Posted by Elaine Byrne
For the last ten years, Ireland was one of the only modern democratic parliaments in the world which was legally prevented from inquiring into matters of national importance. Thursday’s referendum to overturn the 2002 Maguire v Ardagh Supreme Court decision on the Oireachtas Abbeylara inquiry seeks to rectify that. In principle, parliaments should have the power to conduct inquiries into matters of general public importance.
The debate, to date, has not captured the public’s attention, with many content to leave it to the lawyers. But by digging deeper into the very rationale for the referendum, we can understand the underlying reason for the overwhelming failure by Irish public life in the last decade.
Ireland has one of the weakest parliaments in Europe. The Ombudsman, Emily O’Reilly, has went as far as arguing that the government ‘has had a free hand to do what it liked, free of any real accountability and free of effective scrutiny from parliament.’ Although article 28 of the constitution states that “The Government shall be responsible to Dáil Éireann” it has always been the other way around.
The Dáil has chosen not to exercise its constitutional prerogative and make the government accountable to it. A member of the Dáil is both a backbench government TD and an opposition TD. If they took their role seriously and fully understood their constitutional power, then the TDs rather than Minister would have drafted the legislation to enhance the powers of the Oireachtas. That would have been innovative.
If one of the functions of a more effective committee system is to hold the government to account, a conflict of interest arises when the government decides what the parameters of how it will hold itself to account. That’s like being your own referee.
For instance, there is no mechanism for a Dáil minority to have powers to commission enquiries, as is the case in other European countries. The government, by virtue of their majority and in the absence of backbenchers asserting their constitutional authority, will always decide who and what will be investigated. So, even if the Oireachtas had the power as intended by the referendum, what would it have achieved?
The first public inquiry in the history of the state, for example, was by a parliamentary committee. The 1935 inquiry investigated a controversial decision by Sean Lemass, Minister for Industry and Commerce, to grant a Fianna Fail Senator and TD a lease to mine gold on 982 acres near Woodenbridge in Wicklow. The opposition believed that the government stifled the inquiry by virtue of their parliamentary majority. Fianna Fail decided on the terms of reference, the membership of the cross-party parliamentary inquiry and ultimately the content of the final report.
In the end, the report found that there was no proof to sustain any of the allegations. The TD who made the allegations believed that the Inquiry’s terms of reference did not correspond with the charges made. The whole affair was nasty, divisive and achieved nothing. Parliamentary debate was reduced to the normally recent John A Costello of Fine Gael describe Lemass as a ‘snarling dog.’
So, when issues of public concern reared their head in the 1940s, the Taoiseach, Éamon de Valera, decided not to go back to the mechanism of parliamentary inquiry.
In 1946 de Valera established one of Ireland’s first public judicial inquiry, known as the Ward Tribunal. Dev was more than happy to delegate the matter to the judiciary: ‘I do not think anybody here or in the country is likely to suggest that these three judges, who are independent of us, are going to make any report other than in accordance with the facts as they find them, that there will be a genuine and fair investigation’.
The inability of politicians to impartially adjudicate on the behaviour of their political peers is why Tribunals were introduced in the first place. The capacity to conduct a public inquiry is a major instrument of accountability. In theory, the process fulfils six key functions.
(1) It establishes the facts of a case where the facts are disputed. (2) Apparently public inquiries help us to learn from what’s happened, thereby preventing their recurrence. (3) They provide a catharsis and opportunity for resolution. (4) Public confidence will be reassured after the inquiry because the government will have made sure that everything has been fully investigated and dealt with.
Numbers five and six are particular favourites. (5) Public inquires allows for accountability, blame, and retribution where individuals and organisations are held to account. And (6) it serves a wider political agenda for government by demonstrating that “something is being done.”
In the real world, have we learnt from what’s happened, is public confidence reassured and has anybody ever been held accountable on foot of Tribunals and inquires over the last decade? The focus in public debate has been on the method of inquiry. The mantra that committees need greater powers and tribunals are too expensive misses the point.
The capacity to inquire is irrelevant when there are no consequences to the outcomes of such investigations. Immunity has resigned in Ireland without challenge. Mr Justice Peter Kelly expressed his dissatisfaction with the snail’s pace of the Director of Corporate Enforcement’s three-year-long investigation into Anglo Irish Bank. Although individuals have admitted liability before his court, the state has yet to issue criminal proceedings. Also, instead of investigating matters after they have happened, why not reassert the power of the Oireachtas, as the constitution intended, to make sure they don’t happen in the first place?
That would include real powers to the Dáil and the committee system to scrutinise contemporary government policy. Rather than being reactive and inspecting decisions in a post-ante manner, a more common sense approach is to probe policy choices in a proactive and ex ante fashion. Just after the election, Fine Gael and Labour acknowledged in the Programme for Government that ‘An over-powerful Executive has turned the Dáil into an observer of the political process rather than a central player and that this must be changed’. But what has actually changed since those heady February days?
In his speech to the MacGill Summer School earlier this year, Michael Martin presented evidence that the government have become even more powerful. The opposition has been removed from any role as either chair or vice-chair of committees which oversee government departments. As bad as it was, the last government opposition parties held posts in committees overseeing six departments. That essentially means that the government decides the agenda of what details of legislation, spending and the operation of state agencies will be discussed. The use of guillotines to end debate on reviewing government legislation has been increased.
The Government Chief Whip, Paul Kehoe, promised in September that TDs would ‘return to a Dáil better equipped to hold the executive to account.’ In the end, this amounted to a new Dáil sitting on Fridays, once a month, with no government business or Taoiseach question time. Thursday’s referendum on Oireachtas committees gives the perception that Fine Gael and Labour are addressing the fundamental problem of our political system.
Of course, why a government, with the largest parliamentary majority in the history of the state, introduce far-reaching reforms which would allow for the possibility of exposing itself to unprecedented scrutiny at a time of unparalleled economic challenges?