Heroic work by Howlin and Shatter
The rejection of the so-called Abbeylara amendment last week was down to two men: Brendan Howlin and Alan Shatter. Well done! By Vincent Browne.
Aside from Michael D’s splendid victory in the presidential election, there was another triumph at the polls last Thursday and those responsible have got nowhere near the recognition they deserve for an extraordinary achievement. It was on the referendum on Oireachtas inquiries.
There was a public impatience to end what was perceived as the gravy train for lawyers, also known as tribunals. An impatience to end the farce of inquiries taking decades to conclude, costing hundreds of millions and concluding with the production of findings that matter not a whit. There was every reason to believe that everyone in the country, bar a few thousand solicitors and barristers, would support an amendment to the Constitution that would end the folly of tribunals and give to our parliament the same prerogatives that, we were told, are enjoyed by every other parliament in Europe.
But then, heroically, two stalwarts intervened and turned around what seemed a foregone outcome. Over a period of a mere few weeks and on the basis of just a few media appearances – no poster campaign, no full-page newspaper advertisements, no fortunes spent on public relations (that we know about) – they managed to persuade a majority of the electorate they should vote for the gravy train, for everlasting tribunals, for hundreds of millions poured down drains.
These two stand in lonely eminence as the great opinion changers of our time. Little in their previous careers ever suggested they could achieve such an astonishing outcome, although both had quite some successes of a similar kind in lesser campaigns. Step forward and acknowledge the gratitude of the nation: Brendan Howlin and Alan Shatter.
Both, particularly Shatter, had previously played a heroic role in persuading the Supreme Court to rule that the Oireachtas committee of which they were members and which was inquiring into the shooting of John Carthy in Abbeylara on April 20th, 2000, was incapable of conducting that inquiry properly.
This was, in part, because of the ineptitude of that committee in its early investigations. Shatter played a further role in opting to represent himself before the Supreme Court (other committee members were represented by counsel) and, in so doing, took hours on end addressing the judges, which also may have been a factor in the Supreme Court finding as it did.
The success of Messrs Shatter and Howlin in having the constitutional amendment rejected is fortunate. Inevitably, inquiries under the proposed arrangement would have been abusive of citizens’ rights but, more pertinently, entirely irrelevant to the purpose of parliamentary inquiries.
The point of such inquiries is to help hold government to account. Under the Irish parliamentary system, no parliamentary inquiry could hold government accountable, no matter what powers it had and no matter how abusive of citizen’s rights it might be, no matter how distinguished the personnel of the inquiry might be. This is because the government of the day controls parliament and no administration can be accountable to an institution it controls.
It’s a nonsense. The only remedy for this is to remove the control of parliament by government. I have suggested previously we could do this by means of a constitutional amendment which would incorporate a provision of Germany’s Basic Law: “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.”
There is a further provision which also might be incorporated: “The Bundestag shall have the right, and on the motion of one quarter of its members, to establish an investigative committee, which shall take the requisite evidence at public hearings.” For that to happen here, though, the government of the day would have to cede control of parliament voluntarily for the amendment even to get on a ballot paper. That won’t happen, not with this present crowd anyway.
In the meantime, though, we could be getting on with things. There is nothing in the Supreme Court judgment on Abbeylara to prevent a robust inquiry by an Oireachtas committee on the National Asset Management Agency, for instance, provided there is no question of the committee finding wrongdoing on the part of any individual. That would hardly be relevant anyway to an inquiry into Nama.
As for an inquiry into the banks, even if there were not a bar on an Oireachtas committee finding where blame lay on that fiasco, it is arguable that such a committee would not have the expertise. And its members certainly would not have the time to conduct such an inquiry, which would take years.
What would be so bad if a tribunal of inquiry were established, with, say, Peter Kelly, a judge on the successful commercial division of the High Court, as its sole member, and with counsel paid €500 a day for their work on the tribunal (that in a full year, with five weeks holidays, would be €117,500 – more than three times the average wage)?
Moreover, the terms of reference could be: “To establish the cause of the crisis in Irish banking that emerged in 2008 and to determine how the crisis was managed by governments and other public agencies up until December 31st, 2011.”