Powers of Inquiry in the Irish Parliament

I won’t have the full post on committees ready in time for the referendum on giving Irish Oireachtas (Parliamentary) committees more power so I’ve split off the section about powers of inquiry as much as I can; it’s surprisingly difficult to find out this information on the internet about some systems.

How does it work now?

There were 22 committees in the Dáil before the last election: twelve departmentally oriented select committees, four topical select committees (on the constitution, European affairs, European scrutiny, and the Good Friday agreement), a few standing committees (public accounts, procedure and privileges, and members’ interests) and committees on administration, compellability, and consolidation bills.

In the Seanad, they have the same Select Committees as the Dail because the system was set up so that members of both Houses worked together as joint committees – it has on occasion been referred to as a third chamber. They also had the same standing committees except for an addition committee of selection to deal with select committee appointments.

Committees in the Oireachtas can conduct a limited form of inquiry. They cannot make findings of fact or make conclusions which are “adverse to the good name or reputation of citizens”.

What’s the history?

Before 1972 the only permanent committees were internal and procedural ones and the Public Accounts Committee (modeled on the UK one of the same name). A joint committee to report on EEC/EU legislation was created in 1972, and the Cosgrave Fine Gael/Labour government (1973-77) tried to create a committee system but most deputies weren’t that interested. One committee that lasted any length of time was the joint committee on commercial state-sponsored bodies created in 1976.

Things really began to take off with the 1982-1987 FitzGerald government (again Fine Gael/Labour), when the number of committees were more than doubled to 16. The new committees were very weak, issuing not recommendations but merely findings, ostensibly to foster a non-partisan spirit. When Charles Haughey retook power, the committee system was not re-established.

In 1993, after the election of Albert Reynolds as taoiseach of a Fianna Fail/Labour government, the committee system was vastly enhanced after a trial the previous year of putting the finance bill through a specially convened committee. Four legislative committees (finance and general affairs, enterprise and economic strategy, social affairs, and legislative and security) and a foreign affairs committee came about from this, though four more committees were created in 1995 after a new government took office. The committees were increasingly more departmentally (or sectorally, as it seems to be called) aligned as time went on.

In 1997, the Ahern government came to office and reduced the number and size of committees and investigations became more common. Three years later, John Carthy was in a stand-off with police and was controversially shot by the gardai (police) in Abbeylara. The government, refusing to launch a tribunal, launched an Oireachtas subcommittee inquiry to investigate the Abbeylara shooting. A group of thirty-six gardai (policemen) went to court and the next year established that committees of the Oireachtas were not allowed to make adverse findings of fact or to make conclusions that “adverse to the good name or reputation of citizens”. Rather than making a constitutional amendment, the government launched a tribunal.

The incoming Fine Gael/Labour government under Enda Kenny has already reduced the number of committees and given sectoral (departmental) committees the power to send for persons, papers and records. Previously, they could only invite people to make submissions.

What do they do elsewhere?

Perhaps the strongest committees in the world, United States Congressional Committees have wide-ranging powers under the constitution. Any committee can launch an investigation, take evidence under oath, subpoena witnesses, and make findings of fact, but two committees are specialist investigatory committees: the Senate Homeland Security and Governmental Affairs committee and the House Oversight and Government Reform committee. Witnesses are still given legal protection as they wish, and if committees wish to expose people’s private affairs for example, they have to be able to show that it furthers a legitimate task of congress. Individuals do not have to talk about subjects or release documents they don’t want to using the fifth amendment (right to not self-incriminate), the fourth amendment (right to not be subject to unreasonable searches). Committees themselves decide to undertake an inquiry.

All major Commonwealth parliaments have committees with the power to send for persons, papers and records (in practice, that includes summoning people although the actual punishments for not cooperating have been untried for decades – Canada is particularly used to using the power of summons), can make findings of fact and recommendations based on those findings, can take evidence under oath (though it is very rarely done) and everyone giving evidence to a committee is protected under parliamentary privilege from libel or slander. Under the sub judice rule, committees cannot consider specific cases currently under consideration by the judiciary, but can look at the more general principles. While there are no legal protections for not answering questions or producing documents, precedent has let witnesses bring lawyers into committees and not answer for fear of self-incrimination. Committees themselves decide to undertake an inquiry.

The European Parliament can hold committees of inquiry but they cannot compel witnesses to attend, and it does not appear they can demand documents or take evidence under oath. The resulting report will contain the factual findings of the committee as well as the ensuing recommendations. Witnesses have the same legal protections as they would have when facing a tribunal in their home country.

I took a selection of European national legislatures – the German Bundestag, the Italian parliament and French parliament – and all could form Commissions of Inquiry in addition to the normal investigatory powers of parliamentary committees (which is generally less). They would report the facts of a particular subject and generally can take evidence under oath, summon witnesses, and order documents to be produced. They all generally contain provisions to protect the independence of the judiciary so that no commission can report on an ongoing judicial case. Witnesses appear to be subject to the same legal protections as when in court in their home country, but the information I have found on that is infuriatingly vague. Commissions of Inquiry require the chamber to vote on their creation, though not all require a majority of votes to do so (Germany requires just a quarter of MPs for example) and some require the proposal to be approved by a standing committee before it can be put to a vote (France for example).

Commissions of Inquiry exist in Latin America too – both chambers of the Brazilian National Congress can call a Commission of Inquiry after a vote in the chamber very similar to those in Europe. In all the other countries I selected to look at, I can’t find in-depth information on the powers of these various commissions and committees that exist. If anyone knows any links or books that might help, please refer me to them!

What do they propose?

In addition to the mentioned referendum, the Kenny government has already reduced the number of committees to 17, and committees can now require the attendance of witnesses or records, rather than only invite them.

The referendum specifies that if passed Oireachtas committees will have the power to report findings of fact and adverse opinions on the reputation of citizens. These reforms would make Irish committees’ powers substantially similar to committees’ powers in the major Commonwealth realms and to the powers of commissions of inquiry in many other legislatures.

The committees of inquiry would require a majority vote to be set up, which is more similar to some European commissions of inquiry rather than the rest of the anglosphere.

Sub judice, the rule where you can’t discuss matters under a judicial investigation, applies in Ireland as do the protections given to witnesses, though the committee itself is meant to determine how those rights should be afforded to the witnesses in practice. In that respect, they are closer to the Commonwealth committees when faced with witnesses rather than the European-style commissions of inquiry (though as I said, I can’t find much beyond the infuriatingly vague).

Committees would also have the power to appoint investigators who would determine the relevant facts and have the power to secure documents and information (subject to a court order when going to a private dwelling) in preparation for the committee which I can’t find a precedent abroad for though whether that is for the lack of information or the absence of these investigators abroad I don’t know.

In conclusion, the protection for witnesses proposed for committees in Ireland to launch inquiries are not very different to those already available to Commonwealth countries and the proposed powers of inquiry, while slightly different, is broadly as powerful as in other countries, though it is more difficult to start than anglosphere countries or some European parliaments. The main questions are whether these committees would adopt the same self-restraint when interviewing witnesses as precedent has caused Commonwealth committees to, and the credentials and independence of the investigators who are appointed.

Ideally, I would think there should be higher protections for witnesses under both the proposed Irish system and the current Commonwealth committees (and some have said Canada has higher protections than the other Commonwealth parliaments have adopted), more explicit restrictions on who can be an investigator to ensure independence, and to give the power of inquiry to existing, more consensual, committees than to an entirely new committee created by a vote in parliament. It’s entirely probable that the Oireachtas committees of inquiry will not be excessive in their use of the powers, and the bill itself could be amended during passage through the Oireachtas to further protect witnesses (in fact, I would rather hope so given that eight former Attorneys General have spoken out against this), but in principle the rights of witnesses seems a strange thing to leave to the judgement of the chair of a committee.

I will update this post with the result of the referendum after Thursday, though the polls suggest it will pass.

EDIT: The amendment was defeated 53% to 47%. Remember that the committees still have been given extra powers, even if not the full set of being able to start inquiries which can cast aspersions on people’s reputations and to record findings of fact.

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This entry was posted in Committees, Foreign legislatures, Ireland, Scrutiny. Bookmark the permalink.

One Response to Powers of Inquiry in the Irish Parliament

  1. Pingback: The 2011 Irish Presidential Ballot | Holy Shmoly!

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