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«Proposed Referendum to amend the Constitution to enable the Houses of the Oireachtas to undertake full inquiries & Overview of the Proposed System of ...»

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Explanatory Note

Proposed Referendum to amend the Constitution to enable the Houses

of the Oireachtas to undertake full inquiries

&

Overview of the Proposed System of Oireachtas Inquiry

Department of Public Expenditure & Reform

12 September 2011

-1-

Contents

Page

Preface 3

Introduction 5

Parliamentary Inquiries - Abbeylara Judgment 7

Wording of the Proposed Constitutional Amendment 13 Overview of Proposed System of Oireachtas Inquiry 18

-2- Preface This Explanatory Note has been prepared by the Government Reform Unit in the

Department of Public Expenditure and Reform to:-

• Explain the proposed wording of the constitutional amendment required to implement a new approach to undertaking parliamentary inquiries; and

• Make available through the publication of a General Scheme of a Bill details of the proposed new Oireachtas system of inquiry.

The note sets out in overall terms the background and context to the proposed referendum by outlining the reasons why, as a result of the Supreme Court judgment in the Maguire vs. Ardagh (“Abbeylara”) case, the need for an amendment to the Constitution is believed to arise.

The note also contains an overview of the proposed structure and operation of the inquiry system as well as the draft Heads of the Houses of the Oireachtas (Powers of Inquiry) Bill 2011.

These new inquiry arrangements for the Oireachtas can only be put in place if the proposed amendment to the Constitution contained in the Referendum Bill – the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 - is approved by the electorate in the referendum due to take place on 27 October 2011.

This note draws primarily on the assessment and analysis of the Abbeylara inquiry issue contained in the Fifth Report of the Joint Oireachtas Committee on the Constitution published in January 2011 which reviewed Article 15 of the Constitution and the parliamentary power of inquiry in Ireland.

-3- The drafting of enabling legislation to underpin the constitutional amendment and the implementation of the proposed inquiry system is ongoing, based on the draft Heads published with this note. It is expected – subject to Government approval – that the Bill will be ready for publication by early October at the latest. Enactment of the Bill by the Oireachtas will require the referendum on the proposed amendment of the Constitution on 27 October next to be accepted.

The Department would welcome comments on the draft Heads from interested parties as soon as possible, to inform and advise the finalisation of the Bill over the coming weeks.

–  –  –

1.1. Referendum Bill The Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 sets out the wording of the proposed Referendum.

The existing Article 15.10o would be renumbered 15.10.1o Three new Subsections would be inserted as follows:º 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 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 2º applies.

1.2 Purpose of the Referendum The broader international experience - and the specific national experience in the case of the successful DIRT inquiry carried out by the Dáil Public Accounts Committee suggests that there are significant public policy benefits from the operation of an effective system of parliamentary inquiry where relevant and comprehensive information is

–  –  –

The purpose of the referendum is, therefore, to seek the approval of the electorate for a change in the Constitution which would allow the Houses of the Oireachtas to undertake full parliamentary inquiries as described in this note.

If the proposed amendment to the Constitution is accepted the objective for the new inquiry arrangements is to secure effective and cost-efficient parliamentary scrutiny of issues of general public importance in a manner consistent with precepts of constitutional and natural justice.

-6Parliamentary Inquiries - Abbeylara Judgment

2.1 Programme for Government commitment The primary objective of the proposed amendment to the Constitution, consistent with the commitment contained in the Programme for Government, is to address the issues raised by the Supreme Court in its judgment in the Abbeylara case.

This is intended to ensure that the Oireachtas is empowered to carry out the type of inquiries which are considered integral to the effective performance of the Houses of the Oireachtas’ legislative responsibilities and to the Dail’s functions in exercising oversight and securing accountability in respect of the system of public administration, as well as its appropriate role in making recommendations to Government on significant issues of public policy.





2.2 Supreme Court Judgement in Abbeylara Case – Key findings The April 2002 Supreme Court Abbeylara judgment identified significant limitations and constraints on the ability of the Houses of the Oireachtas to undertake inquiries.

Inherency: The key finding of the Court was that the Oireachtas did not have an inherent power to conduct inquiries. It had, therefore, overstepped its legal jurisdiction when it instituted the type of inquiry involved in the Abbeylara case.

The Supreme Court found that, although the Oireachtas could legitimately sanction other bodies and tribunals to investigate matters of public importance on its behalf, the Oireachtas itself has limited inherent investigative authority.

While there were some important procedural failings in the approach adopted by the inquiry committee carrying out the Abbeylara inquiry, the major issue arising from the judgment was the significant limitations on the power of the Oireachtas to hold parliamentary inquires into matters involving alleged personal culpability of individual

–  –  –

Bias: The Supreme Court judgment also highlighted the importance of ensuring that an Oireachtas inquiry conformed to the important principle in natural and constitutional justice of ‘no bias’.

The operation of this principle can arise in two specific contexts - institutional (or structural) bias and objective (or individual) bias.

In the Abbeylara case, on the question of objective bias, the Supreme Court found that it was not compatible with constitutional justice for a person to sit in a quasi-judicial capacity as a member of a committee making determinations of fact and, at the same time, make comments in the media which indicated that they had strong prior views or had already formed fixed opinions regarding the matters into which they were inquiring.

Such an approach was incompatible with a fair and balanced hearing and assessment of the evidence being presented to the inquiry.

Strong and robust procedures and protocols for the conduct of inquiries will need, therefore, to be put in place by each House of the Oireachtas under the proposed new approach in order to safeguard the inquiry process against the risk of objective bias evidenced in, for example, public comments of committee members reported in the media.

Institutional bias refers, in summary, to a situation where, irrespective of the circumstance of a particular case, it is argued that a specific body may, of its nature, be inherently biased and cannot, therefore, be relied upon to assess evidence and form judgments in an objective and unbiased fashion.

The majority of Supreme Court judges rejected the assertion in the Abbeylara case that an inquiry by the Oireachtas must, by its very nature, be biased. In this context the current

-8very significant constitutional role assigned to the Houses of the Oireachtas in relation to the impeachment of the President or judges might make a finding of structural or institutional bias difficult to justify.

However, the absence of a specific and explicit recognition in the Constitution of a role for the Oireachtas in undertaking inquiries in which findings of personal culpability might be made could provide grounds for legal challenge to Oireachtas inquiries on the basis of institutional bias.

Holding of non-members of the Houses responsible: In the Abbeylara case the focus of the investigation was on the behaviour and actions of individual citizens (i.e. members of the Garda Síochána) who were not members of the Oireachtas. The Supreme Court held that this specific aspect of the inquiry was not lawful.

The Court believed that the Oireachtas committee of inquiry had departed from its policy ambit and veered into factual determinations which had no long term policy implications beyond findings of wrongdoing by individuals.

While no definite view was taken by the Supreme Court on the appropriate limits to an Oireachtas inquiry in holding non-office holders responsible, the views of the Court did highlight that existing constitutional provisions did not empower the Oireachtas to inquire into the conduct of any person. This would clearly represent a significant constraint on the ability of the Oireachtas to conduct an inquiry.

Adjudicatory findings of fact: As set out above, one of the concerns of the Supreme Court in the Abbeylara case was that the inquiry committee was empowered under its terms of reference to make finding of facts which potentially impacted on the reputation and good name of individuals.

The findings of the inquiry would, therefore, be considered adjudicatory, meaning that although the findings had no legal effect they could impugn the good name and

–  –  –

The implication of the Supreme Court’s findings was that under the current constitutional position an Oireachtas inquiry could not investigate any matter which had the potential to impact adversely on a person’s good name or reputation, other than perhaps in an inquiry with a clear legislative purpose which might in some circumstances unavoidably lead to implied blame being attached to an individual.

This conclusion by the Supreme Court could potentially seriously curtail the capacity of the Oireachtas to carry out any meaningful inquiries; it would usually be expected to be the case that individual conduct or the conduct of a group of individuals would have played a significant role in giving rise to the set of circumstances requiring the Houses of the Oireachtas to carry out an inquiry in the first instance.

Balancing of rights: Under the Constitution and Ireland’s international obligations, the courts and public authorities are obliged to respect principles of basic fairness of procedures and the requirements of natural justice.

The nature and extent of these rights relating to fair procedures are well established in Irish case law. The Supreme Court did not need to address in great detail in the Abbeylara case the balancing of rights of witnesses arising under the procedures of any parliamentary inquiry as the Court had found - as set out above - that there was no inherent power to conduct an inquiry of the kind under consideration.

The Supreme Court did, however, state that all normal rules of natural and constitutional justice involving fair procedures would apply to Oireachtas inquiries.

In this context, the Court found that, in considering the balance which must be held between the rights of the Oireachtas and those of the individual citizen, and the priorities

–  –  –

It is important to note that the Court did hold that what is or is not fair procedures may vary depending on the nature of the matters being investigated. The Court agreed for example that there is no absolute right to cross-examine but that factors such as the significance of the witness to the subject matter of the inquiry and the nature of the evidence of that witness as regards the interests of the party seeking cross-examination rights would have to be considered.

2.3 Necessity for a Constitutional Referendum The Joint Oireachtas Committee on the Constitution acknowledged in its Fifth Report in January 2011 that some of the legal flaws highlighted in the Supreme Court judgment could be rectified in future inquiries carried out by the Oireachtas by adhering properly to procedural requirements.

However, after extensive consideration and examination of the issues raised in the Abbeylara judgment drawing on expert external advice, one of the central recommendations of the Joint Committee was that a constitutional amendment expressly providing for an inherent power of investigation was needed.

The Committee found that the option would be open to the Oireachtas, in the absence of a constitutional amendment, of legislating for a statutory power to inquire. Under this approach the Oireachtas would seek to rectify the defects identified by the Court in the Abbeylara judgment by revising existing legislation to provide, for example, for limited powers of inquiry deriving narrowly from the Houses’ legislative function or the expenditure oversight function of the Dáil, and a more rigorous adherence to procedures by any inquiry committee. It would, however, be necessary for this legislation to conform to the constraints and limitations relating to the scope of Oireachtas inquiries identified in the Abbeylara judgment outlined in this note.



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