The proposed thirtieth amendment of the Constitution, designed to give the Oireachtas a fuller inquiry jurisdiction as a corrective to the decade-old Abbeylara judgment, has caused something of a kerfuffle since its publication by the Minister for Public Expenditure and Reform last week (see previous blogpost here). Gerry Whyte of TCD and Donncha O’Connell of NUIG both expressed reservations, while beyond academia, Tuesday night’s Tonight with Vincent Browne saw the host spiritedly attempt to force Minister Pat Rabbitte to admit the amendment would exclude judicial review. In the form in which it was initially published, the amendment, while making explicit the inquiry power of the Houses of the Oireachtas, also included a controversial subsection 4 which provided:

“4° 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 2º applies”

This led to fears amongst academics and commentators that ss4 would be read as curtailing the right to procedural fairness of those who might be compelled to appear before Oireachtas inquiries or those who reputations might be adversely affected by their findings. At worst, it appeared that the strong formulation “it shall be for the Houses…” would exclude judicial review of subsection 2-type inquiries, or at the very least, that it would be read as prescribing a degree of deference by the Courts, to the Oireachtas, as to the appropriate balance between individuals’ right to natural justice and the public interest in having inquiries held in an efficient and timely manner. While the amendment might allow judicial review of inquiries’ compliance with the vires of the legislation dealing with the Oireachtas inquiries, it would appear, at least, to exclude or at least weaken constitutional review of whatever vision of ‘balance’ the legislation itself embodied. Essentially, while Oireachtas inquiries would still be judicially hemmed within the legislation enacted, the amendment may empower the Oireachtas to legislative away some of the procedural rights currently recognised in constitutional jurisprudence, and weaken the power of the Courts to declare such legislation unconstitutional

Indeed, it appears this is the explicit aim of the Minister, who is openly using the language of ‘balance.’ Writing in today’s Irish Times, he says that under the post-amendment system, procedural fairness  “would now be balanced by a new constitutional value recognising the public interest in ensuring effective inquiries – ie, inquiries that are fairly conducted, tightly defined, cost-efficient, and are completed expeditiously.” Tacitly, therefore, there is an admission that the Abbeylara amendment is effecting a great deal more change to  existing law than a mere reversal of the Abbeylara judgment. The intent is not merely to give the Oireachtas the explicit constitutional jurisdiction to conduct inquiries that the Abbeylara court said it currently lacks; it is to achieve this – which I think is a valid and good aim – but while also ensuring that this new jurisdiction is not hampered by the same extent of constitutional rights to procedural fairness which are perceived as being responsible for the expense and delays of the Tribunals of Inquiry. It is not only to correct a jurisdictional defect, it is to correct what is perceived as the hampering effect of procedural fairness as well.

Yet the Minister has affected a strange indignance at the concerns voiced with over the right to constitutional justice. We have witnessed concurrent assertions that judicial review will remain unfettered and that procedural fairness is intact – and that the amendment is merely correcting a jurisdictional problem rather than effecting changes to constitutional rights – yet simultaneously, a simultaneous insistence that the amendment entails a new ‘balance’. The ‘balance’ of course, is that between expediency and fairness, the explicit aim being to prevent excessive challenges to the procedures of Oireachtas inquiries. It is possible that many of the procedural rights identified in Re Haughey – such as the right to cross-examine one’s accusers – might be severely curtailed in future legislation, and that while judicial review might still apply in respect of the vires of the legislation itself, the “balance” struck between fairness and expediency by the legislation itself may well be protected from constitutional review by ss4. Yet nobody associated with the government, not least the Minister, is prepared to conduct the debate on these terms, to defend the substantive proposition that it is actually worth rolling back procedural fairness for the sake of public interest. Instead, the public is being condescendingly subject to a form of doublespeak, which bafflingly asserts that the balance between procedural fairness and the public interest is recalibrated, yet that procedural fairness nonetheless remains much as before.

This evasive discourse was captured in the explanatory memorandum accompanying the amendment’s publication.  It  said “a key requirement for the new system of  Oireachtas inquiry established under the  proposed constitutional amendment will be  adherence to the rules of natural justice consistent with  constitutional principles”, yet also refers to  “the  requirement in a new inquiry system to balance the exercise of these rights against the public interest in the facilitation of effective parliamentary investigations. It continues:

“In this regard  the Committee’s recommendation was that the Houses of  the Oireachtas themselves  should be assigned the responsibility for deciding how witnesses’ rights to fair  procedures in the work of committees of inquiries should be exercised in practice.  In the absence of this approach it would, in all likelihood, remain a matter for the courts to  achieve this in their consideration of legal challenges that might be expected to be mounted to the proceedings of Oireachtas inquiries …  It is highly desirable that Oireachtas inquiries should be carried out in an efficient and  cost-effective manner and conclude their work within a reasonable period of time.  It is strongly questionable whether it would be possible to achieve an effective and cost efficient system of Oireachtas inquiry in circumstances where, for example, the opportunity to cross-examine witnesses using legal counsel was available to all witnesses called to appear before an Oireachtas committe”.

Yet the Minister and Government refuse to acknowledge that the amendment a stronger power to curtail existing rights to procedural fairness – which is what the soothing language of ‘balance’ actually means. In fact, the memorandum goes on to suggest that “the wording is intended to establish a constitutional imperative that the Houses of the Oireachtas are empowered to determine how fair procedures will be secured in the proceedings of Oireachtas inquiries.” Of course, the empowerment of the Oireachtas in this regard can definitonally be achieved through the relative disempowerment of the Courts, despite Minister Howlin’s indignant protestations that judicial review in this area will remain uncurtailed.

This absurd process of self-contradiction is exemplified in the fact that in this week’s Oireachtas debate, the Minister said: “We did not want to replicate a tribunal system in the House which would take years, that could be frustrated and that needed a re-balancing of the public interest against the private interest of individuals who, if they had access to enough lawyers, could frustrate for ever the culmination of an inquiry.” Yet barely a paragraph later, he insisted that the right of recourse to the courts “will not be dislodged in any iota by the proposals we are inserting”. The rhetorical pretence is that whereas procedural fairness may be ‘rebalanced’, it can remain wholly intact. AT least in today’s Irish Times article, Howlin does acknowledge, while insisting that judicial review will remain available, “the amendment will alter the balance of the test that the courts apply” – which I believe means, as I said above, that while the courts may review inquiries’ compliance with the vires of the legislation itself, they are essentially instructed by the amendment to defer to the ‘balance’ the legislation itself embodies.

The rhetorical windowdressing has made its way into the text of the amendment itself. The bill passed by the Dail, and the version that will almost certainly be put to the electorate, has been  amended in relation to the text initially presented last week. In particular, the controversial ss4 has been changed, in response to some of the concerns raised surrounding procedural fairness. The whole amendment now reads:

 

“2° Each House shall have the power to conduct an inquiry, or an

inquiry with the other House, in a manner provided for by law, into

any matter stated by the House or Houses concerned to be of general

public importance.

3° In the course of any such inquiry the conduct of any person

(whether or not a member of either House) may be investigated and

the House or Houses concerned may make findings in respect of the

conduct of that person concerning the matter to which the inquiry

relates.

4° It shall be for the House or Houses concerned to determine, with

due regard to the principles of fair procedures, 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.”

 

The ostensible difference is the insertion, in ss4, of the phrase “with due regard to the principles of fair procedures”. This is a brazen re-phrasing of what the previous, controversial wording already provided for in substance. The previous wording already indicated it would be for the Oireachtas to execute the balance between “the rights of persons” and the public interest; “the rights of persons” of course referred, primarily, to their right of fair procedures. In adding the phrase “fair procedures”, the draftspersons have merely repeated what is already plainly present. It is likely this will make no difference whatsoever to how the amendment will be interpreted. The objectionable element of the initial wording was not the lack of reference to procedural fairness per se, it was the assertion that it “shall” be for the Oireachtas to interpret how it is to be balanced against the countervailing imperative of expediency; it was to make the Oireachtas itself, and not the judicial branch, the judge of its own constitutional obligations. Under the new wording, the potential curtailment of judicial review, at least in respect to the constitutionality of the legislation itself, remains present. The Oireachtas is instructed by the amendement itself to have ‘due regard’ to procedural fairness, but crucially, it will be for the Oireachtas itself, and not the independent judicial wing of the State, to interpret how this is to be reconciled with the other imperatives and pressures entailed in the inquiry process.

I believe this sets a dangerous precedent, in that it seeks to protect from judicial scrutiny the balance the Oireachtas effects between individual rights and the common good. The most valuable feature of our distinct constitutional tradition, I believe, is that the protection of individual rights is, for the most part, placed beyond the vagaries of parliamentary politics through a robust system of judicial review of those state interferences in individual rights purported to serve the “public interest”. This is sometimes called a system of ‘checks and balances’. What is most regrettable about the public debate this past week is that the Government appears to prefer to obscure this deeper, latent question, insinuating that it amounts to little more than a technical corrective to a jurisdictional problem identified in the Abbeylara judgment. It would be preferable, I believe, to conduct the debate in terms of whether it may ever be justifiable or desirable to accord to parliamentarians, to the exclusion of judges, the determination of how individual rights and the common good are to be balanced. Although I would support an amendment giving the Oireachtas an explicit inquiry role, in order that it might effectively hold certain powerful interests in society to account, I would urge readers to vote ‘no’ to the thirtieth amendment as it stands.