Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011: Second Stage
Thursday, 15 September 2011
Dáil Éireann Debate
This Bill is the first important step towards ensuring that the Houses of the Oireachtas can undertake full parliamentary inquiries. It will enable the constitutional amendment to permit the Houses to undertake full inquiries into matters of general public importance in an effective and cost-effective way. As set out in the programme for Government, the proposed constitutional amendment contained in the referendum Bill is a key element of the broader parliamentary reform programme to which the Government is strongly committed. These reforms are underscored by a conviction regarding the potential of our Parliament and its Members on all sides of the House to lead change, govern effectively and hold the Government to account. The successful discharge of these roles by the Houses of the Oireachtas is imperative if we are to restore the trust and confidence of the public in the institutions that serve them.
It is integral to the effective functioning and modernisation of parliamentary democracy that the Houses of the Oireachtas have express legal capacity to initiate and undertake full inquiries into issues of general public importance where the Oireachtas has a clear legislative, oversight or public policy role in making findings and recommendations firmly underpinned by extensive fact-finding. In order to achieve this objective, the legal and constitutional issues identified in the Supreme Court’s judgment in the Abbeylara case must be addressed. The constraints and restrictions imposed by the Supreme Court on the ability of the Houses to conduct inquiries will be well known to all Members of the House.
The work of the all-party joint Oireachtas committee leading to the publication of its Fifth Report on Article 15 of the Constitution and the parliamentary power of inquiry in January of this year was particularly valuable, drawing on the advice of external experts and important work of the Law Reform Commission in this area. I pay tribute to the chairmanship of former Deputy Seán Ardagh, whom I was delighted to see this week in good health again. He played a sterling role in steering that committee towards producing its final report. It analysed in some detail the main findings of the judgment and made specific recommendations on how the limits and restrictions created by it could be resolved through constitutional change. The proposed wording of the referendum and the policy approach the Government is adopting is, in fact, closely in line with the recommendations of the all-party committee, which spent almost a year examining these matters.
A vigorously active and independent parliament with powers to investigate into particular matters of general public importance should have the objective of ensuring that the type of systemic failures we have seen take place, for example, in our banking system — as documented in the reports by Regling and Watson, Professor Honohan and the Nyberg commission — will be much less likely to occur in the future. There are significant public policy benefits from the operation of an effective system of parliamentary inquiry. This is evidenced by the broader international experience, and by our own specific national experience in the case of the successful DIRT inquiry carried out by the Committee of Public Accounts. We need to ensure that we, as a parliament, use this power carefully and appropriately and only in circumstances that is clearly warranted in line with the objectives of the constitutional amendment.
In essence, a power of inquiry consistent with the constraints identified in the Abbeylara case would not facilitate meaningful inquiries leading to substantive recommendations and findings where it is essential to inquire into individual conduct and potentially make findings regarding the actions of individuals.
In order to facilitate comprehensive discussion of and inform debate on the issues involved, I published detailed and advanced draft heads of the Houses of the Oireachtas (Powers of Inquiry) Bill earlier this week. As I outlined to the Joint Committee on Investigations, Oversight and Petitions yesterday, this legislation will underpin the proposed constitutional amendment, and will provide a comprehensive governing legal framework for the establishment and operation of an Oireachtas inquiry system. The legislation details the proposed structure and operation of the proposed new system of Oireachtas inquiry. It requires, in particular, the establishment of a framework through rules approved by the Houses to secure procedural fairness. I really want to underscore that. This legislation will be enacted if the proposed constitutional change is approved by the electorate. I welcome any views or suggestions on the legislation to help define the final shape of the system. My mind is not closed on it. If individuals make submissions on the published heads, I will be very happy to incorporate them in the legislation if they contain good ideas. As I stated to the committee yesterday, it will be necessary to tweak the legislation as the committee system undertakes inquiries, provided, as I hope, that the people will support the amendment.
Inherent in this legislation is the constitutional imperative under Article 40.3 of the Constitution that the proposed powers of inquiry of the Houses of the Oireachtas must be used in a manner consistent with the rules of natural justice but also taking into account the public interest in ensuring the Oireachtas inquiries are effective. This is the key balancing exercise to be determined in the design and implementation of the system. This balancing will be governed by rules established under the enabling legislation.
I will outline in detail some of the provisions of the Bill. Section 1 provides for the amendment of Article 15.10 of the Constitution by the insertion of the text set out in the Schedule to the Bill. Section 2 is a standard provision specifying how the amendment and the Act shall be referred to. The Schedule contains the proposed text of the Constitutional amendment, in both Irish and English. The proposed amendment, if approved by the electorate, will insert the three new subsections, as set out in the Schedule, into Article 15 of the Constitution.
The need for an explicit, express and unambiguous statement granting a power of inquiry to the Oireachtas is addressed by subsection 2 contained in the Schedule of the Bill. Its wording reflects the finding of the Joint Committee on the Constitution that a constitutional amendment is required to avoid any doubt that the Oireachtas has an inherent power to inquire into matters of general public importance. It minimises the risk that the Houses of the Oireachtas might be found by the courts to be precluded from carrying out such inquiries on the basis of institutional or structural bias.
Subsection 2 does not and cannot discharge the members of an Oireachtas committee of inquiry from the requirement not to pre-judge the outcome of an inquiry. Members of Oireachtas committees of inquiry would be required to behave impartially in respect of the matters subject to an inquiry. The subsection also provides that the inquiry must be into a matter “stated by the House or Houses concerned to be of general public importance”. The draft heads of the Houses of the Oireachtas (Powers of Inquiry) Bill contain the proposed process to be undertaken and the evidence to be provided to allow the Houses to make the assessment that a particular matter is of general public importance and, therefore, warrants an inquiry.
Subsection 2 also provides that the manner in which an inquiry is conducted would be in line with provisions laid down in legislation. The draft heads of the Houses of the Oireachtas (Powers of Inquiry) Bill, as published, provide a framework within which the Houses of the Oireachtas can formulate rules and guidelines governing the conduct of such inquiries.
Subsection 3 of the Schedule seeks to address two of the major concerns identified by the Supreme Court in the Abbeylara judgment by granting a power to the Oireachtas to investigate the conduct of individuals and make findings. This would be done in the context and with the objective of making and rationalising recommendations for changes. Such recommendations could, for example, relate to legislative or regulatory frameworks or the role, structure, governance and management systems of any public body.
Subsection 3 of the Schedule ensures that the Oireachtas could not be inhibited by the likelihood of any civil or criminal liability being inferred from its deliberations in regard to its powers of inquiry. This subsection explicitly provides that an investigation can be carried out into the activities of any person or persons, irrespective of whether they are Members of either House.
A key requirement for the proposed new system of Oireachtas inquiry will be adherence to the rules of natural justice consistent with the very well-defined constitutional principles and Ireland’s obligations under international law. Subsection 4 in the Schedule is designed to meet this requirement. This is a very significant element of the proposed new system of Oireachtas inquiry. I have discussed subsection 4 with some Members already. It is not intended to change the fact that fair procedures and the normal, well-established rules of natural justice must be respected in any form of inquiry that puts good name or reputation at risk.
The proposed approach is consistent with judicial decisions that have noted a tailored approach is appropriate to the rights to fair procedures. The established constitutional rights of particular individuals will vary according to the position in which they are placed; one’s rights, such as to one’s good name, must be at risk. This has been borne out in the field of tribunals where these matters have already been rehearsed before the courts.
What the proposed constitutional amendment does is reflect the need for the Oireachtas to implement in a pragmatic way fair procedures in its inquiry process, and the need to implement them in a manner that is balanced against the public interest.
This is done to ensure that inquiries are effective, cost-efficient and completed within a reasonable timeframe. It cannot be that the power would not be with the House itself to make judgments on an ongoing basis. Otherwise, every inquiry would be subject to constant interruption as matters are weighed and balanced elsewhere.
The manner in which the Oireachtas strikes this balance must be reviewable by the courts. If the courts believe the balance has not been properly determined, they can overturn the decision made by the inquiry. In assessing this issue, the courts would take account of the proposed constitutional provision that the Oireachtas is empowered to strike this balance.
Under present constitutional arrangements the courts in determining these issues would review exclusively in this context the provision of fair procedures. I do not need to set out for the House how in such circumstances it could be expected that any Oireachtas inquiry would be rendered ineffective and impotent by constant recourse to the courts by parties to an investigation and by the introduction of tribunal-like procedures into the Oireachtas inquiry system which would totally torpedo the purpose this amendment seeks to achieve. It is almost certain that the inquiry process would be ineffective in such circumstances, the public interest would not be served and we would still have an impotent parliament where inquiries are concerned.
However, let me make it clear that the amendment to the Constitution contained in the referendum Bill does not disregard the rights of witnesses to fair procedures. Indeed, as set out in the proposed underpinning legislation high hurdles have been set to ensure that fair procedures are adopted, and that inquiries are carefully and correctly conducted.
In making its determination a committee of inquiry would be expected to have regard to certain factors. These could include whether specific facts are in dispute between witnesses and the extent to which the reputation of witnesses becomes or is an issue. An overarching concern for an Oireachtas committee of inquiry would be to ensure the level of rights is commensurate to the risk to an individual’s good name against whom allegations may be or have been made. Every citizen in our democracy has a right to his or her good name but this right needs to be balanced with the undeniable public interest that is realised by effective investigation into matters of serious public concern.
It is highly desirable that Oireachtas inquiries should be carried out in an efficient and cost-effective manner and conclude their work within a reasonable period. Citizens would expect that the Houses would carry out such inquiries as expeditiously as possible, and it is important that such inquiries are perceived as such. These inquiries need to inspire public confidence in our parliamentary system. People must have confidence again that we can do the people’s business and not be frustrated by those with either deep pockets or the capacity to frustrate proper inquiry. It must not be diminished through delay, cost or ineffectiveness.
I ask the House to support and approve the Bill and in doing so provide for the Houses of the Oireachtas the power to conduct full inquiries. The Bill is important in the strengthening of our parliamentary democracy. It provides for a political ethos in which there is a true sense of accountability. I commend the Bill to the House.
Deputy Sean Fleming: I welcome the opportunity to speak on the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011. I welcome the proposed referendum being discussed today and the accompanying draft legislation which was published by the Minister earlier this week. I appreciate he stated he is open to suggestions for improving the legislation prior to the final draft being published. I ask people to vote in favour of the amendment, after which we will be able to work on passing the legislation.
Deputy Sean Fleming: Often, to vote in favour of an amendment to introduce a constitutional ban one had to vote “No” to delete a provision. However it is drafted, I ask the Minister to ensure that people voting for the amendment do so by voting “Yes”. People will recall the immense confusion caused in the past. I take it that this is under control.
I join the Minister in complimenting the work of the Joint Oireachtas Committee on the Constitution in the previous Dáil, which produced a report prior to the general election under its Chairman, Seán Ardagh. The referendum is necessary to ensure elected representatives of the people have appropriate power to investigate matters of public interest and such inquiries have been prohibited in the past because of the Abbeylara judgment. I support the amendment but I have a number of concerns of which I ask the Minister to take note and deal with because they will lead to doubt during the referendum campaign. If I do not deal with all of my points during the 15 minutes I have to speak, I will put them in a note to the Minister in the coming days.
I welcome the helpful explanatory documentation and other correspondence I received from the Minister during the summer and the briefing from his officials. It is all appreciated and I want to put this on the public record. Much of the background to this amendment emanates from the Abbeylara judgment and I believe the Minister did not deal adequately with what I consider to be a very significant aspect of that judgment.
A question had been raised about institutional bias and that a specific body by its nature might be inherently biased and therefore could not be relied on to assess evidence from judgments in an objective and unbiased fashion. The Supreme Court ruled this was not the case with regard to the Oireachtas and that it is not inherently biased. However, far more important, the Supreme Court dealt with the issue of objective bias but the Minister has not dealt with this. He spoke about procedural fairness, institutional bias and structural bias but he did not deal with objective bias. According to information provided to me by the Department on objective bias and the Abbeylara judgment, the Supreme Court found it was not compatible with constitutional justice for a person to sit in a quasi-judicial capacity as a member of a committee making determinations of fact while at the same time making comments in the media which indicated strong prior views or fixed opinions on the matters being inquired into. Such an approach was found to be incompatible with fair and balanced hearings and assessment of evidence being presented to the inquiry. According to the Department, this means that strong and robust procedures and protocols for the conduct of inquiries need to be put in place by the Houses of the Oireachtas under the proposed new approach to safeguard the inquiry process against the risk of objective bias such as public comments by committee members which are reported in the media.
The commitment has been made to hold an inquiry into banking. If the Minister can find one Member of the Oireachtas who has not made definitive statements in the media or made public comments on his or her views on what happens to Irish banking I will salute him. I would be amazed if anybody got elected to the House without having a view on this matter. Objective bias is the elephant in the room which the Minister ignored. I accept we have fair procedures, that it will be free from structural bias, which I will discuss shortly, and that the institution itself will be free but membership is an issue. If the Minister can show me that the members of any proposed inquiry have not made public comments to indicate their views on the issue involved I will be happy for such people to sit on the inquiry.
This issue will be relevant and let us not beat around the bush; no matter what inquiry the Minister tried to establish on any issue the first thing anybody worth his or her salt would do would be to google the proposed members and every comment they made on the topic. Despite the Minister’s best intentions and our support for the principle of what he is doing, unless this issue is adequately dealt with to the satisfaction of the Supreme Court there may be challenges with regard to the particular people sitting on the inquiry.
The amendment will establish a mechanism for an investigation procedure to take place. With the DIRT inquiry, the Comptroller and Auditor General produced a report. Some people are hung up about the investigation happening in private; I am not as otherwise the investigation would not be completed. The Garda Síochána conducts its investigations in private but the file must be placed in front of a judge in open court which is where the inquiry and the judgment takes place.
The Government will have to deal satisfactorily with the problem of members of such an inquiry dealing with a particular topic on which they have been mute in the past. I envisage many cases in which the Oireachtas could conduct inquiries into general matters and the committee members would be free from bias. For example, the DIRT inquiry concerned a matter of public importance but was an issue on which the majority of Members may not have pontificated before the inquiry. I accept when the DIRT inquiry was established, one member of the committee was discovered to have had an Ansbacher account and had to stand down because he did not disclose it. The issue of public comments by committee members prior to an inquiry must be addressed in detail. Otherwise, it will become an issue during the course of the referendum campaign.
I accept the rules of natural and constitutional justice will apply to Oireachtas inquiries and remain a safeguard for every citizen. Some may claim politicians should not be doing such inquiries as they are a matter for the courts. The Law Library and those on that side of the Liffey will oppose this Bill because they see it as taking some of their potential income earning from future tribunals of inquiry. They are the very reason we are passing this legislation. The legal profession was allowed to conduct several tribunals up to now. It took ten years to conduct inquiries that were in the public interest which the Supreme Court even pointed out were urgent. The failure of the legal profession to conduct these inquiries in time is the specific reason the Oireachtas is taking the powers back to do such inquiries itself. When the Oireachtas wanted an inquiry, it outsourced it to the legal profession. This arrangement did not work, cost a fortune and took too long. It is now being brought back in-house. While some may not appreciate this move, that is the basic position democrats are entitled to take.
There will be no question of a committee making a judgment on criminal culpability or a finding of civil liability which would encroach on the constitutionally protected role of the courts in the administration of justice. Like a tribunal inquiry, files presented to a committee inquiry will not be presentable in a court of law.
It will be important to determine fair procedures. Everybody against whom an allegation is made must have the right to cross-examine. I believe Oireachtas Members in such inquiries will operate a system of natural justice. If persons feel their rights were trampled on by an Oireachtas inquiry, they can go to the Four Courts to have their rights vindicated. It is not necessary for everyone mentioned in the course of an inquiry to have a right to cross-examine everyone else. That can easily become a never-ending circle. While everyone has the right to cross-examine, it will not automatically happen in every case.
The oversight committee will have to be the gatekeeper and give approval to whether an individual committee will carry out an inquiry. There was a misunderstanding that the new oversight and petitions committee would conduct all Oireachtas inquiries. If the finance, health or justice committees find a matter they want to investigate, they only have to get approval for an inquiry from the oversight committee and the Houses of the Oireachtas to declare it is a matter of general public interest. The committees can then go ahead with their inquiries, subject to the administrative procedures of the oversight committee. I was concerned earlier that the powers of many of the good committees would be reduced. However, this will not be the case.
I am happy with the provision for the separate investigation to be done in advance. However, I ask colleagues not to employ a member of the legal profession to do an investigation. While they may be good at presenting cases in courts, when it comes to digging up facts, I would prefer a good retired chief superintendent on the case rather than a judge, barrister or even an accountant like myself.
People are concerned about the powers this committee will have to obtain evidence. If an investigator wants to enter an individual’s house, he or she can only do so with a District Court warrant signed by a judge and must be accompanied by a Garda. I always noted in past tribunals that when all the successful businesspeople were asked what they did on such and such a day, they could not recall. They probably had a bit of time to perfect that answer. Some of these committee inquiries will probably move much quicker and find some documentary evidence which could help individuals in their recollection of events. There was collective amnesia at some tribunals in the past. These forms of inquiry will help deal with that issue.
I have some concerns about the make-up of an inquiry. Considering how the Government has already dealt with committee membership, there would be a Government appointed chairperson and then seven appointments to an inquiry, leaving only two positions for Opposition Members. The legislation does not contain any provision to prevent this happening. While I accept two thirds of the House comprise Government parties, the Government has already proved to be unfair when it came to committee membership. Even with the Houses of the Oireachtas Commission, neither the Independents nor Sinn Féin has a Member on it. This legislation must contain a safeguard to ensure the membership of any inquiry will have a fair balance. I suggest the ratio should be 60:40 for Government and Opposition respectively. It will not travel if the Government parties can exclude other parties from such inquiries.
Deputy Mary Lou McDonald: Unlike Deputy Sean Fleming, I do not propose to deal with issues arising from the primary legislation although there are several matters that need to be ironed out. I welcome the Minister’s indication that he has a broad mind in taking some of these points on board.
The decision by the Supreme Court that the Oireachtas could not conduct an inquiry which could result in findings of fact and conclusions adverse to the good name and reputation of those who are not Members of the Oireachtas was described by my party at the time as disappointing and negative for obvious reasons. We noted that serious questions needed to be answered, particularly regarding why the Garda had gone to such serious lengths to prevent a Dáil sub-committee from carrying out an inquiry. At the time we said the judgment would have far reaching consequences, and so it has. Prior to the recent election we called for Oireachtas committees to be given investigative powers. To that end we welcome the fact that the Government is moving on the issue.
Holding those to account who work against the public interest is an important principle for the good functioning of democracy and the functioning of the Houses of the Oireachtas. We support the Government’s proposition that there are significant public policy benefits from the operation of an effective system of parliamentary inquiry. Putting the proposition to the people is right and proper. My colleague, Deputy Peadar Tóibín, has been appointed Chair of the Joint Committee on Investigations, Oversight and Petitions — the committee that will be responsible for the inquiry process.
Amending the Constitution is a serious business. It is a responsibility of all citizens and it is important that we get it right. Subsection 2° of the proposed constitutional amendment reaffirms the general powers of the Oireachtas to conduct inquiries into matters of public importance. Following the Abbeylara judgment it is necessary to restate those powers so that there can be no question over the validity or right of the Oireachtas to hold such inquiries and to compel a person or persons to appear before the committee.
The new subsection 3° in effect reverses the effect of the Abbeylara judgement and empowers an Oireachtas inquiry to investigate the conduct of a person — whether or not a Member of the Oireachtas — and to permit the Oireachtas to make findings in respect of the conduct of that person in matters of public importance.
The failure of Government, and the Garda and Judiciary, to adequately hold those responsible to account, for instance for the recent banking crisis to which Deputy Sean Fleming referred, will be held up as one example of a concrete reason to empower the Oireachtas to investigate the conduct of a person who it is believed has worked against the common good.
The Nyberg report into the handling of the State’s banking crisis, which was considered in the House, was a stark condemnation of the fundamental failings and reckless practices within the banking industry. The report also highlighted the inadequate governance of the authorities. Despite numerous instances where banks did not comply with banking regulations, the Financial Regulator failed to sanction those that did not comply. Mr. Nyberg did not name individuals so the end result was yet another report of an industry — under the watch of the Government of the day — that has brought the State to its knees — but not a single person was held to account for his or her actions against the public interest. That was unacceptable. For that reason alone, the Government’s proposal to amend the Constitution will command widespread support.
I am not a defender of the Law Library or those who grace its refined environs but it is important to state that the Oireachtas cannot substitute the courts in the administration of justice. People have a right to ask questions and inquire into the conduct of individuals — be they a bank CEO, Minister, the Financial Regulator or the Governor of the Central Bank. The Oireachtas, as representatives of the people, should be enabled to put questions and in turn to make findings on behalf of the people. However, as legislators we need also to uphold the values and principles of the rules of natural justice and we cannot be seen to undermine the powers of the courts to protect the right to procedural fairness of those who appear before an Oireachtas inquiry.
The Government argues that the proposed subsection 4° is necessary to establish a constitutional imperative that the Houses of the Oireachtas are empowered to determine how fair procedures will be secured in the proceedings of Oireachtas inquiries. I have no doubt that the long, drawn-out costly tribunal experience informs the substance of this subsection. It is an effort to ensure inquiries are carried out in an efficient and cost-effective manner and that such inquiries conclude their work within a reasonable period of time. That is fair enough.
The wording in the proposed subsection 4° has been described as a constitutional signpost. By empowering an Oireachtas inquiry to determine the appropriate balance between the rights of persons and the public interest for the purpose of an effective inquiry, the Government is seeking to set a new path away from the tribunal experience. I understand and welcome that. However, it is my view that the text of subsection 4° is a heavy-handed approach by the Government to address the tribunal experience.
Without the amendment tabled by my party — the addition of a new subsection 5°— the wording as it stands in subsection 4° could potentially recalibrate the separation of powers. In other words, by conferring the power to balance “the rights of the individual with the public interest”, the proposed subsection 4° seems to appoint the Oireachtas as custodians of natural justice in its own investigations. With that concern in mind we will seek support from Dáil Deputies for Sinn Féin’s additional wording which concludes the constitutional amendment by stating, “The conduct of such inquiries shall be regulated in accordance with the law and principles of natural justice.” Amending the Constitution is no light matter and as legislators we must look to every eventuality. Restating the existing and valued right to natural justice is an important addition to the constitutional amendment wording as it contextualises what the Oireachtas seeks to achieve. It is almost like a belt and braces approach. I urge the Government to take it on board.
We want the power to investigate those who have wronged the people. We also want the power to compel such a person to appear before the inquiry — to be cross-examined by an inquiry unhindered — and for the inquiry to make a finding. We want that to happen in an efficient and cost-effective manner but we do not want the situation to arise where the rights of a person brought before an Oireachtas inquiry are not adequately protected. There must be checks and balances within all constitutional and legislative measures that impact on a citizen’s right to fair play. As we recall, the herd mentality was much discussed in the Nyberg report. Those holding positions of power have not always done the right thing. Natural justice should not and cannot be taken for granted.
It would be remiss of me not to take the opportunity to remind the Minister of a number of other constitutional and political reforms promised in the programme for Government but yet to be delivered. I refer to the children’s referendum and a referendum to protect the right of citizens to communicate in confidence with public representatives. In addition, the Government’s commitment to introduce whistleblowers’ legislation has yet to be realised. We have had no update on the constitutional convention that is to consider important matters such as the provision for same-sex marriage, greater participation of women in public life and a possible reduction in the voting age. We believe there should be an all-island approach to constitutional change. Representatives must be drawn from both Legislatures on the island, civic society, business and trade unions to discuss and bring forward proposals for constitutional change. Such a forum would involve consultation at grassroots level and ensure what the Minister of State, Deputy Lucinda Creighton, referred to as “deep” democracy.
It is deeply disappointing that this Government, similar to Fianna Fáil before it, has decided to hold this referendum and the presidential election on a Thursday. The Minister is aware that voter participation drops when votes are taken on a Thursday, and this fact was bemoaned by Labour and Fine Gael when they were on the Opposition benches. Elections and referendums should be held at weekends; it is that simple.
I take this opportunity to remark on the upcoming presidential election. The right to vote in that election should be extended to citizens in the Six Counties and to Irish citizens living and working abroad. It should not be in the gift of politicians to nominate presidential candidates and that responsibility should be returned to the people.
For many people our political institutions are considered exclusive and unaccountable, and that is what makes constitutional and political reform all the more urgent. It is in that context that we must view the proposed amendment to the Constitution. The message from Sinn Féin Deputies is that we support the amendment to the Constitution but we ask that the Government accepts an additional subsection (5) to ensure that there should be procedural fairness and that the rights of people are in no way damaged. There should be no public question mark over the integrity and fairness of the inquiry process.
Deputy Catherine Murphy: I bought my first copy of the Irish Constitution in the 1970s and had a look at it this morning. It cost 20p and contained a leaf detailing the consequences of what was then the most recent referendum, which reduced voting age from 21 to 18. I bought it out of curiosity as I had voted for the first time, and I had become aware of the difference between being a citizen and a subject. The written Constitution espouses that and we must be very careful in deciding to change it; the change must be required and good. The parts of the Constitution containing solid principles will stand the test of time.
I have a serious concern about the speed with which we are dealing with this Bill, although not necessarily the principle of affording ourselves inquiries. There is a large number of new Deputies in this Dáil, as well as people such as myself having been on an enforced sabbatical for four years. They may not be as clued in on the debate from the past five years leading to this proposal. It is offensive that this debate is taking place only on the first week back, with a debate on democracy wedged in the middle. A democrat could only judge the guillotine on such debates as wrong.
A number of us attended a briefing yesterday in the Department and I thank the officials for that. We asked plenty of questions. We are looking for checks and balances in this legislation and further legislation, of which we saw the heads. The Oireachtas will technically have responsibility but we all know that will not be how it will work; the Government will hold the responsibility because of its significant majority. I would like to see some checks and balances in the legislation but they do not exist. The point was already made regarding Oireachtas committees not being inclusive, with Sinn Féin and Technical Group Members not being adequately represented. This, along with consistent guillotining of legislation, is a sign that we should be concerned about the process. The Government is asking us to trust that it is made up of the good guys. We must find a greater balance in the legislation and I will make my views known to the Minister in that regard.
It is our job not only to consider the positives, but also how this power could be abused. For example, a well-resourced interest group may seek an inquiry and although it may be of general importance, we as politicians would have to judge whether the matter is in the general interest. It is not always the same.
I am concerned that we will see a low turnout as people may be confused about the lack of checks and balances. This lack is the main concern and I am less concerned about the principle of the Oireachtas holding inquiries. My big concern is not with this legislation, which facilitates a referendum, but rather the second piece of legislation. The problem is that if we pass this legislation and the matter is approved by the people in a referendum, the process will become inevitable.
Deputy Shane Ross: I find myself agreeing with many of Deputy Catherine Murphy’s comments. The more I think about this Bill and the potential change to the Constitution, the more critical I am of it. In principle it is a good idea that Oireachtas committees should have powers and teeth, with the ability to uncover facts. Many of us have suffered from the fact that Oireachtas committees have tended to be theatre without any powers at all in recent times. Deputy Donohoe and I were on the last transport committee, which began an unofficial inquiry into activities at Iarnród Éireann. We came up against a brick wall because various witnesses refused to come before the committee and co-operate, while others came in but refused to answer certain questions. Ultimately we got absolutely nowhere and the committee, although good theatre, was ineffective in getting a conclusion to the investigation. That would indicate there is a need, if we are to have Oireachtas inquiries, for different powers and methods, as well as compellability.
Often, witnesses who tend be vulnerable or subject to court cases plead that they cannot come before committees because an issue is sub judice. I do not buy that argument as a witness would add to the evidence in a court case rather than contradict it; if the witness contradicts the evidence, the matter would be exposed. All kinds of excuses have been successfully used in this respect but most of the time people just do not come before a committee, which is utterly unacceptable as no inquiry can come to a conclusion under such circumstances.
There have been two high-profile Oireachtas inquiries, one which was very successful and one which was a complete flop. The successful one was obviously the DIRT inquiry which started in 1997, when the bankers were brought before the committee. The committee came to quick conclusions and was operationally successful. Its conclusions were also extremely useful. It exposed something in a useful manner, which public representatives should have the power to do. The committee had huge powers to do that.
The second one makes me very uncomfortable about what is happening in this legislation. It was the investigation conducted in 1994. This is where Deputy Catherine Murphy is absolutely correct about the need for checks and balances. The investigation in 1994 was established by the coalition Government comprising Fine Gael and the Labour Party to examine the events surrounding the collapse of the previous Government under former Deputy Albert Reynolds. At the time and even now, and I have no sympathy for Fianna Fáil, I had an extraordinarily uneasy feeling about politicians investigating the activities of their predecessors under oath. There was no question of independence. It looked like a political grouping saying: “We do not like what happened in that collapse, we want to find out what happened and we will use it, one way or the other, to criticise and crucify our political opponents.” I feel uncomfortable about that, and I do not have a solution as I have not considered it enough.
The problem is that if politicians carry out an investigation and make findings, judgments or statements, they are coming from a particularly biased and political background. There is no point even pretending that politicians are independent or that a committee which has a huge Government majority can reach independent conclusions. Regardless of what side of the House they are on, the committee members will not do so. They will reach conclusions or judgments on matters or findings of fact which are undoubtedly very strongly tempered by a political background. There will also be a temptation for all governments to set up inquiries with compellability powers whose conclusions will inevitably be embarrassing to their political opponents.
This is a really serious difficulty. Superficially, this measure is right, as is the impetus and motivation behind it, but the practice behind it could be extremely dangerous. Anybody who looks at that 1994 report and at the proceedings of that committee will find that it was a deeply political inquiry into the activities of the Government’s predecessors. That was wrong and I hope a measure such as this will not be used for that purpose, but I am not confident that will be the case.
Deputy Maureen O’Sullivan: I hope that the Minister, Deputy Brendan Howlin, and the Minister of State, Deputy Brian Hayes, will be the good guys and will do what is right to strengthen parliamentary democracy. However, I have grave misgivings about the proposed 30th amendment of the Constitution and the more I read about it, the more those misgivings intensify. I believe we are moving too quickly, without sufficient regard for what is involved and further time to examine the implications.
I have a number of questions. Does this Parliament have an unfettered right to inquire into any matter? Who decides which matter is to be subject to such inquiry and who decides what is of general public importance? Who decides which person’s conduct will be investigated and, importantly, how will the House or Houses determine the appropriate balance between the rights of the person and the public interest to ensure that the inquiry is effective?
While not questioning the integrity of any Member of this House or the Seanad, my essential misgiving is how we can ensure an unbiased approach in an inquiry when the composition of our committees is determined by the political parties in Government. Members of parties have the party agenda and I fear that will be brought to the committees of inquiry. We are told that members of Oireachtas committees of inquiry would be required to behave impartially in respect of the matters which are the subject of the inquiry. How can that be assured, and what will happen if they do not behave impartially? Will that lead to another committee of inquiry or to a legal case and costs?
On the notion of no bias, be it institutional bias or objective bias, we are told that strong and robust procedures and protocols for the conduct of inquiries will have to be put in place. If a member of the committee of inquiry is known to have particularly strong views on the matter or individual being investigated, if they have written in the media, spoken to the media or are on record in that regard, how can that person be expected to approach the matter or the individual being investigated in an unbiased way? They would have to be particularly strong-minded and have tons of integrity to bring a clear, unbiased mind and approach to the investigations. The majority of Supreme Court judges rejected the assertion in the Abbeylara case that an inquiry by the Oireachtas must, by its nature, be biased, but I do not share their confidence.
The concept of a matter of general public importance is rather vague and could be open to abuse. Who will decide what warrants individual investigation? How can this be protected from vested interests either in deciding to investigate or deciding not to investigate? To ensure an unbiased approach, perhaps when a committee of inquiry is to be established the members of the committee should be drawn at random from among the Members of both Houses of the Oireachtas, or there could be a very clearly defined system of declarations of interest, with the possibility of a person recusing themselves or somebody having the authority to have that person recused.
Turning to the adjudicatory findings of fact, in the Abbeylara case the Supreme Court’s concern was that the committee of inquiry was empowered under its terms of reference to make findings of fact which potentially impacted on the reputation and good name of individuals. The findings would be considered adjudicatory, meaning that although the findings had no legal effect, they could impugn the good name and reputation of an individual. The dilemma is clear: why set up a committee of inquiry if it cannot lead somewhere other than to establish facts yet if we want it to lead somewhere, it is almost approaching a court of law? Is there a danger that these committees could interfere with what should be matters for the courts? Instead of a Dáil committee investigating an individual or matter, this should be addressed through the legal system.
I listened to the proceedings yesterday of the committee dealing with the banking sector. What exactly was achieved, and will anything more be achieved under the new system? There are two significant examples from history and literature of committees which totally over-stepped the mark, Salem and the McCarthy committee. The House Committee on Un-American Activities established by the US House of Representatives certainly showed the flaws of this type of inquiry and the abuse of power it could entail, leading to many personal tragedies. In the Salem Witch Trials, rather tellingly, John Proctor chose death rather than lose his good name. In his final speech in that play he said that his good name was all that he had left.
I accept what is proposed sounds fine in theory — Oireachtas inquiries held in a manner respecting fair procedures with well defined and tightly framed terms of reference and so forth. However, if we are to conduct such inquiries, they must make a difference and bring about change in a fair and unbiased way. I am not convinced that what is proposed in this legislation will achieve that.
Deputy Paschal Donohoe: I am struck by the contributions of my colleagues. They illustrate a caution about this Bill, but if Members of the Oireachtas continue to say that they need more power to do their job properly, they cannot on the other hand say they do not trust themselves to discharge that power properly. With regard to the points made by Deputy Maureen O’Sullivan, I do not see many Senator McCarthys in the House. There might be a few in the making if granted this power, but the Oireachtas cannot say, on the one hand, that it wants the power to perform a particular role and do it well, and then say it does not trust itself to perform that role properly. We have seen the alternatives. We have seen what happened when this investigating role was outsourced to other people in the tribunals of inquiry. That mode of investigation was insulated from the Oireachtas and we have seen how long it took and its cost. Politicians cannot say that they want the ability to fulfil this new role well and then say they do not want it because they do not trust themselves to be able to do it properly.
There are three subsections in the measure we propose to put to the people, and I will comment on each of them. With regard to the first subsection, the point has already been covered regarding how the ability to perform would be undermined by the perception of bias in any member of a potential committee. This is a crucial point. The last investigative committee established by a House of the Oireachtas to oversee the conduct of a Member, in the last Seanad, saw members having to depart from the committee because they did not either have the intention or the discipline to refrain from commenting on it in public. That is an essential point which must be kept in mind when forming any new committee.
In regard to the second subsection, the comment has been made that we must ensure the operation of that does not veer into the way the criminal justice system works. It is essential in the operation of this that we do not look back and say that happened. We should have a process in place which ensures it does not happen and that if there is a risk of it happening, it is stopped or curtailed.
There is a danger in the third subsection, which was touched on by Deputy Catherine Murphy, in regard to how one determines the appropriate rights of the individual and of the public or national interest. That appears to be a minefield through which we need to very carefully tread. It will be very challenging for an Oireachtas looking to investigate a particular matter to be the same body charged with determining the manner in which that will be done. That is a very delicate line which needs to be very carefully walked.
That leads on to my final point which is the creation of what will be called “investigators” to support an Oireachtas committee in the operation of this work. These individuals will have a huge amount of power and will have some new capacities granted to them under this Bill. We need to ensure the people who will do this work have the ability to do so and that they will also be accountable to the Oireachtas at all times.
There is a danger that as the Oireachtas is granted new powers, Members will say they do not trust their ability to discharge those powers properly. As I said, we have seen the cost of the alternative. Now is the time for the Oireachtas to take a more prominent role in doing work the people want us to do.
Deputy Patrick O’Donovan: I acknowledge the presence of the Minister of State, Deputy Ring. I am delighted to speak on what is important legislation. I refer to some of the comments made a while ago. I often wonder what planet some people inhabit. It is not that long since we were in the House discussing the report of a tribunal of investigation and the same people from the same side of the House lampooned and lacerated the previous Government and the current one for not bringing forward legislation to amend the Constitution in order that the Houses of the Oireachtas could carry out investigations. Now the same people are saying we are rushing into this. Yesterday, someone from the same group said we were not amending the Constitution quickly enough. It just smacks of opposition for opposition’s sake.
Since 1994 it has been proved that the Houses of the Oireachtas has had its hands tied in regard to investigating issues of public importance. This is something the public and politicians on all sides want. The only group of people who might have any degree of opposition to it are people in the Law Library; they currently benefit to a huge degree when it comes to investigating issues of public importance because the only recourse the Oireachtas has at present is the establishment of expensive tribunals. The challenge to certain elements of the Opposition is to come into the House and spell out what they want because I do not believe they know what they want.
I concur with some of the comments made by Deputy Sean Fleming on the importance of the need for the referendum to be framed in such a way that there is a “Yes” vote because as he rightly said, referenda have been presented to the people in a very convoluted way.
I take issue with what Deputy Catherine Murphy said. Just because I am a new Deputy does not mean that I was, in some way, cocooned from what was going on in this country for the past seven or eight years. It is a bit of an insult to newer Members of the Oireachtas that we are somehow not competent to or capable of asking probing questions, in particular in regard to how this country has wound up in the mess it is in today with a banking system which has collapsed and a public which has been left to shoulder the burden of billions of euro of debt. From that point of view, the newer Members of the Oireachtas may well be even more qualified to get stuck into this than some people who may be regarded in Deputy Catherine Murphy’s own words as having skipped a generation.
I agree with Deputy Mary Lou McDonald that these cannot be seen as quasi courts. She is quite correct that the only place justice can be administered in this Republic is in the courts. Unfortunately, in the recent history of this country, some people decided they would administer their own sort of justice, so I welcome her comments that there is only one court system in the country and that it and the Constitution it is governed by are respected.
There is a huge departure here in regard to non-officeholders being held accountable. As a previous speaker rightly said, up to now people could refuse to appear. The reality was that committees of investigation basically went nowhere and if one wanted to establish fact, one had to go to Dublin Castle and employ expensive lawyers. Deputy Paschal Donohoe is right that there are no Senator McCarthys here but people who are genuinely concerned about the people who elected them, to establish fact and to get to the bottom of things of significant national public importance.
There is an issue in regard to bias, at which the Minister is looking, and that people would declare an interest. We have a Oireachtas Joint Committee on Investigations, Oversight and Petitions, of which Deputy Peadar Tóibín is Chairman, so the establishment of these investigations will not be done with a wink and a nod. Rigorous procedure will have to be gone through and a resolution of the Houses of Oireachtas will have to be passed also.
Amending the Constitution for something like this is not something into which a government would just walk with its eyes closed. This is only the 30th amendment of the Constitution since 1937, so it is being taken very seriously. That said, the public appetite is for Members of the Oireachtas to do the job they were elected to do. In comparison to colleagues in other parliaments around the world, we are not doing that currently. We are not able to do so because we do not have the powers and the Constitution is silent on us being able to compel people to appear.
I welcome the Bill and hope it will be carried with a resounding “Yes” vote. However, there is a challenge for all Members of the Oireachtas to spell out clearly whether they are in favour of the current system or a system which is less bureaucratic, less cumbersome, cheaper, more effective and delivers a faster result to the public and can enhance democracy. If they do not want that, perhaps they should put forward their alternative.
Deputy Dara Calleary: I welcome the chance to speak on this important Bill and acknowledge the presence of the Minister of State, Deputy Ring, and the contribution made by our former colleagues, Sean Ardagh, and Jim O’Keeffe, in preparing much of the groundwork for the Minister, Deputy Howlin. Yesterday, the Oireachtas Joint Committee on Investigations, Oversight and Petitions met the Minister and, as I did then, it is only fair to acknowledge the work he has done and the great personal sacrifices he has made in going down this road over the years. Both the Minister and former Deputy Jim Higgins were the subject of many court actions which, at one stage, threatened to make them personally liable. Their work has evolved through various constitutional committees to get us here.
Our spokesman has already said we will support the Bill and the referendum but that does not mean we do not have quite considerable concerns about the framing of the legislation. I acknowledge the fact the Minister made himself available over the summer and that his officials made themselves available to brief us. However, I have an issue, which I raised yesterday in regard to the remuneration of judges referendum. We are rushing through a referendum Bill. Given the powers we are giving ourselves, rushing this Bill through in less than one week is not appropriate. It will be one of the things thrown at us by, as everybody said, the well-resourced opponents of this referendum. If the Oireachtas cannot have respect for Bunreacht na hÉireann, we cannot expect others to have it.
Yesterday, the Minister attended the Oireachtas Joint Committee on Investigations, Oversight and Petitions, as did Deputy Michael McCarthy, the Vice Chairman, and we had a relatively good discussion. A number of issues were raised which need to be teased out, including the referendum process. A referendum gives us the right to introduce legislation. I know the Minister has published relatively detailed draft legislation but there is nothing to stop the Government from changing that afterwards. It is not a good thing to align a referendum in that way. In going through the legislation yesterday, a couple of anomalies arose when we teased out with him the role of the Committee on Investigations, Oversight and Petitions. First, the committee will not be allowed to initiate an investigation in its own right. It will be the gate-keeping committee for every other committee to do investigations, which strikes me as strange.
Second, we have not clarified the relationship between the committee and the Oireachtas Commission. The commission runs and funds the activities of the Houses of the Oireachtas. It will be intimately linked with investigations, oversights and petitions. The IOP committee will have the ultimate say in deciding whether an inquiry goes ahead. It will also be responsible for deciding a budget for an inquiry, yet it will not have a budget itself. It will have to go back to the Oireachtas Commission for that purpose. There is still some fine tuning to be done to ensure that there are no delays or any breakdown in communications.
More importantly, the legislation will give significant powers to those the committee appoints as investigators, who will have the right to investigate any issue. Those rights are quasi-judicial. They will have a right to enter someone’s home, although they will have to obtain a District Court warrant and have a Garda with them. I welcome the fact that there can be no excuse for people not co-operate with an inquiry, but we must ensure a mechanism is in place so that somebody oversees the investigators. The bodies envisaged by the legislation may be fine corporate entities, but a malcontent working with them may abuse the powers we are conferring on them. Therefore, there needs to be a mechanism for somebody who feels aggrieved about the system to clear their name and deal with such aggravations.
We have discussed the issue of investigators, including the Comptroller and Auditor General which is the prime example given his relationship with the Committee of Public Accounts. What other bodies are envisaged as investigating bodies? If the Committee on Health and Children decides to investigate a major health issue — for example, the ongoing trend of hospital records being found dumped — will the HSE or the Department of Health investigate it? Or will we hire private investigators to do so? Those matters should be teased out during the campaign so that people can be assured about their own rights.
The Minister did not deal particularly well with the issue of partisan investigations, which may be initiated for party political motivation rather than anything else. The Government has a strong majority in this House and on every committee. There is nothing to stop an investigation going through its requesting committee and then going to the IOP committee where the Government has a majority. The Minister is at pains to say, and he is right, that there has been a tradition of bipartisanship in committee rooms, which still continues. However, a future Oireachtas may comprise very different people who may have no regard for the way things were done previously. They could thus use the powers we are conferring on them to pursue purely partisan ends.
When this matter was initially discussed, the House of Commons’ model was cited, including the investigation into telephone hacking. I have heard the name of the late US Senator Eugene McCarthy coming into the debate, although I do not know if he is a relation of Deputy Michael McCarthy. We must ensure that it will not happen here, but in fairness the people who opposed this kind of system have been living off him for 50 years.
In addition, there are many examples of successful parliamentary inquiries around the world. Deputy O’Donovan is right that we in the Oireachtas cannot take ourselves seriously without being granted the proper powers and resources to implement this system. If the people accept the referendum on 27 October, we must show them that this system will work and make a difference to their daily lives. It will change things that require change. If we have the necessary powers, as a result of the referendum being passed, yet do not use them, then we will have no right to seek re-election.
We will have a difficult super Thursday on 27 October given the referendums and presidential election. Voters in Dublin West will probably need a trolley for all the ballot papers. There is a danger, however, that discussion on this referendum will become lost. There is no doubt that a powerful and well-resourced lobby will oppose it for reasons not connected to parliamentary integrity and democracy, but to protect the status quo and cartels that benefit from the lack of power in the Oireachtas. We all have a role in fighting for this referendum and it should not just be the Government that is doing the heavy lifting. If we take our positions seriously as Members of the Oireachtas and want to make a difference to those whom we serve, it is incumbent on us to do so.
While we require clarification from the Government on various issues, the Oireachtas must do the heavy lifting collectively. We must treat the powers we are being given with respect and integrity. The 31st Dáil should lay down the templates for future Dála to follow in terms of how these powers are to be used.
Deputy Michael McCarthy: I welcome the opportunity to speak on this important legislation. From the outset, I wish to acknowledge the sterling work of former Deputies Seán Ardagh and Jim O’Keeffe in this area. I also want to remind the House of the risks taken by the current Minister, Deputy Brendan Howlin, and the former Deputy and current MEP, Jim Higgins, in challenging powerful lobbies. They put their reputations on the line in order to provide accountability and represent people effectively on this island as parliamentarians. This is a culmination not just of a very important part of the programme for Government, but also a vindication of a long-held objective of Deputy Howlin’s. I congratulate him on bringing it forward with such speed so early in the new Government’s term.
It is hoped that the investigations, oversight and petitions committee will be effective in investigating various issues and making findings. We know the genesis of the referendum was the Supreme Court’s judgment on Abbeylara. I cannot foresee any difficulty with the referendum being passed. We should bear in mind the good work done by the Committee of Public Accounts and its non-partisan approach. We should also be mindful of the great work that was done by the DIRT inquiry. It is an indication of the achievements that hopefully we will be able to obtain through the IOP committee.
It is a good thing to have an Opposition chair of that committee because it needs to be established on a strong footing and deserves no less. In that context, therefore, it is important to have an Opposition chair.
As vice-chair of the new Joint Committee on Investigations, Oversight and Petitions — the body which will be the gateway for future Oireachtas inquiries — I strongly support the passage of this Bill through both Houses. It will enhance and empower the role of the Oireachtas in respect of scrutinising the activities and decisions of certain individuals and organisations.
The publication on Monday of the wording on the upcoming referendum on Oireachtas inquiries is a welcome and progressive step as the Dáil and Seanad resume after the summer recess. It is a promising indication of this Government’s commitment to reform politics in this country and to reform the way Parliament operates. In particular, the Joint Committee on Investigations, Oversight and Petitions will be a pivotal player in this context, subject to the electorate approving the constitutional amendments on 27 October.
A key to an effectively functioning committee system is a committee’s ability to call and to compel witnesses. Having the power to compel specific witnesses and documents is of great operational and informational advantage. The legal basis by which committees can compel the attendance of witnesses is the Committees of the Houses of the Oireachtas Act 1997. This process is limited in two separate ways. First, individual committees cannot compel the attendance of witnesses but a sub-committee of the Dáil Committee on Procedures and Privileges, chaired by the Government Chief Whip, can do so. Therefore, the Government of the day has great influence over who can be compelled to give evidence to a committee, thus diminishing the influence, power and public perception of committees. I hope the new Bill will address these anomalies.
This Bill seeks to correct the weakened parliamentary system of inquiry brought about by the Supreme Court’s Abbeylara judgment, which stated that the Oireachtas could not conduct inquiries that impinged on the reputation of individuals. Ensuring that the Oireachtas has an effective system of inquiry which can secure effective and cost-efficient parliamentary scrutiny of issues of significant public importance is essential in facilitating more open, transparent and better government, as promised in the new programme for Government. This is a key element of the Government’s ambitious political reform agenda. We are all aware of the length of time taken by tribunals of inquiry to conclude their investigations and we are aware of the obstruction of those tribunals by certain individuals and organisations and also of the huge costs borne by the taxpayer for the tribunals. It was never envisaged that tribunals would continue for as long as they have done nor that they would cost so much.
There has been some confusion today relating to the process. It is important that people are made aware that the prior investigation carried out by the investigator to establish the facts will be carried out in private. In any event, as the Minister, Deputy Howlin, has rightly pointed out, we do not want to go down a route whereby inquiries are held in public, so-called, star chambers. This would disrespect the parliamentary process and serve to Americanise the process of parliamentary scrutiny whereby witnesses would become unwitting public figures who are unfairly subjected to levels of comment and scrutiny. The approach will be consistent with the DIRT inquiry model. It will help to control legal costs and it will reflect the approach taken by commissions of investigation. Above all, it will avoid a situation where an Oireachtas committee of inquiry committee might find itself in a potentially very long drawn-out process of establishing the facts, which a committee will not be equipped to do, rather than assessing and reviewing those facts through its examination of witnesses with a view to making findings and recommendations.
There has been some criticism from the legal industry today that the proposed amendment goes too far and could restrict the rights of citizens to fair procedures. It is easy to assume why such people would make this point but the current system has restricted the right of ordinary citizens to an effective inquiry system in the national Parliament. This is the only reasonable view with regard to this aspect. Powerful vested interests will not wish to see this system being successful.
The Law Reform Commission consultation paper in 2003 emphasised that the fundamental character of public inquiries is that they do not settle legal rights. They are intended to make an authoritative finding of the facts in regard to a matter of public interest. The consultation paper gives examples such as the cause of accidents, natural disasters or the performance of a public authority or big business. According to the Constitution, public inquiries do not administer justice, which is a function left solely to the courts of law.
The passage of this Bill and the subsequent approval of the constitutional amendment would be of immense benefit to the Joint Committee on Investigations, Oversight and Petitions as it will allow the committee to hold bankers to account for the collapse of the Irish economy. The people are entitled to see the architects of the current crisis held up to scrutiny by those who are elected to represent them. They want a parliamentary system with this power and authority, without the fear of recourse to the courts by those wishing to obstruct the inquiries.
Yesterday at the committee meeting I asked the Minister, Deputy Howlin, about the application of the Whip at the committee. I am pleased to say he informed me there will not be a Whip on the committee members. This will allow members of the committee the independence to adjudicate on matters in the public interest and the Government of the day will not have an undue influence on its deliberations. The committee needs that autonomy and independence.
I hope the Minister will be able to inform us of the budget for the committee. The Minister informed us that this committee would have a filtering role and would act as a gateway committee. However, we need to be certain that the committee will be empowered to initiate its own inquiry when needed. This is a very important function. I hope these views can be accommodated by the Government during the passage of this Bill.
Deputy Peadar Tóibín: Much of the frustration that has been generated in Irish society over the past number of years has been caused by the instances where Irish people have been cheated of justice. Elite individuals and organisations who have done wrong have got off scot-free and have not been held to account. The fate of these elites is in sharp contrast to the fate of average citizen who more often than not undergoes the full rigours of the law if he or she transgresses the law in even a minor way.
With regard to the banking crisis, justice has been denied and those responsible have not been held to account. In other instances, such as the Moriarty, Morris and Mahon tribunals, justice has been very costly in some cases, with a total of €0.5 billion at the last count. In some cases they have been toothless while others have been very slow in their deliberations.
The Oireachtas has been seen to be ineffectual in the case of Abbeylara. The elected representatives of the day found themselves hamstrung by the Supreme Court findings that the Oireachtas does not have an inherent power to conduct inquiries. During current committees investigations, requests for information are often to no avail, and information volunteered is not always accurate or complete. In such circumstances, the Oireachtas is left without the necessary information it requires to carry out effectively its legislative and accountability function. This situation necessitates a means of compelling disclosure.
The proposal that the Oireachtas should have express constitutional power to undertake in-depth inquiries, exercised through its committee system, is the most significant Oireachtas reform in modern times. The power to require a person to attend before the committee of inquiry to answer questions and the power to compel disclosure of relevant information and production of documents, as necessary, for the purpose of the inquiry, will radically change the balance of rights between the citizens and the State. As such, this constitutional amendment and the associated legislation demands serious and detailed consideration by this Oireachtas and by the people.
As Cathaoirleach of the newly created Joint Committee on Investigations, Oversight and Petitions, I believe that adequate reform in this area can radically improve the democratic function of the Oireachtas. There can be significant benefits to public policy from the operation of an effective system of parliamentary inquiry. This proposal could radically empower the Oireachtas to hold individuals to account. The investigation of strategic and systemic problems can lead to improved legislation in the future. However, in situations where the rights to natural justice of an individual are being rebalanced in order to provide for effective and timely justice for the State, it is of the utmost importance that everything is done in advance to provide the necessary individual safeguards.
Under this legislation, the Committee on Investigations, Oversight and Petitions will play an important role in Oireachtas inquiries if the constitutional amendment is approved by the electorate in the forthcoming referendum. We will have to give careful consideration to such questions as what Oireachtas inquiries are meant for, which type of matters should be inquired into, how the public interest test will be applied and how the constitutional rights of witnesses and others affected by parliamentary inquiries can be safeguarded in the exercise of the new powers.
As with most constitutional issues, the debate revolves around the balance of conflicting rights and the devil is often in the detail. I have misgivings about the fact that the rights which will be afforded to citizens will not be determined by the text of the constitutional amendment but by legislation which could change over time. There is not enough of a brake on the potential erosion of rights contained within the text of the amendment. I understand there is a view that Article 43 of the Constitution will safeguard these rights but we need to copperfasten citizens’ rights. I second the amendment proposed by my colleague, Deputy McDonald, to strengthen the constitutional amendment from the perspective of the rights of the individual.
Serious risks are inherent to the proposed process, including the potential loss of a person’s right to cross-examine someone who has made allegations concerning him or her, risks of prejudicing subsequent criminal proceedings and risks of the quasi-judicial process being contaminated by political bias. If these issues are not resolved before the amendment is passed, they will lead to multiple High Court challenges and the possibility that the issue will have to be revisited with another constitutional amendment, thereby incurring additional costs and exacerbating the ineffectiveness of the Oireachtas in the interim.
It is important that we consider providing Oireachtas Members with a level of indemnification against the legal costs that may arise in the event of High Court challenges. Certain Deputies have in the past been required to meet legal costs out of their own pockets or else ask their parties to indemnify them.
It is pivotal to the proposed investigation system that it be public by default. Certain investigations, such as the Cloynes inquiry, are undoubtedly best undertaken in private but technical investigations should be held in public where an individual’s right to a good name is not under threat. If necessary, the relevant committee could decide to hold its investigation in private but transparency is the default mode to which all democratic functions should aspire.
The legislation envisages establishing the Committee on Investigations, Oversight and Petitions as a clearing house for investigations which does not, however, possess the power to carry out investigations in its own right. This is a mistake. A number of my colleagues from both sides of the House were shocked to learn that the committee would not have a role in investigating itself. The committee should follow the example of the Committee on European Scrutiny. Most investigations could probably be forwarded to relevant committees where the competency exists to deal with the issues arising. However, investigations which are cross-departmental in nature or are of systemic importance to society should be the responsibility of the Committee on Investigation, Oversight and Petitions. I urge the Minister to reconsider this aspect and develop the requisite infrastructure. I acknowledge that he does not believe it is possible under current legislation for the committee to set the criteria for inquiries as well as conduct an investigation, but there are precedents for such a system both internationally and in the Houses of the Oireachtas. Clarification is also needed on the powers given to the new committee to compel other committees to stay within their terms of reference. If another committee operates outside of its terms of reference, a mechanism must be available to compel it to change its behaviour.
The proposed constitutional amendment has the potential to provide radical and valuable reform but it must also respect the rights of citizens. The Houses of the Oireachtas and the people of Ireland need to focus on the latter as their primary concern when they debate the proposed measures. No previous constitutional amendment has gone as far in terms of rebalancing citizens’ rights and I urge the Government to accept the amendment proposed by Sinn Féin.
Deputy Jerry Buttimer: I commend this Bill to the House and acknowledge Deputy Tóibín’s insightful contribution. This proposed amendment to the Constitution forms part of the Government’s package of reforms. Yesterday we debated the Judiciary, while today’s deliberations were necessitated by certain litigious lawyers who have made their fortunes from taxpayers’ money spent on tribunals of inquiry. What was intended as an effective mechanism for investigating matters has become a cumbersome gravy train. A certain coterie of people have benefited from our tribunals, and that has to stop.
The ability of the Oireachtas to inquire into matters of fact and make determinations has developed in an ad hoc manner and at significant cost to the taxpayer. The Committee of Public Accounts has demonstrated through its DIRT inquiry that it can investigate matters in a fair and balanced manner. Its reports into the procurement of legal services by the State have revealed that three tribunals of inquiry cost €366 million. The Comptroller and Auditor General reported that the Moriarty tribunal alone will cost in excess of €113 million. Clearly, the State has paid out an inordinate amount on tribunals of inquiry.
The proposed amendment to the Constitution aims at providing a much needed alternative to the current expensive model. The Oireachtas and, more importantly, the people need a system of inquiry which is efficient, based on facts and permits the development of necessary policies in a timely manner.
In November 2009, Cork was ravaged by floods. Quay walls collapsed, bedrooms were flooded and cars were carried along the city’s streets. Water supply to half the city was interrupted. However, we lacked an efficient system of inquiry to investigate the causes of and responses to this devastation. The Oireachtas Committee on the Environment, Heritage and Local Government issued a report on the flooding but instead of setting out the causes of the disaster it merely called for a second legally binding inquiry. The Department of the Environment, Heritage and Local Government reviewed the issue and Cork City Council received a report from its city manager. Despite all these investigations, the people of Cork have not yet received a proper answer. The committee subsequently conducted a review of the response to the severe weather events of 2009 and 2010 and published another massive tome which offered little by way of answers to those affected.
The State clearly lacks a proper system of inquiry which would not incur hefty legal expenses. The constitutional reforms proposed by the Minister would provide the basis for implementing such a system. The people, and their parliamentary representatives, must be able to get answers. I welcome this proposal and, in particular, the Minister’s comments regarding change, effective governance and holding Government to account. If the proposal is accepted by the people by way of referendum, Members on all sides of the House will have an opportunity to participate in meaningful inquiries into matters of genuine public importance. With that power will come a responsibility to uphold constitutional principles. Those participating in any inquiry must be unbiased in their approach and devoid of a desire to grab headlines. If investigations are to be thorough, there may be a need to reconsider the operation of the party Whip system in respect of inquiries. In that context, I urge the Minister to consider the Committee of Public Accounts as a model of operation for parliamentary inquiries under this proposal. I commend the Bill to the House.
Deputy Billy Timmins: The genesis of this Bill is the judgment of the Supreme Court following the attempts by the Oireachtas to investigate the shooting of John Carty at Abbeylara. I take this opportunity to extend my sympathy to the Carty family on this sad and tragic affair.
Deputy Jerry Buttimer referred to the cost of various ongoing tribunals. Several months after I was first elected to the Dáil in 1997, the Flood tribunal was established. Fourteen years later, its successor, the Mahon tribunal has not yet completed its investigations. If I were to propose today that we set up a tribunal which might issue its final report in 2025, Members would advise that the issue be parked. It is important that the Mahon tribunal should bring its final report into the public domain without delay. There were recent reports in the media that it would be held off until after the presidential election and by-election. There will always be a reason to delay publication of such reports, but they should be issued regardless of the political consequences. I call on the chairman of the Mahon tribunal to publish the report as soon as it is ready.
While I support the concept of the proposal before us today, I urge caution. I recall listening to the contributions at the initial stages of the Oireachtas inquiry into the events at Abbeylara and being somewhat concerned at the tenor and approach of some of the questioning. While I am supportive of the Bill, I have slight reservations regarding the concept of turning this House into a quasi-judicial chamber. We must have expertise at committee level. Notwithstanding the Government’s attempts to reform the Oireachtas committee system, I am not heartened by what I have seen in recent weeks. The system remains cumbersome and individual committees have too many members. For example, representatives of one of the banks appeared before a meeting of the Joint Committee on Finance, Public Expenditure and Reform yesterday. I did not contribute at the meeting, which went on for four or five hours, and I am not sure whether any valuable information was elicited. As politicians, we sometimes strive to get the soundbite and associated publicity and, in so doing, fail to get to the kernel of the matter. We must ensure the investigative bodies arising from this proposal can work effectively.
Another example that causes me concern is the recent inquiry into certain activities of the former Senator, Mr. Ivor Callely. While one would at first glance have to say that what he did was wrong, it was not edifying to see members of the committee out on the plinth posing for the cameras. One can not simultaneously be judge, jury and self-publicist. All Members must take their investigative function seriously; it is not about publicity but about ensuring fair play. I was concerned at the approach of that committee to what was a very serious matter with serious consequences for a fellow Oireachtas Member.
As a member of the Army I served on several occasions on the boards of courts martial. I often felt on such occasions that we did not have the expertise to do what we were supposed to do and that the rights of the individual being tried by court martial were not properly defended. That has changed in recent years and the system has greatly improved. In the case of parliamentary investigations, if we bring an individual, organisation or Member before an inquiry, we must ensure it is done right. We do not want a charter for the legal profession where everyone and anyone will have legal representation.
The Abbeylara investigation was succeeded by the Barr tribunal which produced a very good report within a short timeframe. It is important to realise that parliamentary inquiries are not the be all and end all. If the referendum is passed, we must take the time to consider in detail the committees of the Houses of the Oireachtas (powers of inquiry) Bill. Before that, the referendum commission must explain in a clear manner the pros and cons of this proposal. I am not entirely sure the public wants to go down the road that we in the Oireachtas do in this regard. The public must be fully aware of what it is being asked to vote for. What is proposed may seem, prima facie, like a simple, straightforward solution, but we must bear in mind that as well as successes such as the late Jim Mitchell’s oversight of the DIRT inquiry, there have also been many failures. We must not have a situation where citizens or organisations suffer as a result of such failures.
Deputy Mattie McGrath: I am pleased to have an opportunity to contribute to the debate on this proposal. I take this opportunity to express my sympathy to the family of the late John Carty. There has long been a demand for an effective system of parliamentary inquiry to deal with such matters as the tragedy that occurred at Abbeylara. However, like Deputy Billy Timmins, I urge that we tread with care. I was particularly interested in Deputy Timmins’s comments regarding his experience of Army courts martial. It is unfortunate that this proposal is being rushed through the House because of the election deadline. We must get this right because if we fail to do so, we may deny justice to somebody.
The public is yearning for an inquiry system that is effective and which also embodies openness and transparency. The tribunals have been nothing short of a farce, sitting for too long and at great financial cost with too little to show for it. Some have cost hundreds of millions of euro but nobody can lift their reports let alone read them. The DIRT inquiry was an example of an Oireachtas inquiry which did good work in an efficient manner. Deputy Jerry Buttimer referred to the Whip system. I was a member of a committee in the last Dáil which sought to extend the remit of the lost at sea scheme. Although I was outside the Whip by that time, it was clear that members of the Government parties were under great pressure to support Ministers no matter what they did. Without casting aspersions on anybody, I am concerned that in a situation where the Whip is applied in respect of parliamentary inquiries, this Government’s huge majority will mean we do not get a fair and unbiased result.
The recent changes to the committee system are silly, leaving us with individual committees whose membership is too large and structure too unwieldy. I was a member of both the agriculture and communications committees in the last Dáil, which have now been amalgamated into one. That type of cumbersome structure makes it more difficult to conduct effective inquiries. There is an obligation on the State to be accountable to the public in these matters.
I hope we get it right. The public wants to see Oireachtas committees doing their job. As other Deputies stated, it is unthinkable in this day and age that when a serious matter arises in this country in respect of which we want to examine the costs in terms of damage and so on, we cannot hold a short, fast inquiry. The very mention of the word “tribunal” is an anathema to most people because of the abuse of tribunals by barristers and others, who hijacked them, and because of the high rates allowed by the taxing master, which were untenable. I am sure we are being watched with envy by members of the Law Library in regard to our debate on this legislation.
Yesterday, I along with other Independent colleagues, attended a briefing on this legislation which left me unsure about it. With no disrespect to the official concerned, what I learned from that briefing is that officials draft Bills and that politicians who must vote and enact them have little input into them. The official had to correct himself a number of times in terms of assumptions and belief that the Cabinet would pass the Bill and so on. I knew from his body language and statements that it is officials who draft Bills. They are not accountable to anyone. We are accountable to the public and rightly so. We must make haste slowly.
Deputy Thomas Pringle: I welcome the opportunity to speak on the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011. This Bill is an attempt to overcome the Abbeylara judgment which prevented the Oireachtas from carrying out effective investigations into matters of general public importance. There is no doubt but that all Members of this House want Oireachtas Committees to have the ability to carry out inquiries. The public expect we should be able to do so. I believe it is a vital part of a functioning democracy that the Oireachtas should carry out investigations.
We are now three years on from the collapse of the banking system in respect of which investigations are dragging on and on. The people do not believe anyone will ever be held to account for the destruction of our economy. The Supreme Court judgment in the Abbeylara case ensured that the Oireachtas could not inquire into matters it wished to investigate. The wording of the amendment deals largely with the issues in the Supreme Court judgment. However, I am concerned about the issue of bias. The judgment deals with the issue of institutional bias. That is where the Houses of the Oireachtas are in themselves inherently biased. I can foresee a situation whereby a Government with a large majority could commence inquiries for political ends, in respect of which institutional bias could again arise.
I am concerned about objective bias, namely, an individual member of a committee of inquiry being challenged as being biased. I believe this could possibly arise based on their comments in this House. Such words could be claimed to indicate a bias even though they may not relate to the particular issue being inquired into. Is prior political stances on the HSE or banks evidence of undermining a fair and balanced hearing and an assessment of evidence being presented into an inquiry? I imagine that there will be extensive debate in the House on matters of public importance before a decision is taken on whether to establish a committee of inquiry. This issue could therefore arise.
One of the judges involved in the Abbeylara judgment stated that a committee member in such an inquiry may not sit, if in all the circumstances, a reasonable person has reasonable apprehension of bias, namely, an apprehension that the committee member might not bring an impartial and unprejudiced mind to the hearing. This would refer to considerations relating to matters prior to the establishment of the committee. I can foresee a situation whereby people with financial power who are being inquired into could take the committee to court to have members removed because of objective bias. The wording of the proposed referendum does not address this issue.
I appeal to the Minister to come up with a formula to ensure this will not happen. The taking of an oath by committee members on commencement of an inquiry may overcome the issue of bias. When appointed, members of the Judiciary take an oath and the issue of bias in their work does not arise as they take their roles and responsibilities seriously. I am sure that Members of this House will treat such a matter with equal seriousness and will treat the work of such committees with the importance demanded.
I support the legislation. I ask that the issue of bias, in particular objective bias, be addressed by the Minister prior to further Stages of this legislation passing through the Oireachtas. I also suggest that we take more time to tease out all of these issues so as to ensure they are fully clarified prior to putting the referendum before the people. I have no doubt that the people of Ireland would be happy, should it be necessary to continue this debate further, for this referendum to be held on a date other than that on which the Presidential election will be held.
Minister of State at the Department of Foreign Affairs and Trade (Deputy Lucinda Creighton): In the absence of the Minister, Deputy Howlin, I will conclude the debate. I thank Deputies for their contributions on the Bill. A number of issues that merit consideration have been raised and I have no doubt but that the Minister will consider them. The issue of potential bias, as raised by Deputy Pringle, is a legitimate one. Deputy Timmins also raised the important issue of the distinction between the Legislature and the Judiciary and the need to ensure the fine line in terms of separation of powers is not crossed or breached. That is an enormous responsibility for this House, which the Government takes seriously, one that is factored into the detail of the legislation as drafted. However, there will be further opportunity to re-examine some of these matters as the Bill continues its passage through the Houses.
|Adams, Gerry.||Bannon, James.|
|Barry, Tom.||Broughan, Thomas P.|
|Burton, Joan.||Butler, Ray.|
|Buttimer, Jerry.||Byrne, Catherine.|
|Byrne, Eric.||Calleary, Dara.|
|Carey, Joe.||Coffey, Paudie.|
|Collins, Niall.||Conlan, Seán.|
|Connaughton, Paul J.||Conway, Ciara.|
|Coonan, Noel.||Creighton, Lucinda.|
|Crowe, Seán.||Daly, Jim.|
|Deering, Pat.||Doherty, Pearse.|
|Doherty, Regina.||Donohoe, Paschal.|
|Dooley, Timmy.||Dowds, Robert.|
|Doyle, Andrew.||Durkan, Bernard J.|
|Ellis, Dessie.||English, Damien.|
|Feighan, Frank.||Ferris, Anne.|
|Ferris, Martin.||Fitzpatrick, Peter.|
|Flanagan, Charles.||Flanagan, Terence.|
|Fleming, Sean.||Griffin, Brendan.|
|Harrington, Noel.||Harris, Simon.|
|Heydon, Martin.||Howlin, Brendan.|
|Humphreys, Kevin.||Keating, Derek.|
|Keaveney, Colm.||Kehoe, Paul.|
|Kelleher, Billy.||Kelly, Alan.|
|Kenny, Seán.||Kirk, Seamus.|
|Kitt, Michael P.||Lawlor, Anthony.|
|Lynch, Ciarán.||Lyons, John.|
|Mac Lochlainn, Pádraig.||McCarthy, Michael.|
|McConalogue, Charlie.||McDonald, Mary Lou.|
|McEntee, Shane.||McFadden, Nicky.|
|McGrath, Michael.||McGuinness, John.|
|McHugh, Joe.||McLellan, Sandra.|
|McLoughlin, Tony.||Maloney, Eamonn.|
|Martin, Micheál.||Mathews, Peter.|
|Mitchell, Olivia.||Mitchell O’Connor, Mary.|
|Moynihan, Michael.||Murphy, Dara.|
|Nash, Gerald.||Naughten, Denis.|
|Neville, Dan.||Nolan, Derek.|
|Ó Caoláin, Caoimhghín.||Ó Cuív, Éamon.|
|Ó Fearghaíl, Seán.||Ó Ríordáin, Aodhán.|
|Ó Snodaigh, Aengus.||O’Brien, Jonathan.|
|O’Donnell, Kieran.||O’Donovan, Patrick.|
|O’Dowd, Fergus.||O’Mahony, John.|
|O’Reilly, Joe.||Phelan, Ann.|
|Phelan, John Paul.||Rabbitte, Pat.|
|Reilly, James.||Spring, Arthur.|
|Stanley, Brian.||Timmins, Billy.|
|Troy, Robert.||Tuffy, Joanna.|
|Varadkar, Leo.||Wall, Jack.|
|Boyd Barrett, Richard.||Collins, Joan.|
|Daly, Clare.||Fleming, Tom.|
|Lowry, Michael.||McGrath, Mattie.|
|Murphy, Catherine.||O’Sullivan, Maureen.|
|Pringle, Thomas.||Ross, Shane.|
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