Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011: Committee and Remaining Stages

Tuesday, 20 September 2011

Dáil Éireann Debate
Vol. 740 No. 3

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An Leas-Cheann Comhairle: Information on Michael Kitt  Zoom on Michael Kitt  Before Committee Stage commences, I would like to deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment, which is contained in the Schedule to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with long-standing practice, consideration of the sections is postponed until consideration of the Schedule has been completed. Is that agreed? Agreed.

Tairgeadh an cheist: “Gurb é an Sceideal an Sceideal a ghabann leis an mBille.”

Question proposed: “That the Schedule be the Schedule to the Bill.”

Deputy Catherine Murphy: Information on Catherine Murphy  Zoom on Catherine Murphy  Tairgim leasú Uimh. 1:


I move amendment No. 1:

This is quite a long amendment.

Deputy Brendan Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Tá sé as Gaeilge agus as Béarla.

Deputy Catherine Murphy: Information on Catherine Murphy  Zoom on Catherine Murphy  Yes. I am not a great believer in putting a whole lot of things into the Constitution. Having said that, if we are going to have these things in the Constitution, safeguards have to be in place. If primary legislation were to be used to describe and set the rules in this regard, it could be changed. I have concerns about some of the things we are doing in this respect. I am attempting to address some of those concerns in this amendment. The phrase “having regard to the provisions of this Constitution” is a key one in this amendment. In the absence of such a wording, there is no safeguard to ensure that any use of Oireachtas inquiries must have due “regard” to other rights enshrined in the Constitution as a whole. I have real concerns about that.

We need to give clear directions to the Judiciary. Our job is to make legislation and the job of the Judiciary is to interpret it. We have to provide clear instructions. The ability of the Houses of the Oireachtas to conduct inquiries does not over-ride any provision in the Constitution. We need a wording that ensures the protection of the Constitution can be invoked if any portion of the new powers being bestowed on the Oireachtas is applied in a manner that is contrary to the spirit of the Constitution.

[773]It is important to make it clear that we respect the constitutional rights of the citizens of this country. We are not in dispute about the fact that this is being done in the common good — we are considering what the Bill actually says. When this amendment to the Constitution is put before the people and passed by them, 20 years might pass before the need to use it arises. It will not necessarily be used by this Government, which has a large majority. That is part of the reason I am proposing that any inquiry be approved by 90% of Members. Any reference to the Oireachtas should mean precisely that — it should not mean that the Executive more or less decides the terms of reference of an inquiry.

I will give an example. There were terrible abuses in the planning system some years ago. Material contraventions would be passed by one part of a county and all that kind of stuff. It was essentially decided that two thirds of councillors had to vote in favour of a material contravention. I think that has worked very well. It has got broad agreement. That is really what we should be trying to achieve.

There should not be a presumption that the Opposition will oppose something that may be in the national interest. The inquiry system should not be used frivolously. It should be used occasionally and in a thought-out manner. If it is over-used, its value may well be reduced. That is why I have provided for a number. I was trying to achieve a degree of inclusiveness within the Houses of the Oireachtas.

I have referred to the key line, “having regard to the provisions of this Constitution”. A number of sections of the Constitution, including Articles 43.1, 43.2, 34 and 39, need to be read side by side with this. However, it is not at all clear that is what is intended. I am not satisfied the legislation is sufficient, separate from the Constitution, from that point of view.

On the intention not to impose criminal sanctions, it should be explicitly stated that there is a limit to the consequences of the findings that any inquiry can make. It is important that we make it clear that we do not cross the line between civil and criminal sanctions. That is something that could be open to interpretation and I also have concerns about that.

  6 o’clock

It is vital that the right to appeal, even a judicial review of something, is enshrined in the Constitution. What was intended, if I recall the briefing correctly, is that the only matter on which the courts could adjudicate was the issue of natural justice. I accept that in the briefing we were told it was intended this would have to be an issue of serious importance. It is about ensuring that there is trust among the citizens of this country and certainty about the laws we pass, particularly when they relate to matters we ask the people to put in the Constitution. We must then provide the laws around which to make the rules. The people must have certainty. After all, the Constitution is the cornerstone of the legal system. We have an obligation to put safeguards into the wording, if it is to give the kind of certainty the citizens of this country deserve.

That, more or less, is a broad brush stroke of what I intended in framing this amendment. I have difficulty with the Bill outside of that and I have made that clear throughout the debate.

Deputy Brendan Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I thank Deputy Catherine Murphy for the amendment and for the clear exposition of her position.

I regret that I did not have a chance to respond to Second Stage, the way it fell last week. I want to say a few words about the genesis of this proposal. Anybody who knows me over time will be aware that I am interested in the development of Parliament and the re-balancing of the powers of Parliament and of the Executive. The Executive has dominated Parliament for too long in this country.

One of the roles of this Parliament, both Houses, is to hold the Executive to account. It seems that in the past, parties in Opposition have always wanted to strengthen the hand of [774]Parliament and to weaken the relative power of the Executive and as soon as they get into power they abandon that principle. It is to hold true to that principle that this proposal and many more come from this side of the House.

The genesis of this is that I believe in the right of Parliament to make inquiries. I was involved in several inquiries in this House. I was also involved in the Abbeylara committee that was struck down. One can have views on whether it was appropriate to have an inquiry into that instance, but the Oireachtas said, “Yes”, and we set it up. What happened as a result is that the very power of the Oireachtas to hold any inquiries, basically, the intrinsic inherent power of Parliament to hold inquiries, was questioned by the courts and, in fact, found to be wanting because there was no implicit power in the Constitution to hold inquiries. That made it virtually unique among parliaments.

All parliaments have to hold Ministers to account and have to hold inquiries into matters of public importance, and we need to restore that. The crafting, the “how” of that, was subject to a year’s debate within the previous Dáil on the Joint Committee on the Constitution chaired by former Deputy Ardagh. That involved a thoughtful process, with all parties involved and bringing in legal experts.

We did not want to replicate a tribunal system in the House which would take years, that could be frustrated and that needed a re-balancing of the public interest against the private interest of individuals who, if they had access to enough lawyers, could frustrate for ever the culmination of an inquiry. That is a careful balance to strike because one does not want to have an oppressive system. The words that we crafted carefully, I believe, achieve that balance.

Later we will deal with Deputy McDonald’s thoughtful amendment, about which I have been thinking since I read the Second Stage contributions and much of the learned opinion about it, and I want to set out my case in that regard.

To deal with the amendment before us directly, I commend Deputy Murphy on a fine attempt. It is not an easy matter to craft a constitutional amendment. I have the help of the Attorney General and the legal officers of the State in my efforts to do it. Honestly, I do not believe what she has produced will do anything to allow us to hold inquiries. For a start, I understand what she means when she states that it should not be a simple majority of the House that would determine it, but the notion that one needs 90%, in other words, a blocking minority of one tenth of the membership, means that one would never have an inquiry. A blocking minority could be directly involved in the inquiry.

Parliament would not work on that basis. We elect the Taoiseach by simple majority. The highest hurdle in the Constitution currently is the process to impeach the President. It requires only a two-thirds majority to impeach a President, which is an overthrowing of the vote of all of the people of the country. That is the highest hurdle by far. We can dismiss judges of the superior courts with a simple majority. That is the way parliament works in virtually every jurisdiction — there are exceptions in some jurisdiction for good reason. To do as Deputy Murphy suggests would frustrate any form of inquiry.

Deputy Murphy made a number of specific points. On the point that it should not impose criminal sanction, it is out of the question for any committee of this House or this House to impose criminal sanctions. The separation of powers is crystal clear in the Constitution and that would not arise in any event.

Clause 5° of her proposal, on having the right of appeal, is implicit in the Constitution. She was correct to mention other articles of the Constitution which enumerate all citizens’ rights, many of which have been the subject of very careful analysis by the courts over decades. They will not be dislodged in any iota by the proposals we are inserting. The fundamental principle [775]of constitutional justice is that this new section must be read, to use not a legal term but the term lawyer’s use, harmoniously with other enactments. For example, the well established clear rights to due process and fair procedures given under the Constitution in Article 40.3 are implicit in this process, are not dislodged in any way by it. Anybody can go — not at the end of the process but at any time in the process, beginning, middle or end — to have his or her good name vindicated in the courts, to have it checked.

We have sought to have in that mix, when that adjudication is taking place, that the public interest be weighed into the balance as opposed to the exclusive notion of the rights of an individual — sometimes the rights of the individual might run counter to the public interest — only in this narrow way to ensure effective inquiry. It is a very limited re-balancing of procedural rights that would flow from our proposals.

This constitutional amendment, in its totality, does a few simple things. It gives explicit right to the Houses of the Oireachtas, either individually or collectively, to hold an inquiry into a matter of stated public importance. It addresses the issue of specific authority and objective bias. It allows individuals to be investigated in such a matter or their conduct to be investigated in such inquiries, and it allows conclusions to be drawn. All of that, in terms of the rights of individuals, is subject to their inalienable rights, not only under the Constitution but under international law to which we are subject as well. In fairness, on the argument that this pushes too much the way of the Oireachtas, my fear is that at the end of the day it will not be far enough in the way of the Oireachtas. It is an important start to allow for proper inquiries here such as those which take place in virtually every other jurisdiction.

The Deputy made several other points, including one on procedures. This matter was raised on a television programme last night with regard to the terms of reference. The Government — we are collectively agreed on this — is keen to strengthen the arm and the hand of Parliament. Contrary to what was said by some people externally, the terms of reference of any inquiry will not be determined by the Government. I understand my officials will brief the oversight committee tomorrow on the process and procedures to be followed. I have gone before it and explained the draft heads of the Bill.

Let me explain the process. A committee of the House, whether of an individual House or both Houses, will determine that a matter is of such public importance that it must be investigated. For example, it could be an issue to do with the health service or something else and the relevant health committee would make its case to the oversight committee. Then it would be exclusively a matter for the oversight committee to determine whether the case had been validly made and whether the issue merited an inquiry. I agree fundamentally with the Deputy. This would not be a regular occurrence. The oversight committee would set the terms of reference. The committee is chaired by a member of Deputy McDonald’s party. I indicated last week that it should not operate a Whip on the basis of this important work. There would be no veto or inputs from the Government; it would be a matter for the Houses to determine the matter. That committee would set the parameters in respect of expenditure, lawyers and costs in terms of what could be paid to lawyers and so on. Eventually the matter would be presented to the House which would make a final determination. In a case where the oversight committee said “No”, that would be the end of the matter and there would be no appeal beyond this, as I explained last week. The process is very much in the domain of the Houses for the first time and it will work out well.

The heads of the Bill are carefully crafted in all its steps to achieve this end. The words in the Schedule under debate are to the effect that each House shall have the power to conduct an inquiry or an inquiry with the other House in the manner provided for by law into any matter stated by the House or Houses concerned to be of general public importance and that [776]in the course of any such inquiry the conduct of any person, whether a Member of the House, may be investigated. These are the issues which arose during the Abbeylara judgment, as well as whether the authority was explicit to inquire into people who were not Members of either House. We are putting the matter beyond doubt. This may be investigated and the Houses concerned may make findings in respect of the conduct of the person concerned concerning the matter to which the inquiry relates. The only issues it may examine or the only findings it may make relate to the conduct related to the issues under investigation.

The final area I propose to amend for the avoidance of doubt outlines that it is implicit in due process that fair procedures must be applied. All legal advice I have suggests as much. However to be explicit I will recommend to the House that we include it in the Constitution. The words are to the effect that it will be for the House or Houses concerned to determine the appropriate balance between the rights of the person and the public interest for the purpose of ensuring an effective inquiry into the matter to which subsection (2) applies. The balancing between individual rights and the public interest carried out by the House relates only to ensuring there is an effective inquiry into the matter. It is a narrow balancing that must be carried out. It will be an important advance for the Houses of the Oireachtas.

I am keen to allow sufficient time to deal with the other amendments because they are important and I have no wish for there to be any confusion in the public domain after this debate. For reasons I will explain I do not propose to accept Deputy Murphy’s amendment. I do not believe objectively it meets the requirement to have a robust inquiry system. It would ensure simply that the system would not work.

This new avenue of inquiry which, please God, will be available should the House in the first instance and the people in the second instance vote for it will be only one means of public inquiry. There could still be a formal tribunal or an investigation under the 2004 Commissions of Investigation Act which was used for the Murphy tribunal or it could be this model. It will be a matter for the Houses to decide which is the best vehicle to serve the public need for inquiry.

By way of completeness, the process will involve a private investigation of facts and fact-finding in the first instance. It will be analogous to what happened during the DIRT inquiry when the Comptroller and Auditor General gathered the information objectively and in private and that was the basis for the inquiry. It would be up to the oversight committee to appoint or recommend the appointment to the House of an investigator which could be the Comptroller and Auditor General or the Ombudsman, who may have something to say about several matters, as we have seen. Her conclusions could be the basis for an investigation. It could be one of her routine reports. I have held discussions with the Ombudsman on this matter. Depending on the area involved, it could be a medical or legal expert who would carry out the fact-finding and that could be the basis for objectively presenting the evidence that would form the core briefing document or the body of evidence that could be the basis of the inquiry. This should be a reasonable and fair process. It is carefully balanced and I hope the Deputy will be convinced not to pursue her amendment and that the merits of the amendment I have asked the House to support are clear.

Deputy Catherine Murphy: Information on Catherine Murphy  Zoom on Catherine Murphy  While I accept the Minister has made strong arguments in defence of the position to which he has come after long deliberations and a great deal of advice, I continue to hold serious concerns and do not believe my concerns are addressed.

Deputy Brendan Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  What specifically are they?

[777]Deputy Catherine Murphy: Information on Catherine Murphy  Zoom on Catherine Murphy  The point about the 90% figure and the process to which the Minister referred is helpful. I recall being at a Whips meeting some weeks ago at which I argued against something. I was told this was the way it was going to be, that the Government had the numbers and that that was the way it worked. The problem is that it is a numbers game.

Deputy Brendan Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I have specifically designed this in order that it cannot be a numbers game. However, we cannot have the tyranny of the minority either. The tyranny of the majority is one thing, but the notion that a 10% minority could overrule a 90% majority is worse because it would be a negation of fundamental democracy.

The construct of this inquiry system is taking away from the Government. I remember trying to craft the terms of reference of the Morris tribunal which, remarkably, examined my conduct as a Member and that of the then Deputy Jim Higgins but which excluded the conduct of the then Minister for Justice. It is to get away from such occurrences that I propose that it should not be the Executive that would make the decision but a committee of the House in a public forum.

Deputy Catherine Murphy: Information on Catherine Murphy  Zoom on Catherine Murphy  I wish to make one final point on the explicit use of the term “having regard to the other provisions of the Constitution”. I am concerned that in the absence of stating as much an interpretation is possible that it is exclusive to this rather than looking at the totality. This is a serious concern for me.

Deputy Brendan Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Let me deal with that issue front-up because it is a simple matter. It is an absolute established convention that all articles of the Constitution must be read harmoniously. It is the same in law with the Interpretation Act. This determines how law is interpreted across potentially conflicting statutes. The Constitution must be read harmoniously. There is no doubt that the established rights under Article 43 of the Constitution on fair procedures must be vindicated. Equally, there is no doubt that every citizen has the right of access to the courts to have the point tested. I am proposing an amendment which I am legally advised is unnecessary but which I propose to make for the sake of absolute clarity and to address an issue fairly made by Deputy McDonald. The amendment will write the clause on fair procedures into the constitutional amendment itself.

Deputy Catherine Murphy: Information on Catherine Murphy  Zoom on Catherine Murphy  While I will not press the amendment, I cannot agree with what has been put forward. I will reserve my position on opposing the legislation.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

Deputy Brendan Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Tairgim leasú Uimh. 2:

I move amendment No. 2:

This is a technical amendment which relates to the Irish translation of subsection 3° of the Schedule. In this subsection, the term “fiosrú” is used to translate the word “investigate”. This is likely to cause confusion as “fiosrú” is also the Irish term used to translate the word “inquiry” in the same subsection. To avoid any such confusion, it is now proposed by the translation [778]service, and I propose it here, that the Irish word “imscrúdú” be inserted for the word “investigation” in subsection 3°. I am advised the term “imscrúdú” is the official Irish term for “investigation”. The use of the clearly defined legal term “imscrúdú”, namely, the word for “investigation”, would greatly enhance the resilience of the amendment in regard to possible legal challenges. On these technical grounds, I propose the amendment be made.

Aontaíodh an leasú.

Amendment agreed to.

An Ceann Comhairle: Information on Seán Barrett  Zoom on Seán Barrett  Amendments Nos. 2a and 3 are related and may be discussed together.

Deputy Brendan Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Tairgim leasú a 2a:

I move amendment No. 2a:

The purpose of the proposed amendment is to make explicit that the balancing rights between the persons and the public interest in full parliamentary inquiries must be consistent with the constitutional principles of fair procedures. As I said, I was advised strongly that this was implicit in the proposed wording of the referendum Bill that was disseminated because they are rights that are guaranteed under Article 40.3 of the Constitution. By explicitly stating that the House is determining the appropriate balance and will in that determination have due regard to the principles of fair procedures, we are ensuring there is no question mark or doubt over the fact that fair procedures and the rules of natural justice must be respected in any form of inquiry that puts good name or reputation at risk or in the balance in any shape or form.

This amendment also highlights the basis on which any judicial review on the balancing exercise would rest and, in so doing, addresses the first question, given that some people were of the view that somehow that subsection ousted the courts from their overview. My very strong advice from the Attorney General and all legal advice is that this could not be the case. However, to insert this wording gives a clear, explicit basis for such oversight, although it is implicit in any event. It was never the intention nor could it ever have been the result of the original wording to exclude any role for the courts in that process.

I have stated on many occasions that it has always been our intention that the manner in which the Oireachtas strikes the balance between the rights of the person and the public interest is reviewable by the courts. It will be a difficult process, as I said to the chair of the oversight committee when I appeared before it. I told him that, in all likelihood, in the years to come [779]the chair of that committee would be making the odd trip down to the Four Courts to justify the balancing exercises or determinations that are required.

Clearly, it was never the objective to create what might be called an exclusion zone for the courts, nor could it be. However, it is to put into the weighing scales, so to speak, the public interest argument so that in determining the balance in the first instance, the matter must be given to the committee. This is why the notion the courts would somehow make real-time decisions on a daily basis when there are matters like this to be determined is incorrect. As the tribunals operate, it must be for the committee, which has devolved power from this House, the other House or both Houses, to make that real-time decision. Where that is in question, it will be a matter for the courts to ensure it is done in a constitutional fashion. That is where we are coming from.

I am very aware of the points raised by Deputy McDonald and many of her colleagues during the Second Stage debate in regard to the balance between the rights of the person and the public interest contained in the published constitutional amendment. This is why I have reflected on what she has said and on what has been written subsequently. Some legal purists say one should not do what is unnecessary, and if it is implicit, one should not make it explicit. As the Ceann Comhairle knows too well, constitutional lawyers weigh words in the Constitution like precious metals, and if one was to insert extra words, one would have to make a convincing argument for them because every word has a value. I believe that to give comfort to the electorate, what is being done here is to preserve absolutely the full constitutional rights of individuals and to ensure clear procedures will be an intrinsic form of the balancing act that will fall to the Oireachtas in determining the balance between individual rights and the common good in so far as the narrow issue of conducting an inquiry in an effective manner arises.

It is appropriate this issue is dealt with by the amendment I suggest. I have asked the legal service to look particularly at Deputy McDonald’s amendment and the legal service very strongly advised me that the wording I now suggest is the correct and constitutionally better way of achieving what I believe is the desired objective of Deputy McDonald.

Deputy Mary Lou McDonald: Information on Mary Lou McDonald  Zoom on Mary Lou McDonald  We are entirely supportive of the Government’s effort to ensure the Oireachtas can conduct investigations and inquiries in a timely and productive fashion. There is no question that the Abbeylara judgment had to be addressed and I believe the Government is doing the right thing in seeking to address it. None the less, I share many of Deputy Catherine Murphy’s concerns that there would be any attempt to create something that could be described as a Star Chamber or that would trample on the rights of individuals to fair procedures and natural justice.

We are discussing the content of a constitutional amendment and, for the purposes of our discussion, it is important we stay on that terrain. Obviously, the legislation as proposed will have to be gone through with a fine-tooth comb to address the types of issues the Deputy has raised in terms of the internal process and the inclusion of Members of the Oireachtas and so on. I very much welcome the fact the Minister, in a very upfront way, indicates a balance will be struck and that there will be inclusion in that regard.

The Minister is aware that my concern from the get-go has been that in circumstances where the Oireachtas takes to itself a power to balance the public interest and the private interest, this must not just be stated implicitly. I accept the arguments around Articles 34 and 40, and I understand equally there was never an attempt to sideline the judicial process. None the less, it is essential it is stated explicitly in the Constitution that in carrying out this balancing exercise, the Oireachtas is constitutionally obliged to have to the foremost the provisions around fair procedure. It is welcome that the Minister has listened to Members’ concerns and tabled this amendment. Were I to be egocentric about it, I might argue the point and state my wording is [780]better than that of the Minister. However, I accept he has available to him the advice of the Attorney General and other expertise. The critical point is that the matter of fair procedure is addressed. This goes to the heart of many concerns the public will have in this regard. While Members wish to see the public interest well served and seek an Oireachtas that has teeth and powers, that can compel witnesses and make findings, equally the public needs an absolute reassurance the rights of individuals will be upheld and vindicated and that there will be a brake on the new Oireachtas power to engage in that balancing exercise. I am satisfied the Minister has achieved this aim in his proposed amendment.

I will conclude by noting a point raised both during the Order of Business and in previous debates on this issue on how careful one must be when amending the Constitution and how it should not be a rushed matter. Even as Members debate this issue on this Stage, I still consider it to have been rushed. I accept it has had a long history, but in this current phase and for new Members such as me, I consider the process to have been rushed. For as long as the rights of the individual are vindicated, implicitly understood and explicitly stated, I welcome and support the Government proposal to put this matter to the people who I hope will support it.

An Ceann Comhairle: Information on Seán Barrett  Zoom on Seán Barrett  May I take it the Deputy does not intend to move her amendment?

Deputy Mary Lou McDonald: Information on Mary Lou McDonald  Zoom on Mary Lou McDonald  I do not.

Deputy Sean Fleming: Information on Seán Fleming  Zoom on Seán Fleming  I also welcome the opportunity to make a few brief comments on this matter because Members discussed it well on Second Stage and it is a relatively short amendment. The essence of what has been proposed is the inclusion of the phrase, “with due regard to the principles of fair procedures”. The amendment is all about fair procedures and I take on board fully the observation made by Deputy McDonald that Members are not debating the enabling Bill’s contents. However, I note there will be no opportunity to debate that Bill’s contents prior to polling. While I understand the Minister intends to publish the enabling legislation, it cannot be enacted before polling day. It will be in the public arena in order that the public will have an opportunity to examine it and after the referendum which I hope will be passed, the aforementioned legislation will come before the House for detailed discussion. However, one should be clear it will be extremely difficult to change its contents after it has been in the public arena, having formed the basis on which people were reassured as to how they might vote. The issue is it will not be like normal legislation when it returns to the House. Members may wish to table amendments on Committee and Remaining Stages and in normal circumstances, the Minister might be inclined to accept them. However, at that point he will be obliged to be mindful that the legislation has been in the public arena. The people will have been given an opportunity to read, study and digest it to understand how the constitutional amendment would be given effect. Consequently, it will be extremely difficult at that point to unravel legislation which had been placed in the public arena. While normal procedures will be followed in this House for Committee and Report Stage amendments, my impression is an additional barrier will placed against the Government’s ability to accept amendments on those Stages. I wish to make clear that point.

The Minister should deal with a couple of aspects of the subject of fair procedure that Members may not have had a full opportunity to explore on Second Stage. I refer specifically to the precise wording under discussion in the Minister’s proposed amendment. I can understand the reason he employed the phrase “observe fair procedure” because that phraseology is included in the proposed legislation. I can discern consistency between the proposed legislation the Minister intends to publish — he might provide Members with a publication date at the conclusion of this debate on the amendment — and the wording in the constitutional [781]amendment. The Minister should elaborate on what are the fair procedures. It is important that the people should know this, because if the amendment is passed, it is proposed that the investigator or the inquiry committee will define the powers to establish fair procedures relating to evidence and submission. There will be no requirement in what has been proposed by the Minister to publish these to enable those who are the subject of such an inquiry or investigation to know what are the guidelines for what is being conducted. If one is dealing with the Revenue Commissioners, one is entitled to know what are the procedures being followed in the interests of the public and hidden procedures are not permitted. My point is that a hidden procedure is not a fair procedure.

As for fair procedures with regard to individuals or their conduct being examined or inquired into, there is a wide raft of exemptions pertaining to Government meetings and matters that could be prejudicial to proceedings before the court or in respect of international relations. I note exemptions may be signed in this regard by the Secretary General to the Government. Consequently, a committee might be carrying out an investigation into an issue, only half of which could be examined by way of evidence regarding the conduct of an individual. However, this evidence could be fundamental to what happened at a Government meeting and yet can be exempted. I understand the concept of Cabinet confidentiality, but fair procedure must apply to everyone. A person’s fair procedures might be compromised were someone else simply able to send a letter of exemption to the effect the matter was not covered by the inquiry.

Another point concerns the relationship between fair procedures and a person’s good name. This is all about the good name and character of those who are being inquired into and I acknowledge it will be an offence to disclose the contents of any reports or drafts thereof before their publication. However, in the interests of fair procedures for those who are being inquired into, it should be an offence to publish any of these documents. In previous tribunals, leaks were provided for the media which published them. I note The Irish Times published such leaks and then shredded the evidence. While I forget the details, no offence had taken place and that newspaper got off the hook, even though it had published the leaked information. It is somewhat akin to it being an offence to sell alcohol to those who are under 18 years but not an offence for them to buy it. My point is that both sides of the equation must be covered and fair procedures must apply if someone is divulging information. However, the person who chooses to publish it also should be covered because he or she can damage a person’s character and good name. I ask for fair procedures in this regard. The Minister should expound on the question of leaks which are a feature of life. While they should not take place, they occur and people’s names become damaged after which it is difficult for them to clear their names.

I will conclude by stating Fianna Fáil welcomes this proposal. I note the Minister is adopting a belt-and-braces approach in respect of making this explicit. The next time a constitutional amendment is proposed and the point is made that something is implied in the Constitution, the response will be that as matters were made explicit the last time, it must be done again. Be that as it may, it will be a problem for someone else to deal with later, but the Minister is being highly specific. If for no other reason, this may take some heat out of the public argument because people can get caught up in such issues during a debate. The Minister’s move to include the issue of fair procedures will give comfort to the public and the many people who have been making this argument. Overall, I support the Minister’s amendments.

Deputy Brendan Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I thank the Members opposite for their thoughtful contributions and addressing this issue. It is an important advance for the Oireachtas to deal with these matters. I will deal with Deputy McDonald’s points and thank her for the amendment she tabled. She can claim ownership because her amendment certainly formed part of the persuas[782]ive argument to make explicit what I considered to be implicit. There is no harm in so doing, even if, as Deputy Fleming has observed, it has consequences for the future.

There has been a great deal of talk about the balancing of rights, but the problem for the past 20 years has been that the public interest was never really included in the balance and lost out in the balancing of rights. It has taken decades to get to the truth of matters. I note that had people appeared before a committee or inquiry and simply told the truth — this is such an amazing thing to ask — we would not have had years of tribunals at phenomenal cost to the State. Moreover, such tribunals often had findings which were beyond relevance by the time they came to conclusions and people had forgotten what they had been asked to do in the first instance. We must have a system that is more robust than that and that is what we are aiming to do.

We can talk ourselves into protecting the rights of the individual to such an extent that we cannot have an inquiry into anything. Someone who does something fundamentally wrong should have his or her good name tarnished in terms of adducing convincing evidence objectively as long as fair procedures are applied. A person should be furnished with a full copy of the evidence which could reflect on his or her good name. He or she should be allowed to cross-examine any witnesses that give evidence. He or she should be allowed to rebut any evidence given and permitted to address any inquiry in any way he or she wants. These are understandable rights that would flow from Deputy Fleming’s question on what constitutes fair procedure.

We published very detailed heads of the Bill, which are much more detailed than is normally the case at this stage of the discussion. Deputy Fleming is correct in that they will form the backdrop in terms of reassurance for people about what processes will be involved. I would not be quite as sanguine as he is in terms of his comments that the Bill cannot be amended. It will be, as long as the principles are understood.

I would welcome any suggestions from the other side of the House in advance of finalising the Bill, as I said last week to the oversight committee. If there are any significant ideas to amend the heads I published, I would welcome them in order that when the Bill is published for the guidance of the electorate in advance of the referendum, it encompasses, as far as possible, the views of the Opposition.

When we come to do a detailed scrutiny of the Bill, assuming the electorate supports it, I have an open mind to get this right. As I said to the committee, I do not think this will be the end of the matter. We will come across practical difficulties when we start the process and should be open to making further amendments when we learn about them. I do not have a date for publication but it will be in advance of the referendum.

In terms of exclusions, there cannot be an investigation into matters that are subject to criminal investigation or a breaking of the constitutional prohibition on the collective deliberations of Cabinet. Other constitutional provisions allow the State to function and all the recitals in the draft heads simply cover things that are normal.

In regard to leaks, in which Deputy Fleming is interested, draft head No. 34 of the Bill states:

The heads state a person who contravenes that subsection shall be guilty of an offence. It will be an offence to leak information, unless it is in accordance with the normal procedures——

[783]Deputy Sean Fleming: Information on Seán Fleming  Zoom on Seán Fleming  What about publication?

Deputy Brendan Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  We will consider that. It is a fair point. As the Deputy knows, there is extensive constitutional and human rights legislation on the freedom of the press and I cannot make any commitment in this forum to trample on that because freedom of the press has been carefully protected in cases in the European Court of Human Rights. I hear the point Deputy is making.

Cuireadh an leasú agus faisnéiseadh go rabhthas tar éis glacadh leis.

Amendment put and declared carried.

Níor tairgeadh leasú Uimh. 3.

Amendment No. 3 not moved.

Aontaíodh an Sceideal mar a leasaíodh.

Schedule, as amended, agreed to.

Aontaíodh ailt 1 agus 2.

Sections 1 and 2 agreed to.

Aontaíodh an Réamhrá.

Preamble agreed to.

Aontaíodh an Teideal.

Title agreed to.

Tuairiscíodh an Bille le leasuithe chun an breithniú deiridh a dhéanamh air.

Bill reported with amendment and received for final consideration.

Cuireadh an cheist: “Go rithfear an Bille anois.”

Question put: “That the Bill do now pass.”

Rinne an Dáil vótáil: Tá, 102; Níl, 10.

The Dáil divided: Tá, 102; Níl, 10.

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Tellers: Tá, Deputies Emmet Stagg and Paul Kehoe; Níl, Deputies Catherine Murphy and Shane Ross.

Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question declared carried.

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