What issues will I be asked to vote on?
On Thursday next, as well as voting for the next president, you will be asked to decide on two proposed amendments to Bunreacht na hÉireann/Constitution of Ireland.
One is about cutting judges’ pay under certain conditions and the other concerns the powers of the Dáil and Seanad to carry out inquiries into matters of general public importance.
So what’s the problem with TDs and Senators conducting such an investigation?
The difficulty some people have with it is that the Houses of the Oireachtas would be given the power to make findings of fact about any person’s conduct.
Who would protect the rights of the citizen in such a situation?
The Dáil and/or the Seanad would be entitled to decide what was the correct balance between the public interest and the rights of an individual involved in an inquiry.
The principles of fair procedures set out by the Constitution and the courts would have to be taken into account.
But surely TDs and Senators already have these powers of inquiry?
They may investigate the conduct of their own colleagues at Leinster House – as they did with Senator Ivor Callely – and impose sanctions under certain circumstances. They also have a role in inquiring into the behaviour of the president and the judiciary. They may also conduct inquiries related to their functions as legislators but at present cannot make findings of fact which impugn the good name of anybody else.
Who set down this restriction?
The Supreme Court, in what is usually called the Abbeylara judgment. An Oireachtas sub-committee had begun an inquiry into the stand-off at Abbeylara where John Carthy (27) was shot dead on April 20th, 2000.
Gardaí were compelled to appear and give evidence and the subcommittee functioned on the basis that it could make findings as to the causes of the fatal shooting and, if necessary, determine whether or not individual gardaí were responsible for Mr Carthy’s death.
The issue went to the Supreme Court which ruled in essence that the Oireachtas had no power to make findings which adversely affected the good name of any person, other than a member of the Dáil or Seanad.
So what are the implications of this amendment, if we vote for it?
Firstly, the Dáil and/or Seanad would be empowered to conduct an inquiry into any matter that either or both of them considers to be of general public importance, eg the banking crisis or the state of the health services, or any other subject they deemed suitable.
Secondly, as part of such an inquiry, they would be able to investigate the conduct of any person and reach findings about it, provided they were relevant to the subject under consideration.
Thirdly, the Houses of the Oireachtas would be able to decide the appropriate balance between the rights of those appearing before it and the need, in the public interest, to carry out an effective inquiry.
They would be specifically required to have “due regard to the principles of fair procedures” established by the Constitution and the courts.
So who decides what is a “matter of general public importance”?
The Dáil and/or Seanad would decide the subject of the inquiry.
Would there be any comeback or restriction on that?
In principle, the courts could be asked for a review, but the Referendum Commission points out that, “it would be difficult to challenge successfully any such decision by the Dáil and/or the Seanad, given the wording of the amendment” .
So could an Oireachtas committee decide that a particular individual had behaved corruptly or was responsible for an unlawful killing?
Yes, provided this was relevant to the subject of the inquiry. Unlike the courts, however, the Oireachtas would not have the power of imposing fines or terms of imprisonment, nor could it make an award for damages.
Clearly, however, that person’s reputation would be seriously affected.
Who decides what having “due regard for the principles of fair procedures” means in this context?
Fair procedures include the right to defend yourself against allegations and may extend to the right to be represented by a lawyer.
The Dáil and/or Seanad would decide what was appropriate but the Referendum Commission says: “It is not possible to state definitively what role, if any, the courts would have in reviewing the procedures adopted by the Houses.”
Give me three arguments for and three against
Minister for Public Expenditure and Reform Brendan Howlin said that “an effective system of inquiry which can secure effective and cost-efficient parliamentary scrutiny of issues of significant public importance is essential in facilitating more open, transparent and better Government”.
The Irish Council for Civil Liberties believes, on the other hand, that “these proposals are rushed and ill-considered and do not strike the right balance between the public interest and individual rights”.
Fianna Fáil officially supports the amendment.
Party spokesman on public expenditure and reform Seán Fleming points out: “The Oireachtas has, for the last number of years, outsourced its investigations to tribunals and we all know it has taken decades and hundreds of millions in costs.”
However, his party colleague, spokesman on health Billy Kelleher, is voting No on the basis that the new powers are excessive and the legislation for the amendment “tramples on people’s rights”.
Sinn Féin’s Mary Lou McDonald says her party is calling for a Yes vote, “as we believe there are significant public policy benefits to be got from an effective system of parliamentary inquiry”.
However, Independent TD Catherine Murphy believes the constitutional amendment is “ill-judged” and “open to abuse” and she points out that the committees are all controlled by the Government.
Where can I get further information?
Check out the following website: referendum2011.ie