The creeping arrogance of the coalition

THE INITIALLY cavalier and now arrogant attitude taken by Government Ministers to the debate about the proposed referendum on Oireachtas inquiries suggests that, although just eight months in office, they are already developing an unhealthy disregard for the electorate.

It is clear that some members of the Government do not like to be questioned or challenged at all, by anyone.

The wording of the proposed amendment on Oireachtas inquiries was published in its original form just five weeks ago. The Bill to give effect to the referendum was rushed though the Oireachtas in one week. During the debate the Minister for Public Expenditure and Reform Brendan Howlin made only one concession on wording.

On the weekend before the Dáil debate I and others had argued here and elsewhere that the third paragraph of the proposed amendment, which gave the Oireachtas the power to decide “the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry”, amounted to putting high hurdles in the way of judicial supervision of such inquiries.

In response to a request from Sinn Féin’s Mary Lou McDonald during the Dáil debate, the Minister agreed to insert the words “with due regard to fair procedure” into the third paragraph of the amendment.

In a later interview with Vincent Browne, Howlin suggested, in a patronising way, that he had agreed to introduce the additional words to reassure what he implied were misguided people who disagreed with him.

In the last three weeks, however, many leading legal experts have come out against the amendment because they believe it still amounts to a significant reduction in the rights of individuals to reputation, fair procedures and justice before such a committee of inquiry.

The independent Referendum Commission has concluded that even with these additional words included, it is “not possible to state definitely what role, if any, the courts would have in reviewing the decisions of the politicians on personal rights” at these committees. At a press conference to launch the commission’s publications and in subsequent media appearances, the chairman, retired judge Dr Bryan McMahon, accepted the third paragraph of the amendment would “significantly restrict” the capacity of the courts to review the actions of politicians in such a committee. He has also advised that it would be difficult, given the current wording, for the courts in the traditional sense to review the decisions of the inquiry committee on costs. “A lot will depend,” he said, “on the factual circumstances of the particular inquiry involved and what the Houses determine. The threshold of judicial review is in this case, given the wording, is very high.”

When confronted with solid argument against the proposal, Alan Shatter on Frontline and Cabinet colleagues on other programmes have adopted a tone of affront that anyone would dare question their benign view of how such inquiries would work. When unable to advance sufficient legal argument to support their view, they resort to suggesting anyone who opposes them has a personal, professional or political interest in so doing. They sneer in a tone that reinforces concerns about giving such powers unsupervised to a legislature in which this Government has such a majority.

The Government is clearly irritated by the fact that as polling day gets closer, the text of this referendum is getting more attention and the chorus of concern is growing. Even though they suggest that those opposing them have a vested interest in tribunals, the reality is concern about this proposal is coming from an diverse range of voices.

This week – in addition to legal academics, the Irish Council for Civil Liberties and newspaper editorials – some Independent TDs and Senators also called for a No vote. Ministers have wondered aloud why some of the TDs now noisily opposing the Bill were so quiet when it was being debated in the chamber. Given the pace with which it was driven through, it is little wonder that it took three weeks of public debate to expose the difficulties with the text. In private this week, even Government backbenchers who voted for the amendment Bill four weeks ago now express doubts about the draft proposal.

In light of the Government’s attempt to disparage its opponents as being motivated by greed or political grievance, it is useful to draw attention to the strong arguments made this week against the amendment by senior counsel Oisín Quinn, who is also a significant Labour politician.

It is noteworthy that he expressed his concerns about the amendment in an address to the Association of Higher Civil Servants. While the powers of inquiry in the amendment can be used against any individual, it is public servants who have most at stake in this referendum. They are the people most likely to have their reputations impugned or collaterally damaged in these types of inquiries. It was public servants after all, in the form of members of An Garda Síochána, who had to mount a court case to stop their reputations being shredded by TDs and Senators at the Abbeylara inquiry.

Oisín Quinn told RTÉ’s Mary Wilson on Tuesday he was voting against the referendum because it would give the Oireachtas sweeping and draconian powers possibly without any right of judicial supervision. Government Ministers should listen back to his contribution on podcast. If they are so determined to be deaf to outside voices, maybe they will listen to one of their own.