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 Brendan HowlinBrendan Howlin (Wexford, Labour)

I thank Deputy Catherine Murphy for the amendment and for the clear exposition of her position.

I regret that I did not have a chance to respond to Second Stage, the way it fell last week. I want to say a few words about the genesis of this proposal. Anybody who knows me over time will be aware that I am interested in the development of Parliament and the re-balancing of the powers of Parliament and of the Executive. The Executive has dominated Parliament for too long in this country.

One of the roles of this Parliament, both Houses, is to hold the Executive to account. It seems that in the past, parties in Opposition have always wanted to strengthen the hand of Parliament and to weaken the relative power of the Executive and as soon as they get into power they abandon that principle. It is to hold true to that principle that this proposal and many more come from this side of the House.

The genesis of this is that I believe in the right of Parliament to make inquiries. I was involved in several inquiries in this House. I was also involved in the Abbeylara committee that was struck down. One can have views on whether it was appropriate to have an inquiry into that instance, but the Oireachtas said, "Yes", and we set it up. What happened as a result is that the very power of the Oireachtas to hold any inquiries, basically, the intrinsic inherent power of Parliament to hold inquiries, was questioned by the courts and, in fact, found to be wanting because there was no implicit power in the Constitution to hold inquiries. That made it virtually unique among parliaments.

All parliaments have to hold Ministers to account and have to hold inquiries into matters of public importance, and we need to restore that. The crafting, the "how" of that, was subject to a year's debate within the previous Dáil on the Joint Committee on the Constitution chaired by former Deputy Ardagh. That involved a thoughtful process, with all parties involved and bringing in legal experts.

We did not want to replicate a tribunal system in the House which would take years, that could be frustrated and that needed a re-balancing of the public interest against the private interest of individuals who, if they had access to enough lawyers, could frustrate for ever the culmination of an inquiry. That is a careful balance to strike because one does not want to have an oppressive system. The words that we crafted carefully, I believe, achieve that balance.

Later we will deal with Deputy McDonald's thoughtful amendment, about which I have been thinking since I read the Second Stage contributions and much of the learned opinion about it, and I want to set out my case in that regard.

To deal with the amendment before us directly, I commend Deputy Murphy on a fine attempt. It is not an easy matter to craft a constitutional amendment. I have the help of the Attorney General and the legal officers of the State in my efforts to do it. Honestly, I do not believe what she has produced will do anything to allow us to hold inquiries. For a start, I understand what she means when she states that it should not be a simple majority of the House that would determine it, but the notion that one needs 90%, in other words, a blocking minority of one tenth of the membership, means that one would never have an inquiry. A blocking minority could be directly involved in the inquiry.

Parliament would not work on that basis. We elect the Taoiseach by simple majority. The highest hurdle in the Constitution currently is the process to impeach the President. It requires only a two-thirds majority to impeach a President, which is an overthrowing of the vote of all of the people of the country. That is the highest hurdle by far. We can dismiss judges of the superior courts with a simple majority. That is the way parliament works in virtually every jurisdiction - there are exceptions in some jurisdiction for good reason. To do as Deputy Murphy suggests would frustrate any form of inquiry.

Deputy Murphy made a number of specific points. On the point that it should not impose criminal sanction, it is out of the question for any committee of this House or this House to impose criminal sanctions. The separation of powers is crystal clear in the Constitution and that would not arise in any event.

Clause 5° of her proposal, on having the right of appeal, is implicit in the Constitution. She was correct to mention other articles of the Constitution which enumerate all citizens' rights, many of which have been the subject of very careful analysis by the courts over decades. They will not be dislodged in any iota by the proposals we are inserting. The fundamental principle of constitutional justice is that this new section must be read, to use not a legal term but the term lawyer's use, harmoniously with other enactments. For example, the well established clear rights to due process and fair procedures given under the Constitution in Article 40.3 are implicit in this process, are not dislodged in any way by it. Anybody can go - not at the end of the process but at any time in the process, beginning, middle or end - to have his or her good name vindicated in the courts, to have it checked.

We have sought to have in that mix, when that adjudication is taking place, that the public interest be weighed into the balance as opposed to the exclusive notion of the rights of an individual - sometimes the rights of the individual might run counter to the public interest - only in this narrow way to ensure effective inquiry. It is a very limited re-balancing of procedural rights that would flow from our proposals.

This constitutional amendment, in its totality, does a few simple things. It gives explicit right to the Houses of the Oireachtas, either individually or collectively, to hold an inquiry into a matter of stated public importance. It addresses the issue of specific authority and objective bias. It allows individuals to be investigated in such a matter or their conduct to be investigated in such inquiries, and it allows conclusions to be drawn. All of that, in terms of the rights of individuals, is subject to their inalienable rights, not only under the Constitution but under international law to which we are subject as well. In fairness, on the argument that this pushes too much the way of the Oireachtas, my fear is that at the end of the day it will not be far enough in the way of the Oireachtas. It is an important start to allow for proper inquiries here such as those which take place in virtually every other jurisdiction.

The Deputy made several other points, including one on procedures. This matter was raised on a television programme last night with regard to the terms of reference. The Government - we are collectively agreed on this - is keen to strengthen the arm and the hand of Parliament. Contrary to what was said by some people externally, the terms of reference of any inquiry will not be determined by the Government. I understand my officials will brief the oversight committee tomorrow on the process and procedures to be followed. I have gone before it and explained the draft heads of the Bill.

Let me explain the process. A committee of the House, whether of an individual House or both Houses, will determine that a matter is of such public importance that it must be investigated. For example, it could be an issue to do with the health service or something else and the relevant health committee would make its case to the oversight committee. Then it would be exclusively a matter for the oversight committee to determine whether the case had been validly made and whether the issue merited an inquiry. I agree fundamentally with the Deputy. This would not be a regular occurrence. The oversight committee would set the terms of reference. The committee is chaired by a member of the Deputy McDonald's party. I indicated last week that it should not operate a Whip on the basis of this important work. There would be no veto or inputs from the Government; it would be a matter for the Houses to determine the matter. That committee would set the parameters in respect of expenditure, lawyers and costs in terms of what could be paid to lawyers and so on. Eventually the matter would be presented to the House which would make a final determination. In a case where the oversight committee said "No", that would be the end of the matter and there would be no appeal beyond this, as I explained last week. The process is very much in the domain of the Houses for the first time and it will work out well.

The heads of the Bill are carefully crafted in all its steps to achieve this end. The words in the Schedule under debate are to the effect that each House shall have the power to conduct an inquiry or an inquiry with the other House in the manner provided for by law into any matter stated by the House or Houses concerned to be of general public importance and that in the course of any such inquiry the conduct of any person, whether a Member of the House, may be investigated. These are the issues which arose during the Abbeylara judgment, as well as whether the authority was explicit to inquire into people who were not Members of either House. We are putting the matter beyond doubt. This may be investigated and the Houses concerned may make findings in respect of the conduct of the person concerned concerning the matter to which the inquiry relates. The only issues it may examine or the only findings it may make relate to the conduct related to the issues under investigation.

The final area I propose to amend for the avoidance of doubt outlines that it is implicit in due process that fair procedures must be applied. All legal advice I have suggests as much. However to be explicit I will recommend to the House that we include it in the Constitution. The words are to the effect that it will be for the House or Houses concerned to determine the appropriate balance between the rights of the person and the public interest for the purpose of ensuring an effective inquiry into the matter to which subsection (2) applies. The balancing between individual rights and the public interest carried out by the House relates only to ensuring there is an effective inquiry into the matter. It is a narrow balancing that must be carried out. It will be an important advance for the Houses of the Oireachtas.

I am keen to allow sufficient time to deal with the other amendments because they are important and I have no wish for there to be any confusion in the public domain after this debate. For reasons I will explain I do not propose to accept Deputy Murphy's amendment. I do not believe objectively it meets the requirement to have a robust inquiry system. It would ensure simply that the system would not work.

This new avenue of inquiry which, please God, will be available should the House in the first instance and the people in the second instance vote for it will be only one means of public inquiry. There could still be a formal tribunal or an investigation under the 2004 Commissions of Investigation Act which was used for the Murphy tribunal or it could be this model. It will be a matter for the Houses to decide which is the best vehicle to serve the public need for inquiry.

By way of completeness, the process will involve a private investigation of facts and fact-finding in the first instance. It will be analogous to what happened during the DIRT inquiry when the Comptroller and Auditor General gathered the information objectively and in private and that was the basis for the inquiry. It would be up to the oversight committee to appoint or recommend the appointment to the House of an investigator which could be the Comptroller and Auditor General or the Ombudsman, who may have something to say about several matters, as we have seen. Her conclusions could be the basis for an investigation. It could be one of her routine reports. I have held discussions with the Ombudsman on this matter. Depending on the area involved, it could be a medical or legal expert who would carry out the fact-finding and that could be the basis for objectively presenting the evidence that would form the core briefing document or the body of evidence that could be the basis of the inquiry. This should be a reasonable and fair process. It is carefully balanced and I hope the Deputy will be convinced not to pursue her amendment and that the merits of the amendment I have asked the House to support are clear.


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