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)

Tairgim leasú a 2a:

I gCuid 1, leathanach 7, líne 13, ", ag féachaint go cuí do na prionsabail a ghabhann le nósanna imeachta córa," a chur isteach i ndiaidh "a chinneadh",


I gCuid 2, leathanach 7, líne 26, ", with due regard to the principles of fair procedures," a chur isteach i ndiaidh "determine".

I move amendment No. 2a:

In Part 1, page 6, line 13, after "a chinneadh" to insert ", ag féachaint go cuí do na prionsabail a ghabhann le nósanna imeachta córa,",


In Part 2, page 6, line 26, after "determine" to insert ", with due regard to the principles of fair procedures,".

The purpose of the proposed amendment is to make explicit that the balancing rights between the persons and the public interest in full parliamentary inquiries must be consistent with the constitutional principles of fair procedures. As I said, I was advised strongly that this was implicit in the proposed wording of the referendum Bill that was disseminated because they are rights that are guaranteed under Article 40.3 of the Constitution. By explicitly stating that the House is determining the appropriate balance and will in that determination have due regard to the principles of fair procedures, we are ensuring there is no question mark or doubt over the fact that fair procedures and the rules of natural justice must be respected in any form of inquiry that puts good name or reputation at risk or in the balance in any shape or form.

This amendment also highlights the basis on which any judicial review on the balancing exercise would rest and, in so doing, addresses the first question, given that some people were of the view that somehow that subsection ousted the courts from their overview. My very strong advice from the Attorney General and all legal advice is that this could not be the case. However, to insert this wording gives a clear, explicit basis for such oversight, although it is implicit in any event. It was never the intention nor could it ever have been the result of the original wording to exclude any role for the courts in that process.

I have stated on many occasions that it has always been our intention that the manner in which the Oireachtas strikes the balance between the rights of the person and the public interest is reviewable by the courts. It will be a difficult process, as I said to the chair of the oversight committee when I appeared before it. I told him that, in all likelihood, in the years to come the chair of that committee would be making the odd trip down to the Four Courts to justify the balancing exercises or determinations that are required.

Clearly, it was never the objective to create what might be called an exclusion zone for the courts, nor could it be. However, it is to put into the weighing scales, so to speak, the public interest argument so that in determining the balance in the first instance, the matter must be given to the committee. This is why the notion the courts would somehow make real-time decisions on a daily basis when there are matters like this to be determined is incorrect. As the tribunals operate, it must be for the committee, which has devolved power from this House, the other House or both Houses, to make that real-time decision. Where that is in question, it will be a matter for the courts to ensure it is done in a constitutional fashion. That is where we are coming from.

I am very aware of the points raised by Deputy McDonald and many of her colleagues during the Second Stage debate in regard to the balance between the rights of the person and the public interest contained in the published constitutional amendment. This is why I have reflected on what she has said and on what has been written subsequently. Some legal purists say one should not do what is unnecessary, and if it is implicit, one should not make it explicit. As the Ceann Comhairle knows too well, constitutional lawyers weigh words in the Constitution like precious metals, and if one was to insert extra words, one would have to make a convincing argument for them because every word has a value. I believe that to give comfort to the electorate, what is being done here is to preserve absolutely the full constitutional rights of individuals and to ensure clear procedures will be an intrinsic form of the balancing act that will fall to the Oireachtas in determining the balance between individual rights and the common good in so far as the narrow issue of conducting an inquiry in an effective manner arises.

It is appropriate this issue is dealt with by the amendment I suggest. I have asked the legal service to look particularly at Deputy McDonald's amendment and the legal service very strongly advised me that the wording I now suggest is the correct and constitutionally better way of achieving what I believe is the desired objective of Deputy McDonald.


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