CIVIL RIGHTS AND LIBERTIES MUST BE SAFEGUARDED IN BILL - KENNY

Posted on May 23, 2013 3:17 PM   |   Permanent Link   

The purpose of the legislation before the House today is to establish a statutory framework for the Oireachtas to conduct inquiries within the current constitutional framework, as set down by the Supreme Court in the Maguire case, also known as the Abbeylara judgment.

I know that Minister Howlin strongly supports the objective of undertaking an effective and legally robust parliamentary banking inquiry. This Bill envisages a central role for the Oireachtas in both initiating and conducting a parliamentary inquiry.

The Bill contains extensive provisions in relation to fair procedures and the conduct of members of committees to avoid any perception of bias. Additionally, inquiries conducted under this statutory scheme will be governed by, and subject to, guidelines that may be issued by the Houses of the Oireachtas.

The constitutional position is that it would not be permissible for the Oireachtas to legislate to create a power for the Houses of the Oireachtas to conduct inquiries that would have implications for the reputations of individuals, unless a specific constitutional authorisation for such a power can be identified.

It is constitutional however, for the Oireachtas to conduct inquiries that have no implications for the reputations of individuals, and also for the Oireachtas to hold 'forward-looking' Parliamentary inquiries that are geared towards policy and legislative issues. The Dáil has an implicit constitutional power to conduct inquiries in order to hold the Government responsible, even if this affects the reputations of individuals, but this does not extend to investigating the activities of past governments. Provided that an inquiry is a bona fide attempt to operate within constitutional constraints, it is not constitutionally problematic that inferences adverse to people's reputations may be drawn.

The legislation before the House today would provide legal certainty in this area. It would provide the necessary framework for an inquiry operating under proper constitutional authority to carry out its functions. It would address all ancillary powers, procedures, and the creation of offences necessary for the conduct of an inquiry.
As well as that, it would effectively balance the public interest in the investigation of matters of importance with the protection of the constitutional right to the good name of the individual, in a manner that would be robust and withstand potential constitutional challenge.

Of the five separate types of inquiry that can be held under this legislation, I am particularly interested in inquiries related to a legislative function, as this is where I think work of real benefit can be done. This is appropriate where information on past events is believed to be directly relevant to a forward looking issues, such as the case for new legislation.

An inquiry of this nature would have potential to make findings of fact which could indirectly have an adverse reputational effect for an individual, but would not be permitted to make findings having direct adverse effect on the reputation of an individual.

The final decision on the holding of any inquiry under this legislation is subject to the endorsement of the Dáil and the Seanad by way of a resolution, which would include detailed terms of reference.
Full compliance with provisions on fair procedures are required by any inquiry, this is absolutely essential, particularly where the good name of a person has the potential to be adversely affected by the findings of an inquiry even by inference, or in relation to the conduct of an inquiry. Full procedural fairness is again, absolutely essential, in spite of the inquiry possibly having no scope to make findings that could have an adverse effect on the reputation of individuals.

Access to the courts will be unfettered in relation to all procedural aspects of the inquiry process, and remains open at all times. If individuals feel the need to seek relief in the Courts, then that route is open to them - I feel that this provision is vital.

It needs to be made very clear that there are extensive requirements in the Bill to safeguard the constitutional rights of any person participating in an inquiry, including the right to challenge proceedings where they believe that an inquiry is being conducted in breach of this Bill, the giving of advanced notice of the evidence proposed to be given against an individual, and the ability to cross-examine the witness for the purpose of challenging the allegation, and the provision of evidence to the inquiry to answer the allegation, as well as closing submissions when the giving of evidence has been completed.

These provisions are further strengthened by the ability of a person to request the committee to direct specified persons to attend before it in order to give evidence, or to direct the committee to send for specified documents.
This is a complex and delicate piece of legislation and has serious constitutional implications around the area of civil rights and civil liberties. Given that those rights and liberties are of the most profound value in any democracy, we simply must get this legislation right in order to safeguard what we value so much. I feel that Minister Howlin has got the balance of the legislation correct in that constitutional rights are upheld while providing an effective structure for effective inquiries.