THE PROPOSED amendment to the Constitution to permit Oireachtas inquiries goes too far and could restrict the rights of citizens to fair procedures, according to legal experts.
The amendment, published on Monday, seeks to overturn the Supreme Court’s Abbeylara judgment, which stated that the Oireachtas could not conduct inquiries that impinged on the reputations of individuals.
The proposed amendment provides for the Oireachtas to have the power to conduct inquiries into matters of general public importance. It also provides for an investigation of the conduct of an individual in that context and the making of findings in relation to his or her conduct. It will be debated and voted on next week.
The final subsection of the proposed amendment states that it “shall be for the House or Houses to determine the appropriate balance between the rights of persons and the public interest” in such an inquiry.
Minister for Public Expenditure Brendan Howlin, also published the scheme (or outline) of a Bill that describes the manner in which such inquiries will be carried out. The type of inquiry outlined in the scheme of the Bill will largely take place in private, and much of it will be carried out by an independent investigator rather than members of the Oireachtas.
However, Prof Gerry Whyte of Trinity College said this legislation was not mentioned in the proposed amendment at all, it could not be enacted or could be amended or repealed.
He said that the proposed constitutional amendment differed from the draft proposed last January by the Oireachtas committee which examined the issue. The final section of the amendment proposed by the committee stated that the conduct of inquiries should be regulated by law, which should balance the rights of the individual with the public interest in an effective investigation.
This did not exclude the courts stepping in to defend the rights of people appearing before inquiries if the Oireachtas got the balance wrong. The present wording could exclude such court oversight, he said.
Dr Eoin Daly of DCU also said the first two subsections of the proposed amendment are sufficient to overturn the Supreme Court’s Abbeylara judgment. However, the final subsection could roll back procedural fairness, a step not indicated in the programme for government’s commitment to overturn the judgment.
He said there was a possibility that, if the amendment was carried, the Constitution would exclude judicial review of the legislation the Oireachtas would enact to set up inquiries. The amendment provides for the degree of protection for the reputation of those affected to be determined by legislation alone, rather than by reference to the established constitutional jurisprudence on procedural fairness, he said.