SUBMISSION TO THE OIREACHTAS JOINT COMMITTEE
ON THE CONSTITUTION ON THE PARLIAMENTARY
POWER OF INQUIRY
By Donncha O’Connell, NUI Galway*
______________________________________
Chairman, Deputies and Senators, it is a privilege to be invited to
make this submission on a topic of undoubted importance that is,
also, of real interest to me. I am very grateful to Anne-Marie Fahy
for being so facilitative in advance of this session.
Context
The context in which I and others make submissions to this
Committee on the parliamentary power of inquiry is one in which
there appears to be some appreciable momentum towards
systemic political reform of a potentially radical kind. It remains to
be seen whether this is a genuine response to a real crisis of
confidence in the political system or an elite concern of those in the
so-called ‘Leinster House bubble’, the bubble into which people
like myself, with some book-learning and anxious curiosity, peer
like busybodies keen to share our opinions!
In this submission I will deal only with a slice of the problem –
how to resource Parliament to inquire – but it is important to
acknowledge at the outset that much more is required to renew
This submission is made in a personal capacity. Donncha O’Connell is a lecturer in
the School of Law, NUI Galway and was Dean of Law from 2005-2008. He was a
Visiting Senior Fellow at the Centre for the Study of Human Rights, LSE in 20092010 and is the editor of the Irish Human Rights Law Review published annually by
Clarus Press. He is the Senior Irish member of FRALEX, the legal expert group that
advises the European Agency for Fundamental Rights (FRA) based in Vienna and
was, from 2002-2006, the Irish member of the EU Network of Independent Experts
on Fundamental Rights. He is a member of the Board of Directors of the Londonbased NGO, INTERIGHTS and a member of the Advisory Board of the Public
Interest Law Alliance (PILA). From 1999-2002 he was the first full-time Director of
the Irish Council for Civil Liberties (ICCL) and, subsequently, served on the boards
of Amnesty International-Ireland and the Free Legal Advice Centres (FLAC) Ltd.
*
1
even quiescent faith in the political system. A starting-point must
be to establish an unapologetic platform for idealism and a refusal
to feign modesty in proposing systemic changes that are radical or
even transformative. ‘Radical’ is not a bad word and is too casually
used as a synonym for ‘extreme’. Radicalism requires us to
address the roots of problems. It is in such a spirit of considering
radically the imbalance in power between the Executive and
Parliament – whether this is an instance of constitutional accident
or design – that I make this submission.
Maguire v. Ardagh
At the time of the attempted inquiry by a sub-committee of the
Oireachtas Committee on Justice, Equality, Defence & Women’s
Rights into the tragic shooting of John Carthy at Abbeylara, Co.
Longford I was the full-time Director of the Irish Council for Civil
Liberties (ICCL). The Council took an interest in that case and, in
particular, in the manner in which the Carthy family sought to
vindicate their right to an adequate form of post-mortem inquiry,
the so-called procedural aspect of the right to life protected by
Article 2 of the European Convention on Human Rights. That right
was, ultimately, vindicated by the establishment of the Barr
Tribunal of Inquiry which issued its report in 2006. The Barr
Tribunal was established after a successful challenge to the
proceedings of the Oireachtas Sub-Committee brought by
members of the Garda Representative Association (GRA), the case
now known as Maguire v. Ardagh.1
In his judgment in that case Chief Justice Murray was strongly
influenced by the absence of an explicit or implict constitutional
permission or mandate covering inquisitorial powers of
parliament. He further rationalised the majority finding that
parliament lacked such powers in the following terms:
“Committees of inquiry are, by virtue of their role and function,
part of the political process. Evidently, they are composed of public
representatives answerable to their constituents, public opinion
and with a day to day interest in the cut and thrust of everyday
1
[2002] 1 IR 385.
2
politics. I do not say that a public representative by virtue of his or
her political role is incapable of acting fairly and objectively.
Nonetheless, there is the underlying fact that they each have an
ever present interest, from one perspective or another, in the
political issues of the day including the ever present one of the
standing or otherwise of the Government in office and its
ministers. Constitutionally the Government is answerable to
members of the Dail and in a different, but substantive way, may
be the subject of support or opposition by members of the Seanad.
Unlike other forms of inquiry, Oireachtas committees are not
independent of the political process. The question arises whether
the Constitution, although silent on the matter, intended that
personal culpability of citizens for serious wrongdoing with
consequential implications for their good name should be decided in
the course of an inquiry which was part of the political
process…[T]here is at least a real risk that the integrity or
objectivity of parliamentary inquiries could be compromised by
purely political considerations. It was the reality of such frailties
that brought the parliamentary committee system in Britain into
disrepute. It is difficult to imagine that the framers of the
Constitution of 1922 would not have been aware of this factor. Nor
could one suppose that it was not considered by the drafters of the
Constitution of 1937.”
The decision of the Supreme Court in that case has already been
dealt with, in a most thorough and rigorous fashion, in the
submission made to this Committee by John O’Dowd of the School
of Law, UCD. I agree substantially with what Mr. O’Dowd had to
say in his submission and elsewhere2 and wish to focus on a
somewhat different matter.
While it is possible to read the majority decision as merely an
impediment to the kinds of parliamentary investigations that
might lead to adverse findings inimical to the good name of
certain citizens, the better view appears to be that it also limits the
capacity of the Oireachtas to legislate to allow for such inquiries
O’Dowd, “Knowing How Way Leads on to Way: Some Reflections on the Abbeylara decision”
(2003) 38 Irish Jurist (ns), pp 162-225. See also: O’Hegarty, “The Constitutional Parameters of the
Work of the Houses” in MacCarthaigh & Manning (eds), The Houses of the Oireachtas: Parliament in
Ireland, (Institute of Public Administration, 2010), pp 95-99, and O’Leary, “Committee Inquiries”, ibid
pp 303-320.
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without falling foul of the Constitution.3 It is, therefore, the case
that some form of constitutional amendment is required to enable
appropriate legislative provision to be made for a full power of
parliamentary inquiry.
Resourcing the investigative power of parliament
Although there is much journalistic and academic commentary to
the effect that Government is insufficiently accountable to
Parliament this does not arise by necessary operation of the 1937
Constitution which provides, in general terms4, for a form of
accountability. The good work of Oireachtas Committees, not just
in the legislative process, goes somewhat unnoticed. The openness
of such Committees to hearing the views of non-governmental
organisations on legislative and other proposals reflects well on
the Houses of the Oireachtas even if the time available for such
hearings is, inevitably, truncated. The decision in Maguire v.
Ardagh does not affect these forms of parliamentary accountability
or engagement but it does limit the scope of such mechanisms in
the exercise of inquisitorial powers that may, predictably, need to
be used in the course of otherwise uncontroversial proceedings.
Parliament, as the organ of state that directly represents the
sovereign people, does have a legitimate interest in conducting
inquiries if only as an instance of the balance of power that must
exist in a constitutional system that values the separation of
powers. That does not mean that such inquiries must always be
carried out directly by Parliament.
3
See, for example: Doyle, Constitutional Law: Text, Cases and Materials (Clarus Press, 2008), p.332.
The need for some form of constitutional amendment is also acknowledged in the Labour Party paper,
New Government, Better Government: Changing a Broken System, at para. 52, published on 6th January
2011.
4
For example, Article 28.4.1 of The Irish Constitution 1937 states that: “The Government shall be
responsible to Dail Eireann”. More generally, the constitutional mandate requires both Executive and
Parliament to behave constitutionally in the exercise of all powers and the courts are tasked with
explicit constitutional power to review the acts and omissions of Executive and Parliament. For an
excellent survey of the constitutional position of the Houses of the Oireachtas see: O’Hegarty (supra),
“The Constitutional Parameters of the Work of the Houses” in MacCarthaigh & Manning (eds), The
Houses of the Oireachtas: Parliament in Ireland, (Institute of Public Administration, 2010), pp 54-105.
On the issue generally of Executive accountability see further: Craig & Tomkins (eds), The Executive
and Public Law: Power and Accountability in Comparative Perspective, (Oxford University Press,
2006), pp 37-51.
4
Various inquiry functions are already ‘out-sourced’ to statutory
bodies. For example, the Ombudsman has extensive powers to
inquire into issues of alleged ‘maladministration’ and report
thereon, if necessary, to Parliament. The Irish Human Rights
Commission (IHRC) also has an explicit statutory power to carry
out inquiries but – for a variety of reasons including, but not
confined to, funding restrictions – it has not realised the full
promise of its founding legislation in exercising this power.
These types of powers could be more effectively exercised if there
were stronger connections between the office of Ombudsman and
the IHRC and if both were more explicitly identified in law as
parliamentary emanations. Both, but especially the IHRC, would
also require much greater budgetary autonomy from the Executive
and more transparent appointments procedures focused on
ensuring real independence.
In order to recreate effective agencies of inquiry I would suggest
appropriate legislative and constitutional change to protect such a
system of parliamentary emanations that resource Parliament in
the discharge of its essential power of inquiry. The office of
Ombudsman should be given clear constitutional recognition (akin
to that given to the Comptroller & Auditor General) as an
emanation of Parliament tasked with, inter alia, the power to
conduct inquiries at the behest of Parliament. Such a reconfigured
framework office should have a penumbral remit that covers
analogous inquiry powers and functions exercised by statutory
bodies like the IHRC, sharing the kind of political protection that
would come with explicit recognition in the Constitution.
It would be vital also to address the deficit, already identified by
the IHRC, arising from the absence of a designated parliamentary
committee into which the Commission reports. In fact, the creation
of a new constitutionally protected office of Ombudsman, with a
clear and strong connection to Parliament, would suggest a need
to reconfigure the parliamentary committee system so as to fully
realise the value of this office. That is a matter for the kind of
comprehensive constitutional reflection suggested at the start of
this paper.
5
If we look for a model of what has worked by way of
parliamentary inquiry the DIRT Inquiry of 1999-2000 is usually
proffered as an example. This is quite instructive. The Public
Accounts Committee in that instance was working from a
preliminary report prepared by the Comptroller & Auditor
General (C&AG), an office that is explicitly referenced in and
protected by the Irish Constitution 1937. It, therefore, had
professionally gathered and reliable information on which to
conduct a legitimate political inquiry. A similarly empowered
office of Ombudsman (including other statutory agencies with
inquiry powers) could perform an equally valuable investigative
role beyond those areas covered by the C&AG so as to resource
legitimate inquiries by Parliament.
This would not be entirely dissimilar to the proposal for the
establishment of ‘parliamentary inspectors’, made recently by Fine
Gael and the Labour Party, but the creation of some distance
between Parliament and its emanations, especially in the conduct
of inquiries, might be a more appropriate way to proceed. For that
reason I believe that it would be better to locate the investigative
resources of Parliament in an independent but appropriately
connected office of Ombudsman.
If what I am proposing was to be pursued by ‘constitutionalising’
the office of Ombudsman, and bringing within its constitutional
remit the inquiry powers of other bodies such as the IHRC, it
would also require consequential reforms to the office of Attorney
General so as to address the real potential for conflict of interest in
that office. As currently conceived of by the Constitution and
statute5, the Attorney General has a role to both advise the
Government on legal matters and protect the public interest.6 The
5
Article 30 of The Irish Constitution 1937 and Section 6(1) of the Ministers and Secretaries Act 1924.
For a discussion of the role of the Attorney General in asserting public rights and as so-called
‘Guardian of the Constitution’ see: Hogan & Whyte, J.M. Kelly: The Irish Constitution (4th edition)
(LexisNexis Butterworths, 2003), pp585-596. See further: Casey, The Irish Law Officers: Roles and
Responsibilities of the Attorney General and the Director of Public Prosecutions (Round Hall Sweet &
Maxwell, 1996), Chapters 4, 5 and 6.
6
See further: Who Cares? An Investigation into the Rights to Nursing Home Care in Ireland, a report
to the Dail and Seanad in accordance with Section 6(7) of the Ombudsman Act 1980 published on 9 th
November 2010 and available at:
http://www.ombudsman.gov.ie/en/Reports/InvestigationReports/9November2010WhoCaresAnInvestig
ationintotheRighttoNursingHomeCareinIreland/. In particular see Chapter 8.5 which deals with the
public interest role of the Attorney General:
6
latter role ought more appropriately to be reallocated to a
constitutionally recognised office of Ombudsman.
Concluding remarks
As stated at the outset, to make provision for a parliamentary
power of inquiry in the foregoing terms is, arguably, of minor
importance in the greater scheme of political and constitutional
things. Although it calls for some constitutional amendment more
fundamental constitutional adjustments are required in order to
achieve a more equitable and effective balance of powers
constitutionally.
An Executive-centred view of the foregoing submission would
probably assert that it is naïve and insufficiently cognisant of ‘the
way things work’. My purpose in making this submission is,
however, to propose how things ought to work. If that seems
radical, idealistic, or even naïve, or if it fails to sympathise
adequately with ‘real world’ dilemmas arising from an overconcentration of power at Executive level, I make no apology.
Thank you.
http://www.ombudsman.gov.ie/en/Reports/InvestigationReports/9November2010WhoCaresAnInvestig
ationintotheRighttoNursingHomeCareinIreland/Name,12964,en.htm
7