The Minister for Public Expenditure and Reform, Brendan Howlin published today the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011. This proposed amendment of the Constitution seeks to broaden the inquiry powers of the Oireachtas. Indeed, it is being reported in the media already as the “constitutional amendment to help investigate banks”. The perceived need for this amendment arose following the decision of the Supreme Court in Maguire v Ardagh [2002] 1 IR 385, colloquially known as the Abbeylara decision. Essentially, the Court held that while the Oireachtas could hold inquiries, it could not hold any inquiries which would have the effect of investigating the conduct, and therefore jeopardising the reputation of, individual citizens.

I am in favour of giving the Houses of the Oireachtas a full inquiry jurisdiction as I believe it may go some way towards revitalising the role of our legislature as one aspect of political reform. However, in this post, I want to highlight what I believe is a potential deficiency in the wording of the amendment, which potentially represents a serious alteration to the constitutional balance of authority as between the courts and the national parliament in respect of the rights of citizens whose reputations are negatively affected by Oireachtas inquiries. Indeed, I believe that despite the tenor in which the amendment has been promoted, its effect may go beyond simply reversing the unpopular Abbeylara judgment.

Constitutional justice and public inquiries

The context for my concern is the concept of natural justice, a.k.a. “constitutional justice”. It has been found that our Constitution implicitly protects the right of citizens to a particular degree of procedural fairness where they are affected by the actions of public bodies which exercise statutory powers to their detriment. In particular, this includes the right to a fair hearing – to respond to one’s accusers amongst other things – and second, to not suffer any bias in the decision-making procedures of public bodies. Public inquiries, whether the tribunals of inquiry or Oireachtas inquiries or disciplinary proceedings governing misconduct, are a good example. The constitutional right to reputation gives rise to the right to a fair hearing which in turn gives rise to a right to legal representation to defends this, which is partly – along with high legal costs – why the tribunals of inquiry have been so notoriously expensive. In Re Haughey [1971] I.R. 217, the Dáil Public Accounts Committee investigated the alleged misuse of public relief funds for Northern Ireland, for the purpose of channelling arms to the IRA. It was found that Padraig ‘Jock’ Haughey was constitutionally entitled to address the inquiry in his defence, to be furnished with a copy of the evidence impugning his good name, and to cross-examine, through counsel, his accusers. This was a consequence of the right to a fair hearing for individuals affected by the activities of public bodies such as Oireachtas inquiries.

Reversing Abbeylara

However, the Abbeylara judgment clipped the powers of Oireachtas inquiries going beyond the obligation to respect the right to a fair hearing. The case involved an inquiry into the conduct of a notorious siege at Abbeylara during which a man was shot dead in controversial circumstances. The Supreme Court partly relied on the concept of the separation of powers in quashing the inquiry. The Oireachtas was a legislature, not a court, so Oireachtas committees enjoyed no roving jurisdiction to conduct inquiries into alleged wrongdoing on the part of individual citizens, as opposed to inquiring into matters of public interest generally. This limitation on the power of Oireachtas inquiries applied independently, it must be noted, of the limits imposed by “constitutional justice” more generally, in the name of individual rights to reputation and fair procedure. In other words, matters which could be investigated by the Tribunals of Inquiry – chaired by judges but established by the Oireachtas – could not similarly be investigated by committees of the Oireachtas itself. The Oireachtas had no power to condemn or even impugn the reputation of individual citizens, despite the procedural safeguards already enjoyed by citizens in respect of all public inquiries. It was thought that an inquiry power of this nature would have significant effects on the rights of those appearing before Oireachtas investigations. It was the exercise of a “quasi-judicial” function, a power which the national parliament did not constitutionally have. Murray J said the inquiry power the committee claimed ‘cannot be compared to a simple search for knowledge”. He said that “to adjudicate … on the culpability of citizens in their conduct cannot in my view be equated with the everyday search for knowledge of facts … That is a governmental power which it seems to me can only be exercised by virtue of power conferred by the Constitution” [at 595]. So surprisingly, perhaps, what the Oireachtas could achieve indirectly, by establishing a judicially-chaired tribunal, it could not undertake directly itself: the power to initiate a tribunal of inquiry, whose main characteristic was that it was independent of the political process, could not imply, it was held, a power to establish a form of inquiry which was “wholly political”. Despite the right to constitutional justice that any affected party would continue to enjoy, along with the possibility of judicial review, the jurisdiction of the Oireachtas was limited in this matter.

The amendment

Since the Abbeylara decision was based on provisions of the Constitution, it cannot be reversed through legislation. It can only be reversed through amendment of the Constitution, which in turn, in Ireland, can only be achieved by the passing of a referendum subsequent to the appropriate bill being passed by the Houses of the Oireachtas. As a part of a broader programme of political reform, the commitment to reversing Abbeylara through referendum was included in the programme for Government.

If the effect of the proposed amendment were simply to reverse the effects of Abbeylara, I would welcome it, because the rights of individuals appearing before Oireachtas inquiries would still be protected by constitutional justice, just as they would if they appeared before the tribunals. However, in its published form, the amendment potentially goes beyond that, both reversing the effect of the Abbeylara decision but also, it seems, potentially undermining the power of the courts to protect the right to procedural fairness of those who reputation might be affected negatively by Oireachtas inquiries.

The amendment comes in the form of the addition of three subsections to Article 15, which deals with the constitutional powers of the Oireachtas as the national parliament. It does not repeal or amend any existing provisions.

The existing Article 15.10 would be renumbered 15.10.1. Then, three new subsections would be inserted as follows:

“2º 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 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.”

The (potential) problem

Subsection 2 simply restates the general power of the Oireachtas to conduct inquiries into matters of public importance which was not undermined, in any case, by the Abbeylara decision as such.

Subsection 3 is essentially the part whose effect is to reverse Abbeylara, as it allows the Oireachtas to inquire into “the conduct of any person” as well as matters of public importance. This might be of crucial significance to the scope of inquiries in relation to say, banking matters, because it would allow the Oireachtas to conduct more specific types of inquiries.

Subsection 4, however, is where the potential problem lies. Its effect is to potentially extend the consequence of the amendment beyond a mere reversal of Abbeylara. First, subsection 4 is not necessary in order to allow the Oireachtas to investigate individual conduct, as this is already made plain by Subsection 3. If subsection 4 were not included, the constitutional rights of those affected by Oireachtas inquiries would be essentially the same as those appearing before the tribunals of inquiry, in that the potential effect on their constitutional right to a good name would allow them to seek judicial review of the proceedings and orders of the inquiry, so as to ensure fair procedures and the right to a fair hearing in particular. Normally, the Oireachtas cannot legislate away this right to procedural fairness, as it is constitutionally protected and any such legislation would be struck down as unconstitutional. However, the concern with subsection 4 is that it potentially alters the right to procedural fairness of those appearing before Oireachtas inquiries, specifically, at least in the type of general public inquiry envisaged in subsection 2. It appears from ss4 that where a person’s reputation is negatively affected by an inquiry into matters of general public importance, as set out in ss 2, then the “balance” between the rights of that person and the interest of the public in seeing the inquiry conducted will be a matter for the Oireachtas to determine. This suggests two possibilities. One is that the Constitution will now, if the amendment is carried, exclude judicial review, altogether, of the legislation the Oireachtas enacts under ss 4,  in relation to the type of inquiry envisaged in ss2,  so that the degree of protection for the reputation of those affected by the inquiry will be determined in legislation alone – rather than with reference to the established constitutional jurisprudence on the right to procedural fairness.  For ss2-type inquiries, this would still allow for courts to ensure that inquiries did not exceed the vires under the legislation enacted; however, crucially, ss4 might be taken as excluding judicial review of the constitutionality of the legislation itself. This would mean that Oireachtas inquiries in ss2-type matters would be limited by legislation alone, rather than the pre-existing case law on the constitutional right to natural justice.

This is a plausible possibility given that the right to reputation and to procedural fairness are rather broad, unspecific constitutional principles (the latter isn’t even explicitly stated), and taking the general interpretive maxim that specific rules qualify more general principles, it is conceivable, I think, that ss4 may be read as excluding judicial review of Oireachtas inquiries into matters of general public importance, the category defined in subsection 2. The second possibility, less likely in my mind, is that ss4 will be interpreted more narrowly, as allowing for judicial review of such inquiries, but still suggesting greater deference by the Courts to the “balance” the Oireachtas decides to strike between individual rights and the common good. I contend that either the first or second reading must be true, because if neither is true, this would render ss 4 altogether superfluous, it seems. And either outcome, needless to say, is worrying. If we value procedural fairness and the right to a fair hearing as a constitutional right, there is little reason to allow it to be clipped by the Oireachtas, in a potentially far-reaching way, for certain categories of inquiry.

Conclusion

On one level, this amendment represents merely a marginal re-calibration of the constitutional separation of powers, which at one level, might at least partly go toward re-invigorating the role of the national parliament in our polity. It might go towards allowing the Oireachtas to holding individual members of the Executive to account in the face of its relative impotence against Executive dominance, a key feature of our political system. Yet natural justice, the broadly cherished right to fair procedures in administrative processes, should not be taken for granted, and it is not immutable. It is protected by the Constitution but unusually in Europe, the scope for amendment of our Constitution is unlimited – the Oireachtas and the people may pass any amendment if the correct procedure is followed. Therefore, it stands to reason that such ostensible tinkering at the edges of constitutional justice might fundamentally alter, indeed curtail, the degree of procedural fairness constitutionally guaranteed to the citizens. I wish to see the Oireachtas enjoy a fuller scope of inquiry power, but the proposed subsection 4 appears not only entirely gratuitous and unnecessary, but also potentially dangerous.

*Please note this post was amended on September 14th