Oireachtas Referendum – The wrong reform

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?

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7 thoughts on “Oireachtas Referendum – The wrong reform

  1. time for change legal system rotten banks rotten rip off republic a system that refuses to allow a proper freedom of imformation service is what ,,is not democracy for it covers up wrongs thus people power is needed for change to,,, a second republic ,,, make sure u vote on thursday next to stop the bullie boys

  2. @Elaine Byrne,

    Many thanks for this thoughtful and comprehensive post. It sums up much of what has been debated here on many previous threads. But I fear it is far, far too late in the day. What we are seeing being implemented now was, to a considerable extent – and in a quite detailed form, hammered out in the FG and Labour backrooms by a limited number of policy wonks over the two years prior to the 25 Feb General Election. It was then assessed, re-configured and repackaged by the FG and Labour High Commands, but, although they advanced separate manifestos, there was considerable informal contact between the respective backrooms and High Commands to ensure that the almost inevitable negoriations on a Coalition Programme for Government (PfG) could be negotiated relatively painlessly and quickly. The demands of the Troika also had to be factored into the mix and this has delayed and modified the process, content and timing of the implementation of the PfG, but it is clear that the Troika, recognising the overwhelming democratic legitimacy presented by the Government, has been quite accommodating. (The incredible recalcitrance of the judiciary – the ‘L’Oreal generation’ (“because we’re worth it”) to accept imposition being imposed on all paid from the public purse at a time of severe fiscal constraints is simply one of those unanticiapted ‘events’ that governments have to address.)

    FG put the most effort into preparing and publishing detailed policy papers across the entire policy spectrum during the 2 years prior to the election. (Labour cobbled together some ‘me-too’ efforts somewhat later in the game.) Very little public attention attended the publication of these detailed policy papers. However, it was very clear to the few of us paying attention that these would provide the basis for the next government’s PfG.

    Media attention should have been focused on these papers when they were published and a wide-ranging public debate should have taken place. But, once again, it was a case of ‘hding something in broad daylight’. Many here clamour for Freedom of Information and much greater transparency, but, when the almost certain future government – with both factions singing from only slightly differentiated hymn-sheets – told us in painstakingly explicit detail what they would do once in government, most people just yawned.

    The two governing factions together have the most comprehensive and overwhelming democratic mandate in the history of the state to implement precisely what they told us they would do prior to the election and on which they campaigned and secured this popular majority. Any resistance now is futile and could, plausibly, be vewed – and probably will be viewed – as somehow ‘anti-democratic’.

    Anyone who thinks that two factions, excluded from power for 14 years, would not seek to make as much hay as possible while the sun shines and would contemplate some effective restraint on their exercise of executive dominance has a very tenuous grasp of reality.

    They told us what they would do, they secured a huge popular mandate and now they’re doing what they told us they would do. The time to ‘put up’ was when they were telling is what they intended to do; it is now time to ‘shut up’. The fact that they secured this huge popular mandate because a majority of voters were intent primarily on giving FF and the Greens a severe drubbing is neither here nor there. It looks very likely that the voters will send an erstwhile FF player to the Park to discourage Government from taking them for granted and to warn it not to abuse the mandate it received.

    But, on the other side, the ‘dog-whistle’ has been blown and it is likely that the ‘investigative powers’ amendment will be passed. Even though it is totally out of order to use a Constitional amendment to achieve a nakedly political objective.

    Irish voters are pefectly adept at sending two quite different messages at the one time. In 1959 they sent Dev to the Park but rejected FF’s intent to change the voting system to its advantage.

    It is for the Members of the Oreachtas, and primarily for TDs – and for these alone – to be assertive in securing the powers to scrutinise and modify the implementation of the policy intent for which the Government has secured a popular mandate. If they are unwilling – or feel they are unable – to restore even a semblance of the primacy of the Oireachtas (or, even, worse, sense that voters would not be best pleased with them seeking to do so), there is damnably little any of us can do. And as for a CA, it again is for Members of the Oireachtas to decide that there are certain issues of constitutional import on which they are either unwilling or unable to decide and, as a result, require the assistance of citizens to formulate options and proposals.

    It is not for a selection of active citizens to decide; and it most certainly should not be for Government to decide.

    But while TDs remain ignorant of both their powers and responsibilites we are fated to be ruled by decree – and increasingly by the decrees of those appointed, but not elected, to govern (and, even worse, by the influence of the vested interests that have captured them).

  3. Thanks. Good article.

    Personally, I find there are far too many unanswered questions about this referendum. And the media is only finally starting to have some semblance of a debate (just three or four days before the vote). This all seems too rushed and ill-considered. Eight days from publication to passing through the Dáil with minimal debate, a neutered referendum commission (only able to publicize the legal wording, the broad objectives and some glossy photos) and its holding simultaneously with a distracting presidential campaign have all combined to ensure this has fallen way below the radar for most people. Presumably this wasn’t a deliberate strategy but merely a rush to get some referendums on the book in time for the presidential vote.

    Giving a qualified Oireachtas minority the right to trigger an inquiry, and protecting the rights of that minority when it was being conducted, would have genuinely turned this proposal into a means to hold the executive to account. There was some scrambling in this direction by TDs on “Oireachtas Report” on RTE last night. There was mention that the oversight committee might have equal numbers of government and opposition TDs. The problem is such a proposal would merely be in legislation or standing orders, which a government could easily sweep away at any stage with its majority.

    And the exact status the amendment gives to rights (via subsection 4) is uncertain. It’s fashionable these days to take a pop at lawyers. But, nonetheless, when eight former Attorney Generals (of varying political persuasions) came out this morning against this amendment, one would have to wonder. The last minute change in wording to the amendment *may* give some degree of protection to procedural rights. But, even there, the rich and powerful will be in a far better position to vindicate whatever restricted procedural rights they may have in the courts. The little guy might not even get the chance (free legal aid could be at the discretion of the politicians themselves). But how about other “substantive” rights (privacy, private property etc.)? There are some protections in the proposed accompanying legislation. But could a future government change the legislation and give itself sweeping powers to enter homes, confiscate private property as evidence, intercept communications (letters, emails)? Could this amendment give flexible legal cover for phone taps? Or could an investigative journalist be compelled to give up a source? The corresponding article (44) on inquiries in the German basic law explicitly states evidence must be gathered according to the rules of criminal procedure and that the right to privacy in communications and correspondence is protected, so pins down these questions. Our wording is very vague on this point. I know this is all worst case thinking (but there have previously been phone taps of journalists and a tribunal has previously (unsuccessfully) tried to get a source out of a journalist). Am not a lawyer and these fears may turn out to be unfounded. But I really wish there had actually been a proper debate on the finer points of this proposal.

  4. @Finbar
    “I know this is all worst case thinking (but there have previously been phone taps of journalists and a tribunal has previously (unsuccessfully) tried to get a source out of a journalist).”

    Thanks for drawing our attention to what the German constitution says about this. You may be aware of Niemoeller’s observation about the Nazis

    “First they came for the communists, and I did not speak out—
    because I was not a communist;
    Then they came for the socialists, and I did not speak out—
    because I was not a socialist;
    Then they came for the trade unionists, and I did not speak out—
    because I was not a trade unionist;
    Then they came for the Jews, and I did not speak out—
    because I was not a Jew;
    Then they came for me—
    and there was no one left to speak out.”

    (Niemoeller believed the Nazi promise not to interfere with the Lutheran Church in which he was a pastor. Once he saw the reality, he spent years in concentration camps which he survived)

    We only have to look at what happened to the 1997 Freedom of Information Act to see why it was critical that this Amendment was rejected.

    Despite the Government’s explicit commitment in its’ Programme to restore the 1997 FoI Act, they have not done so by simply and directly repealing the 2003 Act.

    As Joe Lee pointed out in a recent TV interview with Cathal McCoille, there is no sense of urgency in these matters in our Government http://www.rte.ie/news/av/2011/1010/onetoone.html

    Now that this Amendment has been rejected, the issue remains of designing, discussing and implementing checks and balances in our way of governing ourselves.

    I have long been convinced that the role of the Dáil can only be improved when it is completely separated from its’ function of nominating the Taoiseach from among the TDs and confining the choice of Cabinet to members of the Oireachtas.

  5. Elaine,

    http://www.europarl.europa.eu/da/pressroom/content/20111010IPR28833/html/New-investigatory-powers-for-MEPs

    There appears to be a tendency on the desire to strengthen investigative powers of politicos.

    Shatter’s aggressive and blunt approach should be of concern to democrats. Personally, I am not astonished, although I admit that the poor wording and unthoughtful quick fix triggered an eyebrow.

    I also would like to point out that the way of presentation and information given to the public was manipulative and restrictive, it reminded me a lot to Lisbon 2.0 – Want Jobs? Vote YES! –

    Although they fell short to go to that extreme of a political lie by stating – Want justice for Banksters? Vote YES! – Shatter’s TV presentations were very much down that line and they were designed to mislead the public in my opinion.

    Of course the NO vote is unacceptable, and another referendum will be presented, no doubts.

    Best
    Georg

  6. Following Finbarr’s comment on Germany, I was curious about the actual words which I found here
    http://www.iuscomp.org/gla/statutes/GG.htm#44

    Article 44 [Investigative committees]
    (1) The Bundestag shall have the right, and on the motion of one quarter of its Members the duty, to establish an investigative committee, which shall take the requisite evidence at public hearings. The public may be excluded.
    (2) The rules of criminal procedure shall apply mutatis mutandis to the taking of evidence. The privacy of correspondence, posts and telecommunications shall not be affected.
    (3) Courts and administrative authorities shall be required to provide legal and administrative assistance.
    (4) The decisions of investigative committees shall not be subject to judicial review. The courts shall be free to evaluate and rule upon the facts that were the subject of the investigation.

  7. @Donal
    Great quote by Niemoeller! And the Joe Lee interview is well worth watching (managed to catch most of this already when it was on rte in the past few weeks).

    Am very pleased that the inquiries amendment fell. But it’s a real pity the government, for whatever reason, chose to turn this amendment into an unnecessary choice between people’s rights and “bringing the bankers to book”. It didn’t have to be an either-or decision.

    Article 44 looks to be well constructed. The ability of a quarter of members to initiate an inquiry is IMO its most interesting aspect. And the courts have interpreted this article to provide rights to minority members on the inquiry committee. So a quarter of the committee members can cause evidence to be gathered or a witness to be summoned. And their voice cannot be drowned out either in the final report.

    And, interestingly, it turns out we very nearly got a similar provision in the Free State Constitution. One of the three preliminary drafts contained the following (though it never made it to the final document):
    “The House has the right – which on the motion of one third of its members becomes an obligation – to appoint committee of inquiry. Details as to the election, number and procedure of such committees shall be determined by Standing Orders or special resolution. The courts and administrative authorities are bound to produce evidence and documents before such committees …”
    (I came across this interesting snippet in the Abbeylara judgment http://www.irishtimes.com/newspaper/special/2002/abbeylara/geoghegan.htm ).

    In some respects article 44 is quite strong. It does makes the findings of an investigate committee exempt from judicial review (rather like an extension of parliamentary immunity). So German parliamentarians can say whatever they like in their report. On the other hand, however, the final report is not a consensus document. One might have majority findings but dissenting findings from other committee members may also be included in the document.

    Otherwise, all the usual rights are protected. Inquiry findings are the only aspect of the process that is shielded from the courts. Everything else is subject to judicial review, e.g. if a person’s home is to be searched for evidence then a judge has to be satisfied that this is sufficiently justified in the public interest. And the article specifically protects the privacy of communications (ruling out phone-tapping and surveillance of communications). So the status of private rights seems well tied down and clear in article 44 (unlike what was proposed in our own amendment).

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