Concern Over New Powers Being Given to Oireachtas to Make Inquiries

Dáil Debates – Committee Stage of the Thirtieth Amendment to the Constitution 2011

Deputy Catherine Murphy:     Tairgim leasú Uimh. 1:

I leathanach 7, roimh an Sceideal, an Sceideal nua seo a leanas a chur isteach:

“CUID 1

2° Faoi réir chomhaontú an Tí sin nó na dTithe sin, arna chinneadh le tromlach nach lú ná 90 faoin gcéad de chomhaltaí an Tí nó na dTithe iomchuí, beidh an chumhacht ag gach Teach fiosrú aonair nó comhfhiosrú a stiúradh faoi aon ní nó nithe a bhaineann leis an maitheas phoiblí, ar mhodh a ndéantar socrú ina chomhair le dlí.

3° I gcúrsa aon fhiosraithe den sórt sin, féadfar imscrúdú a dhéanamh faoi iompraíocht aon duine (cibé acu is comhalta de cheachtar Teach an duine nó nach ea), ar mhodh a ndéantar socrú ina chomhair le dlí, ag féachaint d’fhorálacha an Bhunreachta seo.

4° I gcúrsa aon fhiosraithe den sórt sin, féadfaidh an Teach sin nó na Tithe sin fionnachtana a dhéanamh, ar mhodh a ndéantar socrú ina chomhair le dlí, ach ní ceadmhach don Teach sin nó do na Tithe sin smachtbhannaí coiriúla a fhorchur ar aon duine nó daoine is ábhar d’fhiosrú. Déanfar na fionnachtana sin ag féachaint d’fhorálacha an Bhunreachta seo.

5° Beidh an ceart ag duine nó daoine is ábhar d’fhiosrú den sórt sin achomharc a dhéanamh, go heisiach nó i gcomhpháirt, chun na gCúirteanna, ar mhodh a ndéantar socrú ina chomhair le dlí, in aghaidh an mhodha fiosraithe agus fhionnachtana an Tí nó na dTithe, ag féachaint do na forálacha iomchuí den Bhunreacht seo.

CUID 2

2° Subject to the agreement of the House or Houses concerned, as determined by a majority of not less than 90 per cent of the members of the relevant House or Houses, each House shall have the power to conduct an individual or joint inquiry into any matter or matters which relate to the common good, in a manner provided for by law.

3° In the course of any such inquiry the conduct of any person (whether a member of either House or not) may be investigated, in a manner provided for by law, having regard to the provisions of this Constitution.

4° In the course of such inquiry the House or Houses concerned may make findings, in a manner provided for by law, but may not impose criminal sanctions on any person or persons subject to inquiry. Such findings shall be made having regard to the provisions of this Constitution.

5° A person or persons subject to such inquiry shall have the right to appeal the method of inquiry and the findings of the House or Houses, either exclusively or jointly, to the Courts, in a manner provided for by law, having regard to the relevant provisions of this Constitution.”.

I move amendment No. 1:

In page 6, before the Schedule, to insert the following new Schedule:

“PART 1

2° Faoi réir chomhaontú an Tí sin nó na dTithe sin, arna chinneadh le tromlach nach lú ná 90 faoin gcéad de chomhaltaí an Tí nó na dTithe iomchuí, beidh an chumhacht ag gach Teach fiosrú aonair nó comhfhiosrú a stiúradh faoi aon ní nó nithe a bhaineann leis an maitheas phoiblí, ar mhodh a ndéantar socrú ina chomhair le dlí.

3° I gcúrsa aon fhiosraithe den sórt sin, féadfar imscrúdú a dhéanamh faoi iompraíocht aon duine (cibé acu is comhalta de cheachtar Teach an duine nó nach ea), ar mhodh a ndéantar socrú ina chomhair le dlí, ag féachaint d’fhorálacha an Bhunreachta seo.

4° I gcúrsa aon fhiosraithe den sórt sin, féadfaidh an Teach sin nó na Tithe sin fionnachtana a dhéanamh, ar mhodh a ndéantar socrú ina chomhair le dlí, ach ní ceadmhach don Teach sin nó do na Tithe sin smachtbhannaí coiriúla a fhorchur ar aon duine nó daoine is ábhar d’fhiosrú. Déanfar na fionnachtana sin ag féachaint d’fhorálacha an Bhunreachta seo.

5° Beidh an ceart ag duine nó daoine is ábhar d’fhiosrú den sórt sin achomharc a dhéanamh, go heisiach nó i gcomhpháirt, chun na gCúirteanna, ar mhodh a ndéantar socrú ina chomhair le dlí, in aghaidh an mhodha fiosraithe agus fhionnachtana an Tí nó na dTithe, ag féachaint do na forálacha iomchuí den Bhunreacht seo.

PART 2

2° Subject to the agreement of the House or Houses concerned, as determined by a majority of not less than 90 per cent of the members of the relevant House or Houses, each House shall have the power to conduct an individual or joint inquiry into any matter or matters which relate to the common good, in a manner provided for by law.

3° In the course of any such inquiry the conduct of any person (whether a member of either House or not) may be investigated, in a manner provided for by law, having regard to the provisions of this Constitution.

4° In the course of such inquiry the House or Houses concerned may make findings, in a manner provided for by law, but may not impose criminal sanctions on any person or persons subject to inquiry. Such findings shall be made having regard to the provisions of this Constitution.

5° A person or persons subject to such inquiry shall have the right to appeal the method of inquiry and the findings of the House or Houses, either exclusively or jointly, to the Courts, in a manner provided for by law, having regard to the relevant provisions of this Constitution law.”.

This is quite a long amendment.

Deputy Brendan Howlin:     Tá sé as Gaeilge agus as Béarla.

Deputy Catherine Murphy:     Yes. I am not a great believer in putting a whole lot of things into the Constitution. Having said that, if we are going to have these things in the Constitution, safeguards have to be in place. If primary legislation were to be used to describe and set the rules in this regard, it could be changed. I have concerns about some of the things we are doing in this respect. I am attempting to address some of those concerns in this amendment. The phrase “having regard to the provisions of this Constitution” is a key one in this amendment. In the absence of such a wording, there is no safeguard to ensure that any use of Oireachtas inquiries must have due “regard” to other rights enshrined in the Constitution as a whole. I have real concerns about that.

We need to give clear directions to the Judiciary. Our job is to make legislation and the job of the Judiciary is to interpret it. We have to provide clear instructions. The ability of the Houses of the Oireachtas to conduct inquiries does not over-ride any provision in the Constitution. We need a wording that ensures the protection of the Constitution can be invoked if any portion of the new powers being bestowed on the Oireachtas is applied in a manner that is contrary to the spirit of the Constitution.

It is important to make it clear that we respect the constitutional rights of the citizens of this country. We are not in dispute about the fact that this is being done in the common good – we are considering what the Bill actually says. When this amendment to the Constitution is put before the people and passed by them, 20 years might pass before the need to use it arises. It will not necessarily be used by this Government, which has a large majority. That is part of the reason I am proposing that any inquiry be approved by 90% of Members. Any reference to the Oireachtas should mean precisely that – it should not mean that the Executive more or less decides the terms of reference of an inquiry.

I will give an example. There were terrible abuses in the planning system some years ago. Material contraventions would be passed by one part of a county and all that kind of stuff. It was essentially decided that two thirds of councillors had to vote in favour of a material contravention. I think that has worked very well. It has got broad agreement. That is really what we should be trying to achieve.

There should not be a presumption that the Opposition will oppose something that may be in the national interest. The inquiry system should not be used frivolously. It should be used occasionally and in a thought-out manner. If it is over-used, its value may well be reduced. That is why I have provided for a number. I was trying to achieve a degree of inclusiveness within the Houses of the Oireachtas.

I have referred to the key line, “having regard to the provisions of this Constitution”. A number of sections of the Constitution, including Articles 43.1, 43.2, 34 and 39, need to be read side by side with this. However, it is not at all clear that is what is intended. I am not satisfied the legislation is sufficient, separate from the Constitution, from that point of view.

6 o’clock

On the intention not to impose criminal sanctions, it should be explicitly stated that there is a limit to the consequences of the findings that any inquiry can make. It is important that we make it clear that we do not cross the line between civil and criminal sanctions. That is something that could be open to interpretation and I also have concerns about that.

It is vital that the right to appeal, even a judicial review of something, is enshrined in the Constitution. What was intended, if I recall the briefing correctly, is that the only matter on which the courts could adjudicate was the issue of natural justice. I accept that in the briefing we were told it was intended this would have to be an issue of serious importance. It is about ensuring that there is trust among the citizens of this country and certainty about the laws we pass, particularly when they relate to matters we ask the people to put in the Constitution. We must then provide the laws around which to make the rules. The people must have certainty. After all, the Constitution is the cornerstone of the legal system. We have an obligation to put safeguards into the wording, if it is to give the kind of certainty the citizens of this country deserve.

That, more or less, is a broad brush stroke of what I intended in framing this amendment. I have difficulty with the Bill outside of that and I have made that clear throughout the debate.

Deputy Brendan Howlin:     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.

Deputy Catherine Murphy:     While I accept the Minister has made strong arguments in defence of the position to which he has come after long deliberations and a great deal of advice, I continue to hold serious concerns and do not believe my concerns are addressed.

Deputy Brendan Howlin:     What specifically are they?

Deputy Catherine Murphy:     The point about the 90% figure and the process to which the Minister referred is helpful. I recall being at a Whips meeting some weeks ago at which I argued against something. I was told this was the way it was going to be, that the Government had the numbers and that that was the way it worked. The problem is that it is a numbers game.

Deputy Brendan Howlin:     I have specifically designed this in order that it cannot be a numbers game. However, we cannot have the tyranny of the minority either. The tyranny of the majority is one thing, but the notion that a 10% minority could overrule a 90% majority is worse because it would be a negation of fundamental democracy.

The construct of this inquiry system is taking away from the Government. I remember trying to craft the terms of reference of the Morris tribunal which, remarkably, examined my conduct as a Member and that of the then Deputy Jim Higgins but which excluded the conduct of the then Minister for Justice. It is to get away from such occurrences that I propose that it should not be the Executive that would make the decision but a committee of the House in a public forum.

Deputy Catherine Murphy:     I wish to make one final point on the explicit use of the term “having regard to the other provisions of the Constitution”. I am concerned that in the absence of stating as much an interpretation is possible that it is exclusive to this rather than looking at the totality. This is a serious concern for me.

Deputy Brendan Howlin:     Let me deal with that issue front-up because it is a simple matter. It is an absolute established convention that all articles of the Constitution must be read harmoniously. It is the same in law with the Interpretation Act. This determines how law is interpreted across potentially conflicting statutes. The Constitution must be read harmoniously. There is no doubt that the established rights under Article 43 of the Constitution on fair procedures must be vindicated. Equally, there is no doubt that every citizen has the right of access to the courts to have the point tested. I am proposing an amendment which I am legally advised is unnecessary but which I propose to make for the sake of absolute clarity and to address an issue fairly made by Deputy McDonald. The amendment will write the clause on fair procedures into the constitutional amendment itself.

Deputy Catherine Murphy:     While I will not press the amendment, I cannot agree with what has been put forward. I will reserve my position on opposing the legislation.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

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