ANALYSIS:Brendan Howlin's proposals avoid many of the pitfalls into which the tribunals fell, writes CAROL COULTER,Legal Affairs Editor
THE CHALLENGE facing Brendan Howlin in drafting a constitutional amendment to permit parliamentary inquiries lay in how to reconcile the right of the Oireachtas to conduct inquiries that could make adverse findings of fact against individuals with the constitutional right of citizens to their good name.
He has done this in two ways: the wording of the constitutional amendment itself states the Oireachtas has the power to conduct such inquiries (the Supreme Court found it did not) while balancing the rights of the citizen with the public interest, while he has also published the scheme (or outline) of a Bill that describes the manner in which such inquiries will be carried out.
These will not turn out to be the kind of blood sport some members of the public might like. The type of inquiry outlined in the scheme of the Bill will largely take place in private, and much of it will be carried out by an independent investigator rather than members of the Oireachtas.
If the amendment is passed and the Bill enacted, both the Seanad and the Dáil will be able to set up new committees which together will form a joint committee to be called the Committee on Investigations, Petitions and Oversight (or oversight committee for short).
The committee will set out terms of reference, costs and timescales of any inquiry it approves.
It will also decide on measures to ensure fair procedures are followed, including the extent of legal representation to which those appearing before it are entitled.
An inquiry can be requested by any existing Oireachtas committee to inquire into any matter of public importance. Once approved by the oversight committee, the decision establishing it will be made by the Oireachtas.
The proposed Bill specifically states the event being inquired into could have occurred before the enactment of the legislation, bringing the banking crisis within its ambit.
The next step will, generally, be the appointment of an investigator who will have the power to appoint qualified people to assist in the inquiry.
The investigator will generally carry out the inquiry in private. There is no indication as to who such an investigator might be, or what his or her qualifications are likely to be.
It is likely that this will depend on the nature of the investigation, so that, for example, a matter involving complex financial transactions will be overseen by, say, a forensic accountant.
The investigator will then present a report to the committee, who will discuss it.
This draws on the experience of the Deposit Interest Retention Tax inquiry conducted by the Public Accounts Committee, which was based on a report from the comptroller and auditor general.
The requesting committee can delegate the inquiry function to a sub-committee.
The investigator will have extensive power to seek documents and compel witnesses, backed up by the High Court.
The publication of any report or part of a report will not be allowed to prejudice a criminal prosecution or criminal trial, and the High Court will have the power to decide in such circumstances what can and cannot be published.