Inquiries proposal is a dangerous amendment

Wed, Oct 26, 2011, 01:00

We don’t have a functioning parliament so inquiries would be government controlled, writes VINCENT BROWNE

THE PEOPLE seem about to make two serious errors at the polls tomorrow: one, to elect Seán Gallagher as president; the other to approve of the amendment to the Constitution providing for Oireachtas inquiries. One of these mistakes won’t amount to a lot, although it may prove damaging to the national psyche at a time when it has suffered a lot of damage already. The other mistake could amount to a great deal.

The worst that could happen in electing Seán Gallagher as president is that, over a period of several months from now, new revelations emerge about his business dealings that would force him to resign or, in the absence of resignation, would do damage to the office of president. We hardly need a president who is going to be the focus of a scandal inquiry right from the beginning of their presidency, and perhaps involve the intervention of the Director of Corporate Enforcement.

We are also likely to hear far more about the extent of his involvement in Fianna Fáil, a feature of his CV about which he has been less than candid. It is clear already that he went to considerable efforts to disguise his central role in the Dundalk Fianna Fáil money-grab venture in 2008. He pretended all he did was mention the event to a few friends but it is now obvious he was one of the organisers, which is hardly surprising since he was on the Fianna Fáil national executive at the time.

Much more serious is the amendment to the Constitution on Oireachtas inquiries.

It is clear any functioning parliament should have the capacity to hold the government of the day fully accountable, and part of the armoury for doing so is, or should be, parliamentary inquiries. But there are two huge problems associated with this, and with what is proposed.

The first problem is that we do not have a functioning parliament, and that, inevitably, parliamentary inquiries will not be used – under our system they could not be used – to hold the government of the day accountable. This is because, in our system, governments control parliament and control committees of parliament, and in that regard we probably have the most dysfunctional parliament in Europe since the collapse of the communist dictatorships.

The UK parliament, the House of Commons in particular, is not great either, but even last Monday, that parliament showed its independence of government when 81 Tory backbenchers voted against the government in supporting a demand for a referendum on EU membership.

Today, German chancellor Angela Merkel has to return to the German parliament to get authority to sign a deal on an EU rescue plan. The German constitution requires her to do this, and the Bundestag will vote today on the EU deal before anything is signed in Brussels. Article 38 of the German Basic Law (the German constitution) states: “Members of the German Bundestag shall be . . . representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience,” (which means no whips system, as we have here).

This law also provides for investigative committees. Article 44 states: “[The Bundestag] shall have the right, and on the motion of one quarter of its members, to establish an investigative committee, which shall take the requisite evidence at public hearings.”

If something along those lines were proposed here, that wouldbe progress. But what is now proposed merely is to give the government further power by enabling it to hold inquiries into anything, except of course its own conduct. So the central point in holding inquiries won’t and cannot happen here because of the way the government controls parliament.

There is a further problem, and it is that the constitutional amendment could preclude the courts from having any role in preventing abuses by Oireachtas inquiries of citizens’ rights and entitlements, and access to fair procedures. Minister for Public Expenditure and Reform Brendan Howlin, who is sponsoring this amendment, has stated his advice from the Attorney General is “crystal clear” that the courts will have oversight. I asked for this advice to be made public, and this was refused.

I asked Howlin why, if the courts have the ultimate authority to adjudicate on fair procedures, this is not stated in the amendment, his reply was it was “crystal clear” the courts could intervene.

The relevant part of the proposed amendment states: “It shall be for the House or Houses to determine, with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for purposes of ensuring an effective enquiry into .”

Where is the “crystal clear” here? If this is passed, it will almost certainly never be repealed in the lifetimes of a majority of the people who will endorse it. Every successive government will have a vested interest in maintaining an inquiry process it can control. Under our bizarre system, no constitutional amendment can ever get on the agenda without the approval of the government.

Yes, we need to reform the system. But this reform would just make it worse. This is the most dangerous constitutional amendment ever proposed since this Constitution was enacted. It should be defeated.

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