Thank you, Chairman. It is a privilege to be invited to make this submission and I am particularly honoured to be making it with Deputy Ardagh as Chairman, as I realise he is soon to retire. I had contact with the Chairman in the past in the context of the ill-fated Abbeylara inquiry. I wish the Deputy the best in his retirement and hope it is happy and productive. I am also grateful to the clerk to the committee for facilitating this submission and I apologise for the late arrival of my paper.
I would like to give some context for the small point I wish to make. It is obvious people are quite animated currently by the idea of political reform and by suggestions that the political system may be transformed, whether by means of constitutional reform or otherwise. I am conscious when I relate strongly to and agree with that argument, that this may not be the concern of most people. There may be a degree to which things we think are important, such as renewing parliamentary powers of inquiry, are not viewed as important by people outside. Therefore, one basis on which I make this submission is to argue against a fear of being radical about change of the kind that is required rather than tinkering with the system in a manner that might seem like it is built on a desire to preserve the system without fundamentally changing it. We should engage with radicalism or radical ideas as something good and not avoid them.
At the time of the inquiry by the sub-committee of the Joint Committee on Justice, Equality, Defence and Women's Rights into Abbeylara, I was the full-time director of the Irish Council for Civil Liberties and was involved with the Carthy family directly in their engagement with that process. The committee is well aware that inquiry did not continue as a result of the Maguire v. Ardagh decision. I do not wish to go over that decision because it has been dealt with adequately by John O’Dowd of UCD, but in that decision Chief Justice Murray was very concerned about the political nature of parliamentary committees and the degree to which they might be able to conduct inquiries in the absence of either real or apparent bias. I do not think that decision is only important because it impedes inquiries that might lead to adverse findings of fact about individuals who are the subject of inquiry. It also clearly impedes the ability of the Oireachtas to legislate effectively for a fuller form of parliamentary inquiry. Although there is some difference of opinion on that, the better view is that it would be difficult to legislate constitutionally for an effective power of parliamentary inquiry. Therefore, what I will suggest involves or necessarily entails constitutional reform as well as legislative reform.
One of the issues relating to inquiry by parliamentary committees or the Oireachtas is that there is an assumption that the Constitution necessarily requires a weak system of accountability. In fact it does not, but that is how things have evolved. There are many forms of accountability, applied by members on Oireachtas committees, which are not popularly understood or appreciated. The decision in the case of Maguire v. Ardagh does not affect that. There are plenty of ways in which parliamentary committees can make the Executive accountable in a manner of speaking and can in that context inquire without necessarily falling foul of the decision in the Maguire v. Ardagh case. Where the Maguire v. Ardagh decision becomes problematical is that if in the course of the exercise of these normal powers of accountability it becomes necessary to inquire more deeply into something, one clearly has a difficulty.
Why do I think that Parliament has a legitimate power of inquiry? I know the Supreme Court was exercised about whether it was inherent in the Constitution. I am not trying to avoid that but my sense is that if Parliament is the representative of the sovereign people that clearly must mean something. If the separation of powers implies some balance of powers, well if only as an instance of balance of power and a proper system of separation of powers, there must be some form or means by which Parliament can legitimately inquire into matters. That does not mean that Parliament must always carry out those inquiries directly. There are many forms of outsourced inquiry carried out by statutory bodies, for example the Ombudsman has extensive powers to inquire into allegations of maladministration and report on those to Parliament and there are numerous instances of that. The Irish Human Rights Commission 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 fully realised the promise of its founding legislation in exercising that power. These kinds of powers of inquiry which are important, could be exercised more effectively if there were stronger connections between the Office of Ombudsman and the Irish Human Rights Commission and if both were more explicitly identified in law as parliamentary emanations. In the case of the Irish Human Rights Commission, this would require greater budgetary autonomy from the Executive and far greater transparency in the appointments procedure focused on establishing real independence for these kinds of bodies.
To create effective agencies of inquiry I suggest legislative and constitutional change to protect a system of parliamentary emanations that resources Parliament in the discharge of an essential power of inquiry. It is critical that the Office of Ombudsman be given clear constitutional recognition akin to that given to the Comptroller and Auditor General in the Constitution as an emanation of Parliament, that among its powers is the power to conduct inquiries at the behest of Parliament. If the Office of Ombudsman as a framework office is reconfigured in this manner, it should have a penumbral remit that covers analogous inquiry powers and functions exercised by statutory bodies, such as the Irish Human Rights Commission. It would share the political protection that would come with explicit constitutional recognition. It is also vital that the deficit that the Irish Human Rights Commission has identified arising from the absence of a designated parliamentary committee to which its reports be addressed. The creation of a new constitutionally protected office of Ombudsman with a clear and strong connection to Parliament would suggest the need to reconfigure parliamentary committees to fully realise the value of that office. That is the type of idea that would be covered in the more comprehensive constitutional reflection that I used to contextualise this submission.
Why am I thinking of this? It is instructive to look at a model of what has worked. Almost by way of reflex, people will suggest the DIRT inquiry of 1999 to 2000 as an example of an inquiry that worked. The Committee of Public Accounts in that instance as members well know, worked from a preliminary report prepared by the Comptroller and Auditor General, an office that is explicitly referenced and protected by the Constitution and it therefore had gathered professionally and had reliable information on which to conduct a legitimate political inquiry. Equally a similarly empowered Office of the Ombudsman, which would include other statutory agencies with inquiry powers could perform an equally valuable investigative role beyond those areas covered by the Comptroller and Auditor General so as to resource legitimate parliamentary inquiries. While Parliament might reserve the power to inquire, it might have to delegate the power to investigate. It needs to be able to do that to a constitutionally protected emanation. This is not entirely dissimilar from the types of proposals made by Fine Gael and the Labour Party for parliamentary inspectors, but the creation of some distance between Parliament and its emanations especially in the conduct of inquiries would be a more appropriate way to proceed. For that reason it may be better to locate investigative resources of Parliament in an independent but an appropriately connected office of ombudsman.
The idea of constitutionalising the Office of the Ombudsman is not an original proposal. If the idea was pursued and it brought within it inquiry powers of other bodies such as the Irish Human Rights Commission, it would also be necessary to address the Office of the Attorney General to at least consider the conflict of interest that potentially exists in that office between its role as legal adviser to the Government and as protector of the public interest. The role of protector of the public interest, might more appropriately be reallocated to a constitutionally recognised Office of the Ombudsman.
This is only a slice of the problem. Looking at this question is only partially addressing much deeper concerns about politics and the constitutional framework for politics. I am certain that an Executive centred view of the submission I have made would say it is not insufficiently cognisant of how things work or that it is naïve, that it is idealistic or that it is radical. I make no apology for that. What I am making a submission about is how I think things ought to be and not tinkering with how things are.
