The people clearly do not trust politicians to be judges


ANALYSIS:THE GOVERNMENT has suffered a humiliating defeat in losing the amendment of Oireachtas inquiries.

With the exception of the United Left Alliance and Independents in the Dáil, and one or two individual Fianna Fáil TDs, there was unanimity across the political spectrum in favour of the inquiries amendment.

The politicians failed to counter the unease that started to build up when a handful of legal academics and commentators first expressed misgivings about the powers it gave any such inquiry to decide on the extent of the rights of any person appearing before it.

While the sponsoring Minister, Brendan Howlin, stressed that people would still have the right to go to the courts, as is everyone’s constitutional right, it was clear to many that the amendment, if passed, could affect the reception they would receive when they got there. It was quite likely the judges would then rule that the people had decided to put the decision on the balance between the rights of the individual and the public interest into the hands of the Oireachtas committee, and the court could not overturn this decision.

While many people support the principle that the Oireachtas should have more powers to conduct inquiries, they clearly do not trust politicians with the power to decide upon their rights. Anyone who read the Supreme Court and High Court judgments on the Abbeylara inquiry would understand why – that inquiry was conducted in a manner that rode roughshod over fundamental rights, and the courts so found.

When the Government goes back to the drawing board, its members would do well to re-read, with humility, that judgment and take on board its criticism in designing a system for Oireachtas inquiries.

The people have spoken clearly – they do not trust politicians to be judges, to have power to decide on the rights of citizens, and they want the courts to be able to exercise oversight.

They want a system of government that has checks and balances, and where executive power is not untrammelled.

In the referendum on judges’ pay 80 per cent of voters voted Yes and 20 per cent voted No, in a context when not a single political figure had opposed the amendment, and even those retired judges and lawyers who expressed misgivings accepted the principal of the pay reductions and had concerns only about the mechanism for doing so.

A memorandum from the judiciary and an article from former chief justice, Mr Justice Ronan Keane, suggested that reductions should be set by an independent body rather than directly by the government of the day, but this suggestion was not discussed by the Coalition.

Yet one in five of the electorate were sufficiently nervous about the proposal to vote No. The Government must now make good its claims prior to the referendum that it did not diminish judicial independence.

In relation to the pay issue, the amendment does not preclude the setting up of a body independent of government to decide on reductions in pay.

That does not require any additional expense – a body composed of, for example, the Comptroller and Auditor General, the Ombudsman and the chairman of the Review Body on Higher Remuneration in the Public Service, would serve.

But there is a need to go further to enhance public confidence in the independence of the judiciary, by depoliticising judicial appointments.

That has been done successfully in England and Wales, where an independent body makes recommendations to the government and if the minister for home affairs repeatedly rejects a recommendation he or she must give a written explanation.

These measures would go a long way towards strengthening public confidence in the judiciary and its independence and would underwrite the system of checks and balances embedded in our Constitution.