Guest Post: The President, Public Statements and Political Controversies

Dr Laura Cahillane

Following comments made this week by President Higgins on the lack of reform of the Direct Provision system and homelessness (reported here), questions are again being raised on the role of the President and whether by speaking out on controversial issues, Michael D is acting contrary to the Constitution.

1224307462206_1The issue has rarely been far from public attention during the presidency of the current incumbent. However, while traditionally the presidency was seen as a conservative office, since Mary Robinson, the presidency in Ireland has evolved – recent Presidents have been described as having pushed the boundaries of the office. Robinson is frequently lauded as having ‘saved’ the presidency by doing so but she also courted her fair share of controversy during her time in office, having met with the Dalai Lama despite criticism from the Chinese government and the discomfort of  Haughey’s government.  She also became the first Irish President to meet Queen Elizabeth and, in defiance of her critics, she famously shook Gerry Adams’ hand, saying he was elected by the people of West Belfast, and in shaking his hand, she was shaking theirs. In many respects Robinson’s actions were more controversial than those of Higgins as she frequently clashed with the government – which is when things could become problematic from a constitutional point of view.

The Constitution sets out the duties of the President but does not state explicitly that the President must remain politically-neutral or non-controversial. The holder of the office is constrained in many of the duties conferred by the Constitution as a result of Article 13.9 which requires the President to perform his duties ‘on the advice of the government’. Indeed, the President must first seek the approval of the government before addressing a message to the Nation on any matter and before any address to the Nation or the Houses of the Oireachtas, he must also consult the Council of State. The rules of parliamentary debate also provide that the conduct of the President is not open to comment. All of this is to ensure that there will not be a conflict between the President and government of the day.  Article 12.9 even provides that the President cannot leave the State without governmental consent. Thus, while it does not openly say so, these Articles have resulted in a convention, similar to that which applies to judges, that the President should not become involved in a political controversy. However, as a convention, this is not legally enforceable as such. In fact, conventions are more akin to a type of etiquette or political morality.

But while the President is inhibited in many ways, the Constitution also contains a provision in Article 13.8 which declares that the President is not answerable to either House of the Oireachtas or to any court for the exercise of his powers and duties under the Constitution. This puts the President in a relatively independent position.

arasWe cannot deny the fact that the presidency is now a political office. The successful candidate is democratically elected and the views of candidates are well publicised before the election. We cannot expect the office-holder to remain silent on issues that are important for the people of Ireland and it is unrealistic to expect him or her to be truly apolitical. Robinson often described her role as President as being a voice for the people and while the Constitution officially recognises two types of role – guardian of the Constitution and head of State – it seems as though the office has unofficially incorporated this additional aspect of being a mouthpiece for the people. In fact, it is this new element of the presidency which is said to have revitalised the office and has ensured its popularity of late.

At the same time, there are boundaries which, while they may be pushed, should not be crossed. One such boundary is for the President to openly criticise government policy. A great attempt is made in the Constitution to prevent such a scenario from ever happening. President Higgins has been careful in this regard; he has not explicitly criticised the government and there has been no open breach of the Constitution, but it appears as though his most recent comments have come quite close. While many people might agree with the comments made, the Constitution clearly assigns the policy-making role to the executive branch of government and therefore it is not controversial to say that the President should not intervene in specific policy issues. The office should not be a platform for pursuing policy-driven agendas – popular, well-meaning, or not.

The role of the Presidency today is a vague one and the incumbent must walk a fine line, upholding the Constitution, observing the conventional niceties of the office while also representing the people of Ireland and providing an increasingly important ‘ voice for the voiceless’. In doing so however, the President must be careful not to push the boundaries past breaking point.

Dr Laura Cahillane is a Lecturer in Constitutional Law at the University of Limerick

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Scholarship Bulletin

At Constitution Project @ UCC, we plan to begin publishing periodic bulletins on the latest Irish constitutional scholarship. The aim is to provide a resource that brings together a comprehensive list of the latest scholarship on the Irish Constitution, including web links to online publications where available. This will raise awareness of the many publications in the area by making it easier to access the material and collating details of publications that are scattered across multiple international outlets. Please get in touch (conor.omahony [at] ucc.ie) with details of errors and omissions.

The first bulletin covers publications in 2015. The first half of 2016 will follow shortly, and bulletins will be issued 2-3 times a year thereafter. Happy reading!

2015

Citation Keywords Web Links
Ivana Bacik, “A Feminist Review of the Law on Abortion” in Fischer, C. and McAuliffe, M. (eds), Irish Feminisms: Past, Present and Future (Dublin: Arlen House, 2015), pp.147-168

 

Abortion; Eighth Amendment  
Caroline Bergin-Cross, “The Evolution of the Definition of Family and Marriage under the Irish Constitution” (2015) 18(2) Irish Journal of Family Law 39-43

 

Family; Marriage  
Laura Cahillane, “Ireland’s System for Disciplining and Removing Judges” (2015) 38(1) Dublin University Law Journal

 

Judiciary  
Eoin Carolan, “Ireland’s Constitutional Convention: Behind the hype about citizen-led constitutional change” (2015) 13(3) International Journal of Constitutional Law 733-748

 

Constitutional reform [Published Version]
Conor Casey and Dáire McCormack-George, “An Analysis of the Right to Shelter in Irish Law for Children and Adults” (2015) 54 Irish Jurist 131-154

 

Economic and social rights  
Peter Dunne, “Civil Partnership in an Ireland of Equal Marriage Rights” (2015) 53 Irish Jurist 77-99

 

Family; Marriage  
Oran Doyle, “Conventional Constitutional Law” (2015) 38(2) Dublin University Law Journal 311-330

 

Constitutional conventions  
Fiona de Londras, “Constitutionalizing Fetal Rights: A Salutary Tale from Ireland” (2015) 22(2) Michigan Journal of Gender and Law 243-289

 

Abortion; Eighth Amendment [Published Version] [Open Access]
Alan Greene, “Questioning executive supremacy in an economic state of emergency” (2015) 35(4) Legal Studies 594-620

 

Separation of powers [Published Version]
Tom Hickey, “Revisiting Ryan v Lennon to Make the Case against Judicial Supremacy (and for a New Model of Constitutionalism in Ireland)” (2015) 53 Irish Jurist 125-153

 

Judicial review; separation of powers  
Gerard Hogan, David Kenny, and Rachael Walsh, “An Anthology of Unconstitutionality” (2015) 54 Irish Jurist 1-30

 

Judicial review  
Clara Hurley, “Case Note: PP v Health Services Executive” (2015) 18 Trinity College Law Review 205-213

 

Eighth Amendment  
James Kane, “Civil Liability for Exploiting Trafficking Victims? A Speculative Application of Meskell v CIE?” (2015) 54 Irish Jurist 57-78

 

Horizontal enforcement; trafficking  
Clare Elizabeth Kelly, “Ireland and Judicial (In)Dependence in Light of the Twenty-Ninth Amendment to the Constitution” (2015) 18 Trinity College Law Review 15-41

 

Judiciary  
Meg MacMahon, “All Changed, Changed Utterly: The Marriage Equality Referendum and the Children and Family Relationships Act 2015” (2015) 18(4) Irish Journal of Family Law 95-100

 

Family; Marriage  
Patricia McKenna, “Fair Referendum Campaigns in the Light of Recent Court Decisions” (2015) 14 Hibernian Law Journal 56-74

 

Constitutional reform; referendums  
Ben Mitchell, “Process Equality, Substantive Equality and Recognising Disadvantage in Constitutional Equality Law” (2015) 53(1) Irish Jurist 36-57

 

Equality  
Andrea Mulligan, “Maternal brain death and legal protection of the foetus in Ireland” (2015) 15(2-3) Medical Law International 182-195

 

Eighth Amendment [Published Version]
Conor O’Mahony, “The Constitutionality of the Children and Family Relationships Bill” (2015) 18(1) Irish Journal of Family Law 3-8

 

Family; Marriage  
David Prendergast, “The Conventionality of Constitutional Law” (2015) 38(2) Dublin University Law Journal 441-446

 

Constitutional Conventions  

 

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Mr Justice Adrian Hardiman 1951-2016

Dr Conor O’Mahony and Dr Seán Ó Conaill

Everyone at Constitution Project @ UCC was deeply saddened to learn of the sudden death of Mr Justice Adrian Hardiman, judge of the Supreme Court of Ireland. Mr Justice Hardiman was a highly accomplished jurist who left a significant mark on the Irish legal landscape, and whose passing will leave a similarly significant void. He handed down judgments in dozens of crucial cases that will shape Irish law for many years to come; the following is just a brief selection of notable constitutional decisions.

Hardiman JHardiman J was appointed directly to the Supreme Court from the bar in 2000, and it was not long before he made his presence felt. It is arguable that even among multiple majority judgments, his were the defining ones in the well-known cases of Sinnott v Minister for Education [2001] 2 I.R. 545 and TD v Minister for Education [2001] 4 I.R. 259. Both cases concerned claims made by children with special needs who had been denied effective educational services. The common theme was that decisions that impact upon the allocation of public resources are a matter for the executive, and the judiciary should not interfere in this process. In TD, he wrote (at p.358):

“It would of course be possible by constitutional amendment or by the adoption of an entirely new constitution, to vest the courts with powers and responsibilities in social, economic and other areas which are presently the preserve of the other organs of government. This, perhaps, would give immediate satisfaction to those who thought the courts more likely to adopt their views of the merits of certain social or economic questions than the legislature or executive. But it would vest responsibility in these areas in a body without special qualifications to discharge it which, if its views fell into disfavour, would not easily be replaced by another more congenial. It would also render technical and legalistic discussions which should properly be conducted in quite a different manner. And if courts extend their powers to questions which are essentially political they will soon either fossilise developments on such issues or lose that basis in formal and technical logic and consistency which is an essential hallmark of legal, though not necessarily of political, discourse.”

These decisions were the subject of a large volume of academic commentary – and, it must be said, no small amount of criticism from those that felt that they left vulnerable children with no effective remedy for a breach of their constitutional right to education. Unusually for a sitting Supreme Court judge, Hardiman J responded to some of this criticism in a paper at the Magill Summer School in 2004, remarking that “uncontrolled power in the hands of a judge is no more acceptable that uncontrolled power in any other hands” (“The Role of the Supreme Court in our Democracy” in Mulholland (Ed.), Political Choice and Democratic Freedom in Ireland, MacGill Summer School, 2004, p.44). Hardiman J’s openness in engaging in extra-judicial debate about the merits or demerits of various decisions was to manifest itself on numerous occasions in the years that followed; this blog featured a response to a paper he delivered at a conference in DCU in 2014 in which he took issue with the European Court of Human Rights decision in O’Keeffe v Ireland. (The exchange is slated for publication later this year as a pair of papers in a forthcoming collection – see here.)

Hardiman J was a fluent Irish speaker and he applied his linguistic knowledge on the bench, giving judgments in most of the key Irish language cases since his appointment to the Supreme Court. In 2001 his majority judgment (along with Mrs Justice McGuinness) in Ó Beoláin v Fahy [2001] 2 I.R. 279 served as a watershed moment in the recognition of language rights in constitutional discourse in Ireland. Although the constitutional status of the Irish language had long been recognised, it was only following Hardiman J’s intervention that the courts began to consider the true legal implications of the legal status afforded to the Irish language and Irish speakers. This judicial decision has often been cited as the impetus the State needed to take the rights of Irish speakers seriously and led directly to the introduction of the Official Languages Act, 2003 and the granting of Official EU status to the Irish language in 2007. Hardiman J’s attitudes towards the State’s obligations towards the Irish language were best summed up by his dissenting judgment in Ó Maiciín v Ireland [2014] I.E.S.C. 12, a case which concerned the right to Irish speaking juries, where he held:

“The answer to [the Irish language] question does not depend on the private opinion of the Judges asked to decide it about the desirability or the feasibility of the widespread use of the Irish language for official purposes. It depends, rather, on the interpretation of the Constitution and the laws of Ireland which the judges, like the legislature, the executive, and the citizens, must take as they find them. If a government no longer wishes to be bound by the words of the Constitution as it is, that government is in a uniquely strong position to promote a change in those words. But, until then, the government must abide by the terms of the Constitution, just as it expects the ordinary citizen to obey the law. The Constitution is binding law, which binds the Government and the Legislature as much as the humblest citizen.”

Perhaps his most striking legacy came in the area of criminal justice and due process case law, where Hardiman J was a staunch defender of the rights of the accused. In CC v Ireland [2006] 4 I.R. 1, the Supreme Court struck down the law on statutory rape on the basis that it did not allow for the defence of reasonable mistake as to age. Hardiman J stated (at p.44) that he could not “regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual”. In DPP v Davis [2001] 1 I.R. 146 at p. 151, Hardiman J, delivering the judgment of the Court of Criminal Appeal, described the publication of photographs of an unconvicted prisoner wearing shackles as “a depiction of him in a position of humiliation and indignity … the dignity of the individual, and the perception that he is a participant in judicial proceedings with specific rights, and on a footing of equality with other participants, is inconsistent with his appearing there chained, or otherwise manifestly restrained.”

Having delivered judgments of this nature in the past, it was perhaps unsurprising that he dissented from the Supreme Court’s decision in DPP v JC [2015] I.E.S.C. 31 to overturn the rule in DPP v Kenny [1990] 2 I.R. 110 under which unconstitutionally obtained evidence was automatically excluded from criminal trials. In what unfortunately proved to be one of his final major contributions to the work of the Supreme Court, he wrote a stinging dissent, describing Kenny as “one of the monuments of Irish constitutional jurisprudence” and stating that he was “gravely apprehensive” that the majority decision “is a major step in the disengagement of this Court from the rights-oriented jurisprudence of our predecessors”. He warned of the dangers of encouraging lax standards or even police misconduct:

“I protest, in particular, against the distinction, created by this part of the decision, between the ordinary citizen and the members of the privileged and legally empowered group whom I have designated the force publique. If the ordinary citizen were provided with a defence of “I didn’t mean it” or “I didn’t know it was against the law”, then many parts of the law would become completely unenforceable. I believe that the application of this rule to the force publique has the effect of exalting that group and conferring a status of virtual, practical, unaccountability upon it. I deeply regret that this is being done.

… If the Constitution and the rights it guarantees to citizens are to be taken seriously and are to be more than a shibboleth, mere words on a page, it must follow that no official, no matter how high or how important the office which he holds in the State, may breach the terms of the Constitution, and impose on or suspend the constitutional rights of another citizen.”

Critics of Hardiman J’s judgments will point out the contrast between his strident defence of rights about which he felt strongly (in the areas of due process and language) with his unwillingness to grant remedies for the breach of a socio-economic right (the right to education), which did not fit so comfortably with his view of the judicial role. But no one can question that he has left a substantial legacy; he was, perhaps, the dominant voice on the Irish Supreme Court over the last 15 years.

A dheis Dé go raibh a anam.

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Upcoming Event – Sovereignty since 1916: Has the Law fulfilled the Promise of the Proclamation?

 

Monday 14th March, 2016
5.45pm – 7.30pm

Venue: Boole 2

“In the name of God and of the dead generations from which she receives her old tradition of nationhood, Ireland, through us, summons her children to her flag and strikes for her freedom.”

Paradoxically, the 1916 Proclamation both asserts and is premised on the sovereignty of the Irish people. As a unilateral declaration of independence, it makes the break-through assertion of sovereignty. At the same time, it assumes that the Irish people have always held this right of self-determination, and that several hundred years of usurpation of that right by a ‘foreign’ government has not extinguished it. How has sovereignty fared, though, in the hundred years since the Proclamation? Has the law remained faithful to the vision of self-determination espoused by the signatories of the Proclamation?

This event will explore the concrete understanding of sovereignty expressed in the Proclamation as well as the conceptual understandings of this much-misunderstood concept, before examining how the courts have interpreted sovereignty since Ireland became independent.

Continuing Professional Development: 1.5 hours Group Study (General)

This event is hosted by the Constitution Project @ UCC

Speakers and papers:-

Professor Nick Barber, Trinity College, University of Oxford – The Moral Value of State Sovereignty 

Dr. T. Ryle Dwyer, Historian, Journalist – Contrasting Visions of Sovereignty: From the Proclamation to the Civil War

Dr. Maria Cahill, School of Law, University College Cork – Sovereign and Indefeasible? Reflections on participation in the EU

Dr. Seán Ó Conaill , School of Law, University College Cork – A Sovereignty that can never be extinguished? The People and the Referendum

Chair: Dr. Andrew McCarthy, School of History, University College Cork

Enquiries: Noreen Delea, School of Law, UCC
Email: n.delea@ucc.ie Phone: 021 490 3220

Registration: http://www.uccconferencing.ie/product/sovereignty-since-1916/ 

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The Final Report of the Oireachtas Banking Inquiry: A Constitutional Perspective

Dr Fiona Donson and Dr Darren O’Donovan

Since its inception, widespread doubt and scepticism has permeated discussion about the banking inquiry. As the end of the process neared, doubts emerged as to whether the committee would be able to publish a final report, and if it ultimately succeeded in its overall remit. The publication of the Final Inquiry Report will trigger further debate, not merely regarding the inquiry itself, but also on the role of parliamentary inquiries generally. In this post we want to locate the likely talking points within broader debates about the Constitution and the place of Oireachtas within it.

“The inquiry was hobbled from the start by constitutional limitations”

One truism that has studded media coverage, is the idea that committee was inexorably (and perhaps fatally) hobbled from the start due to judicially imposed limitations on its operation arising from Supreme Court’s Abbeylara ruling. Some commentators have described the committee as having “little choice” but to be “risk adverse and to focus upon “running a tight process”. The idea that the committee is constitutionally injuncted to “pull its punches” and barred outright from making criticisms of individuals has taken hold. The inquiry itself has been particularly cautious in this regard. Yet, in our view, the Supreme Court’s approach, while presenting challenges, should not be portrayed as a monolithic roadblock to an effective constitutional role for parliamentary investigations.

In seeking to understand this position we must first note the unique nature of the Abbeylara inquiry which impacted upon the judgment of the Supreme Court. The committee adopted terms of reference which envisioned it making findings relating to “unlawful killing”; this summoned up judicial concern about the ability of parliament to make the personalised findings that had marked the era of Senator McCarthy and the US House of Representatives Un-American Activities Committee.  The close relationship between the potential findings and the crime of manslaughter was viewed by the majority of the court as lending a uniquely adjudicative character to the committee’s work in the Abbeylara inquiry. This can clearly be seen in the judgment of the Supreme Court: for example in Justice Hardiman’s regular references to the applicants as “individual citizens” without any correlative emphasis upon them being public officers as members of An Garda Síochána. In short, the entire design of the Abbeylara inquiry hinged upon making findings of individual culpability. In contrast, when delineating the remit of Parliamentary inquiries the Court specifically found that the Constitution focussed inquiries upon considering whether legislation needed to be passed – i.e. in direct aid of the Oireachtas’ legislative functions.  These amount to two very different functions; only the second was regarded by the court as permissible.

So when will an inquiry be focussed upon legislative function rather than adjudicating individual conduct?

This is the question that remains at large, and that the banking inquiry was uniquely positioned to explore. Yet the question has been little noted in the commentary of the inquiry, nor does the committee appear to have spent time publicly considering it. The Abbeylara decision is of little help. The Supreme Court ruling provided only a circular and vague treatment of this question. Some rulings, for example Justice Geoghegan, at paragraph 837, attempted to differentiate between unacceptable direct findings against individuals and possibly inevitable and permissible findings relating to a managerial system which might result in implied blame being attributed to individuals. Overall, the specifics of the Abbeylara inquiry impacted on the examination of this issue with the majority finding that the Committee had not regarded itself as carrying out an inquiry relating to a “legislative function”.

In considering the scope of Oierachtas inquiry powers re legislative functions and wider findings, the position therefore appears to be that the banking inquiry was constitutionally permitted to criticise individuals where the attribution of blame is “inevitably” or “unavoidably” required for creation of new legislation [as per Justice Geoghegan’s test at paragraph 837] or is “genuinely incidental” to the creation or review of laws [as per Justice Hardiman’s test at paragraph 640]. Indeed, this is directly underlined by section 17(3)(a) of the House of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 passed after the failed inquiries referendum in 2013 which states that a committee may:

“make a finding that any matter relating to systems, practices, procedures or policy or arrangements for the implementation of policy which fall within the subject [of the inquiry] ought to have been carried out in a different manner”.

Professor David Gwynn Morgan has noted that the concept of “implied blame” present in both the Abbeylara decision and the 2013 Act is “a very slippery standard for a lawyer to advise upon or for a court to rule upon”. Nonetheless, we argue that a carefully prepared report could have pressed the edges of the concept to deliver firm criticisms tied to concrete future legislative actions.

It is clearly vital that we get clarity on the Abbeylara ruling – something likely to happen this year with litigation arising from the questioning of former Rehab CEO Angela Kerins by the Public Accounts Committee. However, beyond the legalisms of the Supreme Court’s rulings, the banking inquiry underlines the lack of a proactive constitutionalism within our political culture. Too often, Bunreacht na hEireann is perceived as offering only judicially declared “red light” moments which legally prohibit or require conduct rather than injecting positive values to be upheld within the conduct of our politics, government and public administration.

 “There should never be another inquiry under the 2013 Act”

Blaming the Supreme Court only tells us a small, yet influential part, of the Inquiry’s story. As we noted above, the idea that the committee was constitutionally injuncted from pressing individuals on their role in the banking crisis is an easy way out for the Oireachtas. In reality, a number of factors within their own remit also provided for a scenario that indicated that their efforts appeared doomed from the start.

Firstly, and centrally, was the design of the committee’s terms of reference which included the following stated purpose:

“to inquire into the reasons Ireland experienced a systemic banking crisis, including the political, economic, social, cultural, financial and behavioural factors and policies which impacted on or contributed to the crisis and the preventative reforms implemented in the wake of the crisis”

This actually tells the reader little of the underlying objective of the inquiry beyond the creation of an historical record of the banking collapse. In addition, the goal of public engagement in this record building process, strongly championed at the start of the process by the committee, was ultimately obstructed by the extremely broad terms of reference.

Secondly, the terms of reference were broadened from the initial focus on the 2008 decision to bail out the banks to a wide-ranging consideration of context, banking systems and practices, regulatory systems and practices and finally crisis management and policy responses, all operating over an extended period of time. The last module was, inevitably, particularly complex.  In part, the terms of reference were influenced by a desire on the part of the committee to “demonstrate that it [could] carry out a fair and balanced inquiry to answer the key questions that remain behind the banking crisis.”

This desire to “add value” to the existing record, led the Committee to engaged in what we would describe as unfortunate entrepreneurship; at times displaying undue flexibility in relation to evidence gathering. The attempts to hear accounts from the former head of the Anglo-Irish Bank Bank and Jean Claude Trichet were instances where the desire to secure evidence from previously unheard key actors came close to according additional entitlements to particular individuals based on their inaccessibility. The approach taken by the Committee to “engaging” Mr Trichet, at a private event was legitimately criticised by the family of the late Brian Lenihan. Ironically, despite the Committee’s confidence in this private evidence gathering solution, the European Central Bank nevertheless withdrew co-operation from the informal process, citing comments made by inquiry members at the Trichet event.  It argued that while it could engage in a general exchange of views with parliamentarians, it would not discharge accountability to a parliamentary inquiry.

Finally, the timing of the inquiry was a key roadblock to success. While Fine Gael and Labour had committed themselves to a parliamentary inquiry in run up to the previous election, the Government elected to hold the inquiries referendum as a first step to its establishment. The defeat of this referendum, based in large part of the public’s lack of trust of the Oireachtas to carry out this role appropriately, together with the need to create the 2013 Act, meant that the inquiry would be carried out in the last year of the government. At its conclusion, the inquiry had heard from 128 witnesses over 49 days, together with 50,000 documents. A first draft of the report ran to 750 pages but ultimately the timeline, fatally tied to the end of the current life of the Oireachtas, has resulted in a much reduced and reportedly sanitised final version. This is in no way connected to the Abbeylara decision but is the result of politicking and the failures in drafting the 2013 Amendment proposal.

 “This ground has all been covered previously”

This view, often expressed by political scientists and journalists, attempts to portray the independent Commission of Investigation carried out by Peter Nyberg as having been sufficient in its treatment; the idea being expressed here is that we already knew enough of the story. This inevitably leads to other questions: what was the point of the Oireachtas Banking Inquiry? What was it that the Committee was attempting to accomplish anyway? Was this simply politics? While it may be tempting to conclude, as Joe Higgins TD has, that there should never be another inquiry under the 2013 Act – this is to misunderstand, or perhaps close ones eyes, to the central role the Oireachtas can and should play in holding Government responsible for its actions.  A parliamentary inquiry offers a significant forum for debating underlying political responsibility, publicly airing contrasting perspectives and mobilising public debate about reform. It also provides a potentially stronger mechanism for achieving change at the end of the inquiry process.

Commissions of Investigation, as independent inquiries allow for focused forensic fact finding mechanisms carried out, at their best, by experts in their field. However, they are ultimately reliant upon the political buy-in of the Oireachtas and more particularly Government. The failure to implement key Mahon Tribunal findings, underlines that fact that political buy-in or the mobilisation of political shame are irreplaceable variable – something an Oireachtas Inquiry can more often provide. More fundamentally, we should not dismiss our elected body as a central accountability mechanism, consigning it to being “fundamentally ill-suited to the task”. Other jurisdictions show us that Parliamentary Committees are well able to carry out central accountability roles when given the machinery and space to do so. While the passing of the 2013 Act provided a framework for inquiry, it is clear that simply legislating to provide a better inquiry structure is not enough to produce real change. The Act may simply have raised false hopes in the face of a failure to change the political and administrative culture operating within our state.

 “It’s all he said she said anyway”: Why is it so hard to investigate?

This to us is the key constitutional question. Governments typically enjoy talking forward from the crisis rather than acting upon the cause. At this time, a lot of the media coverage is aimed at the institution of the Oireachtas, forgetting the responsibility of Government to operate in a manner that allows for accountability to work in practice. It is vital that we focus discussion of the banking inquiry not only upon politics, but also consider it in its broader constitutional perspective.

The failure to engage in appropriate record keeping by government including the recording of key decisions, along with the failure to provide a wider access to information is detrimental to the accountability process.  We see again that key decisions reached on the night of the banking guarantee were not recorded, that the interactions and justifications behind key regulatory actions were not recorded. While media reporting criticises the lack of “silver bullets” or bemoans the technicality of reports, this should be placed within the context of the investigatory difficulties faced by judicial or other independent actors. Last year’s interim report of the Fennelly Commission also crystalised this dynamic:

“This Commission is, of course, powerless in the matter. It is left in the position of having to reconcile conflicting sworn evidence from responsible ministers and officials at the highest level in the State. It can only register its astonishment at a system of administration which apparently quite deliberately adopts a practice of not keeping any record of a meeting where an important decision is made.”

Ultimately, while the banking inquiry may not reflect well on the Oireachtas, the questions flow far beyond the committee room with the entire investigation reflecting broader difficulties in our constitutional culture. Bunreacht na hEireann is very clear about its aims; the problems are to be found in its interpretation and operation at the most basic structural level.

Dr Fiona Donson (School of Law, University College Cork) and Dr Darren O’Donovan (Faculty of Law, Bond University) are authors of Law and Public Administration in Ireland (Clarus Press, 2015).

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