Referendum: Amendment 2 - Oireachtas Inquiries - Yes or No?

Tom Young

So, what do you think?

Tom Young

Eoin Daly on the Second Amendment and why he believes a No vote is important: http://www.humanrights.ie/index.php/2011/09/23/procedural-fairness-is-curtailed-long-live-procedural-fairness-an-update-on-the-progress-of-the-thirtieth-amendment/

Well, let's start by looking at what it is we are being asked to vote for:

At present, Article 15.10 states:
“Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.”

It is proposed to renumber this as 15.10.1° and to insert the following subsections:

2° 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.

3° 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.

4° 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 proposed amendment giving the Oireachtas power to conduct investigations into matters of public importance will, in essence, allow the Dail to bring people before its committees and investigate them, likely without any judicial oversight. The Oireachtas itself will be the body charged with the investigation, with the conduct of the examination of witnesses, with determining the procedures to be used and in determining where "the public good" outweighs the rights of the citizen to certain protections such as a presumption of innocence, a right to silence, a right to privacy, a right to a fair trial etc.

The Oireachtas are allowing themselves the power to set up McCarthy type enquiries "in the public interest" and are snatching a judicial power for themselves. Personally the idea of Michael Lowry, Michael Healy-Rae, Brendan Howlin, Joan Burton, Padraig MacLochlainn and so on being able to make findings of fact about a private citizens conduct and that finding having the weight of the Oireachtas behind it sickens me to my core.

The real problem with Shatter is when you look at his measures in totality. He is taking control of judicial pay, giving the Oireachtas a judicial power and taking wholesale control of the legal profession. Over 50% of the cases in the Courts involve the State in some capacity. The most effective venue for the vindication of your rights is the Courts and the vindication of those rights is usually against the abuses of Executive power. How effective can that bulwark of democracy be when the Executive have taken such effective control over it?

In 1967 the Committee on the Constitution stated:

‘Our parliament can operate only within the confines laid down in the present Constitution, which was intended to provide the charter for all aspects of public affairs in this country. That Constitution has been very careful to outline detailed provisions about the court system to be established, the procedure for the trial of offences and the fundamental rights of the citizens, including the right to personal liberty and freedom of expression. If it had been the intention from the beginning that the powers enjoyed by the Oireachtas were not to be restricted by any safeguards of this kind, there would surely have been a great deal more comment about the nature and effect of parliamentary privilege than has heretofore been the case. As already indicated, the wording of Article 15.10 itself suggests that this was not the intention’

The effect of the proposed Article 15.10 will be to give the discretion to the Oireachtas to determine whether those essential freedoms are superseded by the "public good". There is no definition of the "public good" and therefore the discretion given to the Oireachtas is quite broad.

Callelly -v- Moylan & Ors[2011] IEHC 2 does suggest that, at the very least, the issue of fair procedures will be amenable to judicial review but that notwithstanding the Oireachtas need only take due regard of fair procedures. If they choose to dispense with them "in the public good" there is enough room within this provision to suggest that they are entitled to do so.

The fact that this amendment is being tagged onto Article 15.10 is also illuminating. There is a volume of case law on the point that the internal workings of the Dail are not amenable to judicial oversight and are non-justiciable. One can only hope that the newly formed Constitutional basis for these committees does not cause the judgment of Keane CJ in Maguire -v- Ardagh[2002]1 IR 385 to be overruled:

Different considerations apply, however, where, as here, the Oireachtas purports to establish a committee in power to enquire and make findings on matters which may largely affect the good name and reputation of citizens who are not Members of either House. An examination of the courts of the manner in which such an enquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation. Nor does it in any way qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs

While I am generally against this amendment I can only hope that the Constitutional element of future Dail committees of investigation does not preclude the Courts from continuing to exercise their roles as the ultimate protectors of the citizen's freedoms.

FreudianSlippers

I will be voting 'no' - again I feel it sets a dangerous precedent and is an attack on the separation of powers.
I feel it gives far too much discretionary power to the Oireachtas and undermines the power and validity of the Irish judiciary.

Grolschevik

Deleted User wrote: »

the idea of Michael Lowry, Michael Healy-Rae, Brendan Howlin, Joan Burton, Padraig MacLochlainn and so on being able to make findings of fact about a private citizens conduct and that finding having the weight of the Oireachtas behind it sickens me to my core..

+1

Deleted User wrote: »

The real problem with Shatter is when you look at his measures in totality. He is taking control of judicial pay, giving the Oireachtas a judicial power and taking wholesale control of the legal profession.

And the army as well!

johnnyskeleton

Vote yes for more tribunals. I think a few years of despotism will make the Irish people cherish democracy

_JOE_

Will be voting no again.

McCrack

I think this will set a very dangerous precedent if this passes. If it does pass it effectively will overrule the Abbeylara Supreme Court judgment.

What the hell qualifies politicians to act judicially and make findings of fact against people which ultimately can destroy their reputations? And what enforcement powers will they have to make people cooperate? Can they subpoena if somebody doesn't cooperate?

I really hope this doesn't pass.

32minutes

Whats frustrating about this referendum is that given the fact that it's closely linked with the judges pay referendum people are too closely associating the two when deciding their vote.

People who are against the amendment are substantiating strong arguments for a vote to refuse the amendment but those proposing it haven't really mustered a strong basis for it apart from "we can investigate the banks".

Voters appear to be starting off on a Yes vote and then working backwards as opposed to starting off neutrally

johnlambe

I'm voting No.

Surely, "the appropriate balance between the rights of persons and the public interest" is exactly the sort of thing that should be in the constitution.

The original proposed wording didn't even include "with due regard to the principles of fair procedures". That shows how little regard our current government has for such rights.

It is unclear whether individuals can appeal findings of such investigations.

There ought to be a high bar to establish such an investigation and set its terms of reference (to ensure that it is genuinely in the public interest to use this method rather than a tribunal or the courts). As it stands the requirements for setting it up could be less than for passing a bill.
One TD suggested that such a decision should require a 90% majority. That didn't get much support, but I would like something like a two-thirds majority in the initiating house, a simple majority in the other house (I think it is very important to require the approval of the other house), and maybe give the president a veto.

In theory this seems to give the Oireachtas the power to circumvent the courts for any matter (even an ordinary criminal trial) if they just state that it is of "general public importance".

In some cases, the Oireachtas may not be independent of the matter (e.g. an investigation into the banking crisis - if FF were in power for the investigation, they would have a motive shift blame away from the government; the current government would benefit from blaming the previous one. Could the findings of such an investigation be credible?).

Safeguards in law are insufficient since a government with a majority in both houses can change these if they don't suit it.

johnlambe

McCrack wrote: »

And what enforcement powers will they have to make people cooperate? Can they subpoena if somebody doesn't cooperate?

Good point.
I'm assuming that it could compel witnesses (and that that will be specified in the legislation).

Will it have the power to impose penalties for non-cooperation, including an offence equivalent to contempt-of-court?
(That was all Senator McCarthy needed).

lydsie

was watching tv last night and seen an add saying we will be getting the info to explain both referendums through the post during the week.. wtf... the referendum is taking place on the 27th...I have seen so many political debates on our prospective new president...and the 'dirty campaign' but very little about the referendums. You really have to seek out the info. In a bid to make an informed decision... i have read both forums on Oireachtas inquiries and Judges pay...

before reading up i thought judges pay cut, good thing, right...everyone has had a pay cut? Eh no... much more complex. But i won;t get into it.. whole other forum on that.

Oireachtas inquiries, also good thing.... more transparent...bring some accountability for the bad decisions made...eh no again...

By voting yes to either of these we are giving a government that no one trust more power... its a bit scary.

But my point is that lack of information and the problem that people are going to vote without making an informed decision...due to the last of public debate about these pretty important issues... I hope i am proved wrong vote yes or vote no... but know both arguments

Delancey

I will vote ''yes'' - this amendment has been nescessitated by the Abbeylara judgement , perhaps the Oireachtais committee could otherwise have examined events there and thus removed the need for an expensive tribunal.
Remember the superb work of the Dail Committee investigating the DIRT scandal and how much back tax was collected for a minute fraction of the cost associated with a tribunal ?
I think the general public are rightly sick of lawyers becoming millionaires by burying their faces in the trough of Tribunals of Enquiry , I have to say I take a very cynical view of lawyers protesting against this amendment.

johnnyskeleton

Delancey wrote: »

I have to say I take a very cynical view of lawyers protesting against this amendment.

Don't worry, the Irish people as a group have traditionally been suspicious of the well educated, and they like nothing better, when being told about important prinicples of democracy to "stick it up the noses of our betters". This is true of European referenda (space aliens abducting babies makes me vote no to Lisbon) and is especially true when they can suggest an ulterior motive on the part of those who are basing their argument in logic and reason rather than in suspicion and half baked notions. If you open your eyes a bit more, it's not just lawyers who are sounding notes of caution, but journalists, academics, pretty much anyone with a 3rd level degree or other education in politics and civil liberties.

I find it strange that lawyers are lumped into a group. You're suspicious of lawyers having views on this, but if lawyers who weren't involved in any tribunals, are unlikely to be involved in tribunals in Future and have no vested interest in it, how are their views tainted?

Plus, as I said above, this amendment just means more tribunals, more lawyers fees and more subsequent challenges. This referendum is, if anything a meal ticket for lawyers. What honest to goodness greedy barrister or fatcat solicitor wouldn't vote yes. Because the tribunals are over one way or another, but now there will be new shiney ill defined inquiries.

Ucd have set out a guideance note for the referendum and one of the many valid points they make is that there is no guarantee that these oireachtas inquiries will be any quicker or cheaper. After all, the oireachtas will need it's own presenting lawyers, anyone whose reputation is at stake is entitled to fair procedures ie a lawyer or three and challenge after challenge will delay them for years. Given that politicians have constituents to keep happy, they won't have enough time to deal with these and the inquiries will either get longer or they will fizzle out.

So you can take it to the bank that any lawyer who is against this is not doing so out of self interest.

I really believe that if the bar council and law society were to endorse both referenda the people of this great nation of saints and scholars would vote no just to spite them.

Our man in Havana

I am not a lawyer and I am voting no. I just don't agree with the government subverting the separation of powers.

Delancey

Delancey wrote: »

I will vote ''yes'' - this amendment has been nescessitated by the Abbeylara judgement , perhaps the Oireachtais committee could otherwise have examined events there and thus removed the need for an expensive tribunal.
Remember the superb work of the Dail Committee investigating the DIRT scandal and how much back tax was collected for a minute fraction of the cost associated with a tribunal ?
I think the general public are rightly sick of lawyers becoming millionaires by burying their faces in the trough of Tribunals of Enquiry , I have to say I take a very cynical view of lawyers protesting against this amendment.

This is nothing short of misinformed.

I haven't got exact figures so let's take massively overstated figures so it doesn't seem like I am making them suit my argument.

There are more than 2,500 barristers in this country. Let's say that the combined number of barristers who have worked on the tribunals is 250-500. I should note that I think that this is a massive overstatement. Regardless let's take those figures. That means that 80-90% of barristers, and an even higher percentage of solicitors, have never and will never see a single cent from the tribunals. So what is it that makes you think that legal professionals are somehow guarding their own interests? The vast majority of solicitors and barristers do work so far removed from tribunals of inquiry that it barely even seems to be the same profession.

It's the equivalent of saying that a clerk working in a bank can't express an opinion about the Chief Executive of AIB because, sure, the people are sick of the banks and their big pay cheques.

You really sound as if you are speaking from a position of utter ignorance.

johnlambe

Delancey wrote: »

this amendment has been nescessitated by the Abbeylara judgement

It seems to me that changing the constitution (removing people's rights) just because there is one case in which you would agree with the use of the new powers, is a very bad idea.
This change affects all future investigations.

Does the Abbeylara judgement necessitate removing the right to appeal? (It's unclear whether this does).
Is it necessary to give a house the power to initiate an investigation without even the approval of the other house?

The Referendum Commission has stated: “It is not possible to state definitively what role, if any, the courts would have in reviewing the procedures adopted by the Houses.”

Since Abbeylara, new commissions of inquiry legislation has been enacted.

The Oireachtas would only have to have "due regard to" the principles of fair procedures. My understanding (I could be wrong) is that that is quite weak - far from saying that they must fully adhere to such principles.
(The Sinn Féin amendment proposed the wording “regulated in accordance with the law and the principles of natural justice.”) (Reported here).

Micheal McDowell is one lawyer opposing it (and not someone I would agree with on most things) and he has also spoken out against the cost of tribunals and waived his fees at a tribunal.
(http://www.independent.ie/opinion/analysis/vote-no-to-inquiry-powers-while-we-can-2914275.html
)


Also see: Irish Council for Civil Liberties No Campaign

johnlambe

It is wide open to abuse.
Investigations could even be used by a government for their own political purposes (even to discredit or harass the opposition or a member of it).
Do you trust all future governments not to abuse such extensive powers? (Have all past governments shown themselves to be that trustworthy?)

And at best, politicians are not chosen to be impartial.

The US House Un-American Activities Committee is an example of a severe abuse of power of investigation in a democracy. I remember that when I first heard about that, I was shocked that that was constitutional in a country that takes pride in its democratic freedom. (It has stronger protection of freedom of speech than Ireland).

We have better safeguards against that sort of abuse than the US, and we may be about to give them up.

charlemont

johnnyskeleton wrote: »

Vote yes for more tribunals. I think a few years of despotism will make the Irish people cherish democracy

I'm afraid if 800 Years couldn't do it nothing could...


Voting No by the way, I don't believe the politicians are capable of inquiring into peoples affairs without their being a vested interest in it.

Delancey

I accept without reservation that the vast majority of legal professionals will in their careers have nil involvement with a tribunal of enquiry , having said that those lucky few that do so are often coming out with 7 figure payrolls.
The example of the DIRT enquiry is one where politicians performed a valuable public service at almost no cost to the taxpayer and who knows if the Abbeylara hearings had not been stopped if it would have been nescessary to hold a Tribunal in that case.

Given the dire straits the country is in there is , I believe , little appetite for huge fees being paid to lawyers in tribunals that seem to be never ending , a cheaper way must be found to investigate matters of public interest and Dail Committees are certainly one option.

johnnyskeleton

Delancey wrote: »

I accept without reservation that the vast majority of legal professionals will in their careers have nil involvement with a tribunal of enquiry , having said that those lucky few that do so are often coming out with 7 figure payrolls.
The example of the DIRT enquiry is one where politicians performed a valuable public service at almost no cost to the taxpayer and who knows if the Abbeylara hearings had not been stopped if it would have been nescessary to hold a Tribunal in that case.

Given the dire straits the country is in there is , I believe , little appetite for huge fees being paid to lawyers in tribunals that seem to be never ending , a cheaper way must be found to investigate matters of public interest and Dail Committees are certainly one option.

Another way to save a few quid in a similar manner, if that is what you want, is to repeal article 38 and stop having criminal trials. The government will thereafter be free to decide who is a criminal and who isn't, who should go to jail and who shouldn't. You might think I'm being facetous, but this is not a million miles from what you are saying - erode fair procedures by getting rid of lawyers and due process.

Tell me this - since you praise the DIRT inquiry so much, if a similar scandal broke tomorrow why couldn't the oireachtas carry out an inquiry? They are perfectly entitled to do so. Why do they need these carte blanche extra powers?

Delancey

Delancey wrote: »

I accept without reservation that the vast majority of legal professionals will in their careers have nil involvement with a tribunal of enquiry , having said that those lucky few that do so are often coming out with 7 figure payrolls.
The example of the DIRT enquiry is one where politicians performed a valuable public service at almost no cost to the taxpayer and who knows if the Abbeylara hearings had not been stopped if it would have been nescessary to hold a Tribunal in that case.

Given the dire straits the country is in there is , I believe , little appetite for huge fees being paid to lawyers in tribunals that seem to be never ending , a cheaper way must be found to investigate matters of public interest and Dail Committees are certainly one option.

Good men with good intentions should not set precedents for bad men with bad ones.

Yes, Oireachtas committees could be useful tools if they are used properly but the scope for abuse of the system is just enormous. There is already a blur between Executive and Legislative power in this State, why would you want to give the Executive a judicial power also???

32minutes

Shatter's reaction to the AGs letter was disgraceful, sure why would you bother arguing the points they raise when you can indulge in a bit of character assassination?

andrewdeerpark

I am not going to read any of the discussion on this:

- 8 former AG’s against
- FAT cat barristers on 5K a day out of pocket, no more tribunals

So it’s a definite YES from me, anything to piss the legal profession off and attempt to get them off the tribunal gravy train.

The legal profession have since the foundation of the state milked the state dry in their exorbitant fees time for a fight back from Joe public.

It amazes me why the government is engaging in legal debate on this one they should just talk over the legal profession and list off the cost of all those tribunals and the amount they pay in legal aid to these FAT cats and they would carry the day easy. Leo Varadka said as much on a radio program I heard and this trumpeted all other arguments.

andrewdeerpark

32minutes wrote: »

Shatter's reaction to the AGs letter was disgraceful, sure why would you bother arguing the points they raise when you can indulge in a bit of character assassination?

That's the only way to deal with the legal profession no discussion just impose change with the constitutional magic bullet that cannot be challenged.

The time for talking has stopped, a line in the sand has to be drawn and battlelines set the IMF said as much.

The legal fees and incestuous greed has to be exposed and tackled: bring it on!

Tom Young

andrewdeerpark wrote: »

That's the only way to deal with the legal profession no discussion just impose change with the constitutional magic bullet that cannot be challenged.

The time for talking has stopped, a line in the sand has to be drawn and battlelines set the IMF said as much.

The legal fees and incestuous greed has to be exposed and tackled: bring it on!

I ask you to place yourself in the position of a completely innocent party hauled before an Oireachtas committee, made up of generally incompetent primary and secondary school teachers, who have not worked in the real world for years.

Then imagine a finding of fact is made about you erroneously.

Suddenly you become a public pariah, vilified by the media while some suit in the Oireachtas scores points on TV for an invalid finding ....!

Then you can't go to court to vindicate your rights, because everything done to, said to, and found about you, was a total fabrication? Or privileged, based on the existing privilege or a new privilege grounded in an improperly policed Act of the Oireachtas!?

That is plainly wrong.

This is not about greedy lawyers. A Yes vote will create ten fold the work for lawyers - Make no mistake about that. This is about rights and those rights you and I possess.

You give away your rights with a Yes vote next week. That is a fact.

If you place yourself in the shoes of a person being subject to an inquiry and wrongly so, you'll change your tune!

32minutes

andrewdeerpark wrote: »

That's the only way to deal with the legal profession no discussion just impose change with the constitutional magic bullet that cannot be challenged.

The time for talking has stopped, a line in the sand has to be drawn and battlelines set the IMF said as much.

The legal fees and incestuous greed has to be exposed and tackled: bring it on!

Laywers are greedy, tribunals are expensive, parliamentary inquiries should be allowed. All undisputed facts.

I'm not going to put this in bold because I'm not trying to argue with you; if Enda Kenny/Bertie/Brian Cowen/Charlie Haughey haul YOU up in front of a committee, throw wild accusations at you, orders a search of your home and denies your right of appeal then you should be able to bring him to court and protect your rights. As of right now this is not the case.

The time for talking should never be over, otherwise who would listen to you?

andrewdeerpark

I as an ordinary citizen of the state, on an average industrial wage cannot imagine how I would ever fear being in the public interest and being hauled before the inquiry.

What is the worst this inquiry can do to an individual, they cannot jail me, take my passport off me, fine me, provided I turn up. What proposed powers will they have? All they can do is ensure I turn up.

32minutes

andrewdeerpark wrote: »

I as an ordinary citizen of the state, on an average industrial wage cannot imagine how I would ever fear being in the public interest and being hauled before the inquiry.

What is the worst this inquiry can do to an individual, they cannot jail me, take my passport off me, fine me, provided I turn up. What proposed powers will they have? All they can do is ensure I turn up.

Andrewdeerpark, it is very hard to imagine how any average joe citizen would be pulled, what I would like to see is that in writing.

You've posted on a public blog, you've expressed a view (could be aview on anything but it's public), a local TD doesn't like this view, he has the ear of the Taoiseach who's a corrupt piece of trash (imagine that?), Taoiseach says this is in the public interest (who would stop him, not the courts), the inquiry is in private (read the amendment, it doesn't say it has to be public at all), they make you take time off work (as much time as they feel like, YOU ARE in jail if you don't go, it would be contempt), search your family home, at the end they make a finding that your... what? a communist, fascist, paedophile, murderer, rapist.. who cares because that label sticks.

I will ask you honestly, if we did have a very dodgy government in place, does this scenario seem absolutely IMPOSSIBLE to you? If it does then by all means vote yes to the referendum. I won't even try and persuade you otherwise.

Yes to parliamentary inquiries, no to this.

andrewdeerpark

32minutes

There is room for exploitation in all tentacles of the state: so yes you very implausible scenario is possible.

What you do not acknowledge is the current legal system is exploiting people anyway by financially ruining them.

Look at the current in camera family law fees, charges that are secretive and exploitative all behind closed doors. All I still see is the legal system protecting their incomes while parading civil liberties I would love to believe the legal system is more interested in the absolute rule of law and its implementation, however we have a litany of evidence showing the legal system is 95% interested in greed and huge fees with very few individuals in the system that still believe in their law degree education.

Sad but true, hence this is why we are where we are now. The current greed, secrecy and incestuous nature of the legal profession hence I am more than willing to give this change a chance for better or worse.

Our man in Havana

Look at the current in camera family law fees

Nothing to do with the proposal on the table.