The referendum to give the Oireachtas powers to conduct inquiries is seen by some as enhancing accountability, but by others as undermining the right to a good name
THE CASE FOR: PJ O'MEARA and MARK KENNEDY
The proposed system of inquiry offers an opportunity for our parliament to enhance its role and to work more effectively on behalf of the people
THE PROPOSAL that the Houses of the Oireachtas be empowered to carry out inquiries is a “leap of faith” for those who believe in the unfulfilled potential of our political institutions.
Previous attempts at inquiries have enjoyed mixed success. Even though the Dirt inquiry was widely seen as a highly effective and efficient accountability tool, this approach is not suitable for every issue. The investigative powers voters are being asked to give to the Oireachtas must be used appropriately, and sparingly.
Much debate has focused on whether this form of inquiry can work without compromising an individual’s right to procedural fairness. In this regard, Head 11 of the Draft Houses of the Oireachtas (Powers of Inquiry) Bill, 2011 requires the newly established Joint Committee on Investigations, Oversight and Petitions (JCIOP) to make rules relating to the conduct of inquiries.
Securing approval for a parliamentary inquiry will oblige the JCIOP to make an initial decision whether the particular issue merits inquiry. It can only commence, however, with the approval of the relevant House of the Oireachtas through the passing of a resolution. At each stage the committee requesting an inquiry, the JCIOP, and particular House of the Oireachtas must set out in statements why they consider the matter at issue to be of “general public importance” and why an inquiry is necessary.
While parliamentary and public discussion should refine and strengthen the basis for these investigations, we are concerned that this draft Bill does not acknowledge certain specific limitations of parliamentary inquiries.
The first report of the Dirt Inquiry recommended that parliamentary inquiries should not probe issues that are essentially of a political or policy nature. Furthermore, this draft Bill does not attempt to define the term “general public importance”, unlike the efforts of Pat Rabbitte explicitly to define the potential scope of such inquiries in the preamble to his 2010 private member’s Bill.
The draft Bill also fails to address the real need for some degree of cross-party consensus on the appropriateness of an investigation. Again, looking to the historical example, the collegial ethos of the PAC was a key factor in the success of the Dirt inquiry. It is essential that a government should not be able to initiate inquiries into politically contentious issues. For this reason, we believe that each inquiry should require two-thirds support in the respective House.
As the investigation of matters that might threaten the internal cohesion of any sub-committee could be counter-productive, it is notable that the draft Bill makes no reference to the public questioning of former or serving Cabinet ministers. In our view, any inquiry in which ministerial decision-making was a central plank of the investigation would be unsuitable material for a parliamentary inquiry – the matter is too political for this forum.
It is noteworthy that many heads of the draft Bill on matters such as investigators’ powers and the giving of evidence are based on the Commissions of Investigation Act, 2004. Indeed, some commentators have argued that commissions of inquiry are a better investigative model. They cite the excellent work of Justice Yvonne Murphy’s team in Cloyne and Dublin.
Such a model may have fewer limitations than a parliamentary inquiry but we believe that there is a clear case for the use of the latter format where matters material to the exchequer or to the legislative role of parliament are at issue. There should be room for both approaches in the accountability armoury of the State.
Parliamentary inquiries potentially represent more than just another form of investigation. The public heartily approved of politicians of different hues, such as Jim Mitchell, Seán Doherty and Pat Rabbitte, working together during the Dirt inquiry to achieve a common goal.
But while it is undeniable that the excessively adversarial nature of our political system has affected the work and reputation of our political institutions, we believe parliamentary inquiries can undo some of the damage caused by our “tribal” political party culture and potentially serve to unite public representatives in common cause to the benefit of society.
It is also significant that the referendum Bill outlines the granting of powers to the Seanad to hold its own or joint inquiries with the Dáil. This offers a real opportunity to revitalise the Seanad. Its relatively less frenetic work schedule should make Senators more available to work on an inquiry than their often busier Dáil colleagues. The perspectives and personalities of Independent members from the university constituencies and the Taoiseach’s nominees would add to the diversity of views and enhance the representative nature of the process.
The proposed system of inquiry offers an opportunity for our parliament to enhance its role and to work more effectively on behalf of the people. For this reason we believe that it should be supported on October 27th.
PJ O’Meara, a primary teacher in Cahir, Co Tipperary, served as an adviser to the late Jim Mitchell during the Dirt inquiry. Mark Kennedy, a partner at Mazars, the accountancy and consulting firm, was part of its team assisting the PAC during the Dirt inquiry.
THE CASE AGAINST: RÓNÁN MULLEN
Referendum endangers people’s right to respect for their reputations and to fair procedures
THE GOVERNMENT wants constitutional underpinning for strong parliamentary powers of inquiry into allegations of incompetence or wrongdoing. These inquiries may make damning and damaging findings about persons’ conduct. Reputations may be destroyed.
The Government holds this is fine because it will only happen if the inquiry subjects genuinely deserve it. We are asked to assume politicians can be trusted to respect people’s rights to fair procedures and natural justice.
Brendan Howlin has produced the heads of the Powers of Inquiry Bill partly to reassure us that politicians will not run amok, but will deliver quicker, cheaper inquiries than we’ve had to date.
The Minister asked the Seanad to “look beyond what happened in the past”. Presumably, beyond cases such as Re Haughey and Abbeylara where the courts found instances of non-compliance with fair procedures by Oireachtas committees. He also invoked the existence of parliamentary inquiries abroad, but without mentioning that these powers have long since fallen into disrepute in the UK.
But the constitutional amendment offers little protection against the abuse of a future Dáil majority to create a partisan and populist inquiry. It would entrust to the Oireachtas the balancing of persons’ rights with the public interest.
Granted, they must show “due regard to the principles of fair procedures”, opening up the possibility of judicial scrutiny. But the overall wording effectively warns the judiciary away from this balancing function, which is being seized instead for the Oireachtas and ultimately the government.
In general politicians are not suited to conducting any public inquiry with the potential to damage reputations. First, we tend to be very partisan. Most politicians belong to parties and much parliamentary time is spent taking pot shots at the other side.
Secondly, in this media age, the temptation to grandstand is ever-present. There is an electoral dividend to be reaped by politicians who broadcast the most aggressive opinions about society’s latest villains.
Thirdly, there is a competence issue. If our constitutional and legal traditions mean anything, we must regard an investigation of alleged wrongdoing as highly sensitive and delicate, requiring a deep awareness of legal issues and the application of particular skills. I do not believe that enough politicians have the wherewithal or focus to interrogate persons and then judge them fairly.
The job of politicians is to consider policy and legislation. When we need to discover what went wrong in various situations, the appropriate thing is to get expert persons, untroubled by public opinion, to conduct the necessary investigations and to make accurate findings that will inform our decisions.
It is also misleading for the Government to present us with a false choice between expensive old-style tribunals and cost- effective Oireachtas committees. Nobody argued the Cloyne report cost too much or took too long. That investigation was carried under the 2004 Commissions of Inquiry legislation away from the media spotlight. It did not hesitate to make findings adverse to people’s reputations. But nobody sought to impugn the competence or impartiality of the judge and her team.
This highlights the main problem with this referendum. It endangers people’s right to respect for their reputations and to fair procedures. But it offers no significant improvement in our capacity to get to the truth about wrongdoing.
Rónán Mullen is an independent Senator for the National University of Ireland
THE CASE AGAINST: PATRICIA McKENNA
Amendment may tip the balance against fairness
Anyone found guilty by an Oireachtas inquiry could argue that his or her right to a fair trial had been compromised
THE PROPOSED 30th amendment to our Constitution is being presented as a solution to two issues of public concern – political corruption and long expensive tribunals. However, this amendment, giving more power to politicians, will not guarantee that those responsible for corruption or wrongdoing are held to account and effectively sanctioned.
Politicians need to be popular to survive and are therefore heavily influenced by public opinion and the desire to be liked. This can cloud their judgment and lead to decisions that are totally counterproductive or even completely wrong. The Ivor Callely case is a good example of how politicians respond to public outrage at alleged wrongdoing. As we all now know, their response, while well intentioned, was a complete disaster.
Would it not be better to address the obvious flaws in our system, which encourage, tolerate and allow corruption and abuse?
Introducing effective accountability mechanisms and removing barriers that prevent suspected wrongdoers from being held to account before a court of law would be much safer than meddling with the separation of powers enshrined in our Constitution.
Unlike politicians, judges don’t need to be popular. They just need to be qualified and generally their decisions are not based on public opinion but on facts.
Like many, I would like to see criminal sanctions imposed on those guilty of corruption and wrongdoing. However, I believe the amendment will hinder such an outcome.
An Oireachtas inquiry will have the power to make findings but cannot impose criminal sanctions. The imposition of sanctions would require a decision of the courts. In my opinion, anyone found guilty of wrongdoing by an Oireachtas inquiry could successfully argue that his or her right to a fair trial, as guaranteed by our Constitution, had been compromised.
Do we really want to see those, say, found to have abused parliamentary expenses running to the courts, costing the taxpayers even more money, pleading for their rights? Assurances that politicians, in using their new powers, will proceed with care and restraint mean nothing in the heat of a political controversy. Better to play safe and keep the separation of powers of this State as unambiguous as possible.
This amendment, as outlined will impact on many rights protected under our Constitution, including the right to a good name and to fair procedures.
The balance of rights and fair procedures will be at the discretion of the Oireachtas, and even the Referendum Commission doesn’t know “what role, if any, the courts would have in reviewing the procedures adopted”. Allowing politicians to decide what’s fair, with no guaranteed right to challenge their decisions, should give us all cause for concern.
Patricia McKenna, a former Green MEP for Dublin, is studying law and political science at Trinity College Dublin