Amendment on inquiries vital to better Constitution


OPINION:Objectors to change proposed fail to realise it will be interpreted in the context of the rest of the Constitution, writes DAVID GWYNN MORGAN

EVERYONE WILL have noticed the House of Commons Culture and Media Committee’s inquiry into the phone-hacking at Rupert Murdoch’s News International, and many will recall the late Jim Mitchell’s Public Accounts Committee inquiry (assisted by the comptroller and auditor general) into the non-payment of Dirt.

Neither of these would be lawful in Ireland today. The reason is the landmark (or landmine) case of Abbeylara, which it is the object of the 30th amendment to modify.

The case centred on an Oireachtas inquiry into an alleged unlawful killing – so that this was the proverbial hard case which duly produced bad law. The gist of the law laid down is that the Oireachtas is barred from holding inquiries which reach the conclusion that public servants or anyone else had misconducted themselves.

Abbeylara cast a long shadow. The Oireachtas inquiry of 2002 into the overspend on the mini-CTC signalling system had to be aborted. Again, in 2008-2009, three sets of people – the Fás director of corporate affairs, Anglo Irish Bank external auditors, and Seán FitzPatrick – declined to appear before Oireachtas committees, and the committees climbed down.

The worst outcome of Abbeylara is that the Public Accounts Committee has been advised – and has acted on the basis – that it cannot reach findings against an official whose behaviour it has investigated and found to be wanting, for instance, where there has been a systematic widespread abuse of expenses.

A convention has been consistently observed, since Independence, that the opposition parties take half of the places on the committee – and provide the chairperson.

In other words, it is a responsible, non-partisan body. One is bound to ask, given the centrality of the finance function in overseeing government, if an effective committee is verboten, is there any point in having a parliament?

Those who oppose the amendment seem to do so by undervaluing the need for an effective democratic parliament and by over-egging the width of the power conferred by the proposed amendment.

Admittedly, this is a difficult technical area in which it is easy for lawyers to blind non-lawyers with science.

Two points regarding the wording of the amendment seem important.

First, this should not be looked at in isolation from the rest of the Constitution because if the words of the amendment ever came to be interpreted by a court, they would be read in the context of relevant provisions in the existing Constitution.

The most relevant of these is article 34.4.1 – “ . . . the High Court [has] full original jurisdiction . . . to determine all matters and questions whether of law or fact . . .” – as authoritatively interpreted in Tormey v Ireland[1985] IRT 89.

This makes it clear that judicial review, the leading principle of the Constitution, cannot be uprooted. If the court considered that there was any tension between this principle and the words of the amendment, it would have to reach a harmonious interpretation giving due weight to each of the two constitutional provisions.

After doing this, no court could take the view that it did not have jurisdiction, if necessary, to enforce a citizen’s rights against the Oireachtas.

Second, the amendment states that “it shall be for the House . . . to determine, with due regard to principles of fair procedure, the appropriate balance between the rights of persons and the public interest for the purposes of insuring an effective inquiry . . .”

In my view, the phrase “the principles of fair procedure” is not governed by “it shall be for the House to determine . . .” This phrase applies only to the later question of balancing the rights of persons and the public interest against each other.

This means that it remains open to the court to decide fair procedure issues (sometimes known as constitutional justice), in the context of an Oireachtas inquiry. Thus, as now, the court would decide such questions as whether to allow cross-examination or legal representation and, above all, whether a particular member should be excluded from a committee on the grounds of bias.

The Oireachtas inquiries amendment is intended as part of a package. The Dáil committee system is to be strengthened now and the Seanad abolished next year.

If this amendment were to be rejected, I believe it would be better to keep the Seanad and get rid of the Dáil, rather than retaining it as a sort of constitutional museum piece.

If this were done, governments could be directly elected by the people, without the present formalistic process of nomination by the Dáil.

The Seanad is probably better at reviewing legislation; and the media, even with all the deficiencies arising from its attention deficit disorder and mission for infotainment, would probably be better at calling the government and public service to account than the kind of impotent Dáil we have at the moment.

Indeed, if the amendment is defeated, the Dáil would naturally regard this as a motion of no confidence in it, by the people. It would be humiliated and unlikely to take any kind of effective action to inform itself or to control the Government or the powerful vested interests in which Ireland abounds.

David Gwynn Morgan is emeritus professor of law at University College Cork

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