Sir, – Given the view of the Minister for Justice that the advice of eight former attorneys general is “simply wrong ” and “nonsense” can there be any justification for retaining the position of attorney general within government? Or is it the Minister’s view that it is only when an attorney general leaves office that his/her recommendations become incorrect and superfluous? – Yours, etc,
Sir, – The proposal (in reality three proposals) in the 30th Amendment to the Constitution Bill ought to be the subject of the most widespread public concern. In the name of giving “teeth” to parliamentary committees, it is proposed to give to the Houses of the Oireachtas three entirely novel and far-reaching powers:
(a) “Each House shall have the power to conduct and inquiry . . . into any matter stated by the House or Houses concerned to be of general public importance.”
(b)“. . .the conduct of any person . . . may be investigated and the House or Houses concerned may make findings in respect of the conduct of that person . . .”
(c) “It shall be for the House or Houses concerned to determine . . . the appropriate balance between the rights of persons and the public interest . . .”
In truth, parliamentary democracy is the social contract in action; in its fundamental and real essence it is civilised society’s alternative to mob rule.
Parliament is invested by the people with power to make rules and regulations on an extraordinary range of matters affecting the lives and conduct of private citizens. In exchange, the Constitution guarantees a broad range of protections to the private citizen against the abuse of that power. It is fundamental to that contract that there should be an independent arbiter in any dispute between the citizen and the State.
Elected representatives may be taken broadly to reflect public opinion, which may on some occasions present itself as anger, prejudice or resentment. It should be inconceivable that persons reflecting those views would be the sole arbiters of (a) what is a matter of public importance; (b) which person’s conduct should be investigated; (c) what findings should be made about such a person’s conduct; (d) what evidence would be admitted for or against such a person, and (d) what right of reply, if any, the person will have.
The true menace of this proposal is not that it may inadvertently compromise some of the citizen’s safeguards, but rather that it is specifically structured to allow very many of them to be circumvented at the discretion of members of either House. – Yours, etc,
Sir, – The Dirt inquiry has been pointed to by the Tánaiste and others as an example of how an inquiry by a Dáil committee can be successfully conducted. Whereas the Tánaiste is right to claim some credit for the membership of the committee, the structure and preparation provided by the attorney general’s office were key to its success.
I was attorney general at that time and the constitutional parameters were clearly explained to the participants in advance. In particular, it was understood that findings of fact relating to the central issues could be made and sent in a report to the Dáil for debate. However, findings relating to the responsibility of individuals must be avoided. That is the work of the legal system where the appropriate protections relating to the citizen’s good name exist. A senior counsel was appointed to sit with the chairman of the committee and provide legal direction.
For these and other reasons the Dirt inquiry was a success. And so it could be again under the current constitutional structure without the proposed amendment. – Yours, etc
Sir, – Some commentators have expressed the opinion that an inquiry such as the Murphy or Ryan investigations would be a much better and fairer system of conducting a public inquiry rather than entrusting this task to the elected members of the Oireachtas. I suspect that such commentators have never discussed this opinion with a person who was adversarily questioned by either inquiry. There appears to be the assumption that because a matter is investigated by a judge the findings are automatically factual and free from error.
It is also noteworthy that the lawyers who are now bellowing for a No vote have been silent when exorbitant fees were being paid to their colleagues at the recent tribunals. – Yours, etc,
Sir, – In May 2000 comments by Mary Harney in the Dáil played a significant part in a court finding that Charles J Haughey could not get a fair trial.
If the 30th Amendment is passed, the Oireachtas will have the power to run inquiries, decide on the appropriate balance between the public interest and the rights of individuals and make findings of fact.
If such findings are made in matters where criminal charges could result and the Oireachtas gets the balance wrong, it is likely that sooner or later somebody who is accused of serious wrong-doing could not be prosecuted.
There is a real risk that such inquiries could swap the criminal justice system for the ability of politicians to gain more media exposure. This does not appear to be an appropriate balance.– Yours, etc
Sir, – As a member of the Oireachtas – to whom dangerous new powers are proposed to be in entrusted in tomorrow’s referendum – I am incredulous. I am one of the last people on God’s Earth suitable to be given such a golden opportunity to target political opponents.
In case I am accused of false modesty there are 225 other citizens who are equally underqualified to exercise this unsolicited gift. 165 of them are TDs. The other 60 are Senators. – Yours, etc,
Sir, – Reading the many signatures of former attorneys general on a letter to you (October 24th) makes me wonder what collective noun could be used to describe such a distinguished bunch.
A pique of . . ., perhaps? – Yours, etc,
Sir, – On the one hand the country is being asked to allow the executive to reduce the incomes of the judiciary, and retroactively, at any point it sees fit.
On the other, the country is being asked to bestow the powers of the judiciary and the police upon the temporarily elected executive and legislature, including the powers to initiate inquiries into the background and actions of any individual incurring their suspicion; of search and seizure, entry into the private home, determining what, if any, legal representation a suspect individual may rely on; compelling witnesses and making findings of legal fact.
Of course, being politicians, there will equally be those cases which will never attract their attention, determined by considerations of populism, clientelism, cronyism, nepotism and many more “-isms”, I am sure.
In the event of these amendments being passed by the people, it would appear the judiciary and the entire apparatus of the courts is superannuated. Why not simply get rid of all the accoutrements and institutions of judiciary and lawyers and put the savings into paying for the new Star Chambers? I’ve no doubt our elected representatives and the religio-industrial-financial interests that in this country control those whom we elect would be delighted with such an efficiency. – Yours, etc,
Sir, – The dramatic intervention by eight former attorneys general is a shameful effort to protect the the most profitable and cossetted profession in this broken and bankrupt republic. Crying wolf with regard to our citizens’ constitutional rights really takes the legal biscuit. Let us recall their interventions on our behalf during the disgraceful governance by government and banking regulators during the Celtic Tiger years.
Where were they when their learned colleagues negotiated huge and immoral tribunal daily rates? Racking up over €300 million to be paid for from the public purse. The net result for such huge cost is nothing, no one found accountable.
Perhaps the politicians should be given at least one term to see if they can do better than our super- paid and selfish barristers. I of course recognise that a large amount of solicitors and juniors work on the clippings of tin to survive, but surely this shows how their cosy self-regulation needs to be radically changed. Vote Yes to both amendments at least we can change the politicians and monitor their wages. – Yours, etc,
Sir, – I do not often find myself in agreement with Peter Sutherland, but he and the seven other former attorneys general are correct in pointing out that the proposal in relation to Oireachtas inquiries will seriously weaken the right of individual citizens to protect their good name.
In fact, according to the document I received from the Referendum Commission, the amendment would give politicians the right to set up an inquiry into any matter they decide is of public importance and to then investigate any person’s conduct in relation to that inquiry. Most disturbing, perhaps, is the clause that spells out that it is also for the same politicians to decide whether that person’s rights are being balanced with the requirements of the public interest.
This means they will decide, for example, if you are entitled to be represented by a lawyer – a right which is automatically granted in a court of law.
The amendment would grant sweeping powers to already powerful people – ie politicians – and the extent of these powers are not fully explained in the Referendum Commission’s booklet.
For example, the draft legislation accompanying the amendment gives the Oireachtas Committee power to appoint investigators with power to enter and search people’s homes or businesses. Yet most people are completely unaware of this accompanying legislation, and it is in fact, only available on the Department of Public Expenditure and Reform’s website. It’s not even linked on the Referendum Commission’s website.
This proposal is being rushed through with little consideration and even less debate. At a time of great political and economic uncertainty that is unwise. – Yours, etc,
Sir, – Before polling day could the Government please tell us how much it expects to save annually if the referendum on judges’ pay (Amendment 29) is passed and what the cost of the referendum is? – Yours, etc,
Sir, – These referendums tomorrow are essentially about setting the precedent of incrementally diluting the judicial system in Ireland. The only people who would be immune from any inquiry would be Oireachtas members themselves and their benefactors. Do we need any more gravy trains and quangos that are costing the hard-pressed taxpayers up to €20 billion a year? The Irish troika of Fianna Fáil, Fine Gael and Labour have loaded these boards and committees with their own backers and supporters. At the rate we’re going we’ll have more amendments than Articles in Bunreacht na hÉireann.
It is time to shout Stop! – Yours, etc,
Sir, – Surely one of the strongest reasons to vote No in the referendum on Oireachtas inquiries (Amendment 30) is the thought of what Charles Haughey might have done with such power? We may regard our present Taoiseach as a harmless fellow, but what of his successors? It is my understanding that, once these powers have been conferred on the Dáil, we cannot ever retrieve them. There may be no Seanad to act as a brake.
Have we become complacent about our democracy? We give ourselves credit for maintaining stability when most of Europe was governed by totalitarian regimes. But are we as grown-up as we think we are? Could the catastrophe which has engulfed us have been avoided, or at least mitigated, had we been questioning and vigilant? Has the Government shown great cynicism in attempting to bury this referendum in the presidential campaign: or has it shown that it understands us all too well? The depressing kneejerk childishness of the anti-lawyer comments inspires no confidence in our maturity.
Are we about to see the spectacle of citizens enabling the establishment of our very own Committee of Public Safety? There has not been sufficient examination of this proposal. Slow down. Vote No. Let us debate as serious, engaged citizens. Then put the question to us again. – Yours, etc,
Sir, – It was absolutely chilling to read the names of the eight former attorneys general who wrote against the referendum on Oireachtas inquiries in your news (October 24th). A puissant procession of bankers and friends, calling, in effect, for banks never to be investigated. There can be no doubt that powerful, baleful interests lie behind opposition to this much needed amendment. We dare not leave the State so impotent against them as it is now. – Yours, etc,
Sir, – Both of the proposed amendments to the Constitution, that we will be asked to vote for tomorrow, are highly flawed. Each of the proposed amendments represent an over-reach by the executive branch over the judicial branch. The independence of the judiciary is a crucial part of our system of checks and balances and is a guarantor of the liberty of the people. For this reason, I strongly urge voters to vote No to both referendums. – Yours, etc,
Sir, – Unnecessary and unwarranted tinkering with the Constitution can result in bizarre and unforeseen results. Abortion in this country is now permissible and legal in certain circumstances directly as a result of an ill-advised constitutional referendum designed to produce the opposite effect.
The two proposed amendments have the potential to produce very sinister and dangerous results. Giving the executive the power to control the judicial arm of the State and effectively conduct its own courts, is something which has not been seen in Europe since the days of the Third Reich.
I urge your readers to vote No and No tomorrow and preserve democracy. – Yours etc,
Sir, – If we approve the referendum on inquiries by the Oireachtas (Amendment 30), we the citizens will be giving our politicians the power to make “findings of fact”.
It truly will be a new era in Irish politics when our leaders are conferred with the ability to find out facts. Thus enlightened, they may perhaps be able to use these facts to make informed decisions. A bright future awaits. – Yours, etc,
Sir, – The Irish people are sleepwalking into a disastrous constitutional amendment, with belated input from those leaders who should have much earlier pointed out the suicidal surrender of judicial powers to the government of the day.
A Yes is a blank cheque to the Oireachtas, a carte blanche without any clear knowledge of how much of our civil liberties will be irrevocably surrendered in the process. The Government is attempting to slip it through under the smoke screen of the presidential campaign and the judges’ pay issue. Even at this 11th hour, the people must demand a full and comprehensive public debate precedes a future properly-informed vote. To ensure this we must all vote No tomorrow, so as to give a breathing space and allow for proper consideration. – Yours, etc,
Sir, – I was very suspicious, my lord, that it was bewigged passengers in legal gravy trains who constituted recent opposition to the constitution amendments. However, my suspicions deepened, my lord, when I spotted a former gravy train driver from the financial sector among the ranks (October 24th) – Yours, etc
Sir, – I agree the concept of giving the Oireachtas the power to conduct inquiries, but these inquiries must be subject to an appeal to the courts. From reading the proposed changes I have concluded that this is not clear in the wording as published.
Minister for Justice Alan Shatter’s criticism of the former attorneys general in regard to this issue is totally out of order. These men aired their views because they are concerned about the future of this country. As a result of their intervention I have re-examined the amendment in relation to the judges’ pay and I will now be voting No to both amendments. – Yours, etc,
Sir, – The activities of Senator Joseph McCarthy during this chairmanship of the senate permanent investigations subcommittee from 1952 to 1954 ruined the lives of many innocent US citizens and brought low the reputation of the US as an upholder of civil liberties and due process for its citizens.
McCarthyism is rightly regarded as something to be guarded against. Do we in Ireland now want to take the risk of spawning a home-grown McCarthy of our own by giving extra powers to our elected representatives to hold inquiries? I will vote No tomorrow. – Yours, etc,
Sir, – I understand that we now have 11 living ex-attorneys general among us. I know that some of them are drawing pensions and have been for many years despite the fact that they are also profitably employed elsewhere. Is Michael McDowell drawing an AG pension as well as his Dáil pension and his ministerial pension while still making a packet down in the Four Courts? Is Dermot Gleeson drawing his AG pension and was he taking it during his brilliant sojourn playing bank chairman with his pals in AIB? Is the great Peter Sutherland availing of his AG pension and has he been taking it for the past 26 years while also earning various fortunes working with that well-known firm of bankers Goldman Sachs? And what about all the others, David Byrne with his Commission pension as well? John Rogers and several others are still all down in the Four Courts earning fortunes while happily taking the value of two remedial teachers as their pension for a job they held for three, four or maybe even five years. Is our learned former chief justice Mr Murray now drawing two pensions, one as ex-AG and now as ex- CJ, and did he draw his pension while also getting his huge salary as chief justice? This is just one more fantastic madness inflicted on us by our generous political leadership.
Now they have the gall to lecture us on whether or not we should deprive them of a huge income stream by allowing politicians to undertake tribunal-style inquiry for free. Let’s all start counting up the enormous number of pensions being collected by various servants of the State who, having given their unswerving loyalty to our State, have retired early and taken up other pensionable employment serving their nation. – Yours, etc,
Sir, – As a person with a legal background and with an interest in legal philosophy, I have strong reservations about the 30th Amendment of the Constitution Bill regarding Oireachtas committees making findings of fact about an individual’s conduct, albeit in the public interest. I make the following points.
1. The Bill states that the Oireachtas committees have the power to make inquiries into the “conduct of any person”. It does not specify the class or classes of persons concerned. Are they members of the executive, legislature, members of State bodies or the ordinary “Citizen Joe” like myself. This leads to legal uncertainty.
2. It states that fair procedure will be followed by these committees. What fair procedures? Are they the fair procedures and principles as set down in the European Convention on Human Rights?
3. Will there be a right of appeal to the courts against the findings of any of these committees for the individual to safeguard his or her good name? The Bill does not state so.
4. The Bill states there will be a balance between the individual’s rights and that of the public interest. This could be open to abuse. In France, for example, the citizen’s rights are protected from the abusive power of the executive by special courts under the Droit Administratif. We have no such courts here in Ireland as we come from the common law (English) tradition. Therefore, we depend on the civil courts to protect our rights. Now the executive wants to overturn a Supreme Court ruling on this matter (“Abbeylara case”) by this referendum.
I regard this as an intrusion by the executive and legislature into the judicial domain. It clearly violates the principle of the separation of powers or at least upsets the balance between all three organs of State. For the above reasons I ask the voters to vote No to the 30th Amendment. It is far too vague and will lead to much legal uncertainty. To the drafters of the Bill, I would say: go home and think again . – Yours, etc,
Sir, – Eoin Daly (Opinion, October 24th) seems to suggest that judges should just keep their mouths shut about the proposed constitutional amendment on judicial pay in order to avoid the perception that they are a “self-interested elite”.
Unfortunately this position is itself “elitist”: it suggests that the general public is not intelligent enough to distinguish legal argument from special pleading. Dr Daly (correctly) decries a culture of ambivalence about politics amongst lawyers but replaces it with an equally damaging ambivalence about law and legal argument.
In the memorandum they released in July, the judges were at pains to point out that they were not opposing the reduction of their pay, but rather highlighting difficulties with the wording of the proposed amendment. Many others (both lawyers and non-lawyers) have also tried to point out the difficulties that arise out of the clumsy wording of the proposed Article 35.5.3.
Not only is it not clear what the phrase “persons belonging to classes of persons whose remuneration is paid out of public money” might mean as a matter of law, it is not even clear what this phrase might be supposed to mean in English, should we ever manage to find a translator.
Short of rounding up a few judges and making them walk up and down O’Connell Street wearing sandwich boards that read “I am not a person belonging to a class of persons. Or am I?” how much more clearly can the argument be made? Dr Daly argues with some heat that judges have no power and no democratic right to intervene in the referendum process, but I would argue directly to the contrary: if are genuinely a democracy we must debate these things, we must treat the public as adults, we must hear from everyone with an interest, we must give our parliamentarians time to properly debate these issues, and we must come up with a wording that achieves the desired objective of permitting a reduction of judicial pay without putting too much power in the hands of the government. That wording already exists: in the current Article 35.5. – Yours, etc
Sir, – Whatever the Government’s intentions, if the 30th Amendment is passed the Houses of the Oireachtas will be empowered to investigate who they choose, on grounds they choose and make findings they choose on any citizen. If the Government abolishes the Senate this makes a simple majority judge, jury and executioner.
The Minister for Justice’s description of the concerns of eight ex- attorneys general as “nonsense” does him little credit. Does he seriously expect the citizens to appoint an elite who have cossetted, protected and largely detached themselves from the realities of the average citizens lives, the power to haul them before a kangaroo court?
His comment on Radio Éireann on Monday afternoon that eight ex-attorneys general would be better advised to keep their views to themselves on grounds (which he made no effort to substantiate) that they played a part in the the present national meltdown is sinister. It is perhaps a foretaste of the “how dare you get in my way” smearing one is likely to encounter before the show-boaters of what inevitably will become Dáil show trials? This, combined with denying a citizen his most basic right to defend his reputation in front of an independent judge.
Thanks, but no thanks. – Yours, etc,
Sir, – Whatever about biting the hand that fed them, I find it strange that these eight attorneys general should express such unreserved distrust in Oireachtas institutions (October 24th), when each of these gentlemen owed their unelected lofty positions and seats around the Cabinet table to political choices and selections by the then governing parties of that same Oireachtas. – Yours, etc,
Sir, – The reaction of the Minister for Justice and Defence to the letter from the eight former attorneys general says it all! Firstly, it was an ugly, personalised assault. Secondly, the Minister’s response points out to anyone in doubt as to the application of the 30th Amendment, that we kiss goodbye to our good names if the Minister has us in his cross hairs.
May we be saved from the zealotry of the Minister. – Yours, etc,
Sir, – I had no difficulty with extending the powers of Oireachtas inquiries. I have experienced a UK House of Commons Select Committee investigation and have studied closely the same exercise of power that our own parliament should be calling to account. But then the ex-attorneys general spoke up (October 24th).
You can’t ignore them. So why not amend the proposed 30th Amendment to say that it will run for five years only, with a reversion to the status quo ante unless a permanent change to the Constitution can be passed? – Yours, etc,
Sir, – There is a lack of perspective in the letter from the eight wise men.
Surely the attorneys general must recognise that there are also huge common good issues involved. We have to find some practical way of pursuing inquiries which heretofore have faltered and frequently failed when faced with the almost sacrosanct rights of the individual to a good name, whether deserved or not. Marcus Tullius Cicero expressed it more elegantly than I can: “Salus populi suprema lex est”. – Yours, etc,