Electorate ‘confusion’ not to blame for defeat of inquiries referendum

THE defeat of the 30th Amendment to the Constitution on Oireachtas Inquiries has been greeted, perhaps predictably, by comments from ministers Brendan Howlin and Alan Shatter that the electorate was confused, and perhaps even misinformed, about the proposal.

Whether or not this is true in the case of some voters, attributing such a position to the electorate as a whole does voters a grave disservice.

On the same day that the Irish people voted 80-20 to accept one constitutional amendment, they voted 53-47 to reject another. This suggests that they were well able to distinguish between the two, and to decide for themselves what they were willing to support and what they were not.

If voting “No” is a default position, as Mr Howlin suggested, why then did the judges’ pay referendum pass by a landslide? The count figures have a tale to tell here. The margin of defeat on Oireachtas Inquiries was remarkably consistent across the country. Only two constituencies out of 43 — Brendan Howlin’s Wexford and Enda Kenny’s Mayo — approved the amendment, and only by the narrowest margins. Perhaps more interestingly, there were 8,000 fewer valid ballots on Oireachtas Inquiries than on judges’ pay, and 30,000 fewer than the presidential election. This suggests a widespread reaction of people who didn’t understand the issue was to not vote at all.

The rejection of the amendment cannot be explained by a lack of understanding or misinformation; on the contrary, it can be attributed to robust arguments put across by the No campaign that it provided insufficient safeguards for the constitutional rights of individuals subjected to inquiries. Attempting to paint this as “misinformation” conveniently suggests that there was nothing wrong with the amendment, but such a view holds no water.

There is no comparison with the fictions that were circulated about the Lisbon Treaty regarding issues such as conscription. The No campaign was spearheaded by professionals, academics and interest groups who were, in fact, best placed to understand the implications of the amendment. In the end, the people were more convinced by their arguments than by the Government’s.

Mr Howlin has complained that there was insufficient time to rebut the concerns raised by the eight former Attorneys General last Monday. This conveniently disregards the fact that the same arguments were publicly aired almost a month before the referendum by Gerry Whyte of Trinity College on the Vincent Browne Show and by Donncha O’Connell of NUIG in the Irish Times. I debated the issue with Mr Howlin on Newstalk Radio 10 days before the attorneys general spoke publicly. The legitimate concern about the exclusion of court supervision of the exercise of powers of inquiry by politicians cannot be said to have been sprung at the last minute; the issue was not new, either to the national media or to Mr Howlin himself.

Mr Shatter has complained that the No campaign presumed bad faith on the part of politicians, but this misses the point of having judicially enforceable constitutional rights in the first place. Such a system does not presume that politicians always act in bad faith — it guards against the possibility that in the long run, a minority of politicians might act in bad faith, or unintentionally disregard the rights of individuals while acting in good faith. Constitutional provisions need to be designed not with the best type of politician in mind, but the worst. Given events of the past decade is it any surprise that public trust of politicians is rather shaky at present?

Some public commentary has suggested that the opposition came largely from lawyers who wanted to keep the spoils of the old tribunal system to themselves, or from former attorneys general who might have much to fear from future inquiries. This view disregards the level of opposition coming from academics and from the Irish Council for Civil Liberties, neither of whom have anything to fear from future inquiries, and who never have had (and never will have) anything to gain from expensive tribunals.

Even if there really was insufficient opportunity to inform voters of the reasons to vote Yes or to rebut the arguments for voting No, the Government have only themselves to blame. Mr Howlin has been at pains to stress that this amendment has not been picked out of thin air, and that work on it has been ongoing for a year — yet few people heard of it until very recently. Moreover, the proposal leapfrogged other amendments, such as the constitutional amendment on children, which was first proposed 18 years ago and has been under active development for almost five years, but on which a final wording has yet to be agreed. It is impossible to escape the impression that the inquiries referendum was rushed, and that its timing, alongside the Presidential election, was poorly judged (a point conceded by Minister for Communications Pat Rabbitte before the referendum).

The fact remains that the majority of vocal opponents of the amendment were not opposed in principle to Oireachtas inquiries; their opposition was to an amendment which was worded in such a way as to limit the possibility of judicial supervision of such Inquiries. As one individual wrote on Twitter on Saturday night, this was not a vote against political reform, but a vote in favour of proper political reform.

Mr Howlin has already suggested that he remains committed to establishing a system of Oireachtas Inquiries, which means he may well try again on this issue. If he is to succeed, he would do well to listen carefully to an electorate who made a decision that was not based on misunderstanding or misinformation. This means adjusting the wording of the amendment to leave no doubt that individuals whose rights are trampled by Oireachtas inquiries can seek the vindication of those rights in the courts.

* Dr Conor O’Mahony lectures in constitutional law at University College Cork.

‘Contrary to what some suggest, we had a good public debate on judicial pay issue’

IRRESPECTIVE of whether we supported or opposed the referendums on judicial remuneration and Oireachtas inquiries, we can all derive some satisfaction from the high voter turnout and from the level of discernment shown by voters in expressing their preferences. Holding a contentious constitutional referendum on the same day as an election carries the risk that the proposed amendment will receive inadequate attention, but it also means that far more people are likely to vote.

There was a turnout of less than 30% in the bail referendum in 1996. The referendum on cabinet confidentiality in 1997 might have attracted even less interest had it not been held on the same day as the presidential election (with a turnout of 47%). This time round there was a turnout of 56%.

On Friday last, it was reported that many voters had refused to accept the referendum ballot papers because they did not understand the issues. But it now appears that less than 5,000 people who voted in the presidential election declined to vote in the referendums. This was a rather insignificant number which clearly did not affect the outcome. Had there been the lack of public understanding that many have alleged, one might have expected roughly the same numbers to have voted for and against both amendments. In fact the electorate showed far more discernment by voting overwhelmingly in favour of the judicial remuneration amendment and rejecting the Oireachtas inquiries amendment by a narrow majority.

Contrary to what some have suggested, we had a reasonably good public debate on the judicial remuneration amendment in particular. This was not an issue which affected the vast majority of people in any material way, and so it was never likely to generate much interest or enthusiasm. Those of us who opposed it did not object to judges’ salaries being cut; on the contrary we accepted that they should be subject to the same reductions as those imposed on other public servants. Our concern was with the third sub-paragraph of the amendment which allows the Oireachtas (and, in effect the Government) to reduce judicial pay whenever reductions are made by law in the pay of “classes of persons whose remuneration is paid out of public money”.

We would have preferred if provision were made to have adjustments to judicial salaries determined by an independent body so as to avoid any perception that the institutional independence of the judiciary was being eroded by allocating this power directly to the political branches of government. The amendment as finally adopted does, admittedly, provide that any reduction must be proportionate to that applied elsewhere in the public sector and this was certainly an improvement. Hopefully, the economy will improve or at least stabilise to the extent that it will never be necessary to implement this provision more than once. In any event, the amendment as adopted does nothing to prevent future governments from appointing an independent advisory body to make recommendations on judicial salaries even if the final decision must rest with parliament.

The Oireachtas inquiries amendment raised deep and important questions about the procedural rights of persons who might find themselves under investigation. Like the judicial salaries amendment, it had some positive elements. An effective system of parliamentary investigation is essential to a well-functioning democracy, and is much more cost-effective than tribunals. Never again must we allow a legal leviathan like the Moriarty or Mahon tribunal to rise up in this country. However, people were rightly concerned about the breadth of the investigatory powers which the wording of this amendment seemed to vest in members of the Oireachtas.

This is a matter which can be put to a referendum again, though next time round the amendment must afford better protection for the due process rights of those under investigation. I have some sympathy with the Government in its efforts to achieve the correct balance. Certainly we want to ensure that persons called before parliamentary inquiries can invoke the protection of the courts when they feel justifiably aggrieved. On the other hand, we want to avoid a situation in which such persons can run to the High Court to seek judicial review as soon as they are asked an awkward question. Having said this, any new version of the amendment must include more explicit and effective safeguards for the personal privacy and reputation of anyone subject to a parliamentary investigation.

There may be a lesson here for those who are charged with running the constitutional convention which we are promised next year. From time to time, the need to amend specific provisions of the Constitution will become clear. That is currently true, for example, in relation to children’s rights. But there is also a great value in constitutional stability. Overall, our present Constitution has served us well. The promised convention should require clear and convincing proof of the need for any change which it recommends.

In fact, I am far from convinced of the need for a convention at all.

* Tom O’Malley is a barrister and senior lecturer in law, NUI Galway.

‘Public trust has been badly shaken by these proposals ... it need not have been so’

LAST Thursday, 928,175 voters decided not to support the Government’s proposals to amend the Constitution to give increased powers to Oireachtas committees, producing a winning margin for the no campaign of more than 100,000 votes.

Barely had the results been announced before the political recriminations began. The Justice Minister, Alan Shatter, pointed sideways at the Public Expenditure and Reform Minister, Brendan Howlin, who in turn suggested that the independent judge who chaired the Referendum Commission might be to blame for the Government’s defeat.

There was a wide consensus among politicians of all the parties that had rushed these proposals through the Oireachtas in less than a week that they couldn’t possibly be responsible for their failure to capture the public’s imagination.

Even in the face of the clearest possible popular verdict by nearly a million people, it seems that many of our politicians are still unprepared to countenance the possibility that the Irish electorate could clearly distinguish between two different referendum proposals, heavily supporting one and clearly rejecting the other.

As former attorney general Michael McDowell put it during an interview on Today FM yesterday, “people who underestimate the intelligence and the discernment of the Irish electorate do so at their peril”.

The Irish Council for Civil Liberties (ICCL) Association, which led the no campaign, believes that a great many people who voted against the 30th amendment understood perfectly well what the Government was proposing: that a yes win would have given Oireachtas committees the power themselves to determine the fairness of the procedures to apply to people appearing before them. And that, as Judge Brian McMahon of the Referendum Commission put it, “it is not possible to state definitively what role, if any, the courts would have in reviewing the procedures adopted by the Houses”.

The ICCL welcomes the no vote, but takes no pleasure in it. There is a clear need to reform the operation of our Oireachtas committees, but that must be done in a way that strikes the right balance between the public interest and the human rights of people who appear before them.

Public trust in the political establishment has been shaken by the 30th amendment proposals and this will make it harder for the Government to introduce reforms that are necessary within a reasonable timeframe.

It need not have been so.

In January this year, the report of an Oireachtas committee on which senior Fine Gael and Labour politicians served recommended wording for a constitutional amendment that would have protected rights to a far greater extent than the text that the Government chose to put before the people.

Political heavyweights such as Fine Gael’s Charlie Flanagan and Senator Eugene Regan, as well as Labour’s Brendan Howlin and Alex White served on the committee, which was chaired by former Fianna Fáil TD Sean Ardagh.

The wording that they recommended would have required the balance between rights of people appearing before Oireachtas committees and the public interest to be “regulated by law” rather than leaving it to the unfettered discretion of Oireachtas members.

It is not easy to understand why the Coalition chose to delete this reference to the rule of law from the wording that it decided to put to the people. Perhaps, rather than resorting to blaming each other and/or the Referendum Commission for the verdict of the voting public, Oireachtas members might begin to inquire into this?

The Irish electorate has made clear that it will not be bounced into agreeing to a profound shift in power from an independent judiciary to a partisan Oireachtas without mature consideration and profound debate. The Constitutional Convention that the Government proposes to establish next year could provide an appropriate forum in which to thrash out a new model for Oireachtas inquiries.

The ICCL looks forward to working with the Government, in a constructive fashion, to help to craft inquiry proposals that will empower Oireachtas committees in a way that respects the rule of law.

* Mark Kelly is the director of the Irish Council for Liberties Association and director of the No campaign.

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