I thank the committee for the invitation. I have addressed the committee on another issue and I will be brief. I agree with almost all of what Dr. O'Malley said except his critical point on whether a constitutional referendum is required and whether a constitutional amendment should be made to grant the power of inquiry.
If the body politic is unwilling, because of the Abbeylara judgment, to make any sort of inquiry into anything of national importance or public policy, notwithstanding the point made by Dr. O'Malley on whether the Abbeylara case is a good one because of its unique circumstances, it might be necessary to insert a constitutional amendment after a referendum to include such an amendment.
As Mr. Justice Adrian Hardiman noted:
There is nothing in the Constitution which would prohibit a local committee or indeed a committee of virtually any kind from conducting an inquiry into a matter which it considered worth inquiring into. The capacity of such a committee to conduct an inquiry does not have to be derived from any express or inherent power conferred by the Constitution.
That clear summation would allow any committee to begin an inquiry but the big danger then is when an inquiry stops, when the courts might intervene or when a lawyer might be brought in. This clearly happened in the Abbeylara case. If there is a certain timidity, which perhaps is worthwhile, among Oireachtas Members of this or any other committee about making an inquiry, then having a constitutional requirement to hold a committee, notwithstanding my colleague's pertinent point about competing rights, might give the Oireachtas at least something to fall back on. However, clearly the critical point is the relationship between the Executive and the Legislature.
Under Article 28.4.1°, the Government shall be responsible to Dáil Éireann. None of us could say this is the current practice or was ever even common practice in the State since the Constitution was implemented in 1937. This clearly has not been the case because of the points my colleague made. In that context, if the body politic will not go down the route the Labour Party suggested back in February with its Bill, one can either make legislation, which has obviously been rejected, or have a constitutional amendment if the dangers about a star inquiry, which was mentioned during February's debate, are real. I am not sure that is a good example. The House on Un-American Activities Committee, into which I have done a great deal of investigation, was clearly a partisan committee at a partisan time in the US where both Democrats and Republicans - we should not simply tar McCarthy with this brush - were all of the same view in an era of feverish anti-communist activity in the US in the late 1940s and early 1950s. In many ways, the Democratic Party was probably more anti-communist than the Republican Party. John F. Kennedy was more anti-communist than Vice President Nixon during their presidential election campaign.
To rely on the House on Un-American Activities Committee, as it seems the Supreme Court did, to stop parliamentary inquiry misses the point of Irish political culture. If the Parliament cannot hold the Government to account, which has been the case since the introduction of the Constitution in 1937, I do not see any other way except a constitutional referendum, which is where I disagree with my colleague, and leave it up to the Supreme Court to judge on competing rights. In many ways, it is up to Oireachtas Members to decide whether they want the power to inquire into matters of public importance. That is the key point. It is a matter of political will on behalf of the elected representatives of the people.
Deputy Rabbitte alluded to this in his Bill when it was debated in the Chamber in February. If the body politic wants to have the right to inquire, there is nothing in the judgment that stops that. The way it is interpreted by the Houses of the Oireachtas, with the exception of the Committee of Public Accounts inquiry into FÁS, has put a stop to all public inquiries and it might well be the case that it is time to go back to the Constitution and insert a clause giving the right for Parliament to inquire because if this is not done and we have this political timidity, I do not see any way we can proceed. That would be to the detriment of our democracy, public life and the relationship between the citizens of the State and the State itself.
We know what has happened with tribunals of inquiry. If we remove inquiry from the political sphere and transplant everything into the legal sphere, we are faced with the Mahon and Moriarty tribunals. I wrote in 2000 that the Moriarty tribunal would report within the next number of months. That was a decade ago and we still have not had such a report. If the political class sees the Abbeylara judgment as stopping parliamentary inquiries, the only other place to address this is to go to the law and we clearly see that does not work. The Tribunals of Inquiry Act 1924 is supposed to provide for the investigation of matters of urgent national importance. Thirteen years after the Mahon and Moriarty tribunals, I am not sure anyone could say these are matters of urgent national importance because if they were, we would have had them adjudicated on at the time they were set up.
If we say we want to adjudicate on matters of urgent national importance, whether it is Abbeylara, the banking inquiry, the conduct of FÁS and so on, we have to get a better way of doing it. The best way to do so, as Dr. O'Malley has articulated well, is by a committee system, bringing in witnesses, etc., but unless we take cross the Rubicon in terms of the relationship between Parliament and Government, we will not get anywhere. It might well be the case we have to have a referendum on a constitutional amendment and allow inquiries to continue. If they need to go to the courts, so be it, but as it stands, the lacuna is too large and we are not getting anywhere in terms of the relationship between what the citizens want to find out and what their representatives can find out.