ON THE DAY of the upcoming presidential election, voters will also be asked to pass two constitutional amendments: one on judicial pensions, and one on Oireachtas inquiries.
The amendment on Oireachtas inquiries arose as a result of a Supreme Court case decided in 2002 known as the Abbeylara decision. After John Carthy was fatally shot by gardaà on 20 April 2000, the Oireachtas appointed a Special Committee to investigate the incident. However, the gardaà whose actions were under investigation brought a court case which challenged the constitutionality of the committee’s actions.
The courts found against the government on a number of issues including: (1) the Oireachtas had no power to investigate specific incidents involving individuals who were not members of the Oireachtas; (2) the conduct of the Oireachtas in investigating the incident had breached the right to fair procedures; and (3) an individual had a right to a good name which had been breached.
The current amendment is designed to roll back the Abbeylara decision. There are three separate sections to the amendment:
Each House shall have the power to conduct an inquiry, or an inquiry with the other House, in a manner provided for by law, into any matter stated by the House or Houses concerned to be of general public importance.In the course of any such inquiry the conduct of any person (whether or not a member of either House) may be investigated and the House or Houses concerned may make findings in respect of the conduct of that person concerning the matter to which the inquiry relates.
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 and the public interest for the purposes of ensuring an effective inquiry into any matter to which subsection 2 applies.
The first two sections have not generated much controversy, as they effectively overrule the first limb of the Abbeylara decision. The controversy has surrounded the final clause. As can be seen, the right specifically guarantees the ‘principle of fair procedures’. This has been inserted as a result of public opposition to the original draft (which had no such guarantee) and ensures the decisions are judicially reviewable on procedural grounds. This would protect the right to a fair unbiased hearing, and meets the second limb of the Abbeylara decision.
The problem occurs with the third limb of Abbeylara. The proposed amendment suggests that it is the Oireachtas, rather than the courts, who are to balance the rights of the individual against the public good. It is this element of the amendment which has attracted criticism from legal commentators.
‘The Irish parliament is virtually alone in not having these powers’
The first point to note in relation to constitutional amendment is that commentators are almost universally united in agreeing that, in principle, the Oireachtas should have an investigative power. The Irish parliament is virtually alone in not having such a power as a result of the Abbeylara decision. It deprives the Parliament of an important function in a democratic society.
For example, in the UK at the moment, a parliamentary enquiry is responsible for investigating the phone-hacking scandal in the News of the World. Ireland has a need for similar mechanisms. For example, there has never been a public investigation into the banking scandal. After all of the public money spent on bailing out the banking system, surely the citizen has a right to know how the crisis came about.
On the other hand, there is the danger that individual’s reputations could become the playthings of grandstanding politicians. The Abbeylara decision itself provides evidence of this; during the controversy, the committee briefed journalists on an on-going investigation.
I believe that the third paragraph is necessary because it prevents obstructionist tactics by individuals who wish to preserve secrecy around decisions with public consequences. Imagine for a moment that the amendment allowed individuals to go to court to protect their rights. Anyone who wished to avoid an uncomfortable finding would simply delay before the Oireachtas committee, and then launch the torpedo of judicial proceedings before the report could be issued. Managed correctly, this would mean that the Oireachtas would dissolve before a report could be issued.
‘Don’t let the best be the enemy of the good’
This would ensure that any actions would be immune from public scrutiny unless they were the subject of a civil or criminal action. Not every incident which has public implications will meet this test.
Furthermore, an individual is not without judicial protection even if this amendment passes. First, the judiciary can still provide guidance on procedural rights. Secondly, the European Convention on Human Rights would still apply to individuals. This document provides similar guarantees to the Irish Constitution. The primary difference between this form of European protection and the current Irish scheme is that an adverse finding under the European Convention would not strike down the legislation entirely, which would mean that the committee could continue with its inquiry.
This would remove the incentive for individuals to try and obstruct the proceedings, but still provide a safeguard to individuals who were concerned with the violation of their rights.
In deciding which way to vote on a constitutional amendment, voters must make up their own minds on whether the balance struck under the proposed amendment is desirable. For the reasons I have given, I lean towards voting in favour. There are also strong arguments against, and it falls on the individual to decide which arguments are more convincing.
One suggestion: don’t let the best be the enemy of the good. A constitutional amendment shouldn’t be judged on the basis of whether it is perfect, simply on whether it is an improvement.
Dr Donal K Coffey is a lecturer in constitutional law in the University of Portsmouth, and recently completed his PhD on Irish constitutional history.
Read more: What are the two referendums about? Your guide to the 27 October ballot>
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