I am delighted to appear before the committee to discuss this matter and, if necessary, answer questions from members. This has been an extremely fraught subject. I am here because I was involved in a particular case wherein the issue of the capacity of the Houses of the Oireachtas to instigate committees of inquiry was challenged. I refer to the Maguire v. Ardagh case, which arose on foot of the incident at Abbeylara. The committee secretariat sent me a short series of questions which formed the basis for the note I have prepared. I did not perceive it to be my role to come before the committee to make a presentation of a constitutional treatise. The work of the committee is clearly directed to a practical question.
Perhaps one of the first issues that arises relates to the extent of the role of the Oireachtas in securing accountability. This question is fundamental in nature because when members read the note I have prepared, it will become obvious that it is my opinion that the Oireachtas can grant itself powers to conduct parliamentary investigations. Such investigations can be quite far-reaching in scope and can involve findings of fact, expressions of opinion and the making of reports. The question arises then about the extent to which the Houses of the Oireachtas might be able to engage in adjudicative findings and the making of findings of culpability. It is important to remember that the Abbeylara case concerned the activity of a committee which did not have an express statutory authority to conduct an investigation which would make findings adverse to the good names of citizens. That was the bit that was missing. The authority had not been given in the 1997 Act to do more than provide for the calling of witnesses, the immunity of witnesses, etc. It would be my contention that the Oireachtas could take a power to conduct a parliamentary inquiry.
I have noted in recent times that Members of the Oireachtas seem to think that the Abbeylara case is a sort of road block to parliamentary inquiry. I do not believe it is. The important aspect is that there must be a structure put in place for such an inquiry or inquiries. One need only look at the basic finding of the Supreme Court in Maguire v. Ardagh, that there is not an inherent power in the Oireachtas to conduct inquiries. The reliance in Abbeylara by the Oireachtas was effectively on the existence of such an inherent power because the statutory power had not been put in place.
On the first question I have addressed here, I have raised a question, with respect. The committee will see that the language used in the note sent to me refers to "parliamentary accountability functions". The first question recites that, asking whether express authorisation in the Constitution for the holding of inquiries by the Houses of the Oireachtas and exercises of their parliamentary accountability functions is necessary.
I take the view that, broadly speaking, an express constitutional authorisation is not necessary. My deductions from the result of the deliberations of the Supreme Court in Maguire v. Ardagh is that the Oireachtas has the power to give itself the authority to carry out such investigations. I use the word “probably” here guardedly because I am concerned as to the meaning the committee attaches to the expression “parliamentary accountability functions”. It is a general expression; it is not self-explanatory.
I go on to explain, although I do not really need to, that the Oireachtas is authorised to seek the accountability and to expect the accountability of the Government. Article 28 provides that the Government is responsible to Dáil Éireann. Plainly, that House has an accountability function in the doings of the Government, but does Dáil Éireann have a general accountability function?
I respectfully suggest "parliamentary accountability functions" needs definition. The reason I say this is because in Britain the constitutional theory is sort of expressed in the description of the Houses of Parliament as being the general inquisitor of the nation. If it is the purpose of this broad language to suggest that the Oireachtas has wide-ranging parliamentary accountability functions of the nature that every citizen in the land is ultimately deemed and expected to be accountable to Dáil Éireann, Seanad Éireann and the Houses of the Oireachtas, that would be such a far-reaching proposal that I suggest one would definitely need an authorisation for it.
For starters, one must determine what the Oireachtas really wants to do. Does it want to extend its remit beyond law making, beyond, in the case of the Dáil, ensuring the accountability of the Government to it? Does it want to engage rather in an extensive patrolling investigation when necessary of all sorts of events in the community and society? I would suggest that if it is the latter, that is something that would be difficult to achieve without a constitutional amendment giving an express authorisation for it.
That is the problem that I perceive in the way this committee seems to be expressing itself. I do not want the committee to be offended. I am not seeking to impugn or in any way criticise the committee for the language used, but precision of language in this area will be vital, otherwise we will get confused about what we are talking about. I would query at the outset the use of that expression, "parliamentary accountability functions", and I would suggest that it requires definition.
I suppose what I am saying is that the Oireachtas needs to determine whether it wishes to take a general jurisdiction to seek accountability in the State. If it does not wish to do that, then in my view it is entirely admissible under the present constitutional scheme of things for the Oireachtas to pass a law, either a general law such as the Tribunals of Inquiries Act 1921 which would provide for investigations in the Houses of the Oireachtas, or a specific law for each such investigation as happened with what became known as the Haughey case but which was the Committee of Public Accounts inquiry of 1970.
In the case of the fall of the Government in 1994, there was a special Bill passed. It is important to recall that. There was a special Bill passed quickly to provide for the inquiry into the fall of that Government but when one looks at the way the Bill was articulated, it did not seem to provide for any more than the presentation of the transcript of the hearings and there was not an adjudicative function attributed to that committee at that time. I will answer questions on that first question later, if the committee wishes.
The section question here is whether there ought to be restrictions on the scope of investigation by Oireachtas committees. In a sense, perhaps the best way to do this is to look backwards to see how this has worked well in the past. The Oireachtas needs to have some criteria for the circumstances in which it would initiate such an Oireachtas investigation. The criteria in the past have been whether there was a grave issue of public importance; whether there was a want of confidence in society about a great institution of State or a service of the State; and whether there was need for the application of legal investigative powers to seek out the facts. It is difficult to prescribe the restrictions at the outset; all one can do is to indicate what ought to be the criteria.
The next question was whether investigations should delve into areas of individual conduct. I mentioned here the DIRT inquiry report. It is interesting to note that there was a point in the report where the committee alluded to the role of the AIB external auditor. I will not discuss the particularity of it, but an issue was raised as to whether amnesty was granted by Revenue in respect of past liability for DIRT. The external auditor was seen to have a specific role in this because he would have to determine whether such liability was likely to have arisen. What was interesting was that the committee made findings but did not cast blame or seem to adjudicate. I invite committee members to look at that section because it is a very interesting manner of doing things. I suggest it is probably a very useful template. One can make findings without stating X did wrong and one leaves the citizen and community to make the adjudication as to whether those findings represent a wrongdoing on the part of X or Y.
It is important to not be terrified by Maguire v. Ardagh. The impression is often given that Maguire v. Ardagh ruled out forever the making of an adjudicative finding by an Oireachtas committee. I do not think this is so. The Oireachtas can take appropriate powers to conduct such an investigation and to exercise such an adjudicative role. If the Oireachtas were to do this as the general inquisitor of the nation delving into all sorts of private matters and local affairs, it would require a constitutional amendment because the role of the Oireachtas would be fundamentally changed from that of legislator to some type of general inquirer.
The issue of making findings of individual culpability becomes acute and problematic in what I would call divisive political settings. It is probably not very clear in our memory now, but the inquiry of January 1995 into the fall of the government was a very contentious event. It was extremely divided on party lines and I think that explains why it was not possible for there to be an adjudicative report. There was simply the presentation of the transcript to the Houses. I suggest there is an issue of bias or independence. If a parliamentary committee is to embark on an investigation which has powers to adjudicate and attribute culpability, it will be set at naught if it is demonstrated that those exercising the powers are not independent and come to the job with bias. It will fail because it becomes plain in such inquiries that those features of bias exist; it breaks out as it is difficult to conceal it.
The courts have evolved an understanding of the issue of the need for independence and the absence of bias to the extent they have formulated a principle of objective bias: would a reasonable person looking on believe that the adjudicator is not coming to it, or is in danger of not coming to it, with an open mind? This is not simply a question of members of a House committee stating they come to it with an open mind; that will be looked at objectively to determine whether the person being adjudicated upon could reliably believe and reasonably believe that is so and that the member is free of bias.
