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.