Law Society of Ireland expresses grave concerns about Constitutional Referenda on Parliamentary Inquiries and Judicial Pay
Following a meeting held last Friday, 14th October 2011, the Council of the Law Society has expressed grave concerns regarding the two proposed amendments to the Constitution being put to the people on Thursday, 27th October 2011.
Amendment on Parliamentary inquiries
In relation to the amendment on Parliamentary inquiries, the Council noted that the proposed amendment would permit Parliament to conduct inquiries into matters of general public importance and, in doing so, to make findings of fact about any person’s conduct.
The proposed amendment arose following a decision of the Supreme Court in the Abbeylara case that Parliament did not have an inherent power to conduct inquiries that involved requiring witnesses to attend to give evidence and to produce documents, and which could make findings that adversely affected the good name of any person.
The Council accepts that Parliamentary inquiries have been conducted into matters of serious public importance by legislative bodies in other countries over many years. Many of these inquiries have proved to be both effective and efficient in terms of the results they have achieved within the time required. However, while it is not unusual or unprecedented for a national parliament or legislature to have a power to conduct inquiries, extreme care must be taken in doing so. The Society is concerned that the wording of the proposed amendment goes beyond merely reversing the effect of the Abbeylara decision of the Supreme Court in 2002.
The Council notes that parliamentary inquiries are an extremely powerful mechanism, sometimes dangerously so, since they can be driven by overwhelming public and political demands for culprits and even scapegoats. This can create a climate of hysteria that would be highly prejudicial for any individual witness summoned to give evidence. An example would be the hearings before the US Congress into ‘un-American activities’ and the devastating effect those inquisitions had on so many individuals.
It is because of this potentially irresistible force that can be exerted on an individual by a Parliamentary inquiry that the Society has cause for great concern.
The Society believes that the wording of the amendment omits any guarantee for the protection of individual rights and leaves persons appearing before an inquiry at the mercy of party political interests. The Society believes also that the bill is not consistent with basic standards of fairness in that it vests the sole discretion to interpret the balance between individual rights and the public interest in the Oireachtas, the very organ of the State that would be carrying out the investigation. It does not contain and, indeed, would seem to exclude the possibility of independent judicial review.
The Society believes that the amendment, if passed, would signify a serious shift in the Constitutional balance of authority between the courts and the Parliament in matters regarding the rights of individuals whose good names may be negatively affected by inquiries.
The Society’s concerns have been heightened, rather than allayed, by the contents of the recently-published draft Houses of the Oireachtas (Powers of Inquiry) Bill 20111, which will give effect to the passing of the referendum. Under this bill, there is a stark contrast between the scope of the powers conferred on politicians of search and seizure and of requiring the giving of evidence under compulsion, on the one hand, and the rights of ordinary citizens who will have no guaranteed opportunity to defend themselves by being provided with the whole evidence against them and no opportunity to confront their accusers with the benefit of legal representation, on the other. Proper representation before a Parliamentary inquiry, and at any court application arising from it, will be denied those who do not have the means to pay for their legal representation and the legislation fails to impose an obligation on the inquiry to meet that legal cost.
The treatment of citizens embroiled in the inquiries is also in sharp contrast to the privileges and immunities conferred on the politicians. A witness before an inquiry gives evidence on pain of prosecution for inaccuracy and subject to civil suit arising from their participation. The politicians, on the other hand, are absolutely immunised from action in respect of anything that they say or do, however reckless or unfounded.
In summary, the Society believes that the 30th Amendment to the Constitution will have a potentially far-reaching and detrimental effect on the Constitutional right to procedural fairness. The protection of natural justice is a serious matter and the Society believes that the proposed amendment falls short of what is required. The courts of Ireland have taken great care to build a sophisticated and reputable base of precedent that provides every citizen with an inviolable guarantee of basic fairness of procedure when faced by a challenge from the State to their constitutional rights.
The original framers of the Constitution were careful to follow the separation-of powers model that has stood the test of time in many jurisdictions around the world. The separation of powers is designed to curb abuse of authority.
Because it is central to our Constitutional framework, any adjustment to this principle should only follow careful and detailed analysis and debate.
Amendment on Judicial pay
In relation to the amendment on judicial pay, the Council confirmed that, in principle, the Law Society does not object to the objective of the amendment, that is, that the judiciary should be subject to the same levels of pay reduction as other members of the public service in times of economic crisis. However, the Council believes that the particular wording that is to be put to the people is deficient in its reference to anundefined “class of persons” and may be open to abuse by another Government at some stage in the future.
The Council noted that the importance of the independence of the judiciary cannot be underestimated. A society without an independent judiciary is not a democracy.
It is well recognised across the democratic world that interference with judicial pay is a classic means of interfering with judicial independence and, accordingly, great care needs to be taken about any mechanism designed to achieve the Government’s objective.
In the opinion of the Law Society, it would be preferable if the decision-making power was vested in an independent body, whose impartiality would not be open to question either by the Government or the judiciary.
Law Society of Ireland, Blackhall Place, Dublin 7