DONNCHA O'CONNELLargues that the office of the Ombudsman should be given constitutional recognition
THERE APPEARS to be some momentum towards systemic political reform of a potentially radical kind. It remains to be seen whether this is a genuine response to a real crisis of confidence in the political system or an elite concern of those in the so-called “Leinster House bubble”.
“Radical” is not a bad word and is too casually used as a synonym for “extreme”. Radicalism requires us to address the roots of problems. It is imperative that we consider radically the current imbalance in power between the Executive and parliament, whether this is an instance of constitutional accident or design.
It is possible to read the majority Supreme Court decision in Maguire -v- Ardagh, the case that concerned the parliamentary inquiry into the shooting of John Carthy by members of An Garda Síochána at Abbeylara as merely an impediment to the kinds of parliamentary investigations that might lead to adverse findings inimical to the good name of certain citizens. The better view appears to be that it also limits the capacity of the Oireachtas to legislate to allow for such inquiries without falling foul of the Constitution. It is, therefore, the case that some form of constitutional amendment is required to enable appropriate legislative provision to be made for a full power of parliamentary inquiry.
Parliament, as the organ of State that directly represents the sovereign people, does have a legitimate interest in conducting inquiries if only as an instance of the balance of power that must exist in a constitutional system that values the separation of powers. That does not mean that such inquiries must always be carried out directly by parliament
Various inquiry functions are already “out-sourced” to statutory bodies. The ombudsman has extensive powers to inquire into issues of alleged “maladministration” and report thereon, if necessary, to parliament. The Irish Human Rights Commission (IHRC) has an explicit statutory power to carry out inquiries but, for a variety of reasons including funding restrictions, it has not realised the full promise of its founding legislation in exercising this and, indeed, other powers.
These types of inquiry powers could be more effectively exercised if there were stronger connections between the office of ombudsman and the IHRC and if both were more explicitly identified in law as parliamentary emanations. Both, but especially the IHRC, would also require much greater budgetary autonomy from the Executive and more transparent appointments procedures focused on ensuring real independence.
In order to recreate effective agencies of inquiry I would suggest appropriate legislative and constitutional change to protect such a system of parliamentary emanations that resource parliament in the discharge of its essential power of inquiry. The office of ombudsman should be given clear constitutional recognition (akin to that given to the Comptroller and Auditor General) as an emanation of parliament tasked with, inter alia, the power to conduct inquiries of its own motion and at the behest of parliament.
Such a reconfigured framework office should have a penumbral remit that covers analogous inquiry powers and functions exercised by statutory bodies like the IHRC, sharing the kind of political protection that would come with explicit recognition in the Constitution.
It would be vital also to address the deficit, identified by the IHRC, arising from the absence of a designated parliamentary committee into which the commission reports. The creation of a new constitutionally protected office of ombudsman, with a clear and strong connection to parliament, would suggest a need to reconfigure the parliamentary committee system so as to fully realise the value of this office.
If we look for a model of what has worked by way of parliamentary inquiry the Dirt inquiry of 1999-2000 is usually proffered as an example. This is instructive. The Public Accounts Committee in that instance was working from a preliminary report prepared by the CAG, an office that is referenced in and protected by the Constitution. It, therefore, had professionally gathered and reliable information on which to conduct a legitimate political inquiry. A similarly empowered office of ombudsman (including other statutory agencies with inquiry powers) could perform an equally valuable investigative role beyond those areas covered by the CAG so as to resource legitimate inquiries by parliament.
This would not be entirely dissimilar to the proposal for the establishment of “parliamentary inspectors”, made recently by Fine Gael and the Labour Party, but the creation of some distance between parliament and its emanations, especially in the conduct of inquiries, might be a more appropriate way to proceed. For that reason I believe that it would be better to locate the investigative resources of parliament in an independent but appropriately connected office of ombudsman. The inquiry power of parliament would not be diluted by the delegation of investigative functions.
If the office of ombudsman was “constitutionalised”, bringing within its constitutional remit the inquiry powers of other bodies such as the IHRC, it would also require consequential reforms to the office of Attorney General (AG) to address the real potential for conflict of interest in that office. As currently conceived of by the Constitution and statute, the AG has a role to advise the Government on legal matters and protect the public interest. The latter role ought more appropriately to be reallocated to a constitutionally recognised office of ombudsman.
To make provision for a parliamentary power of inquiry in the foregoing terms is, arguably, of minor importance in the greater scheme of political and constitutional things. Although it calls for some constitutional amendment more fundamental constitutional adjustments are required to achieve a more equitable and effective balance of powers constitutionally.
This is an edited version of a submission to the Oireachtas Joint Committee on the Constitution; Donncha O’Connell lectures in the School of Law, NUI Galway and is the editor of the Irish Human Rights Law Review published by Clarus Press. A full version of the submission is available at: www.nuigalway.ie/law.