Ireland somewhat deficient in tradition of searching parliamentary inquiries
Surprise defeat of referendum reform proposal means second Bill is weaker
The general perception of a parliamentary inquiry has been coloured by the models in the United States and in Britain.
Take the oversight committee in the US Congress. The cross-examination by its ranking member, Henry Waxman, of former Lehman’s CEO Richard Fuld two years ago was ruthless, reducing the unfortunate Fuld to a quivering mess.
Similarly in the UK, anyone who watched Tom Watson’s questioning of Rupert Murdoch and Rebekah Wade during its inquiry into phone tapping by the News of the World were left in no doubt about the formidable questioning abilities of the Labour MP or of the equally formidable powers of the parliamentary inquiry system in Westminster.
The tradition of parliamentary inquiry is well established in both jurisdictions, with strong powers of compellability, investigation and reporting.
By contrast, the tradition in Ireland has been fitful. If truth be told, it has been non-existent since the 2001 High court judgement on the Abbeylara inquiry that found the Oireachtas had no powers to make adverse findings against third parties who were not TDs or Senators.
Minister for Public Expenditure and Reform Brendan Howlin has a good track record on reform. When he entered Government he prioritised returning appropriate powers of inquiry to committees to put them on a par with parliaments elsewhere.
That of course required a referendum to overcome the Abbeylara hurdle. The political calculation was that the change would have widespread popular support and would not be opposed. But it did not take account of the former Attorneys General coming together to warn of almost unfettered power being wrested by politicians who would essentially set up a parallel form of justice system.
It was an early and dispiriting defeat. When the officials in his Department went back to the drawing board, they knew that the second Bill would have to fall within the Abbeylara judgement. The Oireachtas Inquiries Bill is as muscular as could be expected in those circumstances.
In essence, it envisages five separate types of inquiry that can be held within the existing constitutional parameters.
Two are not relevant to this discusson. Of the three that are, one is a form of inquiry that distinguishes between members of the Oireachtas and ‘civilians’. The High Court ruling allowed it to continue making adverse findings against TDs and senators. The Bill allows it to extend those powers for a second type of fully fledged inquiry, into the conduct of senior civil servants and heads of public bodies.
The other type of inquiry is the one that most applies to a prospective banking investigation and makes provision for an inquiry “limited to recording and reporting evidence and making findings of uncontested fact”.
The ‘record and report’ type will allow third parties (former civil servants and officials; bank executive; and others) to appear before the committee and respond to relevant questions. However, the committee will be constrained from asking questions that will adversely affect the good name or constitutional rights of the individual, or make any finding of a similar nature. That is going to be laborious. When non-Oireachtas members will appear, much preparation will have to go into drafting questions to avoid them being loaded with accusation or innuendo.
Given that some of the civil servants and politicians who were there during the relevant period are still around, it could be that a hybrid model is employed, allowing more robust questioning of current TDs and Senators and office holders.
It is certainly an improvement on the torpor that prevailed for a decade. And there are some very strong features. There is a strong power of compellability, both of witnesses and of documents. The inquiries will almost certainly involve a long preliminary period where officials will conduct a preliminary scoping inqurity. It is the Oireachtas that will choose the committee, and the likelihood is that it will set up a special committee, to overcome the unsightly territorial jostling that has occurred between the Finance Committee and the Public Accounts Committee. The committee will have the power to set up its own terms of reference.
However, there is no doubt that Abbeylara has spancelled the powers of inquiry significantly. That said, the first hearings of the health committee on abortion legislation in January and the Galway Coroner’s inquest into Savita Halappanavar’s death showed that inquiries with even limited powers when it came to findings can be very effective if they bring in the appropriate witnesses and ask them the right questions. The public often makes up its mind based on what it has seen and heard. An Oireachtas hearing into the collapse of the Fianna Fail and Labour government in 1994 was also very effective in that regard.
Be that as it may, there are problems with an Oireachtas committee conducting such an inquiry. There is no tradition here and the backbenches are hardly replete with incisive and fearless advocates. There is a question of timing. If it is held now, will it be possible to question bank officials who may be the subject of criminal proceedings? If it is left until after, will it not be so close to the general election that it will be seen as a show trial?
There is another problem. With the prospect of former Taoisigh Brian Cowen and Bertie Ahern along with ministers from the last government appearing as witnesses, this will be a more ‘political’ inquiry than any previous one. Taoiseach Enda Kenny didn’t have his finest moments during Leaders’ Questions yesterday. He almost seemed to suggest it would be a purely political inquiry, hauling in the former government to ask them about what he termed ‘collusion’ with bankers. That gives rise to charges of a witch-hunt. Sources in Mr Howlin’s department last night gave reassurance that its scope would be much wider than that.
But the politicisation of this issue is unavoidable. The row earlier this month over John McGuinness’s suitability to chair such an inquiry was a reminder of that. Section 18 of the Act prohibits a TD from sitting on a committee where a perception of bias might arise in a reasonable person. Given the charged atmosphere following this week’s disclosures about Anglo Irish Bank, the lingering anger about the bank guarantee, and the bitterness between the Coalition parties and Fianna Fail on this issue, it will be very hard to find enough politicians who don’t have a dog in the fight to sit on such a committee.
Harry McGee is political correspondent