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JOINT COMMITTEE ON THE CONSTITUTION díospóireacht -
Wednesday, 15 Dec 2010

Article 15 of the Constitution - Review of Parliamentary Power of Inquiry: Discussion

We have a quorum. I welcome Dr. Eoin O'Malley and Dr. Gary Murphy, both from the school of law and government in Dublin City University. I thank them for the papers which have been circulated to Members. Some Members have read the papers and we appreciate their content. I hope the delegation will go through the main points of them.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they are to give this committee. If a witness is directed by the committee to cease giving evidence in relation to a particular matter and he or she continues to so do, he or she is entitled thereafter only to a qualified privilege in respect of his or her evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I call on Dr. Eoin O’Malley to make his presentation.

Dr. Eoin O’Malley

I thank the committee for inviting me. I will not go through the full paper because it was rather longer than the committee requested. The main point on which everyone could agree generally, including some lawyers, is that some serious problems arise with the Abbeylara decision and the way in which it was set out. One of the main problems was the literal view the court took with regard to the functions of the Oireachtas. The court found that the Oireachtas is more or less simply a legislative body and it ignored the fact that its main role today is as an oversight body. It ignored reality, which is odd given that in some other cases it has not taken such a literal view. In particular, it does not take a literal view of the role of the Judiciary. It was also rather odd and probably denigrating to politicians in the way it described the political process and political actions. It denigrated politicians in arguing that they cannot really inquire into things fairly. It is arguable whether judges could do so either.

It is also problematic in that it argued that the Oireachtas does not have an ability to do something that it allows other groups to do. It can give judges the function of inquiry but it is not allowed to do that. This is somewhat problematic in itself. The argument that the finding of facts is not the role of the Oireachtas seems to me to be absurd because every day civil servants find facts about various things and in a university setting we find facts. For example, I can set out that a student has committed plagiarism. The idea that only courts can do this seems absurd.

The most problematic finding and the one most pertinent to the committee's deliberations is the lack of clarity and guidance for committees and the Oireachtas as to how they should carry out inquisitorial functions in future. It seemed to rule out many things but left the door open to allow certain inquiries. There was a lack of clarity. The Oireachtas more or less decided that it cannot hold any inquiries. To be fair to the court, one of the reasons it made the decision was because it had a certain case in front of it. Judges can only make decisions based on what they have in front of them. The Abbeylara inquiry was a difficult case where the Oireachtas stated explicitly that it could find that there was an unlawful killing. We could agree with the court that it was essentially judicial in nature and that it was inappropriate for the Oireachtas to conduct such an inquiry.

On whether the decision should be overturned by way of referendum, I question whether that would be effective in any way, shape or form. Even though a form of words could be created to say that the right of the Oireachtas to inquire into various matters is enshrined in the Constitution, I suspect one will still find that other rights in the Constitution, such as a person's right to his or her good name, habeas corpus and the right to be tried in front of a court, would not necessarily be overruled. It will be difficult to find a form of words which would make it possible to do anything like the Abbeylara inquiry could do. I would also question whether the Oireachtas would want to do anything like the Abbeylara inquiry sought to do.

I do not think simply overturning the decision would be profitable because it would not work. It would not be useful for the Oireachtas because I wonder whether it wants to conduct such inquiries. If it is allowed to conduct such inquiries, it will have to follow the form such as that in tribunals of inquiries where everyone is entitled to cross-examination and certain defence lawyers traipse in and out of committee rooms. If that was the case, it would be no more efficient than having a tribunal of inquiry. One of the purposes of having parliamentary inquiries is that they are seen to be slightly more efficient than tribunals of inquiry, quicker and less expensive. I suspect that problem would not be solved by just inserting a new provision into the Constitution.

If I was to advise the committee on how it should proceed, the major problem the Oireachtas has is its inability to oversee what the Government does. It does not have the incentive to do so. Most Oireachtas committees have a Government majority and a Chair who is part of the Government. I do not mean to denigrate any members of the committee but there is no incentive to look deeply into Government action, especially in Ireland where the Government and backbenchers are so close to each other culturally and physically. It is unusual. In most other European countries the Government does not come purely from the Parliament. It is something that rarely happens. In other countries the parliamentary party group feels in some way it is protecting the party's interests with the electorate against the government. It is able, therefore, to oversee the Government. That does not happen in Ireland and I do not think inserting words into the Constitution will suddenly make it happen.

There are a number of ways, which I have discussed in my paper, in which the Oireachtas might have a greater incentive to oversee the Government. One of the main, most radical and difficult ways in which this could happen - it would necessitate a change to the Constitution - is to ensure Ministers are no longer Members of the Oireachtas and force them to resign if they are. It is a normal procedure in many other European countries.

We also need think about how we can increase accountability. This could be done by electing the Ceann Comhairle by secret ballot. There are various other issues. One could have committees elected in a different way whereby the Taoiseach does not chose the Chairs of committees. There could be a Borda count method which might be interesting and would ensure a certain number of Opposition Deputies or Senators would become committee Chairs.

In terms of inquiries, committees could commission them, set their terms of reference and choose who would sit on and chair them. In my paper I noted judges are usually not the best people to sit on inquiries because people tend to get legalistic and lawyers, famously, only talk to lawyers. The minute a judge is involved, one will find a process becomes more legalistic.

Rather than holding inquiries itself, if the Oireachtas commissioned inquires which tended to be held in private, not unlike the banking inquiry which is now being held, and a committee decided the terms of reference, issues such as the decision on the bank guarantee scheme would be part of such inquiries. If the findings were given first privately to a committee, it could then interrogate the Chair of the commission of inquiry. There could then be a public discussion. That would be a much more fruitful way of conducting inquiries. The current problem is that such inquiries or investigations tend to be introduced by Ministers. While they have to get Oireachtas approval, they will not do the job the Oireachtas is meant to do, namely, to oversee government, because the Government does not have any incentive to force itself to be inquired into.

I do not think inserting a form of words into the Constitution will work because there are other rights in it which courts might determine are still important and cannot be set aside. There are other routes to accountability which the Joint Committee on the Constitution should think about. The main one is that it would separate the Oireachtas and Government in a more effective way. When inquires are necessary, it is probably more profitable to hold them in private and then have the person who chaired the inquiry interviewed or interrogated by the committee in public.

I thank Dr. O'Malley for the short synopsis of his excellent paper.

Professor Gary Murphy

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.

I thank Dr. Murphy for his interesting presentation in which he covered a great deal of ground. No one wants to reverse the Abbeylara judgment. No one has any notion of establishing a committee that might produce a verdict of unlawful killing against anyone. In many ways, we should forget the judgment because there is no question of anyone wanting to reverse it.

I am older than everyone present and I can recall Senator Joe McCarthy's committee and being fascinated by what was happening. Even as a young boy, the accusations being made by the committee about people sounded horrific and no one wants that kind of stuff either.

There is a feeling that if we want to do something, a constitutional referendum will have to be held. I am all for that to remove doubt, if nothing else, and if we come up with a considered proposal, there is a good chance, especially if it has all-party support, that a balanced constitutional referendum would fly through. That brings us to what amendment is needed to the Constitution. We can avoid all the problems mentioned by the Supreme Court regarding whether there is an inherent power by inserting a specific power.

The core issues are how to do that, what outcome will be achieved and what protections will be provided. The Parliament should be entitled to set up a committee to inquire into matters of public importance. During the FÁS inquiry, we received advice from senior counsel at the time that while we were "entitled to speak robustly in furtherance of our constitutional function of supervising the disbursement of public moneys, the Supreme Court precludes any direction attribution of personal blame in respect of any named or identifiable individuals". That is another barrier. One might not want to overturn that through a constitutional amendment. I am not sure, because fair play and the Haughey decision must be borne in mind and also, as Dr. O'Malley mentioned, the other rights in the Constitution, which no one wants to override.

How does one find a berth in this for parliamentary committees to inquire into matters of public importance? It may be that we should bring it further by discussing what outcome can be achieved. That might be the key to a useful recommendation. The outcome might not be to identify any particular individual but rather to hold the mirror up to certain unsavoury activities and it might involve coming up with recommendations as to how they should be dealt with further. However the option may be to have a quick, short, sharp public investigation and with a subsequent entitlement to bring recommendations, but I am not sure. It is a case of what the committee can usefully suggest. This is a committee dealing with the Constitution and there is no problem about recommending a change to the Constitution but it is a case of what the reason for a change would be and how to achieve that change. I would like to hear the views of the witnesses.

I thank both speakers for their papers and their contributions this morning. The essential element which the committee will need to deal with is whether a referendum or legislation is the best option. I ask for further details on some of the interesting and useful perspectives put forward by the witnesses. Dr. O'Malley made two points, one of which might have been intended to be slightly facetious, when he said that judges are probably not the best people to deal with tribunals in the sense that they can become over-legalistic. I thought this was a nice inversion of the Abbeylara inquiry in many respects, given the type of opinions being given about public representatives in that judgment. His second point might even go beyond the remit of our examination. It seemed to be about the ability of a Legislature to hold the Executive to account and the linking of the membership of Government with the role of a Member of Parliament. I am interested to hear him develop this point. Does he still regard Cabinet membership as being made up of directly elected representatives or else the replacement of a list system or by a by-election system? Does he favour the European model or the American model where many people are directly appointed to Cabinet without having been elected to parliament?

I thank both speakers for their contributions. Like Senator Boyle I was taken with Dr. O'Malley's views on the notion of having a separate Executive. How would members of such a body be appointed? Does he envisage an American-style system where the President is elected and then brings in his Executive members while the Senate is made up of representatives who are elected? He referred to some European countries having this system and I ask him to say to which countries he refers.

Similarly I thank both speakers for their papers and for their work and presentation. I do not mean to be critical of the previous contributions from Deputy Kennedy and Senator Boyle but I think the debate is being somewhat broadened. I would have thought we should focus the debate towards a recommendation that this all-party committee might make on the matter of inquiries. It is clear that all non-officeholders in this House would wish to see the power of Parliament enhanced and developed. That is the reason the Abbeylara inquiry was embarked upon in the first instance. I find it somewhat less than satisfactory for any suggestion to be made that the finding of fact is not a matter for the Oireachtas. The finding of fact is a matter for numerous public bodies in the State and to suggest that this is something that an all-party committee of elected representatives cannot engage in is totally unsatisfactory. I ask the two witnesses to focus on the narrower angle of the type of committee of inquiry that we might consider, having regard to the fact that as an all-party group, we wish to be in a position to make a finding of fact that has taken place.

The second point is an opinion on the consequences of the finding of such facts and this is where we have a difficulty and where the Supreme Court judged that we did not sufficiently endow ourselves with such powers. In my view it would be very difficult for an all-party group to comment in any way on the finding of a set of facts without a constitutional referendum. I wonder what is the view of the witnesses if this committee were to form a view that a constitutional amendment might be put to the people recommending that the Legislature might equip itself with such powers to hold inquiries as might be regulated by law and whether in the circumstances the witnesses think the committee could arrange such an engagement.

We need to be clear on what we want to do if there were to be such a referendum. With respect, I think an amendment permitting the Oireachtas to, if it decides it wants to do it, would probably be a problem because there would continue to be the risk this would conflict with other aspects of the Constitution, particularly with regard to the role of the courts. Most people would agree that a finding of criminal culpability at that extreme level would have to remain in the province of the courts. I do not think anyone is arguing that this notion of the extreme level of criminal culpability or guilt would be something that would ever fall to a committee of the Oireachtas. I certainly do not think it should.

I am trying to frame a question and I usually behave and ask questions rather than make statements but I am struggling with trying to frame a question.

I note Senator Alex White has recently taken silk.

I often say to Senator Cassidy would he agree with me when I make such and such a statement. Is it not true there has been an overly conservative interpretation of culpability? However, I still think that we are probably too extreme in how we have interpreted culpability and we have imagined that we cannot do anything post-Abbeylara. That seems to be wrong, in my view. A whole territory of exploration and scrutiny of public policy, including how that plays out in, for example, the wider community and economy and the banking system, can be explored by the Oireachtas. We can explore why decisions were made, the basis for such decisions and their advisability in the context of the wider economy. They are not areas that necessarily involve culpability in the way I understand it.

There have been references to the McCarthy commission in the United States. I know Senator Boyle disagrees with me but the Oireachtas did not deal with the issue of scrutiny of banking policy and the banking crisis. We did not acquit ourselves well in the way the Oireachtas dealt with that issue. Part of it has to be that these matters have to be dealt with in public session. Questions have to be asked in public and be seen to be answered in public. It is not enough to say the final report of the committee will be published. This is not a case of wanting to put a guillotine in St. Stephen's Green. People must be able to see the process playing out, however, with questions being asked and answered - or not answered, as the case may be.

I had an interesting experience during a debate on the legislation to reduce the minimum wage, which has just gone through both Houses. It was a perfect example of the phenomenon to which I refer. In the Seanad last night, I asked the relevant Minister to set out the actual evidence for the assertion that a reduction in the minimum wage would promote employment and do all the things that are being argued on its behalf. In fairness to him, the Minister said that the Cabinet had been dealing with the matter for months. This is on the record. He said that the pros and cons of the argument had been tossed around and examined in every way and from all angles over many months. None of that examination was shared with the public. It was not even shared with the Parliament.

The Minister admitted that the Cabinet was discussing this very important economic policy issue. The rationale for the argument that the minimum wage should be reduced was not shared or debated publicly in the Oireachtas. That seems to be an example. We are a million miles away from culpability now. We are considering an important question of public policy and economic policy - the minimum wage. We have been told that it was scrutinised carefully and in detail by the Government. None of that happened in public and none of it happened in the Oireachtas until a fait accompli was presented to us.

I would like to ask about the accountability of the Government to the Dáil. Deputy Charles Flanagan said that everybody, with the possible exception of the office holders, is in favour of greater accountability. I suggest that some of the office holders are also in favour of greater accountability. The current system does not allow for that, however. If we are to change the powers of inquiry of the Dáil, perhaps we can simultaneously change the Constitution in a way that strengthens the accountability of the Government to the Dáil. Would it help if we were to improve the chances of the Oireachtas being in a position to inquire into matters of great public account? As no other members are offering to contribute, I ask Dr. O'Malley to commence the response to the questions that have been asked.

Dr. Eoin O’Malley

Perhaps I will begin with the final point and work backwards. I observed one of the problems with the way the Oireachtas dealt with the banking crisis when I watched the broadcast of an Oireachtas committee meeting at which officials from the Department of Finance felt quite happy not to answer many of the questions they were asked. I am not sure whether it did any good to hold the meeting in public. The purpose of an inquiry is to find out what happened, what went wrong and how such failures can be prevented from happening again.

I would have thought one of the ways the Oireachtas can generally hold the Executive to account, which is one of its main functions, is to make freedom of information more or less a given. The Government should not be in a position to decide whether it wants to give things out. It should be difficult for a Secretary General of the Department of Finance to sit in an Oireachtas committee room and say that he or she needs to take legal advice before he or she can decide whether to release certain information. It should be automatic that such information has to be given to a committee such as this.

When we are engaged in day-to-day accountability, we should hold meetings in public. If we really want to find out what caused a serious problem like the banking crisis, however, it might be more effective to hold private inquiries, the findings of which can be made public eventually. Such a format might be more appropriate when questions are being asked about discussions at Cabinet meetings and in Ministers' offices, the relationship between Ministers and banks and the advice that was given by civil servants. We need to consider how we might get to the stage where the use of such inquiries is deemed necessary. Everybody agrees that the Oireachtas should be entitled to inquire into matters of public concern.

I agree with Senator Alex White that the Oireachtas has probably been too timid. In the instance that was mentioned, the court made its decision on the basis of what was arguably an extreme case. While it probably made some extreme comments in its judgment, it also left it open for that decision to be tested. If I were a Member of the Oireachtas, before arranging a referendum I would probably establish an inquiry to test the limits that the courts will allow. The committee might want to say, for the purposes of clarity, that the Oireachtas has this right. However, that will not clarify what exactly the Oireachtas has the right to do. Can it start bawling people out about what they did and how they behaved? Can it make accusations against them? I suspect the courts will say it cannot do those things, notwithstanding its explicit constitutional right to inquire. There may also be an implicit right to inquire. It could be argued that the article of the Constitution that states the Government must be responsible to the Dáil implicitly provides for the right to inquire.

I will respond to the question about what the Oireachtas should want to do. Now that large organisations like the HSE have been established, and Ministers are refusing to be held to account on the basis that such agencies are responsible, the Oireachtas should be entitled to call in certain office holders. Members of the Oireachtas should be entitled to be pretty robust in asking them questions. The Oireachtas may have to ease off, however, when there are discussions on potentially corrupt or illegal activity. It should be able to ask robust questions of heads of agencies about the way they do their jobs. If they make mistakes, they should be asked about how they dealt with them. The job of the Members of the Oireachtas is to ensure the public service works reasonably well and to make recommendations aimed at improving how it works. I do not think the Abbeylara judgment precludes them from doing that. I suggest it might be useful to test the law, rather than arranging a referendum.

I was asked about the approach that should be taken with regard to terms of reference, etc., when the Oireachtas makes a decision to set up an inquiry. I would not have thought such a system needs to be used very often. It should be used in the case of an extreme example of system failure. One could argue that the banking crisis is such a case. I stand by my point that if one really wants to find things out, a more fruitful way of doing so may be to have investigations conducted by experts, such as Professor Patrick Honohan. While names are not named in the Honohan and Regling-Watson reports, it is pretty clear who they are talking about. The head of risk in AIB, for example, might not be named but there is an implication that he or she failed to do his or her job. As Senator Boyle and Deputy Kennedy have gone, I am not sure if it is necessary for me to respond to their points.

Perhaps Dr. O'Malley should do so, just for the record.

Dr. Eoin O’Malley

The comment that was made about judges was not a facetious one. Judges tend to have an opinion about themselves that is not necessarily shared by the rest of the world. They are not always best placed to hold inquiries because they become too legalistic. I would counsel against using judges for inquiries because I think it creates problems that are not encountered when experts in the relevant field are used.

I would like to contribute to the discussion on the Cabinet system. In many countries, Ministers can be appointed from outside Parliament. In Sweden, for example professors of economics are sometimes appointed to the position of minister for finance. The individuals in question are sometimes active members of a political party but not members of Parliament. Also in other countries senior parliamentary members who are appointed as ministers resign their seats which are subsequently filled by substitutes rather than through by-elections. If ministers are later forced to resign, they can usually get their seats back by forcing the substitute to resign. While this does not result in a complete separation of the executive and legislature, one also finds that the seating arrangements in other Parliaments require Cabinet Ministers to sit separately and that they are interrogated in parliament by other members. As a result, ministers do not have their troops behind them. This is a common system in other Parliaments.

We tend to compare ourselves with the Parliaments of Britain, New Zealand, Australia and Canada but these are rather unusual Parliaments. In most of the rest of the world, the parliamentary party of the governing parties considers its job to be one of overseeing the government. A social democrat backbencher sees his or her job as being to ensure the rights of the social democrats are being enforced by a social democrat minister. This is not the case in Ireland although it could be.

Professor Gary Murphy

Deputy Jim O'Keeffe's point about constitutional amendment to achieve a certain purpose goes to the heart of the point we are trying to make. The rule of thumb is that it is better not to have matters prescribed in the Constitution. Constitutions are supposed to be guiding lights for how a country runs itself. In this country, we have got ourselves into all sorts of trouble by having referenda on issues on which we probably should not have had a referendum. I tentatively suggest the abortion referendum in 1983 got us into much more trouble than we anticipated. In many senses, the outcome of that referendum was the obverse of what its proposers intended.

The golden rule is that it is better to keep things out of the Constitution. If a matter must be written into the Constitution, this should be done by means of a short sharp statement as part of a code. For example, one could write into the Irish Constitution that it is the inherent right of Parliament to investigate matters of public importance. One should leave the statement no more complicated than that as to do otherwise would result in the use of legalistic jargon about what is or is not a public right and what matters one can or cannot inquire into.

This returns us to the point that unless the body politic takes the issue in hand and states it wants to hold inquiries into matters of fact, including a clause to this effect in the Constitution, will not matter as it could simply be ignored. That is the nub of the matter. Deputy Jim O'Keeffe is correct that if we need a constitutional clause to ensure public representatives are able to inquire into matters of importance for citizens, this approach is preferable provided the power of inquiry will be used. The response to the Abbeylara judgment has been timid in that it has been to exclude all inquiries, which appears to be completely wrong.

My colleague made some very good points about the relationship between the Executive and Legislature. In many respects, the Whip system is deeply at fault in this regard. We had a recent example of a Deputy stating in the Chamber that he completely disagreed with a proposal to reduce the minimum wage but would follow the Whip and vote in favour of it. Such a position is not in the public spirit. While I can understand perfectly well the position of the Deputy in question given how the State operates, I do not believe the average man on the street will understand it.

In any event, the critical point is that constitutions are for citizens as opposed to elites. This is how political life should be arranged and in that context I suggest a constitutional referendum would be of more benefit if the power for which it provides were subsequently used. It would be preferable, however, to achieve the objective to which Deputy Jim O'Keeffe referred by using legislation or in some other manner. It is a matter for Parliament and elected representatives to state that they want to be able to make inquiries. While we believe everyone wants to have this power, when a Bill providing for such a power was introduced in February it was shot down by the Whip system. Unless there is political will, it will not matter what type of clause is inserted in the Constitution.

With matters coming to a head in this Dáil, the joint committee hopes to have a report with recommendations completed by the end of January. The contributions of Professor Murphy and Dr. O'Malley will be very helpful in that regard. I thank them for their attendance.

As this is the last meeting before Christmas, I wish everyone present a happy Christmas. I hope 2011 will be more prosperous than 2010.

The joint committee adjourned at 10.25 a.m. until 9.30 a.m. on Wednesday, 12 January 2011.
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