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The Oireachtas Inquiries Referendum October 20, 2011

Posted by WorldbyStorm in Irish Politics.
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Meng Die rightly took the CLR to task recently for not concentrating on the referendum being held next week and it is genuinely remarkable how little comment there is on the Oireachtas Inquiries issue. The background to the amendment can be read here. I’ll say one thing about the Referendum Commission leaflet on it. Hugely inadequate is what I thought when I went to read it. And that’s no small thing given the significance of the amendment.

An Irish Times editorial last week noted that:

An issue of greater controversy is the proposal to give the Houses of the Oireachtas power to inquire into what the Dáil, Seanad – or both Houses – regards as a matter of “general public importance”. In holding such an inquiry the Oireachtas would have power to consider, and to make findings of fact about, any person’s conduct. In such inquiries the Dáil and/or the Seanad would become the arbiter in deciding the appropriate balance between the rights of those involved in the inquiry and requirements of the public interest, while having regard to the principles of fair procedures. Because that proposes to give the Oireachtas far more power than it has ever previously enjoyed, it therefore needs careful consideration by the electorate before it decides.

Telling, isn’t it, that that level of consideration simply hasn’t manifested itself and with barely a week to go isn’t likely to. And it’s not that those behind this are ill-intentioned, but one can see how easily this could lead to negative outcomes.
Vincent Browne put forward a very strong case this weekend in the Sunday Business Post as to why he would be voting no to the referendum and he also did something useful in positing some alternative approaches.

The proposed amendment is in three parts. The first simply says that the Dáil and Senate would have the power to hold an inquiry separately or jointly into matters of public importance. The second part says that such an inquiry would be entitled to make findings about the conduct of anybody.

It is the third section that contains the menace. It reads as follows: ‘‘It shall be for the House or Houses [of the Oireachtas] to determine, with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for purposes of ensuring an effective inquiry [into whatever is decided].”

The persistent refusal to insert words to the effect that, ultimately, the courts will have oversight of such procedures suggests that the government wants to keep the courts out of this altogether.

The courts might well determine that the wording of this section precludes them from having any say, for the section says that it is the Dáil and/or Senate that have the power to determine the balance between individual rights and an effective inquiry.

That, after all, is what the words say.

I think his analysis is particularly solid in suggesting that the problem with this legislation is that it is unsupported by structures within which to effect it, so therefore the Oireachtas might make findings without offering as of course legal representation to those under investigation, or the right to question those making allegations or as he notes ‘might not have the right to be told in advance what those allegations were; and there mint be nothing they could do about it’. He continues:

It would be great if we had a functioning parliament that held the government of the day to account, and that was free to institute inquiries into anything – most crucially, into what the government of the day was up to – and to conduct such inquiries with fairness and impartiality.

But we do not have a functioning parliament. Instead of our parliament controlling the government, which is supposedly accountable to parliament, parliament is the creature of government. Our Dáil and Senate debate what the government decides they should debate. They meet when the government decides they should meet. They establish committees that the government decides they should establish.

That, by any measure is hugely unsatisfactory. Indeed worse than unsatisfactory.

There’s never much utility in a system where one has to depend on the good will of others to ensure justice is done and seen to be done as distinct from structures within which those optimum outcomes are encourages. If we’ve learned a little from the events of the past few years one lesson that should be taken away is the idea that regulation is a necessity and that it has to be thorough and consistent. Frankly knowing some of our elected representatives the idea that the Oireachtas would be gifted this level of immediate power appals me. And not just me. To date I haven’t met one person who intends to vote for the referendum as presently constituted.

Browne also argues that there’s a way to improve the workings of the Oireachtas. He looks to Germany for assistance:

There is a way to deal with our dysfunctional parliamentary system, and it would entail another constitutional amendment, giving parliament immunity from government control. The idea is simply to incorporate into our Constitution what is already in the constitution – or Basic Law – of the Federal Republic of Germany.

Article 38 of the Basic Law states: ‘‘Members of the German Bundestag [the equivalent of our Dáil] shall be…representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience’’, which means no whips system, as we have here.

The German Basic Law also provides for investigative committees. Article 44 states: “[The Bundestag] shall have the right, on the motion of one quarter of its members, to establish an investigative committee, which shall take the requisite evidence at public hearings.”

I’m not sure I entirely buy into the idea that doing away with a formal whips system would issue in a new age of transparency, there are too many other ties which bind individual politicians to their parties – nor would it prevent pernicious outcomes where people acted from malign motives, but it is reasonable to say that it would function as a strong statement of intent and that alone might be well worth it.

Likely to happen? Somehow I don’t think so. But it will be very interesting to see the vote for and against during the referendum on the Inquiries amendment.

This morning the Irish Times comes out against the Inquiries referendum, and it’s hard to argue with the logic. It’s not so much that the referendum is intrinsically flawed, because it’s very difficult to parse out the implications, as a sense that for such a significant change far too little time and consideration has been devoted to it. And that tends me to think that this might be one to pass on for the moment.

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1. No On Both Referendums « I . D O U B T . I T/ - October 27, 2011

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