OPINION:The new powers will reinforce the standing of work undertaken by committees, writes BRENDAN HOWLIN
YESTERDAY, the 30th Amendment to the Constitution (Houses of the Oireachtas Inquiries) Bill, 2011, completed its passage through the Oireachtas.
It aims to address a deficiency in our parliamentary system by equipping the Houses of the Oireachtas with the powers required to undertake full parliamentary inquiries – a core function of parliaments. In a judgment in the Abbeylara case the Supreme Court determined that the Oireachtas had no inherent power of inquiry.
The Government believes that such a power is an essential element of a range of measures, some already in existence, others to be introduced, which will improve accountability in public life. Accountability proved lacking in recent times.
The important innovation, specified in the final subsection, is the manner in which the essential requirement to fair procedures is to be achieved in Oireachtas inquiries. This would now be balanced by a new constitutional value recognising the public interest in ensuring effective inquiries – ie, inquiries that are fairly conducted, tightly defined, cost-efficient, and are completed expeditiously.
It is not the case – as asserted in an opinion piece in this paper – that the Government is intent on pushing through a populist constitutional amendment that could do great harm to the credibility of politics and to constitutional rights and liberties.
Rather, the new system is specifically designed to ensure that the constitutional rights of individuals involved in any Oireachtas inquiry are adequately safeguarded. To reinforce this point I introduced an amendment to the original Bill wording reaffirming the obligation on the Oireachtas and its committees, to abide by fair procedures. And the amendment makes clear that the conduct of the inquiry system, including the protection of individual rights, would be governed by a comprehensive legal framework enacted by the Oireachtas. An advanced draft of this legislation has been published for comment.
The way in which the principle is applied in practice will, contrary to some legal comment, of course, be potentially subject to judicial review. The courts will need to be satisfied with the manner in which Oireachtas inquiries have struck this crucial and delicate balance. But the amendment will alter the balance of the test that the courts apply.
Inquiries carried out by the Houses of the Oireachtas are intended to comprise a new option for inquiring into issues of serious and significant public concern. The Oireachtas as an institution has a manifest role in examining the facts and on that basis drawing conclusions and making findings and recommendations to learn the lessons of the serious systemic failures that have occurred in our society. Our aim is not to set up a system to allow inquiries into the behaviour of individuals in all cases; we want a system that is not prevented from pursuing public policy issues because they may involve adjudication on the conduct of individuals.
The new inquiry powers should not be deployed lightly and without a careful consideration of whether they are warranted. They will, I am confident, bolster the standing of work undertaken by Oireachtas committees by providing an avenue through which the review of public policy issues can be intensified in the exceptional circumstances that grave issues of general public importance come to light.
Notwithstanding the successes of various commissions of investigation, the private nature of their inquiries does not lend itself to the level of transparency that the public often requires in relation to certain issues.
Is potential partisan political abuse of the new powers a real risk? Checks and balances to guard against this will be included in the enabling legislation or standing orders of the Houses. The terms of reference for an Oireachtas inquiry will be framed by its committees rather than imposed by Government diktat. Seeking to manipulate the inquiry system to party ends would work against the grain of how the committees system successfully operates in practice. I believe my parliamentary colleagues will rise to the challenge.
It is also very difficult to foresee how attempted political exploitation of inquiries would not ultimately fall foul of the courts. More significantly, an assertive and potent inquiry system can be an important bulwark against a dominant executive.
The referendum on this issue on October 27th will provide the people with the opportunity to decide on a key element of the future development and enhancement of the performance of our parliamentary system. If approved, the implementation of these new powers will undoubtedly create huge challenges for parliamentarians. These challenges must be met if parliament is to lead change, to govern effectively and to ensure that the concerns of the public are addressed.
Brendan Howlin is Minister for Public Expenditure and Reform.
Wording of the referendum is available on the Department of Public Expenditure and Reform’s website, per.gov.ie