A person’s good name is protected under Article 40.3 of the Constitution which provides that the State, by its laws, shall protect as best it may from unjust attack the good name of every citizen. This provision was reaffirmed in the Abbeylara judgment. The referendum proposal put to the people in 2011 as defined by the Referendum Commission was that the Dáil and the Seanad would have the power, separately or together, to conduct an inquiry into any matter considered to be a matter of general public importance; that when conducting any such inquiry, either or both Houses would have the power to inquire into the conduct of any person and the power to make relevant findings about that person’s conduct; and that the Dáil and the Seanad would have the power to determine the appropriate balance between the rights of people involved in any such inquiry and the requirements of the public interest. The referendum was rejected, perhaps on foot of concerns of a former Attorney General and the Law Society of Ireland who felt the wording had a potentially far-reaching effect on the constitutional right to procedural fairness. The will of the people must be respected and the Government wishes within the constitutional framework as decreed by the Abbeylara judgment to provide a statutory framework for parliamentary inquiries. The Bill does not provide the Oireachtas with the power to determine the appropriate balance between the public interest and an individual’s right to a good name.
The Bill represents an important step in clarifying the role of the Houses of the Oireachtas in investigating issues of public interest and provides statutory underpinning for five general types of inquiry. These are an inquiry limited to recording and reporting evidence, an inquiry related to legislative functions, an inquiry related to the removal of certain officeholders, an inquiry related to the conduct of Members of the Oireachtas and an inquiry into the conduct of a current officeholder, a senior civil servant or a chief executive officer of a public body who is liable under the terms of his or her contract to be held to account to Dáil Éireann.
Previous speakers, including Deputies Jerry Buttimer and Anthony Lawlor, have referred to parliaments in other countries and their powers to inquire. The US Senate conducts hearings on issues of public interest and is a powerful investigative body. The authority of the US Congress to investigate is an implied constitutional power, the significance of which was anticipated as far back as 1788 when James Madison urged “In framing a government which is to be administered by men over men […] you must first enable the Government to control the governed and in the next place oblige it to govern itself”. While that language is somewhat archaic, Congress has exercised its investigative responsibilities since the earliest days of the republic and today congressional oversight enables House and Senate Members to serve as the eyes and ears of the American public. Many well known Senate inquiries have been held, including inquiries on the sinking of Titanic, Watergate, the Ku Klux Klan and the Iran-Contra scandal. Clearly, these were issues within the public interest. I would like to think that if similar issues arose here, it would be in the interests of the public that the Houses of the Oireachtas would have similar powers of inquiry.
In time, the people, through the media, will see hard questions being asked on foot of the powers set out in the Bill and an opportunity may be given to them to consider once again a constitutional amendment to give the Oireachtas the powers necessary for a fuller investigative role. That is not to dismiss the important role played by the Committee of Public Accounts, as we have seen in the past within the current constitutional framework in the matter of the DIRT inquiry. Prior to the DIRT inquiry, the then Attorney General, Mr. David Byrne, set out in advance the constitutional parameters for the participants. He stated that it was understood that findings of fact on the central issues could be made and sent in a report to the Dáil for debate, whereas findings on the responsibility of individuals had to be avoided as that was the work of the legal system where there were appropriate protections for a citizen’s good name. A senior counsel was appointed to sit with the Chairman of the committee to provide legal direction. Clearly, the DIRT inquiry worked and we must provide clarity for future investigations as outlined in the Bill.
It is clear that people want to see politicians, senior civil servants and chief executives held to account. They want the people involved in the banking sector to be held to account also. They want a banking inquiry. When I canvassed during the referendum on powers of inquiry, it was clear that people did not trust politicians to differentiate between bankers and the little guy. They felt the little guy would be picked out by politicians equally for inquiry and they were concerned. It is worth noting in this regard the comments by the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, yesterday. He said:
The main caveat to the scope for such Oireachtas inquiries is that the terms of reference of such inquiries cannot focus on the conduct of individuals, rather, they must relate, for example, to the systems, practices, procedures, policies and the implementation of policy, and the effectiveness of legislative and regulatory systems.
This is important, given the right to a good name as conferred on the individual by the Constitution. I look forward to the Bill progressing through the Oireachtas.