Howlin's Oireachtas inquiry plan won't amount to much

The key problem with Brendan Howlin's proposed Constitutional amendment is that Dáil is in no sense independent. By Vincent Browne.

Brendan Howlin, The Minister for Public Expenditure, proposed to the Dáil last week that the Constitution be changed to allow the Oireachtas to conduct inquiries into any matter of public importance.

Such an inquiry would permit the Oireachtas to investigate the conduct of anyone (including a TD, senator and, obviously, a minister) and to make findings about such conduct. It would be a matter for the Oireachtas to decide the appropriate balance between people’s rights and the public interest in such inquiries being conducted.

In advancing the case for this change, Howlin published a bill which, if enacted as proposed, would flesh out how such inquiries would be conducted.

The point of all this, as Howlin said and implied, was to provide for cost-effective and time-efficient inquiries - unlike the tribunals which have cost millions and taken over a decade to complete - and also to give the Dáil and the Senate something meaningful to do.

All very laudable, but what is proposed is likely to prove as massively expensive and timewasting as the tribunals and, while it will give TDs and senators something to do, it won’t amount to much.

Howlin said last Wednesday that ‘‘functioning parliamentary democracies’’ had similar powers to conduct inquiries, and such powers would ensure that the Oireachtas was ‘‘a vigorously active and independent parliament’’.

A few seconds later, he gave the lie to this claim by stating that he would listen to what TDs said about the bill. He assured the Dáil that ‘‘my mind is not closed’’ on the proposals, thus confirming that the government of the day - if not the relevant minister of the day rather than the legislature, decides what is and is not in legislation. We do not have a ‘‘functioning parliamentary democracy’", for parliament is largely irrelevant, and this constitutional amendment certainly will not make our Oireachtas a ‘‘vigorously, active and independent parliament’’.

Our parliament will remain the tame creature of the government of the day. In no sense is parliament independent, which is the key problem with this constitutional amendment.

A few months ago, appointments were made to the key Committee of Public Accounts which, in theory, is supposed to hold the government to some degree accountable for the expenditure of public funds. In practice, it does no such thing because the TDs on the committee who are members of the government parties are whipped into submission on the whim of the government of the day.

There was a vivid illustration of this in the recent appointment of the chairman of the committee. It was not the committee members who decided on the chairman, and it was not the Dáil. It was the Taoiseach, Enda Kenny, and The Tanaiste, Eamon Gilmore.

And you can bet your bottom dollar - if you still have a bottom dollar - that it will be Kenny and Gilmore who will decide what inquiries are permitted, the terms of reference of such inquiries and, where necessary, the findings of such inquiries.

It was precisely because of the pre-eminence of party politics, with their whipping regime, that the Supreme Court found that Oireachtas committees were not appropriate mechanisms for inquiries that might infringe on the reputation of citizens. Now this little difficulty is to be circumvented with a constitutional amendment, without any change to make our parliament independent.

Howlin said the procedures by which such inquiries would operate ‘‘must be consistent with the rules of natural justice’’ and immediately went on to qualify that with a big BUT - that inquiries would have to be ‘‘effective’’.

He said the point of this whole exercise was ‘‘to ensure that the courts would not preclude an Oireachtas inquiry on the basis of institutional or structural bias’’. Does this mean that an Oireachtas could proceed with an inquiry that was biased institutionally or structurally and the courts could not interfere? Or is it just a perception by the courts of a possible bias that is at stake?

He then went on quickly to say that such inquiries would ‘‘adhere to the rules of national justice, consistent with well-defined principles and Ireland’s obligations under international law’’.

And then he gave the game away with the remark: ‘‘The manner in which the Oireachtas strikes the balance [between natural justice and efficient inquiries] must be reviewable by the courts. If the courts believe the balance has not been properly determined, they can overturn the decision made by the inquiry.”

It can be confidently predicted that the courts will insist on the right to legal representation (which means the same costs will apply as with tribunals) and on the right to cross-examination of witnesses by lawyers representing all parties whose reputations are at risk.

There will be endless judicial reviews of such inquiries before the High Court and Supreme Court, which will overturn the findings of such inquiries.

TDs and senators will make a dog’s dinner of it all, as they did with the Ivor Callely inquiry and other such.

Meanwhile the main issues - the impotence of parliament and the impossibility of truly independent inquiries - will remain ignored.

Image top: infomatique.