Populist proposal would harm our rights

One intention of Brendan Howlin's would-be Oireachtas inquiries would be to keep lawyers out, thereby leaving people at serious risk of having their reputations unfairly impugned, writes Vincent Browne.

At an event recently during the Dún Laoghaire Book Festival, the former British chancellor of the Exchequer, Alastair Darling, said that on the day before the Irish government gave the blanket guarantee to the banks, the then minister for finance, the late Brian Lenihan, assured him the Government would not give a blanket guarantee to the banks.

On 29 September 2008, the then government did just that, and the following day Brian Lenihan phoned Alastair Darling to explain there had been difficulties with his boss (then taoiseach Brian Cowen), and that was why the blanket guarantee had been given.

Clearly this is one of the issues an inquiry into the financial crisis needs to investigate. Also needing investigation is why the two Brians went against the advice of Merrill Lynch, who had advised that a guarantee of the scale they were contemplating would affect the credit rating of Ireland; how it was that advice tendered by an official in the Department of Finance as far back as January 2008 on how such a crisis should be handled was ignored; what notice did they have of an impending crisis within Anglo Irish Bank; the events that led up to the EU-International Monetary Fund (IMF) bailout, and much else with which the last government was involved.

But not just that. We also need to know what this present Government did to meet its election pledges to renegotiate the EU-IMF agreement; why it continued to pour more money into Anglo, having indicated it would not do so; why it paid out more billions to unguaranteed senior bondholders, and much else.

We are told if the proposed constitutional amendment were to permit thorough Oireachtas inquiries, then the first such inquiry will be into the banking crisis – and if this happens we can be certain of some consequences.

The first is that insofar as this inquiry would examine the actions of the last government, it would be hugely partisan, for this is the nature of our politics.

Secondly, the terms of reference will be such as to ensure either that there will be no investigation at all of the actions of the present Government, or at best that such inquiry will be severely constrained. This is because the terms of reference will be framed or at least approved by this Government, even though it itself might be the subject of the investigation.

In other words, it is not at all believable that a parliament that is so much under the control of the Government is capable of conducting an inquiry into the actions of the Government that controls it.

So either the control the Government exercises over our parliament is weakened (that won’t happen), or inquiries that impinge upon the actions of the government of the day are conducted by an outside body.

The Government is intent on pushing through a populist constitutional amendment that could do great harm to the credibility of politics and to constitutional rights and liberties.

Section 4 of the proposed amendment states: “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 2 applies (section 2 provides for Oireachtas inquiries into matters of public interest)”.

To any normal person and, therefore, presumably, to any judge of the High Court or Supreme Court, this means either the Dáil or the Seanad or both shall decide the issue of balance between the rights of persons and the public interest in holding effective inquiries, not some other agency such as the courts.

But the Minister sponsoring this amendment, Brendan Howlin, says ultimately it will be for the courts to strike this balance if the Oireachtas gets it wrong. What any Minister says regarding a Bill, still less regarding a constitutional amendment, has no legal significance whatsoever. Therefore, it is what is in the provision that matters, not what any Minister says.

The consequences of this could be of enormous significance. Over the years the courts have devised protections for people before official inquiries, whether Oireachtas inquiries or tribunals or whatever. Among those protections is an entitlement to be represented by a lawyer if one so chooses, where one’s good name is at risk.

This is no frivolity or device to frustrate an inquiry. Most laypeople are not versed in the protections to which they are entitled, nor are they trained to challenge evidence against them by way of the cross-examination of their accuser.

It seems fairly obvious that one of the intentions with these would-be Oireachtas inquiries would be to keep lawyers out, thereby leaving people at serious risk of having their reputations unfairly impugned, possibly subjecting them unfairly to public loathing and ridicule for the rest of their lives.

There are other ways of conducting inquiries that are fair, expeditious and cost-effective, as those Judge Yvonne Murphy has conducted into clerical child abuse have shown.

This proposed constitutional amendment is dangerous and open to manipulation. It should be stopped now.