Rónán Mullen (Independent)

-----and we have mechanisms to establish proper inquiries as I shall outline and as the Minister knows.

In the course of such inquiries we may make findings on conduct. I thought, as I listened to Senator Thomas Byrne, of the line "he strikes but fears to wound". I am worried that even at a time like this the best we can get, by way of opposition, is some form of general warning, wringing of hands and concern that "there might be issues here lads" without any real commitment to putting forward well thought out amendments that might address issues of possible concern. We can foresee, at this time of weak opposition, what future abuses we might have to contemplate when there is even less opposition in Parliament. We are making a great mistake.

I note the recent effort to amend this to read "it shall be for the House or Houses to determine but with due regard to the principles of fair procedures". The fact is it is left to the Houses to determine the balance between the rights of persons and the public interest. The Minister said - I paraphrase him and hope not unjustly - we should not worry about or be hidebound by what went on in the past and warned about people with deep pockets presumably having access to the courts. Such access is a fundamental right and should never be denigrated in any way in this Parliament. The whole concept of the separation of powers means that we should never make the slightest attack on people's access to the courts. By analogy, the attitudes underlying this legislation mean that the High Court rather than the Seanad Committee on Members' Interests was wrong in the case of former Senator Callely. We need our courts to make rulings on fair procedures and human rights even when they risk making unpopular decisions and delaying inquiries. We are going down a bad road if we set up politicians to judge these matters when politicians, time and again, have shown themselves to either lack the calibre to make fine distinctions and judgments on serious issues concerning people's reputations or lack objectivity and are too prone to give into the temptation of partiality depending on their party political interests.

I shall cut to the chase. It is the final subsection of the proposed wording contained in the Bill that I worry about because it strips the constitutional protection of natural justice from those who are the subject of Oireachtas inquiries. This is the case even allowing for the recent amendment that substituted the phrase "it shall be for the House or Houses concerned to determine the appropriate balance between the rights of persons and the public interest" with "it shall be for the House or Houses concerned to determine, with due regard to the principles of fair procedures, the appropriate balance between the rights of persons in the public interest". The amendment changes nothing because it remains with the Houses of the Oireachtas only to decide what constitutes an "appropriate balance with due regard to fair procedures". As such, this Bill effects a very dangerous power grab by the Executive via a vetoing of the possibility of judicial review.

It also means that the voluminous criticisms of the Bill levelled prior to the amendment stand. The Minister has adopted a rhetorical strategy similar to the Minister for Justice and Equality, Deputy Shatter, vis-À-vis the Twenty-ninth Amendment of the Constitution Bill which is to say that all inadequacies in the text itself can somehow be resolved by the jurisprudence of the higher courts, a jurisprudence which seeks to harmonise all constitutional provisions. This ignores the simple fact that the text, as it stands, is simply not in harmony with the separation of powers doctrine inherent in the Constitution as well as the clear case law supporting a person's right to benefit from the principles of natural justice nemo iudex in causa sua and audi alteram partem.

This issue is no small matter given the political composition of an Oireachtas inquiry and the potential impact on a citizen's good name resulting from any adverse findings. It is one thing, and perfectly legitimate, to allow Oireachtas inquiries to make robust findings of fact and to draw conclusions from them. This can only happen after the most thoroughly and patently fair investigation because the alternative is McCarthyism. A citizen whose reputation is impugned by the findings of an Oireachtas inquiry may not challenge the findings in the courts because of parliamentary privilege. His or her only hope of making sure that conclusions are rooted in fact is to be allowed to put forward his or her side of the case before a neutral arbiter. This is all that natural justice means, to have an unbiased committee that listens to both sides of a case before making any decision. How worrying it is then that we are seeking to deprive individuals of the fundamental right to fair play under the guise of cost effectiveness. There are broader concerns at play here. To exclude the courts entirely from reviewing the fairness of an inquiry is an attack on the separation of powers which must be justified by more than political expediency.

In the heat of a general election the people of Ireland were called upon by the Labour Party and Fine Gael to vote for real change. Yet the first page of Fine Gael's new policy document identified "a hugely centralised State with few real checks and balances and an over powerful Executive that increasingly ignores the Dáil" as key failures of the political system in Ireland. This Government seems determined to push forward with their own initiatives which have the potential to reduce transparency, undermine fair play, indirectly extend Executive power and dangerously tilt the balance of rights in our Constitution.