Balance of public interest and rights still unresolved

Tue, Nov 1, 2011, 00:00

OPINION:FALSE DICHOTOMIES lead to wrong conclusions. The people were asked to choose between “quick and efficient inquiries” and “interminable tribunals” or, sub-textually, between “elected politicians” and “fat-cat lawyers”.

It would be wrong to conclude, that, in rejecting the 30th amendment to the Constitution (the Abbeylara amendment), the people have favoured “interminable tribunals” and “fat-cat lawyers”. It would be equally wrong (and a tad self-serving) to conclude that the public is merely “confused”.

Perhaps the public is more sceptical than confused, more discerning than gullible. Perhaps the public just doesn’t like having its intelligence insulted or its credulity taken for granted by a reductive approach to issues that are acknowledged, even by proponents, to be complicated.

In January, shortly before the fall of the Fianna Fáil-Green coalition, the Oireachtas Committee on the Constitution recommended a constitutional amendment accompanied by legislation to establish a parliamentary power of inquiry. This report arose from the so-called Abbeylara case, in which the Supreme Court found that parliament had no inherent power of inquiry.

What the new Government proposed was somewhat different. As recommended by the committee, it provided for the establishment of an inherent power of inquiry and also provided that findings of fact could be made in respect of individuals.

What caused concern was the departure from the joint committee’s recommendations represented by sub-section four of the proposed amendment, which provided starkly that it would be a matter for Oireachtas committees themselves to determine the balance to be struck between the public interest in holding efficient and expeditious inquiries and the human rights of individuals affected by such inquiries. As was acknowledged in the explanatory memorandum that accompanied it, this was an unapologetic attempt to limit the degree to which the courts could review such committees’ work.

Initial criticisms – mainly from legal academics and some TDs and Senators – led to a more explicit reference to fair procedures in the controversial sub-section four and in the accompanying draft legislation, so that committees would be required to pay due regard to fair procedures in balancing the need for quick inquiries against individual rights.

This was somewhat churlishly conceded as superfluous, based on rather stubborn and highly contestable assertions about harmonious construction of the Constitution and the full original jurisdiction of the superior courts.

The sponsoring Minister insisted that the review jurisdiction of the courts would not be limited by virtue of the novel and specific provisions of sub-section four. This view was not supported by some constitutional experts, who disagreed sharply with the view of the Minister. The Referendum Commission said that it was impossible to know with certainty what level of review by the courts would be possible if the amendment was passed.

While the media performances of the commission chairman, Dr Bryan McMahon, were rigorous, fair and accessible, the advertising campaign sponsored by the commission was facile and patronising. Even allowing for a good degree of latitude in the metaphorical licence assumed by advertising professionals, comparing the choice for voters to that of children choosing between sprinkles and syrup when purchasing ice-cream cones was a metaphor too far!

In fairness, a more information-driven campaign would not have been possible in the time allowed by Government.

In the final week before the referendum, a No campaign was launched by the Irish Council for Civil Liberties, with high-profile support from Independent politicians and other heavyweights like Mary O’Rourke and Maurice Hayes. An unprecedented last-minute intervention by eight former attorneys general, which was laconically but emphatically critical of the 29th and 30th constitutional amendments, prompted a dismissive and cantankerous reaction from Government spokespersons.

This confirmed the earlier Government tactic of engaging in over-simplifications, bullying rather than convincing or cajoling, and dismissing serious arguments as fanciful or cynical.

Now, we are exactly where we were after the Supreme Court’s decision in the Abbeylara case. There is still no inherent right of parliament to inquire in circumstances bearing upon the conduct and reputation of individuals.

Most independent opponents of the 30th amendment support a power of parliamentary inquiry in principle. There is also a strong consensus in favour of such a power from mainstream political parties. Establishing an effective power of inquiry is seen as one of the ways of addressing the emasculation of parliament, although not all are convinced that such a power will remain beyond the control of the executive.

The practical challenge for Government is to figure out a way forward that accepts the need for modification of what has been rejected democratically and that strikes a fair balance between the public interest in expeditious inquiries and the no less legitimate public interest in the protection of individual rights.

The answer may actually lie in the January report of the Oireachtas Committee on the Constitution. The reasons for not fully adopting its recommendations – it struck a fairer balance between robust/efficient inquiry and individual rights – have not been adequately explained.

It is vital to separate investigative functions from inquiry powers. The system of parliamentary investigators contained in the draft legislation that accompanied the 30th amendment, while allowing for some “outsourcing” of investigative work to expert investigators, did not provide for sufficient “distance” from the political operations of parliament.

The model of the Dirt inquiry, which was constantly pleaded as an example of what might work well, was a political inquiry carried out after the investigative heavy-lifting had been done by the Comptroller and Auditor General, a constitutionally recognised and protected office.

Consideration should now be given to reconfiguring the office of the Ombudsman as a constitutionally recognised office with stronger and clearer links to the Oireachtas and with a mandate to carry out or oversee the investigative work to resource future parliamentary inquiries, once an effective power of inquiry can be inserted into the Constitution.

This will require a more nuanced constitutional amendment with additional provision for constitutional recognition of the ombudsman as an emanation of parliament, as well as appropriately redrafted accompanying legislation available well in advance of any referendum.

Any power of parliamentary inquiry must be stitched into the pre-existing inquiry superstructure that includes tribunals of inquiry and commissions of investigation. A power of parliamentary inquiry is not an alternative to these mechanisms, it is a complementary mechanism.

Donncha O’Connell is a lecturer in the school of law at NUI Galway, where he teaches constitutional law and European Human Rights.

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