Proposed inquiry amendment needs careful scrutiny

 

OPINION:THE SMALL Co Longford village of Abbeylara, that has lent its name to the 30th Amendment to the Constitution, was already on the map as a result of the tragic shooting dead of John Carthy by members of the Garda Emergency Response Unit in April 2000.

An attempt by an Oireachtas subcommittee to inquire into the circumstances of that shooting was abandoned as a result of a successful legal challenge taken by a number of Garda witnesses. The matter was then thoroughly investigated by a tribunal of inquiry under the chairmanship of Mr Justice Robert Barr that reported in 2006.

The attempt at a parliamentary inquiry failed as the courts took the view that the Oireachtas had no inherent power of direct inquiry under the Constitution.

This was particularly the case in relation to inquiries that could involve findings of fact detrimental to the reputations of named individuals. In order to remedy this deficiency, in January of this year, the Oireachtas committee on the Constitution (chaired by Seán Ardagh, who also chaired the Abbeylara subcommittee and whose name was on the famous case leading to its abandonment) recommended the introduction of a constitutional amendment and legislation.

Under the auspices of the Government reform unit of the Department of Public Expenditure Reform, a proposed constitutional amendment has been published with a general scheme of a Bill to provide for parliamentary inquiries. The referendum is to take place on what will be a busy day for voters – October 27th. The full text of the Bill is to be published in early October.

It is proposed to insert into Article 15 of the Constitution an explicit power for the Houses of the Oireachtas to conduct inquiries into matters of “general public importance” with a clear power to make findings in respect of the conduct of individuals. Somewhat controversially, sub-section 4 of the proposed amendment provides: “It shall be for the House . . . to determine the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry. . .” It is clear, even from the explanatory memorandum, that the purpose of this sub-section is to minimise the degree to which the courts can “impede” parliamentary inquiries in challenges that might be taken by individuals affected by such inquiries.

When judicial review is viewed as an intrinsic impediment there is cause for concern. No doubt a benign spin will be put on this by proponents. They will suggest it is intended to prevent well-heeled bankers and other high net-worth malefactors from evading scrutiny. In the current climate such a presumption of guilt is brutally seductive.

But what about mendacious politicians who decide to abuse the inquiry processes of parliament for bad political ends? This kind of thing is not at all unknown in parliamentary systems with long-established systems of parliamentary inquiry. US senator Joseph McCarthy of Wisconsin is now better known by the “ism” that his parliamentary inquiries into “Un-American activities” spawned. McCarthyism is an unfortunately Irish-sounding byword for parliamentary moral panics and consequential witch-hunts.

Should the courts not be able to step in to protect against and, if necessary, prevent such abuses? A parliamentary inquiry may be an ordeal but it is not a trial. However, it should not follow that “due course of law” ought to be jettisoned.

To be fair, the proposal contained in the 30th Amendment is more subtle than that. Parliamentary inquiries will adopt and apply natural and constitutional justice principles but, crucially, it shall be a matter for such inquiries to determine what that means in practice. Some commentators are already concerned that this will be interpreted to mean the courts have a very attenuated or even negligible role in reviewing parliamentary inquiries. But just because judicial deference is signalled or perhaps required does not mean deference will be shown. It is difficult to imagine courts standing idly by as the constitutional right to a good name is unfairly traversed or if due process rights are abrogated by politicians with a keen eye for tomorrow’s news headline.

It would, however, be better not to take that risk. The hope that politicians, of the sort that we elect, can be trained to behave in a manner that lacks objective or institutional bias is, frankly, a rather Olympian leap of faith.

The proposed scheme distinguishes between pre-inquiry investigations and actual parliamentary inquiries, positing as a trustworthy model, the much-praised Deposit Interest Retention Tax Inquiry that was preceded in 1999-2000 by investigative heavy-lifting done by the comptroller and auditor general. Unfortunately, the opportunity of stitching in an explicit role for the Ombudsman in the new scheme for parliamentary inquiries, and reconfiguring that office with suitable constitutional recognition, was eschewed. This is a real pity but it is something that could still be addressed in the future.


Donncha O’Connell is a lecturer in the school of law, NUI Galway, where he teaches constitutional law and european human rights. He is also the editor of the annual Irish Human Rights Law Review.