Obviously as a candidate in the Dublin West by-election, my focus has been on my own campaign, to the neglect of the Presidency and the two constitutional referenda. It was only as I was sitting down to prepared some lecture notes for my 1st Year Constitutional Law class on the role of the Oireachtas that I had a chance to fully consider the implications of the Oireachtas Inquiry vote.
The amendment arises primarily as a response to the ‘Abbeylara’ judgment of the Supreme Court in 2002. This case put significant limitations on the type of inquiries that either House of the Oireachtas could undertake. In particular, the Court determined that an Oireachtas inquiry could not make findings of fact regarding the culpability of an individual for actions they committed.
The Government has responded by proposing inserting 3 new subsections into Article 15.10 of the Constitution.
The new Art 15.10.2 creates a power for either or both Houses of the Oireachtas to undertake an inquiry into any matters considered by them to be of general public importance.
The new Art 15.10.3 says that as part of these inquiries, the conduct of individuals can be investigated and that the House/s can make findings of fact regarding their conduct.
The new Art 15.10.4 says that the House/s concerned will determine the correct balance between the rights of persons and the public interest for the purposes of ensuring an effective investigation. Such a determination will be done with due regard to the principles of fair procedures.
I would agree that aspects of the Abbeylara decision need to be overturned. But I’ll be voting No to this amendment, for three main reasons outlined below:
A) The new Art 15.10.4 is of major concern. It allows the TDs/Senators to determine the procedural rights (right to hear evidence against you, right to question someone who gave evidence against you, right to respond) of persons before such inquiries. And unlike the law as it currently stands, the Courts’ power to intervene if TDs/Senators limit individuals procedural rights has been significantly lessened.
B) The new Art 15.10.4 is vague on how the TDs/Senators will decide what procedural rights individuals before the inquiries receive. Will these be set out in legislation, or will these be devised by each separate committee of inquiry as they go along. If it is the latter, different people coming before different inquiries may end up with different rights. I am concerned that there is a risk that the standard of rights may vary accordingly to how politically controversial the issue before the inquiry is.
C) On a wider point, there has been virtually no debate on the implications of these amendments. The degree of public attention focused on the Presidency has meant that these significant changes to the Constitution, giving TDs/Senators new and potentially unsupervised powers, have not been brought to the public attention. The Government has promised a Constitutional Convention to look at the Constitution and see what articles need to be revised. A change as big as the one being proposed here should be left to be discussed in that forum.
TDs and Senators should have the power to mount inquires, but we also need to acknowledge that politicians may use these inquiries for political gain. When we remove or limit the ability of the Courts to scrutinise the actions of the politicians undertaking such inquiries, we open the process up to abuse.
I urge people to Vote No to the amendment on 27th October and let the Government refer the issue back to the Constitutional Convention it has committed to holding. The Irish public deserve a full debate on such major change.
[For other takes on the proposed amendment, read Eoin Daly, Donnacha O’Connell and report by Carol Coulter.]