Thirtieth Amendment of the Constitution Bill 2011 (Ireland)

The Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 (No. 47 of 2011) was a bill which, if enacted, would have amended the Constitution of Ireland "in order to provide for the Houses of the Oireachtas to conduct full inquiries".[1] The bill was passed by both houses of the Oireachtas, but rejected at a referendum held on 27 October 2011.[2]

Background

Main article: Death of John Carthy

On 20 April 2000 in Abbeylara, John Carthy, who had bipolar affective disorder, barricaded himself into his residence with a shotgun in a dispute over plans to move to a new house.[3] The Garda Emergency Response Unit (ERU) was called to the scene, and after a 25-hour siege, Carthy was shot dead.[3] Carthy's family claimed the Garda had mishandled the situation and that a planned Garda internal inquiry would be inadequate. On 8 March 2001 the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights established a "Sub-Committee on the Abbeylara Incident".[3] Although the Carthy family wanted an independent Tribunal of Inquiry, an Oireachtas inquiry was preferred as being cheaper and quicker. It planned to complete its investigation in three weeks and then issue conclusions.[4] The Sub-Committee claimed the right to compel ERU members to give evidence, under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997.[3][4][5] The ERU members sought judicial review that the subcommittee would be acting ultra vires in compelling them to attend and then issuing a report that criticised them. On 11 March 2002, the Supreme Court agreed, by six votes to one.[3]

The Oireachtas instead established a Tribunal of Inquiry, called the Barr Tribunal after its sole member, Robert Barr. This tribunal sat in public for 208 days between 7 January 2003 and 7 December 2004. Its 744-page report was issued on 20 July 2006. Its total cost was almost €18 million.[6]

From November 2010 to January 2011, the Oireachtas Joint Committee on the Constitution reviewed the Parliamentary Power of Inquiry under Article 15.[7][8] Its January 2011 report recommended a Constitutional amendment, to be followed by enabling legislation and a protocol under the standing orders of each House.[9] Oireachtas inquiries would "avoid great expense and interminable delay" of tribunals of inquiry, and could make findings of wrongdoing but not impose sanctions.[9] The wording the Joint Committee proposed for Article 15 was:[9]

In their manifestos for the 2011 general election, both Fine Gael and Labour promised an amendment to overturn the 2002 Abbeylara verdict.[10] The programme of the coalition they formed after the election committed to holding referendums "on a priority basis" on five subjects, including "the granting of full investigative powers for Oireachtas committees".[11] Opposition parties were consulted about the wording of the proposed amendment.[10]

Proposed amendment

The proposal was to insert three new subsections to section 10 of Article 15 of the Constitution. The pre-existing section 10 would be subsection 1 of the amended section 10. The English and Irish texts of the Constitution would be amended in parallel. Technically the Irish text takes precedence in the event of divergence of meaning.[12][13]

Pre-existing text

(1°) Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

Proposed inserted text

2° Each House shall have the power to conduct an inquiry, or an inquiry with the other House, in a manner provided for by law, into any matter stated by the House or Houses concerned to be of general public importance.

3° In the course of any such inquiry the conduct of any person (whether or not a member of either House) may be investigated and the House or Houses concerned may make findings in respect of the conduct of that person concerning the matter to which the inquiry relates.

4° It shall be for the House or Houses concerned to determine, with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry into any matter to which subsection 2° applies.

Process

The amendment bill, which included the proposed text as a schedule, was published on 12 September 2011.[14] It was introduced in Dáil Éireann on 15 September 2011 by the Minister for Public Expenditure and Reform, Brendan Howlin,[15] and passed all remaining stages on 20 September.[16] It passed all stages in Seanad Éireann on 21 September.[17] All proposed constitutional amendments are required to be put to a popular referendum before becoming law. The referendum was held on 27 October 2011, simultaneous with the 2011 presidential election and a second referendum on another proposed constitutional amendment, relating to judges' pay.[14]

A referendum commission was established, under the terms of the Referendum Act 1998, to provide voters with non-partisan information about the proposal. The commission is chaired by Bryan McMahon, a former judge of the High Court.[18] On 11 October, the commission launched a media information campaign and began distributing an information booklet to households in the state.[18]

The Oireachtas Joint Committee on Investigations, Oversight and Petitions was established in July 2011[19] based on Dáil and Seanad resolutions passed the previous month.[20] Its initial orders of reference did not allude to Oireachtas investigations, but in September the government published the heads of the Oireachtas (Powers of Inquiry) Bill, 2011;[21] if the referendum had been passed, the latter bill would then also have been passed to regulate the conduct of Oireachtas inquiries held under the terms of the amended Constitution, giving a leading role to the Joint Committee.[14] On 20 September, the wording of the referendum question was approved by a Dáil resolution.[22]

Debate

The Irish Examiner suggested the amendment would increase the ability of the Oireachtas to investigate the 2008–2011 Irish banking crisis.[23] Stephen Collins raised the possibility of the Fine Gael–Labour government using an Oireachtas inquiry as a witch-hunt to heap blame on its Fianna Fáil predecessor.[24]

The Irish Times commented that coverage of the Presidential election limited public debate on the two referendums being held the same day; it stated "Because [the Thirtieth Amendment] proposes to give the Oireachtas far more power than it has ever previously enjoyed, it therefore needs careful consideration by the electorate before it decides".[25] Stephen Collins criticised the speed with which the Bill was rushed through both Houses, while describing some lawyers' criticisms of it as "laughable".[24] Collins called the cost of tribunals of inquiry "scandalous" but pointed out that the Nyberg and Cloyne reports were delivered under the pre-existing Commissions of Investigation Act 2004.[24][26][27] Tánaiste Eamon Gilmore suggested much of the opposition to the amendment came from "particular sections of the legal profession who have done very well financially from the judicial tribunals in the past".[28]

In the Irish Independent, Dearbhail McDonald said she would vote no, saying 'it will be up to politicians, vulnerable to swings in public mood and media pressure ... to decide what "balance" of rights witnesses are entitled to'.[29] She cited the example of Senator Ivor Callely's successful appeal to the High Court to overturn a Seanad vote of censure, suggesting such redress might be unavailable if the referendum were passed.[29] Minister Brendan Howlin said that advice from the Attorney General is "crystal clear" that the courts will retain judicial review over the way the Oireachtas balances rights.[30] David Gwynn Morgan concurs,[31] while Vincent Browne expressed scepticism.[30]

Groups supporting the amendment included the government Fine Gael and Labour parties and the opposition Fianna Fáil and Sinn Féin parties.[32] Groups opposing included the United Left Alliance,[33][34] 12 independent TDs and senators,[34][35] the Bar Council and Law Society, and the Irish Council for Civil Liberties (ICCL).[34] While Fianna Fáil supported the amendment, its spokesperson on health, Billy Kelleher, intended to vote against it, and former minister Mary O'Rourke described it as "pointless".[32] On 23 October, eight former Attorneys General signed a letter opposing the amendment.[28] The ICCL saw the amendment wording passed by the Houses in September as inferior to that agreed by the Committee in January.[36]

The National Union of Journalists wrote to the Referendum Commission of members' concerns that press freedom and reporters' privilege might be impaired.[37][38]

Opinion polls

Date Poller Commissioned by Yes No Undecided/
Abstain 		Ref
8 October Ipsos MRBI The Irish Times 65 8 27[n 1] [39]
23 October Behaviour & Attitudes The Sunday Times 76 18 6 [40]
25 October Ipsos MRBI The Irish Times 57 20 23 [41]
  1. ↑ 4% abstain, 23% undecided

Referendum results

About 5,000 people fewer voted in the referendum than in the Presidential election held simultaneously with the same electorate.[2] Counting began on 29 October, after counting in the Presidential election was completed. The result was announced at Dublin Castle that evening:[2][42]

Thirtieth Amendment of the Constitution Bill 2011[43]
Choice Votes %
Referendum failed No 928,175 53.34
Yes 812,008 46.66
Valid votes 1,740,183 97.48
Invalid or blank votes 45,025 2.52
Total votes 1,785,208 100.00
Registered voters and turnout 3,191,157 55.94

Votes were counted separately in each Dáil Éireann constituency and sent to the returning officer in Dublin Castle.

Voting per constituency
Constituency Electorate Turnout (%) Yes (%) No (%) Spoilt Ref[44]
Carlow–Kilkenny 106,810 59,264 55.49% 28,339 49.33% 29,113 50.67% 1,812
Cavan–Monaghan 98,952 58,416 59.03% 27,542 48.89% 28,789 51.11% 2,085
Clare 81,419 47,153 57.91% 22,273 48.74% 23,422 51.26% 1,458
Cork East 82,731 45,324 54.78% 20,966 47.53% 23,141 52.47% 1,217
Cork North-Central 75,622 41,532 54.92% 18,830 46.37% 21,780 53.63% 922
Cork North-West 62,113 37,620 60.57% 17,232 47.19% 19,287 52.81% 1,101
Cork South-Central 91,716 53,551 58.39% 23,459 44.69% 29,028 55.31% 1,064
Cork South-West 60,248 35,777 59.38% 16,924 48.74% 17,798 51.26% 1,055
Donegal North-East 58,579 28,477 48.61% 11,253 40.8% 16,330 59.2% 894
Donegal South-West 64,158 30,943 48.23% 12,569 42.13% 17,268 57.87% 1,106
Dublin Central 54,500 28,124 51.6% 12,818 46.4% 14,808 53.6% 498
Dublin Mid-West 64,370 34,057 52.91% 15,942 47.5% 17,623 52.5% 492
Dublin North 69,347 39,665 57.2% 18,294 46.81% 20,788 53.19% 583
Dublin North-Central 51,929 33,152 63.84% 14,226 43.58% 18,416 56.42% 510
Dublin North-East 57,627 34,391 59.68% 15,404 45.52% 18,435 54.48% 552
Dublin North-West 50,410 25,280 50.15% 11,819 47.68% 12,967 52.32% 494
Dublin South 104,145 64,361 61.8% 27,758 43.71% 35,744 56.29% 859
Dublin South-Central 77,688 41,373 53.26% 18,420 45.41% 22,142 54.59% 811
Dublin South-East 55,533 30,589 55.08% 11,177 37.15% 18,912 62.85% 500
Dublin South-West 69,977 36,610 52.32% 17,432 48.46% 18,541 51.54% 637
Dublin West 61,583 36,266 58.89% 16,322 45.61% 19,467 54.39% 477
Dún Laoghaire 82,033 49,078 59.83% 20,094 41.65% 28,151 58.35% 833
Galway East 81,896 46,903 57.27% 22,003 48.67% 23,207 51.33% 1,693
Galway West 94,700 50,515 53.34% 22,529 46.0% 26,442 54.0% 1,544
Kerry North–West Limerick 63,068 34,403 54.55% 15,892 47.82% 17,338 52.18% 1,173
Kerry South 57,776 31,826 55.09% 14,495 47.27% 16,171 52.73% 1,160
Kildare North 76,623 43,413 56.66% 19,389 45.44% 23,284 54.56% 740
Kildare South 57,933 31,220 53.89% 14,940 48.97% 15,567 51.03% 713
Laois–Offaly 107,023 59,207 55.32% 27,149 47.24% 30,324 52.76% 1,734
Limerick 66,421 34,591 52.08% 16,820 49.82% 16,942 50.18% 829
Limerick City 66,345 36,728 55.36% 17,166 48.25% 18,413 51.75% 1,149
Longford–Westmeath 85,911 45,367 52.81% 20,304 46.13% 23,711 53.87% 1,352
Louth 102,941 57,967 56.31% 27,089 47.8% 29,583 52.2% 1,295
Mayo 97,714 53,531 54.78% 26,091 50.42% 25,658 49.58% 1,782
Meath East 65,477 35,360 54.0% 16,453 47.54% 18,158 52.46% 749
Meath West 63,111 32,952 52.21% 15,021 46.73% 17,123 53.27% 808
Roscommon–South Leitrim 60,416 36,308 60.1% 15,547 44.28% 19,565 55.72% 1,196
Sligo–North Leitrim 62,152 34,148 54.97% 15,353 46.28% 17,818 53.72% 997
Tipperary North 62,603 38,228 61.06% 17,276 46.78% 19,653 53.22% 1,299
Tipperary South 56,295 32,558 57.83% 15,316 48.61% 16,195 51.39% 1,047
Waterford 78,960 42,688 54.06% 20,010 48.15% 21,549 51.85% 1,129
Wexford 108,490 58,456 53.88% 28,517 50.11% 28,397 49.89% 1,542
Wicklow 93,812 57,816 61.63% 25,555 45.08% 31,127 54.92% 1,134
(Total) 3,191,157 1,785,208 55.94% 812,008 46.66% 928,175 53.34% 45,025

Aftermath

Causes

Politicians and journalists suggested several factors contributed to the defeat of the referendum.

Harry McGee in The Irish Times, and Seán Fleming, the Fianna Fáil spokesperson on Public Expenditure and Reform, mentioned the rushed nature of the legislative process.[45][46] After its formation in February, the government had a long list of proposed amendments; the Oireachtas inquiries was not brought to the head of the list till the summer recess, and then rushed through in the autumn.

Holding two referendums and the Presidential election simultaneously reduced media time for debate; some underinformed voters adopted a policy of "if you don't know vote no".[46]

The precise wording of the amendment was considered vague by many;[47] Harry McGee mentioned that the Referendum Commission's information booklet drew attention to this.[46] Brendan Howlin, the sponsoring minister, suggested in The Sunday Times that the Referendum Commission's briefing had caused confusion. The Commission publicly objected to what it saw as a criticism of its impartiality and of its chairman personally. Howlin apologised and described his original comments as "cack-handed".[48] Law lecturer Donncha O'Connell characterised the Referendum Commission's advertising campaign as "facile and patronising".[49] In April 2012, The Irish Times reported that an unpublished briefing produced by the Commission for minister Phil Hogan described as "grossly inadequate" the five weeks it had had to fulfil its functions.[50]

The electorate retained a distrust of politicians previously evident in the general election in February 2011; journalists suggested voters did not trust politicians to wield quasi-judicial power.[51]

Seán Fleming criticised the government's perceived arrogance during the campaign.[45] Journalists mentioned in particular Alan Shatter's dismissive response to the Attorney Generals' voicing of opposition.[46][47] Joan Burton's regret for a Prime Time debate between Howlin and Michael McDowell was seen by Mary Regan of the Irish Examiner as a veiled critique of her Labour-Party cabinet colleague.[52]

Consequences

The government's statement after the result was:[53]

It is disappointing that the 30th amendment has been narrowly defeated but the Constitution is something that belongs to the people and we acknowledge and accept the people's democratic decision. We will reflect and carefully consider the outcome of this referendum.

Brendan Howlin suggested the government's plans for a large number of further Constitutional amendments would be made less ambitious.[54] The constitutional convention planned for 2012 might be delayed to 2014.[54] Much of the work planned for the Oireachtas Committee on Investigations, Oversight and Petitions was predicated on the amendment passing.[54] Eamon Gilmore suggested the planned Oireachtas inquiry into the banking crisis would no longer be able to proceed.[52]

Gilmore suggested the subject might be revisited by a future referendum.[52] Donncha O'Connell suggested that public support was still strong for the principle of Oireachtas inquiries, and that a future retry for a similar amendment should return to the model suggested by the Oireachtas Committee is January 2011.[49]

In December, the Minister Howlin appeared before the Oireachtas Joint Committee on Investigations, Oversight and Petitions to discuss amending its terms of reference in light of the defeat of the referendum.[55] In January 2012, new terms of reference were published for the Committee, to be renamed the Joint Committee on Public Service Oversight and Petitions.[56]

The government commissioned a report from three academics on factors influencing the public's vote, and lessons for future referendums.[57] The report was published on 22 February 2012,[58] and discussed at a meeting of the Oireachtas Committee on Investigations, Oversight and Petitions.[59]

References

  1. ↑ "Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 as initiated and Explanatory Memorandum" (PDF). Bills 1997 – 2011. Oireachtas. Retrieved 12 September 2011.
  2. 1 2 3 Carroll, Steven (29 October 2011). "Judges' pay vote carried". The Irish Times. Retrieved 29 October 2011.
  3. 1 2 3 4 5 (2002) IESC 21 Maguire & ors v Ardagh & ors
  4. 1 2 "Sub-Committee on Abbeylara Incident Announces Details of Parliamentary Inquiry" (Press release). Oireachtas. 18 April 2001.
  5. ↑ Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 Irish Statute Book
  6. ↑ "Barr Tribunal set to cost taxpayer up to €18m". RTÉ. 19 July 2006.
  7. ↑ Committee on the Constitution – 2010 Oireachtas
  8. ↑ Committee on the Constitution – 2011 Oireachtas
  9. 1 2 3 Joint Committee on the Constitution (January 2011). Fifth Report; Article 15 of the Constitution; review of the parliamentary power of inquiry (PDF). Oireachtas Documents. A11/0140. Oireachtas. pp. 66–68.
  10. 1 2 Collins, Stephen (31 August 2011). "Parties to discuss change to inquiries". The Irish Times.
  11. ↑ Dáil debates Vol.728 No.3 p.5 22 March 2011
  12. ↑ "Constitution of Ireland". November 2002. Retrieved 6 September 2011.
  13. ↑ Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011; As passed by both Houses of the Oireachtas Oireachtas
  14. 1 2 3 O'Regan, Michael (12 September 2011). "Government publishes inquiries Bill". The Irish Times.
  15. ↑ Dáil debates Vol.740 No.2 p.8
  16. ↑ Dáil debates Vol.740 No.3 p.25
  17. ↑ Seanad debates Vol.210 No.5, p.8 and p.9
  18. 1 2 "Referendums guide being delivered". The Belfast Telegraph. 11 October 2011. Retrieved 15 October 2011.
  19. ↑ Joint Committee on Investigations, Oversight and Petitions proceedings 6 July 2011
  20. ↑ Dáil debates 8 June 2011 p.10, Seanad debates 16 June 2011 p.16
  21. ↑ "General Scheme of Oireachtas (Powers of Inquiry) Bill, 2011" (PDF). 12 September 2011. Retrieved 13 September 2011.
  22. ↑ Dáil debates Vol.740 No.3 p.26
  23. ↑ "Details revealed of constitutional amendment to help investigate banks". Irish Examiner. 12 September 2011.
  24. 1 2 3 Collins, Stephen (22 October 2011). "Will amendment give committees too much power?". The Irish Times. Retrieved 22 October 2011.
  25. ↑ "Rushed referendums". The Irish Times. 12 October 2011. Retrieved 15 October 2011.
  26. ↑ Commissions of Investigation Act 2004 Irish Statute Book
  27. ↑ Rules and Procedures Commission of Investigation into the Banking Sector in Ireland
  28. 1 2 Brennan, Michael; Dearbhail McDonald (24 October 2011). "Top legal experts call for No vote in new poll". Irish Independent. Retrieved 24 October 2011.
  29. 1 2 McDonald, Dearbhail (17 October 2011). "We need a proper debate before voting on handing over our rights". Irish Independent. Retrieved 17 October 2011.
  30. 1 2 Browne, Vincent (26 October 2011). "Inquiries proposal is a dangerous amendment". The Irish Times. Retrieved 26 October 2011.
  31. ↑ Morgan, David Gwynn (26 October 2011). "Amendment on inquiries vital to better Constitution". The Irish Times. Retrieved 26 October 2011.
  32. 1 2 de Bréadún, Deaglán (22 October 2011). "Q&A". The Irish Times. Retrieved 22 October 2011.
  33. ↑ "ULA Calls for NO vote in Dail Inquiries Referendum". United Left Alliance. 21 October 2011. Retrieved 23 October 2011.
  34. 1 2 3 "Legal groups join call for no vote in referendum". breakingnews.ie. 22 October 2011. Retrieved 22 October 2011.
  35. ↑ "Independents calling for No vote in Inquiries referendum" (Press release). Stephen Donnelly TD. 20 October 2011. Retrieved 24 October 2011.
  36. ↑ Brady, Tom (27 October 2011). "Proposed change 'would create kangaroo court'". Irish Independent. Retrieved 27 October 2011.
  37. ↑ "NUJ seeks clarification on referendum". The Irish Times. 25 October 2011.
  38. ↑ Greenslade, Roy (25 October 2011), "Irish constitutional change may threaten press freedom, says NUJ", The Guardian
  39. ↑ Collins, Stephen (8 October 2011). "Coalition on track to secure victory in two referendums". The Irish Times. Retrieved 17 October 2011.
  40. ↑ Reilly, Gavan (22 October 2011). "Gallagher extends lead in latest Áras opinion polls". TheJournal. Ireland. Retrieved 22 October 2011.
  41. ↑ Collins, Stephen (25 October 2011). "Opposition to Oireachtas amendment grows, poll finds". The Irish Times. Retrieved 25 October 2011.
  42. ↑ "Results received at the Central Count Centre for the Houses of the Oireachtas Inquiries Referendum". Referendum Commission. 29 October 2011. Retrieved 30 October 2011.
  43. ↑ "Referendum Results" (PDF). Department of the Environment, Community and Local Government. Retrieved 14 August 2014.
  44. ↑ Referendum Commission, Houses of the Oireachtas Inquiries Referendum, results by constituency (pages accessed 30 October 2011)
  45. 1 2 "Govt defuses row with referendum commission". RTÉ.ie. Retrieved 1 November 2011. |first1= missing |last1= in Authors list (help)
  46. 1 2 3 4 McGee, Harry (2 November 2011). "Five reasons why referendum was lost". The Irish Times. Retrieved 1 November 2011.
  47. 1 2 McDonald, Dearbhail (31 October 2011). "Voters give stern backlash to our arrogant leaders". Irish Independent. Retrieved 1 November 2011.
  48. ↑ Collins, Stephen; Aoife Carr (31 October 2011). "Howlin apologises for 'slight' to Referendum Commission – The Irish Times – Mon, Oct 31, 2011". The Irish Times. Retrieved 1 November 2011.
  49. 1 2 O'Connell, Donncha (1 November 2011). "Balance of public interest and rights still unresolved". The Irish Times. Retrieved 1 November 2011.
  50. ↑ de Bréadún, Deaglán (16 April 2012). "Commission says time given to referendums 'inadequate' – The Irish Times – Mon, Apr 16, 2012". The Irish Times. Retrieved 16 April 2012.
  51. ↑ Coulter, Carol (31 October 2011). "The people clearly do not trust politicians to be judges". The Irish Times. Retrieved 1 November 2011.
  52. 1 2 3 Regan, Mary (31 October 2011). "Blame game". Irish Examiner. Retrieved 1 November 2011.
  53. ↑ "Statement on proposed amendments to the Constitution". MerrionStreet.ie. Government of Ireland. 29 October 2011. Retrieved 1 November 2011.
  54. 1 2 3 McGee, Harry (1 November 2011). "Coalition reflects on ambitious referendums target after defeat". The Irish Times. Retrieved 1 November 2011.
  55. ↑ Oireachtas Joint Committee on Investigations, Oversight and Petitions proceedings, 15 December 2011
  56. ↑ Report launch: new Committee on Public Service Oversight and Petitions Oireachtas press release
  57. ↑ "Research on Reasons Behind Voter Behaviour in the Oireachtas Inquiry Referendum 2011". Dublin: Department of Public Expenditure and Reform. 22 February 2012. Retrieved 29 February 2012.
  58. ↑ Marsh, Michael; Jane Suiter; Theresa Reidy (January 2012). "Report on Reasons Behind Voter Behaviour in the Oireachtas Inquiry Referendum 2011" (PDF). Dublin: Department of Public Expenditure and Reform. Retrieved 29 February 2012.
  59. ↑ Joint Committee on Investigations, Oversight and Petitions (22 February 2012). "Oireachtas Inquiry Referendum 2011: Discussion". Proceedings. Oireachtas. Retrieved 29 February 2012.

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