THE SUPREME Court judgment in the case of Maguire v Ardagh & Others in 2004 is often, for convenience, referred to as the Abbeylara judgment and it is commonly known as the judgment that determined the Oireachtas only has limited power of investigation.
In particular it decided the Oireachtas did not have the power to make findings of fact and conclusions as to the personal culpability of an individual so as to impugn his or her good name.
One of the referendums announced by the Government for the end of October and for which the wording was published this week is already, somewhat simplistically, being referred to as the referendum designed to "reverse the Abbeylara judgment".
The successful plaintiff in the case, Maguire, was a garda whose actions in Abbeylara on the infamous day were among those an Oireachtas committee was proposing to examine. The unsuccessful defendants were Seán Ardagh TD, the chairman of that subcommittee, and the other members of the committee that included Brendan Howlin TD and Alan Shatter TD.
It is worth remembering as the rushed debate about this referendum begins that the Minister for Public Expenditure and Reform, who is proposing the referendum, and the Minister for Justice, who is likely to be the other Minister leading the argument in its favour, were both centrally involved in the events that gave rise to that judgment. They were both senior members of that Oireachtas committee and both were among the most combative members at the initial hearings when those gardaí whose actions were being investigated sought to protect their constitutional rights.
Both Howlin and Shatter went on to advance arguments before the High and Supreme Court that they had conducted the investigation fairly, properly and within their powers. Howlin, along with the other members of the committee, did this through his legal team. Shatter went to the trouble of making the legal argument before the courts himself. They are therefore likely to have been unhappy with the Supreme Court decision saying they should not have conducted the Abbeylara inquiry in the manner they did.
This is not to suggest that either Howlin or Shatter are not now capable of dealing with this issue in a detached manner, but it does raise the concern that the pace at which this referendum is being advanced, the priority given to this referendum by comparison to other pressing constitutional changes and the precise wording proposed may have been coloured by their personal experience before the courts on the point.
It is debatable whether the Oireachtas now needs powers to conduct investigations such as this. The desire to enable such investigations to be done by the Oireachtas arose from public concern about the long and costly nature of tribunals of inquiry. Since the Abbeylara committee inquiry collapsed, however, the Oireachtas has already put in place a new, more efficient and effective system in the form of the commissions of inquiry legislation. It was under this Act, for example, that the widely praised Murphy reports into the handling of clerical abuse allegations in the Dublin and Cloyne dioceses were conducted.
The primary reason why the commission of inquiry model has been better and cheaper is because the investigations and the examination of witnesses are done in private, unlike the procedure at tribunals and the procedure that Ardagh, Howlin, Shatter and their colleagues wanted to use (live on television) in the Abbeylara committee.
Holding the inquiry in private is quicker and cheaper because those being investigated or examined are less likely to feel the need to muscle up with lawyers to protect their reputations against every utterance or allegation which, if made in public, might damage them. Howlin appears to have acknowledged this in the new investigation system he now proposes for the Oireachtas. Most of the work of these new investigations will be conducted not by TDs and Senators but by specially appointed investigators in private.
Even if one accepts the need for such Oireachtas inquiries, the wording of the amendment now proposed by Howlin gives further cause for concern. He proposes to insert three paragraphs into the relevant constitutional article. The first two are straightforward but the third paragraph gives the Oireachtas the power to decide "the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry".
This amounts to an attempt to lock out any court review of whether such an Oireachtas committee was fair in its dealings with people before it. It represents a dangerous interference with the ordinary citizen's right to fair procedures, to their good name and to equality before the law.
Howlin has suggested this last paragraph is necessary to contain costs and to avoid the risk of lawyers unnecessarily holding up the progress of these investigations. However, the provisions in his proposed legislation allowing for most of the work to be done in private and for time limits and cost controls (and similar provision in the Commission of Inquiry Acts) already deal with this problem.
Politicians are not to be trusted in deciding the appropriate balance when it comes to the good name of citizens. Their need for attention and for public approval undermines their capacity to act with necessary detachment when performing a quasi-judicial role as investigators. In both the Abbeylara judgment and more recently in the High Court judgment on the conduct of the Seanad investigation into Ivor Callely's expenses, the courts found that the politicians got it wrong.
Politicians do not like anyone telling them they got it wrong so they have decided to put high hurdles in the way of judicial supervision.
This proposal needs more time and debate.