30th Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011

FreudianSlippers

This is the second referendum matter on the ballot on the 27th.
It is proposing the insertion of three new subsections into Article 15 Section 10 of Bunreacht na hÉireann.

Existing text:

1° 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.

Proposed Inserted Text:

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.

A very good post was written in the Legal Discussion thread that covers most of the basics of the proposed amendment:

Kayroo wrote: »

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



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.

Eoin Daly, in his article, explores in depth the scope of the amendment and the potential hazards to the separation of powers:

Essentially, while Oireachtas inquiries would still be judicially hemmed within the legislation enacted, the amendment may empower the Oireachtas to legislative away some of the procedural rights currently recognised in constitutional jurisprudence, and weaken the power of the Courts to declare such legislation unconstitutional.

(my emphasis)

It is possible that many of the procedural rights identified in Re Haughey – such as the right to cross-examine one’s accusers – might be severely curtailed in future legislation, and that while judicial review might still apply in respect of the vires of the legislation itself, the “balance” [that balance being between expediency and fairness] struck between fairness and expediency by the legislation itself may well be protected from constitutional review by ss4. Yet nobody associated with the government, not least the Minister, is prepared to conduct the debate on these terms, to defend the substantive proposition that it is actually worth rolling back procedural fairness for the sake of public interest. Instead, the public is being condescendingly subject to a form of doublespeak, which bafflingly asserts that the balance between procedural fairness and the public interest is recalibrated, yet that procedural fairness nonetheless remains much as before.

(my emphasis)

Perhaps most worryingly of all is the statement contained at page 16 of the explanatory memorandum:

“In this regard the Committee’s recommendation was that the Houses of the Oireachtas themselves should be assigned the responsibility for deciding how witnesses’ rights to fair procedures in the work of committees of inquiries should be exercised in practice. In the absence of this approach it would, in all likelihood, remain a matter for the courts to achieve this in their consideration of legal challenges that might be expected to be mounted to the proceedings of Oireachtas inquiries […] It is highly desirable that Oireachtas inquiries should be carried out in an efficient and cost-effective manner and conclude their work within a reasonable period of time. It is strongly questionable whether it would be possible to achieve an effective and cost efficient system of Oireachtas inquiry in circumstances where, for example, the opportunity to cross-examine witnesses using legal counsel was available to all witnesses called to appear before an Oireachtas committe”

This has the effect of removing fundamental rights of fair procedures from these Oireachtas inquiries as well as placing the decision on what are and aren't fair procedures in the very hands of the people who are conducting the inquiry.

Daly goes on:

This absurd process of self-contradiction is exemplified in the fact that in this week’s Oireachtas debate, the Minister said: “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.” Yet barely a paragraph later, he insisted that the right of recourse to the courts “will not be dislodged in any iota by the proposals we are inserting”. The rhetorical pretence is that whereas procedural fairness may be ‘rebalanced’, it can remain wholly intact. AT least in today’s Irish Times article, Howlin does acknowledge, while insisting that judicial review will remain available, “the amendment will alter the balance of the test that the courts apply” – which I believe means, as I said above, that while the courts may review inquiries’ compliance with the vires of the legislation itself, they are essentially instructed by the amendment to defer to the ‘balance’ the legislation itself embodies.

The rhetorical windowdressing has made its way into the text of the amendment itself. The bill passed by the Dail, and the version that will almost certainly be put to the electorate, has been amended in relation to the text initially presented last week. In particular, the controversial ss4 has been changed, in response to some of the concerns raised surrounding procedural fairness. The ostensible difference is the insertion, in ss4, of the phrase “with due regard to the principles of fair procedures”. This is a brazen re-phrasing of what the previous, controversial wording already provided for in substance. The previous wording already indicated it would be for the Oireachtas to execute the balance between “the rights of persons” and the public interest; “the rights of persons” of course referred, primarily, to their right of fair procedures. In adding the phrase “fair procedures”, the draftspersons have merely repeated what is already plainly present. It is likely this will make no difference whatsoever to how the amendment will be interpreted. The objectionable element of the initial wording was not the lack of reference to procedural fairness per se, it was the assertion that it “shall” be for the Oireachtas to interpret how it is to be balanced against the countervailing imperative of expediency; it was to make the Oireachtas itself, and not the judicial branch, the judge of its own constitutional obligations. Under the new wording, the potential curtailment of judicial review, at least in respect to the constitutionality of the legislation itself, remains present. The Oireachtas is instructed by the amendement itself to have ‘due regard’ to procedural fairness, but crucially, it will be for the Oireachtas itself, and not the independent judicial wing of the State, to interpret how this is to be reconciled with the other imperatives and pressures entailed in the inquiry process.

He concludes, and I emphasise and reiterate same:

I believe this sets a dangerous precedent, in that it seeks to protect from judicial scrutiny the balance the Oireachtas effects between individual rights and the common good. The most valuable feature of our distinct constitutional tradition, I believe, is that the protection of individual rights is, for the most part, placed beyond the vagaries of parliamentary politics through a robust system of judicial review of those state interferences in individual rights purported to serve the “public interest”. This is sometimes called a system of ‘checks and balances’. What is most regrettable about the public debate this past week is that the Government appears to prefer to obscure this deeper, latent question, insinuating that it amounts to little more than a technical corrective to a jurisdictional problem identified in the Abbeylara judgment. It would be preferable, I believe, to conduct the debate in terms of whether it may ever be justifiable or desirable to accord to parliamentarians, to the exclusion of judges, the determination of how individual rights and the common good are to be balanced. Although I would support an amendment giving the Oireachtas an explicit inquiry role, in order that it might effectively hold certain powerful interests in society to account, I would urge readers to vote ‘no’ to the thirtieth amendment as it stands.

I will most certainly be voting no on this proposed amendment. I feel that 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.

carveone

Thanks for that FreudianSlippers. I guess this thread becomes a dup of the "Abbeylara referendum" thread, although the title of this one is clearer.

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...

I believe that when evaluating the intent of various parts of the Constitution it's reasonable to bear in mind the time when it was penned. In 1937 the financial crash had destroyed the world economy; many people were living in utter penury, yet there's a section on protecting judges' pay; in Europe the threats imposed by fascism were real and present. Those who wrote the Articles and those who voted on them were all too aware of this.

I think any attempt to unwind the Articles in the Constitution, penned in parallel (but entirely less grim) circumstances, is inherently terrifying.

grizzly

Has there been a real world example in recent years where these powers would have benefited the society? I trying to picture one and imagine a potential good outcome from it.

Wildlife Actor

FreudianSlippers wrote: »

"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....."

Chilling words. Would have fitted nicely into Kafka's The Trial.

The complacency of of an electorate that says "fascism could never happen here" is the same complacency that allows totalitarianism to thrive.

johnnyskeleton

Perhaps merge with the other thread.

My understanding of the law as it stands is that the oireachtas are perfectly free to carry out any inquiry or investigation provided that it doesn't amount to an administration. This means that they can find facts not amounting to guilt of a criminal charge for specific individuals. They can also make recommendations to the dpp, ag, odce etc to bring prosecutions on foot of those enquiries.

But their current powers stop short of actually putting someone on trial. This new referendum is being brought so that they can do so.

It's genesis appears to be a lack of confidence in the tribunals, which are perceived as slow and therefore also costly. But the speed of the tribunals was never set by thr judges or lawyers, but by the level of co-operation of the witnesses. Thus, The Morris tribunal did exactly what it said on the tin, and the smithwick tribunal is belting along at a terrific pace. These concern issues of Garda mistakes/corruption/collusion where there is a high level of cooperation. But the difficulty arises when you are dealing with politicians, "businessmen" and others from the greasy pool of untouchables in a certain part of Irish life. They are the ones who delay, frustrate and prolong the tribunals.

Suffice it to say that the tribunals are fit for purpose when they don't have to deal with politicians and their patrons. Icant see how these oireachtas enquiries will be any different as they wil be judges in their own cause. Sure, let them haul the bankers over hot coals, but they can do that anyway, save that they cannot find guilt but simply recommend prosecution.

But does anyone really think an oireachtas inquiry into thr bank guarantee, bailout and Nama will be fair? Fg supported ffs position on this and are u likely to want to open up that can of worms. Labour, who opposed it, might only be looking for blood and political point scoring. Ff will, as is their wont, try to put all the blame on brian lenihan (deceased) and brian cowen (politically deceased) so that the rest of the party can emerge squeaky clean.

But my main opposition stems from the way his referendum is thrown out like a bolt from the blue - no careful consideration of it's wording, no real debate, little media coverage until last week (2 weeks before the vote!) and it is a complete populist campaign of "sure well getthe bankers without those nasty lawyers getting involved". What happened to the reform of the dail, the abolishion ofthe Seanad, the childrens rights referendum and the constitutional symposium? These things are too complex and too politically sensitive. Instead, they gain populism by stamping on judges, lawyers and the rights of those accused of wrongdoing. Very popular, but it shows us exactly what is wrong with too large a government majority.

AlekSmart

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.

I am incredulous that whereever I go I hear people brushing aside the "Other" votes being held on the day.

It's two big fat NO's here I'm afraid,although perhaps a late Poster campaign using just the text quoted above might wake a few more people up !!!

bbam

FreudianSlippers wrote: »

.
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.

When I read about this ammendment I thought, "sher the Irish will never allow this to happen"

Read an article over on Breaking News that two polls show it is expected to pass....
http://www.breakingnews.ie/ireland/polls-indicate-referendums-will-be-passed-525461.html

Having spoken to a few family and friends most didn't know there were two ref's on at polling and new nothing on the content :eek:

I think this is a really scarey place we are going giving these powers to a group of ex teachers, builders and god knows who else...

Seems the Irish public have taken their collective eye off the ball on this one and I feel will regret it in the future.:mad: