INSIDE POLITICS:DEBATE ON the constitutional amendment giving politicians the power to conduct inquiries and make findings of fact against individuals has sparked into life just in time to give voters a chance to consider both sides of the argument.
The amendment almost slipped through unnoticed and it would have been a sad day for our democracy if that had happened. One of the reasons debate was so slow to start is because the referendum is being held on the same day as a presidential election with a wide cast of colourful characters who have hogged the headlines for the past month or more.
On top of that the referendum is just one of two taking place next Thursday, with the other being on the topic of judicial pay, about which the public has strong feelings and is likely to vote Yes by a large majority.
However, one of the main reasons for the lack of debate until the last few days was the manner in which the referendum Bill was rushed through the Dáil and Seanad with the minimum of serious consideration.
The dangers of rushed legislation, particularly on anything to do with referendums, was highlighted in the Dáil 10 years ago. “It is outrageous in the context of legislation dealing with the manner in which referendums are conducted that a Bill should be published on a Wednesday and the Government should put it through all stages in this House by guillotine on a Friday.
“My 20 years of experience as a member of this House has taught me that when important legislation is rushed through, with the Government expecting the Houses of the Oireachtas to rubber-stamp its proposal, it inevitably leads to constitutional challenges and legislative disaster.”
The speaker was none other than the current Minister for Justice Alan Shatter, one of the keenest proponents of the current referendum, who, along with his Cabinet colleague, Brendan Howlin, insisted that the Thirtieth Amendment to the Constitution Bill should be rammed through the Dáil in a matter of hours over the course of two days last month.
Giving more powers to the members of the Dáil and the Seanad to conduct inquiries is not necessarily a bad thing, and some of the criticism levelled at the proposal by the legal profession is laughable.
One of the strong arguments in favour of giving the Oireachtas greater powers of inquiry is the scandalous way the legal profession has conducted judicial inquiries over the past two decades. A combination of arrogance, incompetence and a reckless disregard for the financial cost to ordinary taxpayers has turned some of the prominent judicial tribunals into bigger scandals than anything they were set up to investigate.
The final bill to the taxpayer for the tribunals set up during the Bertie Ahern years will probably be in the region of €300 million. Judicial tribunals have been thoroughly discredited by their own performance and the country certainly does need an alternative way of inquiring into matters of grave public interest.
The question is whether we need to give Oireachtas committees the kind of wide-ranging power to conduct investigations and make findings of fact about individuals that the Government is proposing in the referendum. Committees already have the power to compel witnesses to attend in certain circumstances and what is really at issue now is the kind of investigations they intend to conduct.
A Bill passed in tandem with the referendum wording spells out those powers in some detail, but once the referendum is passed a future Government could amend the Bill and give the Oireachtas even greater powers of investigation.
Some serving and retired members of the Oireachtas have deep reservations about what is being proposed. Former senator Joe O’Toole says he regards the proposal as “well-intentioned but dangerously wide”.
O’Toole believes it is dangerous to change the Constitution in a way that does not limit what can be done by legislation in the future.
One cause of worry over the past few months has been the regularity with which leading members of Fine Gael and the Labour Party have spoken about their intention of conducting an Oireachtas inquiry into the banking collapse once these new powers have been acquired.
It gave the impression that the current parties of power are unhappy that the Nyberg report did not put their Fianna Fáil predecessors in the dock and they are determined to find some way of doing it. That raises the scary prospect of Oireachtas committees conducting political witch hunts, with hearings being turned into show trials in which a Government majority can do what it likes.
The people spoke in the election last February and punished Fianna Fáil for its mishandling of the economy. That is how democracy works. Establishing committees to punish political enemies for their mistakes, real or imagined, could lead the Oireachtas down a very dangerous road.
The Coalition parties insist that they have no intention of abusing their proposed new powers and there is no reason to doubt them. However, once the powers are conferred on the Oireachtas, who can tell what a future Government might do?
Another argument is that parliaments in other countries have committees with the power to conduct investigations. In most countries, though, those powers are carefully circumscribed. One of the things a proper debate could have established is how the powers being sought by parliament here compare to those in other countries.
The political system, the media and the electorate have not had the opportunity to have a thorough and wide-ranging debate about what is being proposed or to look at how other parliaments conduct inquiries.
There is also something of a false dichotomy in the suggestion that the only alternative to judicial tribunals is to give the Oireachtas the new powers being proposed.
To the credit of former Minister for Justice Michael McDowell, an alternative to judicial tribunals has already been put in place. The 2004 committees of inquiry legislation, as Senator Rónán Mullen pointed out earlier in the week, delivered the Nyberg and Cloyne reports in an impartial, quick and relatively cost-effective manner.
That does not mean that the Oireachtas should not conduct its own inquiries. Suggestions that the Coalition is bent on scrapping peoples’ fundamental rights can be disregarded as a convenient fantasy of the legal profession.
The real issue is whether the passing of the amendment will allow committees to be conferred with too much power at some future stage. The problem is that due to the lack of a thorough debate on the topic we don’t really know.