Inquiries referendum is lazy measure that won’t empower the Oireachtas

Eoin O’Malley 24 October

The referendum on the 30th amendment – the inquiries referendum – is on the face of it something most people would want to support. It seeks to empower the Oireachtas to hold inquiries which should strengthen the government oversight function. Specifically it seeks to overturn (or render void) the decision in Maguire v. Ireland (the Abbeylara Judgement) which among other things:

 “as there was no provision in the Constitution which expressly authorised the Oireachtas to conduct inquiries of the nature which had been undertaken by the Abbeylara sub-committee, any such power must be inherent or implied.

2. That the constitutional right to protection of one’s good name had to be given due weight in considering the question of balance of rights.

Per Murray, McGuinness and Geoghegan JJ.: That the Dáil and Seanad had a limited power to inquire, which was inherent in the Constitution, which was implied solely and directly in aid of the functions of each House as delineated in the Constitution. The power did not extend to making ‘findings of fact’ concerning the individual culpability of non-members of the Oireachtas which involved damage to the good name of such individuals.

3. That a power, wholly or partly, to initiate a tribunal of inquiry, whose salient characteristic was that it was independent of the political process, could not support the existence of a  power, inherent or implied, to establish a form of inquiry which was wholly political.”

In particular the court, quite reasonably, found that the power of the sub-Committee to potentially making a finding of ‘unlawful killing’ as problematic. The court noted that this would be the role of the Courts to adjudicate on such issues. But the court in rewording the declaration from that of the High Court used the adjective ‘such’ to describe the inquiries is thought problematic. The Court did NOT rule out all inquiries; it was the Oireachtas’ timidity which ended the practice. The court left open the possibility that the Oireachtas might come back with a more suitable topic for inquiry carried out in a more suitable manner. The Oireachtas may be forgiven for not wanting to go back to the courts, when the courts were not as clear as they could have been in instructing the Oireachtas as to exactly what the parameters of inquiries it saw as suitable.

The Supreme Court did seem to close the door somewhat – the decision has some inconsistencies – and defended its decision on the basis that inquiries into policy or implementation failure are not the proper function of a legislature. It describes the functions of legislature in purely legislative terms. In doing so the court took a literal view of the role of the legislature which it arguably need not have taken. The courts are not always so literal in the functions of the different pillars of state, for instance the Doherty judgement (see an analysis here) seemed to understand the de facto nature of politics but not the de jure allocation of responsibilities.

Of course we know that parliaments now rarely legislate (there are good reasons why this power has shifted to the executive) and the scrutiny function of government is far more important for parliament. Furthermore we can probably point to failures of oversight which allowed poor policy choices – so the policy oversight of government is something we would want any reform to achieve.

In fact though nearly all established parliamentary dem0cracies allow for ad hoc committees to investigate matters of public importance they are rarely used. We can see that there have been important uses of parliamentary inquiries in Germany, Belgium and Portugal, these tend to be rare and occur when there is a dispute within the government, or there is a minority government. An exception to this is Germany where the government can be investigated even when the government is united and has a parliamentary majority. This is because Germany allows inquiries take place on the proposal of just 25 per cent of members of the Bundestag (subject to some restrictions in numbers and to avoid vexatious inquiries).

The draft Bill published two weeks ago and the associated memorandum set out the circumstances in which inquiries could happen in Ireland. These show that only a majority in the Oireachtas will cause an inquiry and the wording of the amendment make it possible that  the Oireachtas could not even legislate to allow a minority cause a parliamentary inquiry. Now why would any government allow the Oireachtas investigate it? We saw the last government’s investigations of the Banking crisis which produced three very useful reports (using the recent Commissions of Inquiry legislation) specifically ruled out looking at the government’s decisions on the Bank Guarantee Scheme. Past inquiries have been unsuitable (Abbeylara) or unnecessary, for instance the inquiry into the fall of the Reynolds/ Spring government.

One can only imagine if the current members of the Oireachtas got to question those who it wished to question, Seán FitzPatrick would probably top the list. There would be queues among TDs to shout at him and accuse him of everything under the sun. And the setting would be quasi-judicial – the description of the inquiries in the draft bill allows for cross examination paints a picture very much akin to a trial. As an inquiry it would generate more heat than light. As a quasi-trial it would be acceptable if the individuals being investigated has recourse to the courts to protect their rights.

The amendment at the moment seems both ineffectual in achieving its stated goals and dangerous in its curtailment of individual rights. The government has inserted a clause that gives so much power to the Oireachtas (government) that the Oireachtas will not have to think as carefully as it might about future inquiries.

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13 thoughts on “Inquiries referendum is lazy measure that won’t empower the Oireachtas

  1. These posts are like buses; you wait ages for one and then a fleet descends on the bus-stop. As per my comment on the previous thread, this is a ‘done deal’ and has been a ‘done deal’ for a considerable period of time. And it looks like a switch of the 1959 outcome as it seems likely the people will install a non-government nominee in the Park and accept the Government’s amendments.

    This was in FG’s New Politics document in March 2010 – almost a full year before the election. That was the time to shout the odds. It smacks a little now of the ‘ivory tower academics’ bewailing the extent to which the ‘great unwashed’ have been gulled by an overmighty executive.

    However, the voters are not so easily gulled. It looks like the people will grant only one of the Government’s two desires (the judicial pay issue should never have been forced to this point by the judiciary). The people punished those elected to govern when the wheels came off, but there is still a desire to identify and punish, at least some of, the unelected who caused the wheels to come off. But refusing to install one of the Government’s nominees in the Park would be a salutary warning to Government not to presume too much about the overwhelming Dail majority it enjoys. What the people give, they can also take away.

    Long live democracy – though it would be somewhat more efficient and effective if voters were prepared to allow – and to encourage – TDs to exercise a little more scrutiny of government. Using any opportunities to vote between general elections to keep governments in line may be considered effective, but it is not efficient – and may have unintended consequences.

  2. I will vote yes on thursday so that democracy lives again, so that the ,,second republic,,, now being worked on by people not paid not of dictation but of truth for a better and just society baised on all can continue to do justice to my country and not like solicitor barristers and judges all being in a cartel of rip off with the nation not allowed to act to know real truth and the cost of this secrete society, what is now need is a legal ombudsman so the false gods must go that no person or group or ,, is a judge into themselves,,, its called self regulation and this is currupt and wrong and against we the people of ,, eire/ireland ,,,

  3. As of now no banker or person involved in making our country a bankrupt has been call to answer its time that the legal system told of how property in being registered is made into a folio and dealt with in free hold and leans of attachments to real ownership
    by title
    some can of worms waiting to be opened to the people of ireland

  4. One of the eight former AGs, John Rogers, was on today’s Drivetime. The interview (10 minutes long) is now up on the Drivetime RTE webpage http://www.rte.ie/radio1/drivetime/. It’s well worth listening to (2 hours 12 minutes into today’s show).

    Obviously he strongly advocates a no vote. He describes some of his experiences with Oireachtas committees and the Abbeylara investigation in particular. He goes even further than the chairman of referendum commission in his interpretation of subsection 4 and believes courts will have essentially no role in intervening in inquiries. Very interestingly, he finds the original wording, as advocated by the Oireachtas Committee on the Constitution in its report http://www.oireachtas.ie/documents/committees30thdail/j-constitution/reports-2011/Fifth_Report.pdf earlier this year, to be quite acceptable.

    That wording isn’t all that different to the current amendment, but he believes it *would* have allowed review by the courts. That wording was:

    “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.”

    The final line seems more suitable than proposed subsection 4 of the current amendment. It probably would give the Oireachtas a certain scope to balance private rights and the public interest. But that balance would have to be set out in legislation (couldn’t be just some arbitrary on-the-fly seat-of-the-pants decision). And, most importantly, there’s no danger of the courts being locked out. Ideally I’d also feel there probably should also be a mechanism to allow a qualified minority in the House to trigger an inquiry, and hence sidestep our strong whip system.

    I wonder why the minister didn’t simply go with the original Oireachtas committee wording?

  5. Ah, Finbar, surely you know the answer to your closing question. The Government wants FF heads – and FF-associated heads – on spikes outside of Leinster House.

    • @Paul
      Yes, courts and rights might make putting heads on spikes outside Leinster House just a little more awkward than it might otherwise need to be! 🙂 And whilst that image has a certain appeal, I do fear that in the longer run it might be a slippery slope. All the inadequacies in our criminal-justice, regulatory and governance systems will probably be lost sight of in the process. Party political retribution will be dispensed in the run-up to the next general election, and a nice glossy report of findings produced. Presumably we’ll get the kind of sham accountability that’s gone with the tribunals (some of the main actors will indeed be made to sweat for a while in front of a Dáil inquiry but will then slink back off to their generous pensions). Then the report will gather dust on some shelf in Dáil Éireann for another decade or two, until some future failure of governance/regulation starts the whole cycle all over again. I am cynic! 😉

      • Yes, but you are a true cynic in that you are knowledgeable in the ways of the world. Yet you don’t allow that world-weariness to prevent you highlighting the pitfalls of a politically convenient course of action.

        All this I fear is a ‘done deal’. There is a pent-up residual popular desire for ‘vingince’. In response to this howl of pain – and for its own narrow political ends – the Government is providing the means to craft a butcher’s table to deliver some red meat to the masses. It looks like the people will accept this, but they will, in turn, by electing a non-government nominee to the Presidency, discourage over-weening arrogance of Government.

      • paulthunt get real a murder is a MURDER a robbery is and the stealing of any thing by any means from the people is paulthunt answer this yes,, or not thou shall not steal
        we have in this country a legal system that has as on the statue on the very fore courts the image of a person holding a scales with one eye closed i say the other one is blind due to the fact that untruth lies dam lies and perjury go unpunished leaving a lie part of this one party system of a ,,,secrete society,,, cartel arranged for themselves as agents of the very court

        Can it be more clear to those that took THE Oath holding the bible

  6. Interesting take by David Gwynn Morgan in today’s IT:
    http://www.irishtimes.com/newspaper/opinion/2011/1026/1224306495955.html

    The take-away message is “this amendment should be passed because, if it isn’t, it’ll tell the Dail it’s totally useless and can’t be trusted with these powers – and that wouldn’t be a nice thing to do”.

    My reponse is that, by not passing the amendment, the Dail would be told it’s almost totally useless and that, apart from its existing powers to elect a Taoiseach and to rubber-stamp the decrees of the government subsequently formed, it will not be granted any further powers by the people unless it makes a clear case for the powers it needs and as to how it would exercise these in the public interest independently of government.

    It is interesting, though, as Sean Gallagher’s star may be on the wane, following Sinn Fein tossing in its Molotov cocktail, that opposition seems to be building to this amendment.

    The polls seemed to be indicating that a majority of voters were going to give the Government this amendment (even though all knew it would be abused to nail FF in the first instance) but they would elect an FF-linked President. It now looks like the Government might secure both of its desires, but it could be a damned close run thing.

    • you statement above ,,,,abused to nail ff in the first instance,,, is so far from real as to be unreal and nonsence The very courts have had many cases of wrong against the very citizen in their expressed judgements,,, smell the coffie they are also human beings and not gods,,, but the facts are they hold onto themselves to be gods even though they are of us also prone to original sin and mistake,,,to be independent in the exercise of their duty is but what,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,people still suffer due to this with no recourse to justice its time for truth in the first place

  7. It has been a remarkable week in politics. I had a sense that a majority of those voting would grant the Government, in particular FG, only one of its two key wishes, i.e., either the Presidency to FG (the only elected office the party has not secured) – with granting it to Labour being the fall-back – or the Constitutional amendment on Oireachtas inquiries – but not both.

    Up to last weekend it looked like the first would go to an erstwhile FF player and the Government would get its inquiries amendment. I cheerfully admit I got them the wrong way around. But it takes particular genius on the part of the Government to compel a majority of those voting on the inquiries amendment to reject the means to conduct an Oireachtas inquiry into something, the banking fiasco, that generates widespread popular interest, unease and resentment.

    I happen to think the majority of voters made the correct decision and I applaud their good sense, but, whether they realise it or not, they have been forced, implicitly, to endorse the following propositions about the roles of TDs:

    1. The first key role of TDs is to elect or oppose the election of a Taoiseach in a newly elected Dail. Once they have cast these votes they are expected to support or oppose, in line with their votes on the election of the Taoiseach, the decrees of the government subsequently formed.
    2. The second key role of TDs in a constituency is to compete among themselves to secure benefits for the constituency from the resources allocated by central government. (In reality this is a competition between TDs in the governing factions; opposition TDs are largely excluded. But if a constituency has a Minister, all the constituents’ birthdays and Christmasses could come together.)
    3. The third key role of TDs is to act as competing mini-ombudspersons on behalf of their constituents in their dealings with the full gamut of the government bureaucracy.

    There is no effective obligation on, or apparent demand by voters for, TDs to exercise effective restraint on government – an ex ante, proactive activity – or to hold government to account – an ex post, reactive activity.

    The reality is that, once TDs have performed their first key role – electing a Taoiseach – the Dail could be suspended until the next general election and TDs could focus on their remaining key roles. All that would be needed would be a roll-call once every month to ensure that TDs continued to adhere to the votes they cast in the election of a Taoiseach. (This roll-call could be taken when TDs turned up to submit their unvouched expenses.) If a number of TDs were to deviate in a roll-call from their original votes and the number were sufficient to prevent the passage of the government’s decrees, the government would have until the next month to bring the recalcitrant into line. If the Government were not successful, the Dail would be dissolved and a general election would be held.

    This, unfortunately, is the reality of parliamentary democracy in Ireland. And people wonder why we’re in the mess we’re in.

    • well said paulthunt the reality is as you printed above,leaving the elected dail no right to investigate serious wrongs, that have brought our country to be a bankrupt, the cartel arrangement over charge and money kill of the one party system the courts with solicitors barristers and senior council all agents of that cartel of self for self this in not justice but dictatorship,, with no ambsbudman on behalf of those injured or wrongly convicted,,,,, money money money money,,,,, their god and look at the 8 ags back grounds to get imformed not one of them fit to be president of this country an enquiry of them is badly needed by the people remember murder is murder stealing is robbery conspiricy is acting together with intent thus at common law no person shall be a judge unto self,, the jury system please,,, the lies live on even in the very court,,, my name is harry price and i am about to let the irish people see in print what ultimate power can do when a cover up takes place by church or the courts all self regulating and dogmatic

  8. Came across an interesting 2009 French reform to parliamentary procedures re parliamentary inquiries recently, which I though might be worth posting up on one of the previous Oireachtas inquiries threads here (see in http://www.assemblee-nationale.fr/english/synthetic_files/file-50.asp):

    “From 1988 onwards, a convention was established allowing each political group the annual right to have one such motion requesting the setting-up of a commission of inquiry included on the order paper. This convention, which had fallen into abeyance, was strengthened and re-established by the reform of the Rules of Procedure of May 27, 2009. Henceforth each chairman of an opposition or minority group may request once per ordinary session, with the exception of that preceding the renewal of the Assembly, a debate in plenary sitting on the setting-up of a commission of inquiry. For the creation of such a commission of inquiry to be rejected, the negative vote must garner the support of three-fifths of the members of the Assembly. Only M.P.s who are against such a creation take part in the ballot. ”

    This seems like quite a useful mechanism (former convention). Basically each opposition group can initiative an inquiry once a year (unless a 3/5 supermajority disagrees). I found it interesting that this setup was established merely via standing orders. I guess there’s no real reason (other than lack of will) we couldn’t do the same here for our own Dáil. It’s interesting (and perhaps a healthy sign) that the French government allows itself to be subjected to such extra scrutiny. The above article in retrospect makes a very good point about the previously proposed amendment wording: “the wording of the amendment make it possible that the Oireachtas could not even legislate to allow a minority cause a parliamentary inquiry.”

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