The groundswell of public anger following the “Anglo tapes” episode has led to calls for a fresh referendum to give the Oireachtas fuller powers to inquire into the events leading to the September 2008 bank guarantee.
Although there is undoubtedly a public appetite for prosecutions, a public inquiry may play an important role in conclusively establishing important facts concerning a political decision which apparently contributed in a decisive way to the remarkable economic and social destruction of the post-boom era. In particular, the relationship between bankers and public representatives demands thorough and systematic public scrutiny. This process of public accountability – and indeed the settling of the historical narrative – would occur only in an ad hoc way, at best, through criminal trials.
Indeed the Government has committed to passing new legislation on parliamentary inquiries before the summer recess. However, any inquiry pertaining to the conduct of key banking figures will be severely limited in scope: essentially, it will be confined to a “record and report” exercise which will avoids any findings detrimental to the reputations of private individuals. For obvious reasons – and without using any cheap metaphors about omelettes and eggs – it is quite possible that an inquiry of this type will fail to establish a satisfactory narrative of the events in question.
This limitation stems primarily from the Supreme Court’s 2001 “Abbeylara” judgment. Effectively the Court decided that the Constitution gave no power to the Oireachtas to hold inquiries whose findings would adversely affect the good name of private individuals.
This judgment has rightly been criticised for its remarkably narrow definition of the proper constitutional role of parliament within a representative democracy. In particular, the prohibition of inquiries pertaining to the conduct of “private” individuals seems odd given the enormous power such individuals can wield in our society, as has now so painfully been established. The constitutional right to a good name can be protected by such individuals exercising their rights to judicial review and procedural fairness. In any event reputational rights must surely be weighed against the public interest in abuses of power – whether on the part of “public” or “private” persons – being publicly exposed.
Certainly, parliamentary inquiries suffer from certain weaknesses – they may easily be “politicised” – but in many ways they are arguably the least-worst option for an inquiry of this rather exceptional sort. There is little public faith in the calibre of our politicians and implicitly, in their ability to conduct effective inquiries. It has been pointed out that there is no tradition of robust parliamentary inquiry in Ireland compared to the UK and the US. Yet this attitude degrades the possibilities of parliamentary democracy: there is a widely acknowledged need to enhance the overall strength of parliamentary scrutiny in a context of strong executive dominance.
Given the broad consensus that our political system provides insufficient mechanisms for accountability and public scrutiny, the Abbeylara judgment now seems peculiarly inapt and misplaced. Therefore, in light of recent events there is a strong argument that a referendum should be held to reverse the judgment. This would create an explicit power for the Oireachtas to hold inquiries in accordance with legislation – including, crucially, the power to hold inquiries whose findings adversely affect the reputations of private individuals, albeit subject to certain protections.
The 2011 referendum on Oireachtas inquiries would have had this effect had it passed. However, it was rejected partly because in addition to granting the Oireachtas an explicit inquiry jurisdiction – effectively reversing “Abbeylara” – it went further by implying that the inquiries could limit individuals’ ability to defend their rights of procedural fairness through access to judicial review proceedings. However there is no reason why a fresh, differently-worded amendment could address the narrower jurisdiction point yet while fully respecting the right of those adversely affected by inquiries to access the courts if necessary, as is currently the case in relation to all inquiry types. Although that may lead to further delays and costs, such is the inevitable price for protecting individuals’ constitutional rights.
Therefore “Abbeylara” should again be revisited but in a more careful and measured way. The limits of the prospective banking inquiry could be removed through a relatively simple addition to Article 15 of the Constitution, which I suggested could be worded along the following lines:
“The Houses of the Oireachtas may conduct public inquiries on matters of public interest in a manner regulated by law. Such inquiries may produce adverse findings concerning the conduct of individuals, whether in public employment or otherwise, subject to established rights of natural justice being respected.”
Such an amendment would remove some of the fetters imposed by the Supreme Court in “Abbeylara” but without the more troubling implications of the 2011 wording. Of course many lawyers are imbued with a suspicion of the political realm as lacking the various virtues associated with courts and judges, and so seem opposed to the very concept of parliamentary inquiries. Yet this seems a somewhat extremist position – buttressed by a good deal of lawyerly conceit – which ignores the need for the constitutional system to contain robust accountability mechanisms as well as provision for individual rights. Indeed what recent events demonstrate is perhaps that we ought to be wary of conceptualising political justice exclusively in terms of “rights” at all.
Provided it is appropriately worded, there is no reason to fear that a fresh attempt at constitutional amendment would lead to the violation of constitutional rights or the establishment of a parallel system of justice.