Rónán Mullen (Independent)

I am putting this amendment because I am concerned that what we are doing here is giving politicians some kind of a pretend relevance in circumstances where we do not actually get to scrutinise legislation with the effectiveness with which we ought. I am sorry if that sounds like a disobliging comment about the workings of this Oireachtas but the very reason the Government is proposing to abolish this House is that it is making claims that our democratic institutions are not functioning effectively, so I do not see how I can be accused of dissing colleagues. I am not dissing anybody in particular but I am dissing the culture around here and our inadequacy to do certain things.

There is a calibre issue when politicians ask questions. They can be extremely partial in the way they ask questions and certain issues get explored and certain issues do not. That is why we need to be very careful how we adjudicate on issues in regard to fair procedures in particular.

What the proposed legislation contains is that 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. It is my contention that no matter how one reads that, it has, at the very least, a chilling effect and, I suspect, much more in terms of any ability of the courts to make determinations on what has happened in regard to fair procedures and specifically in respect of the balancing of the rights of persons in the public interest.

Balancing the rights of persons in the public interest is a judicial function and it requires skills of a judicial kind, skills we have not generally seen in this Oireachtas. It may be present on occasions but I am not confident, on the basis of the radio advertisement, that "past performance is no guarantee of future reliability". Past performance is not particularly consoling when one considers how this might operate prospectively. My proposed amendment states:

The conduct of such inquiries shall be regulated by law. [That does not exclude the Oireachtas]. Such law shall balance, proportionately, the rights of the individual with the public interest in the effective investigation of matters of general public importance.

The amendment seeks to rebalance, to make more explicit the role of the Judiciary in overseeing what goes on so that we guarantee a proper balance of the rights of the individual with the public interest. I am not attacking, in my amendment, the right of these Houses, per se, to conduct inquiries and make findings in respect of the conduct of persons, even though I have grave reservations about how all of that will work out. I will express those reservations in the coming weeks. It would be at least something if there was an acceptance that what is proposed is a constructive amendment. For the most part, this amendment is simply the incorporation of the recommendation of the recent Joint Committee on the Constitution report of January 2011 on Article 15, review of the parliamentary power of inquiry.

The Minister, Deputy Brendan Howlin, sat on the committee and agreed to its conclusions. The joint committee's eventual wording was widely accepted as being a sensible and balanced amendment. It certainly received none of the opprobrium from commentators that the Government's proposed wording has received. The virtue of this amendment is that it rectifies the most obvious and dangerous flaw of the Government's proposal, that of precluding judicial review of inquiries findings and of the success or otherwise of the Houses of the Oireachtas in reaching a fair balance between the rights of the person and the public interest as well as their ability to have due regard to the principles of fair procedures.

The only adjustment I have made to the joint committee's proposal is to introduce the word "proportionately, after the word "balance". This does require a degree of scrutiny and some background knowledge. I have included this word because, I believe, the term "balance" by itself, allows too much scope for the courts to be less than rigorous in appraising whether a fair or reasonable balance has been reached between the individual's rights and the public interest. In this regard I am aware of how the courts have applied the proportionality test during the past decade or so, in such a way as to lean heavily towards the adjudication of public interest considerations over and above personal rights, vis-À-vis property rights. The courts have their trends and tendencies as well.

It is absolutely right and proper that we in the Legislature would seek to shape how the courts do their work but we must never try to usurp what is the proper function of the courts. In a sense I agree with the Minister that there is no interference with the separation of powers once one rebalances in the Constitution what is going on. In theory one could get rid of the courts and have all matters decided by tribunes of the people in Parliament.

We could argue that is not an interference with the separation of powers, because the Bill now redefines the particular separation of powers that is to apply. However, there is an appropriate separation of powers and that is what motivates my amendment. As I said, the courts have applied the proportionality test over the past decade or so in a way that leans heavily towards public interest considerations over and above personal rights, and that in the context of property rights adjudication. The courts have, likewise, adopted a deferential approach to the intentions and means of the Oireachtas in seeking to achieve the end that is public interest. Without the term "proportionately", the courts will have even more freedom to continue this custom if a case is taken against a finding by an Oireachtas inquiry. That is the rationale for my amendment. I have proposed this amendment after careful consideration and with regard to the reality that the Minister proposes powers to investigate matters and to make findings relating to the conduct of people. It is in the sense that this is the Minister's proposal that I see it as urgent we rebalance the relationship between the Oireachtas and the courts in terms of determining what is appropriate as we consider both the rights of persons and the public interest.