 is apt, but I would describe the whole effort as cunning. And it is cunning on two levels. First, this effort allows the Government to blow its trumpet loudly about how it is increasing the powers of the Oireachtas, but this effort is focused entirely in a post hoc, ex post, reactive manner when there is a prima facie case that something has gone totally pear-shaped and the general public is not best pleased. It does absolutely nothing to increase the powers or resources of the Oireachtas to investigate issues, develop outlines of public policy or scrutinise government policy proposals in a pro-active, ex ante, preventative manner. Yes, it is an advance that the Oireachtas is empowered to investigate why things went pear-shaped, but it would be far, far better if it were empowered to establish facts and secure evidence that might prevent things going pear-shaped in the first place. But that, of course, would constrain the divine right of governments (and the government machine) to screw things up.

    And by focusing on this reform there will be no time, interest or resource to implement any further reforms of the resources and powers of the Oireachtas.

    And it is cunning on a second level – and this relates to Finbar’s point. By leaving the wording of sub-section 4 so fuzzy it’s an open invitation to m’learned friends to tie the whole process up in knots. And even if the wording is tidied up eventually the intent is to make the process of investigation so difficult, time and resource consuming and unwieldy that people will tire of it and actively discourage its exercise.

    The moral of the story is: don’t rely on government to develop proposals that it claims are intended to increase the powers of the Oireachtas. The intent is, by definition, insincere and untrustworthy; and the result will be ineffective – and potentially detrimental to the public interest. Either the Oireachtas itself does this or no one does it.

  3. I’m not convinced by this proposal to increase Oireacthas Committee powers of investigation and on reading the text, and the comments above, I feel even more uneasy.

    First, context is important and this proposal is not placed in the context of ending the current executive dominance of parliament, meaning that only proposals emanating from the Government parties would be deemed worthy of investigation in the first place. Howlin’s investigation of the causes of the banking crisis justification for this proposal is worrying. Obviously, anything that might damage the government’s interests, or its electoral prospects, will never make it on to the agenda for ‘investigation’as executive dominance will ensure that the political interests of parties in power will determine what gets investigated , and when.

    Second, anyone who has ever tracked Committee debates might be forgiven for thinking that this proposal has more to do with creating publicity opportunities for ambitious politicians than serious investigation of matters of public interest.

    Third, there has to be a question mark over the capability of an Oireacthas Committee to conduct such investigations. The old PAC Inquiry is often cited as an example of a ‘successful’ investigation by parliamentarians. I question that: it did a lot for the careers of some of the politicians involved, it generated oodles of newspaper coverage and as for the banks ‘mending their ways’? Well, um, no, it did nothing to prevent the mess they got us all into in due course.

    I won’t be making up my mind about this proposal until the arguments ‘for’ and ‘against’ are more clearly articulated, teh context within an overal programme of parliamentary reform is clarified, and the ‘what ifs’ in terms of the protection of the rights of citizens required to give evidence before such Committees is demonstrated.

    • Glad to see someone else express some doubts about the actual outcome of the DIRT inquiry.
      It certainly did nothing to improve the regulation of banks and other other financial institutions.

      Paul Hunt And Finbar Lehane’s postings below are good summary of how little the Oireachtas has learnt and thus how poorly served we are by our current way of governing ourselves.

      This morning’s news about yet another levy on insurance premia brings us right bank to the mid-1980s. We are still paying for the PMPA collapse.

      The government organised rescue of AIB after it’s foray into ICI did not lead the powers-that-be to learn the lessons of what Patrick Honohan (then in ESRI, now in the Central Bank) and Jane Kelly described, in 1997, as Ireland’s Worst Financial Crash
      “….The emerging conventional wisdom on financial crises stresses the need for thorough prudential supervision on a consolidated basis of financial conglomerates. It seeks to ensure that the methods chosen to allocate the cost of failures does not destabilize confidence in the financial system, but is not such as to induce carelessness on the part of management, owners or customers of financial institutions. The ICI affair
      revealed a lack of administrative preparedness and several mistakes were made…..
      Ireland’s worst banking crisis passed off with scarcely any disturbance on the markets and with practically no taxpayer cost. Although the total losses came to well over 1 per cent of GNP, this sum is negligible beside the losses in banking crises of other countries. Our experience has no counterpart to the severe and widespread bank failures which have occurred in France, Spain and the Scandinavian countries, to mention
      only EU member states that have experienced deep problems.
      In a way it is the exception that proves the rule of apparent stability and prudence in bank strategic management. Though the authorities’ inability to forestall the event, and their actions in trying to contain it and to allocate the cost,can be criticized, they did muddle through to an overall outcome which
      has proved reasonably satisfactory…”
      “The Insurance Corporation Collapse: Resolving Ireland’s Worst Financial Crash” Administration, vol. 45, no. 3 (Autumn 1997), 67-77. (Not available on-line – that I know of)

      Others in this thread have already pointed out that this proposal, particularly Sub-Section 4 is less than “reasonably satisfactory” in bringing in more checks and balances to limit the scope for excess by the powerful.
      The Oireachtas needs to go further to minimise lack of administrative preparedness and muddling through as default positions.

  4. Lest there be any misunderstanding, I’m not arguing against this proposal and recommending a ‘no’ vote. Any legislature worth its salt would have these powers. The fact that a Constitutional amendment is required to establish these powers just goes to show how totally useless the Oireachtas is – and the extent to which making it so is embedded in the 1937 Constitution.

    Anyone with an interest in enhancing the powers of the Oireachtas is almost compelled to vote yes. But by doing so one is saying one agrees with this amendment and, by default, agreeing that this reform is sufficient. One feels like screaming “No, no and no again, you devious, cunning b*****ds”.

  5. Apologies for the multiple posts. I’ll give it a rest after this. I knew this nonsense would emerge at some stage, but seeing it, at last, in print encourages some reflection on the total dysfunction of the current ‘democratic’ process.

    Why on earth does the Government – which is a creature of the Oireachtas – have to draft legislation that purports to enhance the powers of the Oireachtas and then seek to ensure the compliance of the Oireachtas to enact it when the Oireachtas should be discussing and developing this legislation itself quite separately from Government business? This is the business of the Oireachtas; not the business of Government. With regard to this, Members of the Government are simply members of the Oireachtas similar to all other members. Is it just me, or does anyone else see how totally surreal and nonsensical all this is?

    • @Paul

      It’s a bit of a paradox really! 🙂 In effect this is the government/cabinet awarding itself quasi-judicial powers. Ideally these powers of inquiry would be much used by ordinary TDs and Senators to keep a close eye on the government itself. But, while Oireachtas committees remain firmly under the thumb of government, I expect their scrutiny will be safely directly outwards, perhaps at the past actions of the previous government. And given that our criminial justice system has so far miserably failed to uncover anything much of significance arising out of our banking and financial disasters, maybe we’ll eventually have to settle instead for an Oireachtas committee inquiry?

      It also crosses my mind that it’s a pity we don’t have a reformed and more democratic Seanad. An opposition-controlled second chamber could get up to quite a lot of mischief with such powers! It strikes me that they’d be a bit wasted on our first chamber (at least as it currently exists anyway).

    • Paul,
      You are not alone in seeing how the Dáil is little more than an electoral college for the Taoiseach.
      Regular readers know my views on this…

  6. Subsection 4 of the proposed amendment would probably indeed greatly streamline and make more efficient the whole inquiry process. I guess it would shut down almost all avenues of recourse to the courts. Limiting access to cross examination would, for example, probably greatly shorten the duration of an inquiry and reduce legal costs. Subsection 4 would seem to allow the House(s) conducting the inquiry to set aside the usual standards of fair procedure and right to a good name that normally go with a full judicial trial by means of a simple resolution of the House (not even legislation) if deemed in the “public interest”. Its scope does seem pretty wide though. I’ll be interested in seeing legal opinions on the amendment (there was an interesting post on the topic up on humanrights.ie http://www.humanrights.ie/index.php/2011/09/12/reversing-abbeylara-a-commentary-on-the-thirtieth-amendment-of-the-constitution-bill/ ). Perhaps the usual right to legal representation could be curtailed given that it’s not really a trial? As far as I’m aware, a person appearing before a US Congressional Hearing still has a right to legal counsel (perhaps to advise him/her on whether to plead the fifth amendment). And would the usual right to silence (i.e. the right not to be forced to incriminate oneself in a trial) also extend into an Oireachtas inquiry? It’s not a trial after all, and presumably any admission of guilt would not be later admissible in court. But would an Oireachtas committee have the power to insist on a question being answered that might in a proper trial be self-incriminating? Could a witness be jailed for contempt if he refused to answer? Am curious as to how far the usual “rights of persons” could be curtailed in the “public interest” (as determined by a simple resolution of the House(s) concerned). Am not a legal expert and the wording seems quite vague. So will listen to the forthcoming debates on the amendment with interest, and keep an open mind until then. I thought I’d be in favour of such an amendment. But the wording of the final subsection has raised some doubts in my mind.

  7. We once had a series of parliaments on these islands which decapitated a king because he would not consent to the primacy of parliament, which subsequently terminated the succeeding regime as it veered towards tyranny and restored the son of the executed monarch to the throne; which rejected the brother of this monarch as sovereign on his death and invited a Dutch prince to take the throne, but only under a constitutional settlement that firmly established the primacy of parliament and rejected any claims to oversight by a foreign entity that exercised considerable spiritual and some temporal powers; and which subsequently invited a German prince to take the throne so as to avoid the accession of a descendant of the monarchs they had rejected.

    Over time these parliaments evolved to reflect the democratically expressed will of all of the people. But equally, over time, governments – of parliament, but not by or for parliament – accreted more and more powers – sometimes surreptitiously, sometimes blatantly – so that now they more and more resemble the monarch whose unyielding belief in his divine right to rule provoked that ancient parliament to assert its primacy.

    Ireland adopted this model of government in parliament, but, in a very short period of time (1992 to 1937) it was adapted so that the executive dominance of government (and the government machine behind it) was established constitutionally and in practice. This is the problem. All other proposals, reforms, amendments, whatever are futile unless this fundamental problem is recognised and resolved by re-asserting the primacy of the Oireachtas.

      • Looks like we’ll be waiting a while before the ‘fundamental problem’ is addressed by this government or any other one. There is no serious critique of this government, and its actions, in the media. Maybe that’s to do with the fact that its majority is overweening, so there’s no return to be had from putting pressure on the government – they can kick out any backbenchers who raise their heads above the parapet(as in Roscommon Hospital) without threatening their overall majority. Maybe it’s about a recognition that there’s no alternative government that could be formed. Or perhaps it’s just that journalists are worn out by the negativity of the last days of the ancien regime and can’t muster the wherewithal to call the present government to proper account? Whatever the reason the mediocre performance of this government, collectively and at individual ministerial level, is allowed to pass without critical scrutiny.

        Having read all the comments here and the human rights.ie analysis, people should be very wary, I think, of what’s being proposed in this referendum and it should not be allowed to go through on the nod.

        No doubt the main frame of the government’s rhetoric will be that ‘other parliaments have these powers of investigation as a matter of course’. Yes, they may and in principle, it may be desirable that the Irish parliament should have similar capacity; but other parliaments function in a much more democratically accountable way.

  8. @Veronica,

    You may have seen my take on the media in the previous thread:
    https://politicalreform.ie/2011/09/09/open-letter-to-tds-and-senators/comment-page-1/#comment-5792

    On this proposed Constututional amendment I fully understand your unease, but how can one communicate a position that, subject to some redrafting, it is very necessary, but falls far, far short of what is required? If TDs themselves cannot see this, there is very little any of us can do. There are none so blind as those who will not see.

  9. Am I right in thinking that there is a gap between the ‘findings’ powers in subsection 3 and the ‘determination’ powers in subsection 4?

    The House(s) power to determine the balance of rights against the public interest is limited to “ensuring an effective inquiry into any matter to which subsection 2 applies.” However, it isn’t clear to me that the ‘findings’ power is covered by the words “In the course of any such enquiry” In other words, does the House(s) monopoly right to determine the balance of rights etc extends only to the inquiry, but not the subsequent ‘findings’ phase outlined in subsection 3?

    If so, then in the wake of the High Court judgment in Pearse Doherty’s case, I think it’s perfectly possible that a person aggrieved by such a finding could head down to the Four Courts demanding a declaration, if not a mandatory order, vindicating his or her good name. It isn’t hard to foresee expensive Oireachtas resources tied up in this sort of litigation, and a backlog of declaratory orders undermining the authority of these inquiries, even provoking an impasse between two organs of government.

  10. Finbar, Paul, Veronica.

    Any interest in taking up Paul’s point in the following way:
    Why not draft an amendment that meets your requirements and forward it to all TDs/Senators, with an explanation?

    Lawyers are the only people who have the word-smithing ability to try this. Perhaps the people in HumanRights are already doing something like this

    Lest you feel that I think this approach is a panacea, let me just say that I did this in a lengthy submission (in 1996) to the then Joint Oireachtas Committee on the Constitution – primarily as a means having provoking a discussion. It had absolutely no effect that I could discern!

    IMO, events over the last 15 years has shown the need to serious political and institutional reform – something that emerged during the recent General Election.

    • @Donal

      I’m a bit out of my depth here! I’ve been reading up a little on these issues in the past few days. It’s a big and complex area. A report by the Joint Committee on the Constitution I stumbled across details much of the thinking behind the wording of this referendum (http://www.oireachtas.ie/documents/committees30thdail/j-constitution/reports-2011/Fifth_Report.pdf).

      I can understand the desire to tilt the balance towards the public interest and away from private rights for public inquiries; even though I’d wonder whether protecting fair procedure and other rights really did have to cost hundreds of millions in the tribunals over the past 20 years. I suspect they could have been far far cheaper even within the current legal setup. Even a fraction of that money might have perhaps more usefully gone towards bolstering the ODCE in its investigation of corporate crime. A poster on another website recently pointed out that it currently has only 50 staff (with 8 Gardaí on secondment to the unit). Contrast that with 600 staff recently allocated to help investigate social welfare fraud.

      But on the amendment, I think it’s simply the strength of the wording of subsection 4 that worries me. We’ll jump from a situation where perhaps judicial review is far too frequent to a situation where (if speculations in the humanrights.ie article are proved correct) there’d be virtually no recourse to judicial review. Maybe the simplest and easiest way to fix subsection 4 would be to give it a slightly more qualified wording.

      For example, instead of:
      “4° It shall be for the House or Houses concerned to determine the
      appropriate balance between the rights of persons and the public interest
      for the purposes of ensuring an effective inquiry into any matter to which
      subsection 2º applies.”

      one could perhaps have:
      “4° The House or Houses concerned shall have the strong but not absolute power to determine the
      appropriate balance between the rights of persons and the public interest
      for the purposes of ensuring an effective inquiry into any matter to which
      subsection 2º applies.”

      That does sound pretty clumsy as legalese. But some more suitable wording broadly along those lines might do the job. The aim is to give the Oireachtas broad scope to move the goal posts as it desires (e.g. set a far different standard than for in trials). The judiciary would probably defer to the Oireachtas’ judgment on inquiry procedures in most cases. But it would still leave the door a little ajar for recourse to the courts in exceptional cases. Some extra qualification to the wording of subsection 4 would probably mollify most people’s fears.

      The above is only a draft wording from the government. Could still be changed I guess. The timeline is tight though. The government have to pass the amendment bill at least a month before the referendum (so before the 27th of this month). On your suggestion to write to TDs, I think I’ll probably at least email or write to some of the ministers involved (particularly Brendan Howlin) and maybe TDs on the relevant committee(s). Worth a try I suppose.

      • PS:
        Just spotted there was some more legal opinion on the amendment in today’s Irish Times: http://www.irishtimes.com/newspaper/ireland/2011/0915/1224304143026.html

        Prof. Gerry White of TCD makes an interesting point. The originally proposed wording in the Oireachtas report I linked to above is actually somewhat different:

        “The Houses of the Oireachtas shall have the power to inquire into any matter of general public importance.
        In the course of such inquiry the Houses may investigate any individual and make findings in relation to their conduct.
        The conduct of such inquiries shall be regulated by law. Such law shall balance the rights of the individual with the public interest in the effective investigation of matters of general public importance.”

        According to Prof. White in the IT article this former wording “did not exclude the courts stepping in to defend the rights of people appearing before inquiries if the Oireachtas got the balance wrong. The present wording could exclude such court oversight, he said.”

      • Things are really moving at breakneck speed for this bill! It was only published on Monday, and has already gone through its second stage yesterday. The transcript for the Dáil debate can be found at http://debates.oireachtas.ie/dail/2011/09/15/00008.asp . Interestingly, on foot of some concerns re subsection 4, Peadar Tóibín and Mary Lou McDonald were proposing to add a fifth subsection: “The conduct of such inquiries shall be regulated in accordance with the law and principles of natural justice.” One view seems to be that constitutional principles of natural justice can still find their way into the proposed inquiry process. But there seems to be uncertainty on this, and even if so, to what degree. Another piece by a legal academic in today’s Irish Times urges more careful scrutiny of this amendment http://www.irishtimes.com/newspaper/opinion/2011/0916/1224304195636.html .

  11. I saw a news piece in the Sunday Times last week (page 2 I believe) which I cannot find a link to. Sarah Mcinerney reported that Fine Gael has set up its own parallel committee system to shadow Ministers. The stated aim was to allow backbenchers to have a greater role in policy and to make sure that they feel they have a real job to do and thus noo get involved in trouble making given the size of the majority as well as forcing ministers to listen to alternate points of view
    The report seemed to me to beg a question about why not allow existing committees which have the virtue of sitting in public and have a range of TDs from various parties and none on them to address policy issues in this way.
    These new Fine Gael committees are obviously neither public nor transparent. Surely if the Government is serious about empowering committees, which the referendum might suggest, then it would reform the current committees rather than setting up a shadow system?

    • I think the answer to your question has to be yes. And this obviously implies that the Government isn’t serious. This ‘shadow system’, assuming the report you cite is accurate, is simply a means of reinforcing the grip of the executive on the parliamentary party by ensuring that TDs are kept ‘on message’. And it gives TDs, in particular, the new kids on the block (as I don’t see the old lags falling for it), a sense of belonging if they are ‘consulted’ on policy formation.

      This notion of ‘consulting interested parties or stakeholders’ and these processes of ‘public consultation’ have infested and infected the entire policy arena and quangoland. They are intended to convey the impression that those making decisions are open to being persuaded by parties advancing alternative or contrary positions – when the reality is that whatever evidence or analysis is advanced it will be dismissed or ignored as the decision has been made already.

      I’ve lost count of the number of these processes I’ve participated in – without a blind bit of notice been taken of the case i’ve advanced. And I’ve seen every other submission that didn’t accord with the decision already made being ignored in the same manner.

      In this context I know I’m being cheeky introducing the Government’s decision to part-privatise the ESB as an example of the abuse of executive dominance and of the failure to involve the Oireachtas in policy formulation and decision-making, but, for me, it’s the last throw of the dice.

      The problem, I think, is that most people cannot get their heads around the idea that an organisation, almost as old as the state itself and which is a deeply embedded and respected part of the fabric of society and the economy, is ripping them off to the extent that it is – with the full sanction of the regulator and the approval of successive governments behind it. The banks exploited this long-standing trust and respect – and look where that got us. The ESB is doing exactly the same. But people just don’t want to believe it. And the Government lives in fear and dread of bringing it to heel in the public interest.

      Those who prevent government from doing what is necessary in the public interest are the government.

      So perhaps the focus shouldn’t be on empowering the Oireachtas to scrutinise government and to hold it to account; the scrutiny and holding to account should be applied to those who can bend government to their will.

  12. More grist to the mill of those who think that only a complete separation of the Government from the Dáil/Legislature can improve our way of governing ourselves.

    I gather that FF more or less operated the same way when in power ie. sorting out differences/disagreements in private less the rest of us see that consenting adults can disagree in public and yet agree to work together, once issues have been thoroughly aired and an decision made.

    When you consider that the office of Ceann Comhairle does not have an official car and driver assigned to it, it is clear that the political class has little or no conception of the status of the directly elected legislature – beyond being what somebody called “an electoral college for the Taoiseach”.

  13. This is off-topic in one sense but very relevant in another sense. Yesterday the Government announced its intention to part-privatise the ESB. This is related to some specific actions in the EU/IMF MoU. A hand-picked, tightly integrated group of civil servants will conduct a review to provide the basis for a detailed Government decision at end-November. Over the last 9 months there has been intense lobbying and politicking totally behind the scenes and this decision has emerged from it as a fait accompli. It will be spun furiously and the ensuing legislation will be rammed through the Oireachtas.

    I commented on the Irish Economy blog:
    http://www.irisheconomy.ie/index.php/2011/09/14/towards-a-private-esb/#comment-170016

    Apologies for the technical economics, but it is required to get at the heart of the matter.

    The upshot is that all electricity consumers (and that means all Irish citizens) have being paying through the nose to keep the ESB (and BGE) in the style to which they have become accustomed. The Government has decided that all consumers will continue to pay through the nose – and possibly pay even more to satiate a new shareholder.

    The EU/IMF, government officials (with good reason to be shame-faced), the regulator, the ESB management and (possibly) the ESB unions have all been squared behind the scenes. Nobody is representing the interests of the final consumers who will pay for this unjustifiable and costly fix.

    This is precisely what a parliament is for, but we don’t really have one. Linking this issue – which is imposing and will impose unjustified and unnecessary costs on all citizens – to the abuse of executive dominance and the powerlessness of the Oireachtas could be an effective means of highlighting the pressing need for profound reform of the Oireachtas.

    Any takers?

  14. @ Finbar Lehane,

    Great posts and many thanks for keeping abreast of this one. I’ve just read the Dail debate. Lots of misgivings about the matter being rush through because of the ‘election date’ and concerns about the current government’s demonstration of bad faith already in the way in which it has manipulated the new Oireacthas Committees’ composition and the odd whisper that this might well become a McCarthyite charter in due course. But still they voted 99 to 11 in favour of the proposal; the eleven comprising independent deputies only.

    Changing the constitution has a long term effect and, like marraige, should not be undertaken lightly. Given the all-party support for this ill-considered proposal, it will likely go through without much public debate as to whether it is either desirable or necessary. Pity,for as a society we may yet live to rue the day, as we’ve already done in the past with other ill-considered constitutional changes (e.g. the blanket ban on abortion.)

    • Thanks Veronica! Was beginning to wonder if my multiple posts (often long) here on the one topic had started to bore people to death! 🙂 There was another interesting opinion piece again today in the Irish Times (see http://www.irishtimes.com/newspaper/opinion/2011/0917/1224304265723.html ) urging caution. At least the issue has been flagged by several articles (and some letters to the editor) in some newspapers (particularly the Irish Times).

      I did actually send off an email to some TDs and Senators today (not a blanket sending, just to those on relevant committees, plus a number of others who seemed appropriate, plus Minister Howlin of course) suggesting there may be a possible issue with regards to the wording (was surprised at how easily available e-mails of Oireachtas members are). Not sure if anyone will take a blind bit of notice! But worth trying I suppose. Was no point in penning actual letters. They might not even arrive in time. The bill finishes its stages in the Dáil only on Tuesday (less than one hour allocated to the debate) and is scheduled to pass through the Seanad on Thursday.

      Anyway, with some coverage in the media, and with even suggestions of possible alternative wordings already when the bill was debated earlier this week, hopefully the government will soften the wording of subsection 4 on Tuesday afternoon. The bill is still pretty low in public consciousness. Some kind of minor modification to the wording on Tuesday could avoid future controversy in the referendum campaign and ease passage of the amendment, while at this stage still presenting almost no loss of face on any side.

      • @Finbar,

        You have done sterling work. The silence did not reflect a lack of appreciation of your efforts; it simply reflected a lack of expertise on my part to contribute – and I expect that goes for some others as well.

  15. @Finbar
    Agree entirely with Veronica’s and Paul Hunt’s appreciation of your work on this issue. Using email to get directly in touch with TDs and Senators on the relevant committee is worth it – even if you do not get a response.
    Better to light the candle than curse the impending darkness brought about by ill-considered and poorly discussed legislation – imposed by an effective guillotine, as you point out! We have had too much of that way of governing ourselves.

  16. Guys, thanks for the encouragement! 24 hours after sending the emails, must admit got a no-response from most recipients. Some basic acknowledgments came from a reasonable percentage though. And a number of Oireachtas members actually wrote to say they shared similar concerns regarding the amendment. So perhaps not all entirely falling on deaf ears. My basic desire is that the issue is at least flagged to some degree, and this amendment doesn’t merely slip through with little scrutiny or debate. Was also glad to see there was a 15 minute discussion on the topic in last night’s “The Week in Politics”. So it’s not entirely falling beneath the media radar.

    Hopefully, some amendment will be accepted in tomorrow’s Dáil debate that softens subsection 4 in some way. I think Minister Howlin has contended that basic constitutional principles of natural justice will still apply to such inquiries. That may well turn out to be the case (or it may not). But there wouldn’t be any real harm in further safeguarding this with some additional wording (and not merely have to always depend on the current accompanying legislation being up-to-scratch).

    Parliamentary inquiries could be a great boon here. But they can have their dark side too (as evidenced in the US and the term “Star chamber” goes originate in the UK). Checked up on some of the powers on UK parliamentary inquiries. The UK doesn’t have a formal constitution of course. A parliamentary inquiry can pretty much compel a witness to answer any question. Most normal rights can be set aside (including the right not to incriminate oneself, or even lawyer client confidentiality). But if a witness does admit culpability he’s covered by parliamentary immunity so cannot be prosecuted for the admission! And the UK parliament can chuck someone in prison for contempt or perjury (if put under oath), but only for as long as the parliament lasts (but the Commons has been reluctant to do this, hasn’t used this power for over a century, even though the Dáil has tried to do this far more recently). And I see that the UK Attorney General is currently considering whether some Guardian journalists should be forced to reveal their sources (as part of the phone-hacking scandal). That’s another interesting question. Our courts have recognized the ability of journalists to protect their sources. I wonder could Oireachtas inquiries, at least in theory, compel these to be revealed (even perhaps if only in private)? Lots of interesting unanswered questions arise.

    I do find all this a little ironic for a measure that’s supposed to bolster Oireachtas committees. The original amendment wording proposed by the Joint Committee on the Constitution (which did quite good work on this topic) was much less problematic. The government went away and changed this without consultation as far as I’m aware (to an admittedly similar but in some ways much stronger wording). And the whole thing is being rushed through with minimal debating time (usually the wording is available several weeks in advance for a constitutional amendment). The formal wording was only released 7 days ago, and it’s already due to complete its Dáil stages tomorrow. Would be nice to see more evidence of the committee system holding the executive to account.

    Anyway, Minister Shatter did actually slightly modify the wording of his judicial pay amendment when it passed through the committee stage during the week. So hopefully something similar can happen here for this “powers of inquiry” amendment.

  17. Finbar,
    The proposed wording was the subject of discussion on the VB show last evening, with Pat Rabbitte’s wilful obfuscation on the points of concern worthy of a Bertie Award.

    Most of the issues raised in the discussion had already been aired in the debate here on this site (mainly thanks to your timely and excellent interventions!). Unfortunately, given the all-party support for the proposal, and the indecent haste with which it is being rushed through the Houses of the Oireachtas, the opportunity for public debate is being stifled. I wish I could share your hope that any amendments put forward by the Minister in the Dail today will address the substantive defects. Whatever, it’s a ‘done deal’ as far as the parliamentarians are concerned by the end of this week and, no doubt, they will be telling anyone who raises the question with them on the doorsteps in the coming weeks that it ‘s all a good thing, with all party support, and the public really shouldn’t worry their pretty little heads about it. The ‘trust us’ message.

    It’s important to separate the principle from the practise: most commentators are in favour of parliamentary committees having the power to conduct inquiries on matters of public interest. But in their composition and operation, our Oireacthas Committees are just a further extension of the ‘electoral college’ of the Taoiseach, as Donal O’Brolchain so memorably described the role of the Dail. Of greater concern, the politicians are not looking to the long term possible ‘unintended consequences’ of what they want to insert into the Constitution. While none of us may have any sympathy for the fat cats and bozos whose reckless behaviour and maladministration, respectively, have wrought so much damage, cutting off one’s nose to spite one’s face is hardly an appropriate remedy. My fear is that the sloppy wording of this amendment, and its possible future interpretation, risks diminishing the human rights of all our citizens, present and future, to fair procedure. Once it’s in, it’s in. The damage is done for the long term. So we are being asked to grant significant new powers to an already grossly dysfunctional parliament and government system. Are we mad?

    The best thing would be if the Referendum wording in its current form was withdrawn. There will be a referendum on children’s rights later in this Dail term and it would be more appropriate to run these two measures together, thus allowing time for public debate on the merits of the current proposal as well as the overall package of parliamentary reform of which it should be a part. Alternatively, dropping the worrying section from the wording and leaving it for the underpinning legislation would be an improvement.

    If, as anticipated, the Referendum Bill is pushed through with its inadequate wording and its inherent dangers to the basic human rights of all citizens intact, then there has to be some form of campaign to alert people to those dangers. The odd article in the IT is not enough.

    Since as individuals our time and resources are limited, there’s not that much that can be done. Except perhaps, in new media – for instance e-mailing our friends and contacts about the defects in the proposal, asking them to contact their local TDs with specific questions and then alerting their own friends and contacts, in turn. Anyone with access to website posting should try and make the time to write a piece about the forthcoming referendum pointing out the problems with the wording. Also, anyone with current affairs programme contacts could contact producers /researchers asking them to provide slots for debate.

    Incidentally, Pat Rabbitte poured scorn on the old Tribunals and the motivation of this amendment to stop witnesses turning up with posses of lawyers and thus dragging inquiries out for half a generation and at great cost to the taxpayer etc. Very laudable, indeed. However, what he omitted to mention is that the terms of Tribunal investigations and their scope was, eh, decided on by the Dail in the first place. Please correct me if I’m wrong, but my impression is that a lot of what followed flowed from defective terms of reference drawn up by the parliamentarians themselves in the first instance.

    • Well said.
      PS. Describing the Dáil as an electoral college for the Taoiseach was not mine originally!!! I think it was first aired at the MacGill Summer School a few months ago. As i did not attend, I do not know who said it first. Back of the head suggests that it might have been Joanna Tuffy TD

  18. @Finbar & Veronica.

    Thank you, Finbar, and thank you also, Veronica, for spelling out the implications so clearly.

    This is a textbook example of all that is wrong with the legislative process in Ireland – and which got us into the mess we’re in. First, decide the latest day a bill can be signed into law. Next, work back from there to identify the latest date a bill can be introduced so that debate and scrutiny may be minimised. Then cobble together, behind closed doors and without any consultation on or critique of the principles, objectives or form of the proposed legislation, a draft bill in almost final form. Next step is to get the government spin machine ratcheted up to spray bullshit on all and sundry and ignore or dismiss any substantive critiques advanced. Allow the ‘debate’ to proceed with strict time limits and ponder, again behind closed doors, any substantive proposals for amendment. Introduce some minor amendments at the last minute (with more spin to convey the impression of a ‘listening government’ – even if they fail to address the points raised). Ring the division bell and the job is done.

    The political calculation is clear – on a number of fronts. And it is amazing that FF seems to be falling into this trap. By increasing the powers of the Dail and its Cttees to investigate matters ex post the Government’s primary objective is to mount a bank investigation that could bury FF, once and for all, as a political force. (Minister Howlin has mentioned bank investigation as a justification for this legislation and subsequent Constitutional amendment.) In fact, a part of me would welcome this as it might hasten the day when we would have two broad political blocs arguing about the size, scope and role of government in society and the economy.

    But the over-riding political objective is to forestall any attempt to increase the powers of the Dail and its Cttees to investigate policy options in an ex ante and pro-active manner and to scrutinise and investigate the basis of policy porposals with the rigour required. Prior to the election FG was making noises about increasing the powers of some Cttees in this way, but I doubt their hearts were in it and its fizzled out in the PfG. If there had been a proper debate and consultation about increasing the powers of the Dail and its Cttees in advance of the introduction of this legisaltion (and if the Dail time allowed had been proportionate to its imprortance), the risk for the Government is that serious proposals might have emerged to increase Dail and Cttee powers much in excess of what it has decided to offer. Its bill might have been butchered and reconstituted to much more government-constraining effect. This had to be avoided at all costs – and so we have what we’ve got.

    A further political calculation is that once this billis passes that will be the end of any efforts to increase the powers of the Dail and its Cttees. The line will be “We’ve addressed that. The matter has been dealt with. It’s time to move on. There are many major challenges. We have to look outwards and not inwards.”

    Once the Oireachtas passes this legislation it will have finally and irrevocably traded its soul and, more importantly, the ultimate authority delegated by the people for a mess of pottage.

  19. Following Veronica’s suggestion about contacting TDs, I did just that by emailing all TDs and Senators setting out my arguments against Section 4 as proposed by the Government.

    Within the last hour, Sinn Fein’s Mary Lou MacDonald responded saying that
    “Minister Howlin today introduced an amendment to the Government wording acknowledging that this happened on foot of Sinn Féin’s concerns and proposed amendment restating the right to natural justice, the right to fair procedure has now been inserted into the contentious text of subsection 4. ”

    She and her party colleague Peader Tóibín also pointed out the Sinn Initiative on this issue, as Finbar Lehane pointed out in his posting on 16th September last.

    This looks like some progress on the issue that Finbar worked on so assiduously in this forum.

    So thanks for your work.

    Let us see what words are actually put into the final bill, when passed by both houses of the Oireachtas.

    • Did see the Vincent Browne show on this topic (as mentioned by Veronica). Vincent kept banging on about subsection 4 with a legal expert (with an opinion dissenting from the government’s on this) on hand. Probably was timely in helping put a little pressure on the government in advance of the debate.

      And thanks Donal. I eventually ended up getting quite a reasonable level of response from the TDs I emailed. Also likewise got replies from Peadar Tóibín and Mary Lou MacDonald on the issue. Even got a reply from Minister Howlin himself the night before last, saying that I’d made a good point and that he’d had extensive discussions with his legal advisors and the AG on the issue, and would deal with the matter the next day in the Dáil. Which, in fairness, he did to an extent.

      I did feel common sense would likely prevail and some change would be made to the wording. The change made was that the words “with due regard to the principles of fair procedures” were inserted into subsection 4, so it now becomes:
      “4° It shall be for the House or Houses concerned to determine, with due regard to the principles of fair procedures, the
      appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry into any matter to which subsection 2º applies.”

      The transcript of last evening’s debate can be found at http://debates.oireachtas.ie/dail/2011/09/20/00025.asp
      Two other amendments were proposed. Must admit I liked Sinn Féin’s wording better (which probably would have afforded even greater protection). And Catherine Murphy’s proposal, which also wasn’t accepted, would have required a 90% majority of the House(s) to launch an inquiry. There is definitely something to the idea of requiring a super-majority, though perhaps 90% might be at too high a level.

      Brendan Howlin still maintained in the debate that the original wording didn’t exclude other protections found elsewhere in the constitution. But there seemed to be dissenting opinion by other experts in the media. So I suppose it was more prudent to err on the side of caution and insert some more explicit wording. Personally, am somewhat happier about the amendment now. It may not be enough for everyone. The new amendment still does give the Oireachtas a significant amount of power. The debate leading up to the referendum should be interesting.

      And echoing some of Paul Hunt’s sentiments, this measure has been sold as a means to re-balance the power of the legislature versus the executive. IMO, by and of itself, it does no such thing. It’s a tool that could indeed be put to good use by a strong legislature, but it doesn’t in itself make the legislature any stronger. A lot still needs to happen to bring that about. Hopefully this is not just a box ticking exercise: job done and the government can now move on to other things.

      • Excuse my posting the draft response above.

        I get the impression that there were a lot of people asking that SS4 be modified.

        I too prefer the simple plain-speaking of the Sinn Féin amendment

        If the Dáil can nominate a Taoiseach with a simple majority (of those present and voting), I regard that as adequate for any other measures proposed for Dáil approval, subject to the kind of checks and balances that emerged on this issue, supplemented by others which I have advocated in this forum and elsewhere eg.
        – Swedish style Freedom of Information
        and
        – Swiss style direct democracy
        being inserted into our constitution.

        mea

      • @Finbar,

        Excellent work. Well done. Veronica’s observations below are spot on.

        But this amendment is simply about restoring a power any self-respecting legislature should have. And note that this is just a gift from an omnipotent executive to a supine legislature. This bill has emerged from a political calculation and a decision by government; not forced by a legislature seeking to claim some powers to which, by definition, it should be entitled. The bill was drafted in almost final form by the government, the govenrment decided how much Dail time would be allowed and, when sufficient pressure was exerted – fuelled by extra-parilamentary informed discontent about some of the drafting – it was the Minister who introduced the amended text.

        What part of ‘legislature’ does the Government and the Oireachtas not understand?

        I wish I could share your hope that this is not just a ‘box-ticking exercise’. I fear that precisely is what it is. There is absolutely no evidence of an energised legislature seeking to claw back powers and privileges that an overmighty executive – sometimes surreptitiously, sometimes blatantly – has purloined, but which, by right, should be the legislature’s.

        Restoring this power of ex post investigations is a gift. Yes, a minor skirmish has been won on an important piece of drafting, but it looks like the war – and, yes, it is and should be a war of words and legislated actions between the legislature and the executive – to restore fully the powers and privileges of the Oireachtas as a proper legislature has fizzled out without a metaphorical shot being fired.

  20. Following Veronica’s suggestion about contacting TDs, I did just that by emailing all TDs and Senators setting out my arguments against Section 4 as proposed by the Government – referring to this thread and quoting from Eoin Daly’s posting on humanrights.ie http://www.humanrights.ie/index.php/2011/09/12/reversing-abbeylara-a-commentary-on-the-thirtieth-amendment-of-the-constitution-bill/

    Within the last hour, Sinn Fein’s Mary Lou MacDonald responded with an email from which I quote
    “Minister Howlin today introduced an amendment to the Government wording acknowledging that this happened on foot of Sinn Féin’s concerns and proposed amendment restating the right to natural justice, the right to fair procedure has now been inserted into the contentious text of subsection 4. ”

    She and her party colleague Peadar Tóibín also pointed out the Sinn Féin initiative on this issue,(see here http://debates.oireachtas.ie/dail/2011/09/15/00008.asp ) which Finbar Lehane averted to in his posting on 16th September last.

    This looks like some progress on the issue that Finbar worked on so assiduously in this forum.

    So thanks for your work.

    Let us see what words are actually put into the final bill, when passed by both houses of the Oireachtas.

  21. Finbar,

    Just read the transcript of yesterday’s Dail proceedings on this matter.

    It’s clear from the transcript that in the meantime the Minister had engaged in discussions with Sinn Fein’s Mary Lou McDonnell, who announced to the Chamber that she would not be pressing her amendment. So a bit of political horse-trading on the side, apparently: SF continue to stay on board with the referendum in return for which the Minister will change the wording to make explicit reference to ‘fair procedures’.
    “She can claim ownership because her amendment certainly formed part of the persuasive argument to make explicit what I considered to be implicit,” Howlin said.

    Does this mean that all the concerns expressed on this site and by people like Gerry Whyte are now addressed? Maybe so, but I will remain sceptical until all the ‘i’s are dotted and ‘t’s crossed. What it does point to, however, is the need for eternal vigilance in relation to the actions of this government, which seems to believe that because it is only viable government available at this time, because it is maintaining high poll ratings, and because it has such an overwhelming Dail majority, that it can dish up any old half-baked proposal without fear of serious public critique or challenge from any quarter. They need to be disabused of this notion, even if the mainstream media remain half-hearted in their responsibility to act as the public’s watchdog in challenging government actions.

    You played a blinder on this one, Finbar.

    • @Veronica
      Hopefully this blog and the various people who posted on this had some impact on the debate. I know at least some of our politicians read some of the entries here. And thanks for widening the audience on the irishelection.com website.

      But this topic is probably only low hanging fruit. Unlike most other issues (e.g. semi-state/ESB privatization as Paul mentioned) there were no serious vested interests involved, no large sums of money involved. Presumably there was no Machiavellian intent, just a bit of contentious sloppy drafting. Very little loss of face on any side. Was still pretty low in the public consciousness. A bunch of IT articles, Vincent Browne (and perhaps even this blog to some extent) maybe got the government somewhat worried that if there was a bunch of people already moaning about this issue so early on, there might be trouble down the line, and that maybe it would be wiser to head things off in the early stages by altering the wording a little.

      In the current climate, I think any kind of amendment that bashes various “establishment” sectors in some way would easily pass. There will probably some concerns about the impact on judicial independence of the other referendum (the wording doesn’t seem all that well drafted on that amendment either), but don’t think the public is going to lose much sleep seeing such salaries being cut.

      But the “powers of inquiry” referendum is less clearcut. It can, and no doubt will, be spun as a way to cut the dreaded bankers and “fat-cat” tribunal lawyers down to size. But it does simultaneously also hand extra powers to that other “establishment” group: politicians! You know how the anti-amendment argument is going to go: imagine your least favourite TD and imagine his as your judge/jury/executioner on an Oireachtas panel! IMO the change in wording was merely common sense in helping to get this passed. I suspect this will nevertheless still be a troublesome sell to the electorate.

  22. Veronica,
    Agree entirely that
    – we must wait until we see what actually emerges in the final wording and implementing legislation, including Statutory Instruments (which get much less attention that Bills);
    – eternal vigilance on the powerful in our society – not just the government – is the price of having a democratic way of governing ourselves which allows us to change the government peacefully;

    – the current government action/inaction leaves a lot to be desired eg.
    – not simply repealing the 2003 Freedom of Information Act
    https://politicalreform.ie/2011/09/09/open-letter-to-tds-and-senators/;
    – the decision not to transfer the electricity transmission assets (IMO – the whole of the wires networks) to another wholly-state owned company Eirgrid;
    – the NAMA policy of using its resources (which are derived from us, citizens) to put a floor under property prices, without any other reforms of the property markets etc.

  23. @Donal,

    I agree. It shows that an individual – or a handful of individuals – holding fast to the principles of democratic governance can have an impact. But it is hard-won, and it is difficult to sustain.

    On one of the more specific issues you raise – electricity transmission assets – there appears to be much more going on than meets the eye. If the assets were to going to be transferred it should have been done when Eirgrid was established – it would have carved out a new, relatively small, semi-state from and an existing, much larger one. Now that privatisation of semi-states is on the agenda (and, indeed a Troika demand), any diminuition of the value of the existing semi-states is verboten. The Minister’s decision to employ a loophole in the EU’s 2009 Electricity Directive is consistent with this.

    But the Minister’s subsequent announcement of a decision in principle to part-privatise the ESB is disingenuous and ‘economical’ to the point of being deliberately misleading. It appears that, behind the scenes, FG’s NewERA ‘holding company’ for all semi-states is being created in the NTMA as a non-statutory body – with a formal announcement in the near future. There is no conflict between the Minister’s announcement and the development of the NewERA vehicle that a slippery civil servant couln’t finesse, but there is a clear intent to conceal and to dissemble.

    Major decisions are being made about the state’s role and management of major infrastucture and utility businesses – that comprise a sizeable chunk of the domestic economy – without any scrutiny or transparency. And any decisions will be announced as a fait accompli. I have no doubt but there are good intentions all round, but for citizens the motto should be “trust, but verify”.

    This should be getting people as engaged and energised as the risk that a citizen caught up in an Oireachtas investigation might be deprived of due process. But it seems to fall into the ‘too hard to get one’s head around’ category. And all those with sufficient ‘standing’, knowledge and competence are too conflicted and compromised to speak out.

    • Paul
      “Major decisions are being made about the state’s role and management of major infrastucture and utility businesses – that comprise a sizeable chunk of the domestic economy – without any scrutiny or transparency. And any decisions will be announced as a fait accompli. I have no doubt but there are good intentions all round, but for citizens the motto should be “trust, but verify”.

      Does this suggest a cast of mind in the powers-that-be that lacks merit?
      This comment (as reported in the Irish Times earlier this month) applies to far more than a particular financial institution or the financial sector.
      “Mr Van Eden criticised the State authorities for their role in the events leading to the collapse of Anglo after the crisis struck in September 2008 and the scandals that have emerged since then.
      “Apart from the recklessness, overconfidence and the total lack of professionalism, one sees clearly a lack of checks and balances not only within Anglo but within the country/ system as a whole,” he wrote in the letter that was read out in part to Anglo staff when he announced his resignation in February 2011.
      “Parties were not dealing with one another at arm’s length, transactions were circular in nature, back to back and off market pricing. There was misrepresentation, market manipulation and market abuse.
      “There was a green jersey agenda that, as so often is the case when nationalism is invoked, covered a multitude of sins. The rationale was made to fit the objective at the expense of guiding principles and truth.”
      http://www.irishtimes.com/newspaper/frontpage/2011/0905/1224303500416.html

      The Nyberg report made similar observations about “group think” and “herding”
      http://www.bankinginquiry.gov.ie/Documents/Misjuding%20Risk%20-%20Causes%20of%20the%20Systemic%20Banking%20Crisis%20in%20Ireland.pdf

      That I why I continue to advocate a complete separation of the Dáil (Representative Assembly/Legislature) from the Rialtas(Government/Executive) as an essential condition to having checks and balances to limit the scope for excess by the powerful – be they public or private, elected or appointed.

      Montesquieu’s observation still holds
      “When the legislative and executive powers are united in the same person, there can be no liberty”.

      We citizens must have the means to verify if we are to trust.
      As Swift pointed out
      “Providence never intended to make the management of public affairs a mystery to be comprehended by a few persons of sublime genius.”

      • @Donal,

        “Does this suggest a cast of mind in the powers-that-be that lacks merit?”

        I expect this is rhetorical. With the semi-states the government is dealing with some very powerful and entrenched vested interests. There is an understandable desire to keep everything tight and out of public view to avoid hares scurrying in all directions and scuppering the gameplan. But this can veer, oh so easily, into the swagger and arrogance that Veronica has detected in the approach to the so-called Abbeylara amendment. It also runs the risk of various pet projects being bundled in without any scrutiny.

        Obviously I’m concerned both about the process and the content. I would not expect many here to seek to familiarise themselves with the minutiae of the latter (though it’s not rocket science), but I would expect the process to concern all.

  24. All,

    I’ve written a piece on all of this over on irishelection.com, just to alert a slightly different audience about the proposal and its progress to date. Obviously, the piece credits this site and Finbar’s contributions.

  25. @Paul
    Rhetorical Question?

    I simply wanted to draw attention that an outsider* (who worked here last year) noted
    – a lack of checks and balances in our way of governing ourselves;
    – a nationalistic approach covers a multitude of sins;
    – a rationale developed without guiding principles and truth .

    What emerged in this thread was the need to examine and discuss proposals put forward by the powers-that-be, with enough time to ensure that all issues are considered prior to final decisions being taken.

    The current trend, among those who develop options for policies and take decisions, focuses almost exclusively on “stakeholders”. IMO, such “stakeholders” are usually defined and specified by the incumbents.

    *Maarten van Eden, a Dutch Banker, became Chief Financial Officer of Anglo Irish Bank in January 2010 and resigned in December 2010.
    In his letter of resignation he said that he had “great concerns about the concentration of power that the new law will put into the hands of the government….I have no confidence whatsoever in the ability of the government to do the right thing for the financial sector…” (taken from Simon Carswell “Anglo Republic – inside the bank that broke Ireland” p. 315)

    This reminded me of comments reported as having being made by the then German Ambassador to Ireland in 2007 see.
    http://www.independent.ie/national-news/reprimand-for-german-envoy-over-his-coarse-irish-speech-1081773.html

    As you point out, our processes have not yielded sustainable outcomes

    • Agree completely. But it appears that, once people exercise their inalienable right to decide who governs at a general election, a majority seems content to take the government’s word of ‘trust us, we’ll do the right thing’. It may be that many believe that the prospect of a repeat of the kicking they gave to FF and the Greens last Feb. when they destroyed that trust may be sufficient to keep the government in line, but I think most of us here are agreed that this is far from sufficient.

      Many may also be operating under the illusion that, while they, themselves, do not have the time, interest or skills to exercise the necessary scrutiny, there are journalists, academics and other independent bodies with capability to exercise the necessary scrutiny. I suspect very few people realise the extent to which most of these ‘scrutineers’ are compromised or conflicted in some way – and that many are beholden in some respect to the government machine.

      There is also, given the size of the national population, the small absolute number, compared to much larger democracies, of people involved in public affairs. A small number leads to closeness and associations that are not always in the public interest – not to mention the bonhomie and politeness that frequently characterise these relationships.

      So, as one commenter has put it, we appear to be relying on ‘clever and critical’ public servants within the government machine to express the necessary dissent and to exercise the required scrutiny. It is far from enough, but it looks like it’s all we’re going to get. It is simply far to easy for the ‘power-that-be’ to sideline those of us outside the tent, irrespective of our knoweldge or competence,

      • Paul
        Prior to closing off my participation in this discussion, I will just make seven(!) and a conclusion

        1) We need checks and balances in our way of governing ourselves on all kinds of issues and at many different levels;
        2) One such method is to publicise proposed legislation way in advance in order to give the
        – Dáil/Seanad time to consider not just the aims, but also the details of any proposed measure;
        – citizens – whether individuals or grouped in various ways, the same time for consideration/research/developing/present arguments, for rejection – in whole or in part – or modification;
        3) In many cases, this happens;
        4) However, there is a definite tendency in the powers-that-be to decide what is to be done and then simply present it – without setting out the options looked at, with supporting evidence – for approval by effectively making nearly every issue a ” vote of confidence” in the authority of the government;
        5) Among the methods of lessening the check-and balances are
        – not to separate the Dáil from the Rialtas/Government/Executive;
        – to charge for making observations (eg in planning permission cases) ;
        – to charge for gathering information (eg. FoI charges);
        – not to release any information (eg. benchmarking);
        – to shorten the time for consideration by non-government citizens/bodies;

        6) In this particular case ie the “Abbeylara” amendment – it seems that the checks and balances may have just about worked – let us see the results of the referendum, the implementing measures and how it works in practice;
        7) The fact that that outsiders – commenting on other matters – have noted an absence of checks and balances and/or public sector excesses, and/or groupthink/herdlike behaviour suggests that there are things we can and must do to give ourselves a better way of governing ourselves for a common, sustainable prosperity.

        If other countries with small populations (eg. Finland, New Zealand, Denmark, Austria, Switzerland, Sweden) can do it, so can we.
        If we want to change the results, we have to change the
        approach.
        As the name suggests, this public forum is one method of
        promoting change.

  26. On RTE’s This Week programme
    1) Donncha O’Connell of NUIG’s Law Department expressed concerns about the proposal’s limitation on judicial review set out in the proposed new new powers for the Oireachtas here
    http://dynamic.rte.ie/av/thisweek/3061887.smil

    2) Minister Brendan Howlin made his case for the measures propossed based on his assertion that Independent assessment on the proposed inquiries will be made by another Oireachtas Committee which he says will be chaired by the Opposition here
    http://dynamic.rte.ie/av/thisweek/3061966.smil

    I wonder why there was not a debate between the two speakers, as these interviews were presented separately.

    In much the same way as happened after the first divorce referendum in 1986 in respect of family law, would it not be better to enact those legislative measures needed to protect the rights of individuals being examined by the newly empowered Oireachtas committees prior to putting the constitutional changes needed to the people in a referendum?

    • @Donal,

      From the Minister’s op-ed:
      “…an assertive and potent inquiry system can be an important bulwark against a dominant executive.”

      This throwaway statement, summoning up an image of an enhanced medieval fortification designed to repel the onslaughts of an attacking force, must have flowed from the pen (or keyboard) of one these erudite generalists who draft ministerial speeches and articles.

      It conveys a substance and an intent that distracts the reader from the fact that the underlying intent is precisely the opposite. This is not a bulwark that would allow the Oireachtas to repel the obslaughts of a Government attempting to compel it is accede to ill-considered policies or executive actions; it is simply a process that would allow the Oireachtas to investigate the reasons for, and outcomes of, the implementation of government policies or actions that damaged the public interest and roused some public concern and anger.

      This is bullshit – as defined by Prof. Harry Frankfurt in his essay of 2005 – pure and simple. A bulwark in this context would comprise the powers and resources to scrutinise and contest, in advance, government policies and proposed executive actions – with the powers to amend or reject them. What is being proposed is not a bulwark.

      But, unlike many of the citizens in the smaller countries you mentioned in your earlier comment, few Irish citizens seem to have an interest in the process of governance once the election when they decide who governs has passed. And, despite the fact that it was serious failings in the process of governance that has brought Ireland to this economic pass, there is little public desire to require public representatives to improve the process of governance. This gives rise to the despairing cries of “If not now, when?”

      But this is all perfectly understandable. If they are elected to provide voters with what they view as their entitlement to the largesse provided by the state – or to secure redress if they believe they have not been awarded that to which they felt they were entitled, with the largesse being provided by the state currently being reduced, TDs are under even under greater pressure to satisfy the demands of individual, or groups of, constituents.

      Paradoxically, when they should be more focused on the process of governance, TDs find they are required to pay even more attention to their constituents’ concerns – and they have no time to attend to the process of governance.

      We can only hope that an increasing number of citizens will adopt the more enlightened views of many of their peers in other better-governed countries who appear to be less concerned about their narrow, selfish or sectional interests and who are more concerned that the conflicts that inevitably arise are resolved in a transparent and fair manner, because they have a reasonable expectation that the common good will be served – even if they, occasionally, lose out.

      But is is a forlorn hope.

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