A flawed amendment

 

THE DEBATES that have begun belatedly on the two constitutional referendums next week – on judicial pay, and the right of the Oireachtas to conduct inquiries – have focused on maintaining the right balance between the powers of the pillars of the State, the executive, legislature, and judiciary. For some critics the proposals represent an almost sinister, linked attempt to expand the power of the executive at the expense ultimately of the citizen.

That is to overstate the case, but there is rightly concern that Government discretion over judges’ pay would undermine their independence. And, fears that political control of inquiries, their remit and procedures, without effective review by the courts, may give politicians and the executive, through its tight control of the legislature, both the power to trample on individuals’ rights to a good name and draconian powers of search and seizure. Politicians being politicians, the argument goes, they will abuse such powers, and have shown as much in their conducts of the Abbeylara and Callely inquiries.

In a climate of deep hostility to the political class, however, such an argument should be treated with caution. Restoring faith in politics by reforming the political system will require enhancing the role of backbench TDs and senators to allow them to take on a role of holding institutions, the executive, and individuals, to account through a more independent committee system and parliamentary inquiries. Senator Ronan Mullen’s view in these pages recently that the politician’s job is merely “to consider policy and legislation” is far too limited. Parliamentary inquiries, common to most jurisdictions, are not only likely to be a cheaper and more expeditious means of examining issues of public concern than our traditional tribunals of inquiry, but can also be an important means of transforming the credibility of parliament and public accountability.

Such inquiries will inevitably come to findings of fact about individuals and their reputations (although, unlike a court, such “political” findings will not carry with them the threat of punishment). But the right to a good name and fair procedure need not be sacrificed.

The question is whether, as Minister for Public Reform Brendan Howlin insists it will not, the amendment compromises those rights allowing the Oireachtas itself to define an inquiry’s mandate and modus operandi. The section of the proposed amendment states that it “shall be for the House or Houses to determine the appropriate balance between the rights of persons and the public interest” in such an inquiry. In judicial review, Howlin argues, the courts will still have “to be satisfied with the manner in which Oireachtas inquiries have struck this crucial and delicate balance ”.

Unfortunately many legal experts take issue with Howlin and there is little doubt that the amendment does raise the threshhold on protection or rights. In the end, although a pity to throw the baby (of parliamentary inquiries) out with the bathwater, it would be better to reject this badly drafted amendment. It would be with us for ages – amend in haste, repent at leisure.