Dáil debates

Tuesday, 20 September 2011

An Bille um an Tríochadú Leasú ar an mBunreacht (Fiosruithe Thithe an Oireachtais) 2011: Céim an Choiste agus na Céimeanna a bheidh Fágtha / Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011: Committee and Remaining Stages


6:00 pm

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)

Yes. I am not a great believer in putting a whole lot of things into the Constitution. Having said that, if we are going to have these things in the Constitution, safeguards have to be in place. If primary legislation were to be used to describe and set the rules in this regard, it could be changed. I have concerns about some of the things we are doing in this respect. I am attempting to address some of those concerns in this amendment. The phrase "having regard to the provisions of this Constitution" is a key one in this amendment. In the absence of such a wording, there is no safeguard to ensure that any use of Oireachtas inquiries must have due "regard" to other rights enshrined in the Constitution as a whole. I have real concerns about that.

We need to give clear directions to the Judiciary. Our job is to make legislation and the job of the Judiciary is to interpret it. We have to provide clear instructions. The ability of the Houses of the Oireachtas to conduct inquiries does not over-ride any provision in the Constitution. We need a wording that ensures the protection of the Constitution can be invoked if any portion of the new powers being bestowed on the Oireachtas is applied in a manner that is contrary to the spirit of the Constitution.

It is important to make it clear that we respect the constitutional rights of the citizens of this country. We are not in dispute about the fact that this is being done in the common good - we are considering what the Bill actually says. When this amendment to the Constitution is put before the people and passed by them, 20 years might pass before the need to use it arises. It will not necessarily be used by this Government, which has a large majority. That is part of the reason I am proposing that any inquiry be approved by 90% of Members. Any reference to the Oireachtas should mean precisely that - it should not mean that the Executive more or less decides the terms of reference of an inquiry.

I will give an example. There were terrible abuses in the planning system some years ago. Material contraventions would be passed by one part of a county and all that kind of stuff. It was essentially decided that two thirds of councillors had to vote in favour of a material contravention. I think that has worked very well. It has got broad agreement. That is really what we should be trying to achieve.

There should not be a presumption that the Opposition will oppose something that may be in the national interest. The inquiry system should not be used frivolously. It should be used occasionally and in a thought-out manner. If it is over-used, its value may well be reduced. That is why I have provided for a number. I was trying to achieve a degree of inclusiveness within the Houses of the Oireachtas.

I have referred to the key line, "having regard to the provisions of this Constitution". A number of sections of the Constitution, including Articles 43.1, 43.2, 34 and 39, need to be read side by side with this. However, it is not at all clear that is what is intended. I am not satisfied the legislation is sufficient, separate from the Constitution, from that point of view.

On the intention not to impose criminal sanctions, it should be explicitly stated that there is a limit to the consequences of the findings that any inquiry can make. It is important that we make it clear that we do not cross the line between civil and criminal sanctions. That is something that could be open to interpretation and I also have concerns about that.

It is vital that the right to appeal, even a judicial review of something, is enshrined in the Constitution. What was intended, if I recall the briefing correctly, is that the only matter on which the courts could adjudicate was the issue of natural justice. I accept that in the briefing we were told it was intended this would have to be an issue of serious importance. It is about ensuring that there is trust among the citizens of this country and certainty about the laws we pass, particularly when they relate to matters we ask the people to put in the Constitution. We must then provide the laws around which to make the rules. The people must have certainty. After all, the Constitution is the cornerstone of the legal system. We have an obligation to put safeguards into the wording, if it is to give the kind of certainty the citizens of this country deserve.

That, more or less, is a broad brush stroke of what I intended in framing this amendment. I have difficulty with the Bill outside of that and I have made that clear throughout the debate.


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