Fianna Fáil failed one of its key early tests as a parliamentary opposition, writes NOEL WHELAN
THE GOVERNMENT’S contention that voters were confused about last week’s referendum on Oireachtas inquiries is completely self-serving. Several Ministers and commentators have listed reasons for the defeat of the referendum but most have omitted the most important one. It was a bad proposal: the voters understood why and they rejected it.
The power to propose constitutional amendments is one of the most significant powers held by our legislature. The way in which this referendum was dealt with in the Oireachtas last September represents a great failing of parliamentary power.
The proposal was billed as a key tenet of what the Government claimed would be an extensive programme to redress the balance between the government and the Oireachtas.
The great irony is that the manner in which this proposal was rushed through the Dáil and Seanad suggests this Government has as little regard for parliament as its predecessor.
Now that the referendum has been defeated, it is instructive to look back at the Dáil and Seanad debates on the referendum Bill.
The two crucial stages of any Bill are the second and committee stages. The second stage of the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 was dealt with in about two hours on the afternoon of Thursday September 15th.
The Dáil adjourned over the weekend and when it next met the following Tuesday afternoon, it got stuck into committee stage of the Bill. This also lasted about two hours.
In the Dáil debate, Minister for Public Expenditure and Reform Brendan Howlin suggested the proposal he was advancing represented the culmination of a year’s work by the previous Dáil’s All-Party Oireachtas Committee on the Constitution.
He claimed the proposed wording was “closely in line” with that committee’s recommendations.
However, what was not made clear in the debate was that the crucial third paragraph of the amendment, allowing the Oireachtas itself rather than the courts to determine the balance between personal rights and the public interest, was not in the wording recommended by the all-party committee.
In the Dáil, Fianna Fáil welcomed the proposals and, although expressing some mild reservations about the third paragraph, voted for the Bill at both stages.
Their stance was curious because senior counsel Jim O’Callaghan, the legal adviser to the Fianna Fáil front bench, not only expressed reservations to the parliamentary party members, he later, as a member of Dublin City Council, publicly campaigned against the referendum.
His efforts included door-to-door distribution of an effective leaflet warning of McCarthyism.
Despite these legal reservations the Fianna Fáil front bench decided to support the legislation.
In another peculiar twist, three members of the front bench – Niall Collins, Billy Kelleher and John McGuinness – having voted for the referendum proposal in the Dáil, subsequently publicly opposed it.
Privately this week, several Fianna Fáil frontbenchers accepted that they dropped the ball on this referendum.
It seems that political rather than legal or legislative considerations shaped the Fianna Fáil approach. They were afraid of being seen to oppose a proposal being touted as the means to hold the bankers to account and were unable to resist that characterisation.
Put simply, Fianna Fáil flunked one of the key early tests as a parliamentary opposition.
In the Dáil, Sinn Féin supported the proposal in principle and voted for it at both stages. They raised concerns about the third paragraph and it was in response to these concerns that Mr Howlin included the words “with due regard to the principles of fair procedures”. Sinn Féin enthusiastically accepted the Minister’s nine-word amendment as having addressed their concerns and campaigned for a Yes vote.
They continued to do so after several legal authorities and the Referendum Commission itself pointed out that notwithstanding the inclusion of these words, it was still unclear what, if any, role the courts would have in reviewing the way TDs and Senators used the new inquiry powers.
A number of Independent TDs spoke strongly against the proposal in the Dáil debate. Kildare deputy Catherine Murphy made the most effective and considered contributions opposing the Bill. The vote on the second stage in the Dáil was 99 tá to 11 níl and on committee stage was 111 to 10.
The Seanad debate was even more truncated. Both the second and committee stages were dealt with on the afternoon of September 22nd.
Several Senators, even those supporting the proposal, complained about the rushed debate, with one Senator frankly admitting that the limited time since the Bill’s publication meant he had not read it.
Indeed, at one point it became clear that some Senators were operating from an early text that did not include the amendment made by the Dáil.
The only substantial contribution against the Bill in the Seanad came from Independent Senator Ronan Mullen, who ventilated many of the arguments that later proved persuasive in the public debate. Only 28 of our 60 Senators were present for the committee stage vote on the Bill. Of those, just three voted against it: Senators Mullen, Jillian Van Turnhout and Katherine Zappone.
In fairness to Howlin, he was present for both the Dáil and Seanad debates. He was measured and informed in his contributions and generous in his attitude to the views of other members.
The difficulty, however, was that the debate in the Oireachtas was rushed, with insufficient time for debate in either House or for consideration of the proposal before or between the different stages.
As a consequence there was only cursory assessment of the crucial third paragraph of the constitutional change.
One would expect that something as significant as the text of a proposed constitutional amendment would attract extended and detailed parliamentary scrutiny. Ironically in passing this specific proposal to extend its own role and function, our parliament failed to appropriately and adequately exercise the role and function already assigned to it.