Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011: Second Stage
Thursday, 22 September 2011
Seanad Éireann Debate
Minister for Public Expenditure and Reform (Deputy Brendan Howlin): In order to restore the confidence and trust of the people in the institutions that serve them, we as a Parliament must reform what we do and how we do it. A key element of the parliamentary reform programme outlined in the programme for Government is the proposed constitutional amendment contained in the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011. This Bill before us today will ensure the Houses of the Oireachtas, either individually or collectively, have the power to conduct full parliamentary inquiries that would be effective, cost-efficient and conclude within a reasonable timeframe.
The Abbeylara Supreme Court decision currently limits the ability of Dáil committees to hold full investigations into crucial issues of public concern. The same impediment would be felt by Seanad committees. A parliamentary power of inquiry is necessary and intrinsic to the proper functioning of a representative and responsible parliamentary democracy. General powers to investigate matters of public importance are commonly available to the legislatures of almost all member states of the European Union. Apart from Ireland, some form of parliamentary investigation is to be found in the basic constitutional law of 12 EU member states in the form of an express provision in their respective constitutions.
As public representatives, it is our responsibility to translate the wishes of the people into policies and programmes that further our economic and social development. Where issues arise regarding such policies and programmes, the Dáil and the Seanad should be able to inquire into them fully and make findings and recommendations accordingly. How can we provide good law if we have not the power to see the effect of laws? How can this Parliament hold the Executive to account if it cannot inquire into the conduct of people who work for the Executive? How can it scrutinise the spending of money properly voted in these Houses if it cannot hold public authorities to account and inquire into their actions? We have the duty to shape our laws and to serve our citizens. As a Parliament, we must be able to address the concerns of the public in regard to policy and its administration if we are to be strong, relevant, and active.
We need a position where the Houses have robust powers to obtain and analyse essential and comprehensive information and draw the necessary findings and recommendations. This is crucial for issues of public importance in order for the Houses to be better able to serve the people, and for the Houses to be better equipped to undertake their responsibilities. Giving the Houses the power to undertake full inquiries will ensure they are central players rather than mere observers in the examination and investigation of such issues. Such power will strengthen these Houses and in doing so enhance public accountability. Such power will help distinguish Parliament from the Government and demonstrate the capacity of Parliament not only to hold government to account, but to seek and get answers on matters of concern to our citizens. Therefore, we must ensure that we as a Parliament use this power appropriately and for the benefit of the wider society and economy. There are significant public policy benefits from the operation of an effective system of parliamentary inquiry, and we must harness these benefits.
It is now nine years since the Supreme Court, in the Abbeylara case, raised issues regarding the power of the Oireachtas to conduct inquiries. There since has been important consideration and deliberation of the issues involved, including by the Law Reform Commission in its consultation paper on public inquiries, and more recently by the all-party Joint Committee on the Constitution in a report published earlier this year. The proposed wording of the referendum and the policy approach being adopted by the Government to provide a clear constitutional power to conduct inquiries is closely in line with the recommendations of the fifth report of the all-party Joint Oireachtas Committee on the Constitution of which I was a member. That was an extraordinary deliberative, balanced and protracted piece of work. We invited some of the finest legal experts on the Constitution before us and its final report and recommendations were unanimously agreed after almost a year of careful consideration.
One of the central recommendations of the joint committee was that a constitutional amendment expressly providing for an inherent power of investigation was needed. The joint committee found that the option would be open to the Oireachtas, in the absence of a constitutional amendment, of legislating for a statutory power to inquire. Under this approach the Oireachtas would seek to rectify the defects identified by the court in the Abbeylara judgment by revising existing legislation. However, it would be necessary for this legislation to conform to the constraints and limitations relating to the scope of Oireachtas inquiries identified in the Abbeylara judgment.
The implication of the Supreme Court’s findings was that under the current constitutional position an Oireachtas inquiry could not investigate any matter which had the potential to impact adversely on a person’s good name or reputation. This conclusion by the Supreme Court could potentially seriously curtail the capacity of the Oireachtas to carry out any meaningful inquiries. Consequently, a constitutional amendment is essential to overcome these core issues. A constitutional amendment will ensure that the Oireachtas is not severely restricted in the issues into which it can conduct inquiries and the scope of these inquiries. It also ensures that should the Oireachtas wish to conduct an inquiry, it can do it itself and it is not confined to either a tribunal of inquiry or a commission of investigation.
Both of those tools will remain available and not every issue will be suitable to be investigated by an Oireachtas committee. Some will require the old tribunal of inquiry mechanism under the 1921 Act, and some will be best suited to a commission of inquiry mechanism of investigation, as we recently saw with the Ryan report.
The proposed inquiry system will not displace the comprehensive work that committees of the House already undertake. On the contrary, it is intended that the new inquiry system would complement and reinforce the existing role of Oireachtas committees in reviewing important public policy issues. This will be achieved by providing committees with a new avenue to investigate and inquire into serious issues of significant public concern that may emerge from the committees’ work. This is likely to encourage greater co-operation with the everyday work of committees in light of the strong new inquiry powers expected to be available to committees.
This is a critical part of a process to strengthen Parliament. Too often in the past we have seen the Parliament as the mere tool of the Executive, there to rubber-stamp decisions made in private. We must have a functioning Parliament that questions the Executive and agents of the State, and which can rigorously test policy issues and failures.
The primary issue that this proposed constitutional referendum addresses is the power of the members of the Dáil and Seanad, acting through a committee, to conduct a public inquiry. It addresses the source, nature and scope of the power of the Members of the Oireachtas to conduct a public inquiry, which is liable to result in findings of fact or expression of opinion adverse to the good name, reputation or livelihoods of persons.
Earlier this month, at the same time as the referendum Bill was published, my Department also published an explanatory note on the Bill as well as an overview of the proposed system of inquiry. To facilitate comprehensive discussion of and inform debate on the issues involved, the draft heads of the Houses of the Oireachtas (Powers of Inquiry) Bill were published with the referendum Bill.
Deputy Brendan Howlin: I will ask for copies to be brought over. We were informed that the debate was to commence at 3.30 p.m. I was actually at lunch and my officials were elsewhere, but we rallied quickly. Forgive us. I am just impressed with the expedition with which the House was able to deal with the previous Bill.
Senator Thomas Byrne: On a point of information, that was because all Stages of the Bill were put on today, so there was no opportunity for anyone to put forward amendments after reviewing Second Stage.
Deputy Brendan Howlin: The Bill will underpin the proposed constitutional amendment and provide a comprehensive legal framework governing the establishment and operation of the inquiry system. In publishing the draft heads of the Bill, it was important that we had a clear perspective to show the electorate and Members of the House how the system is to work. I and my officials have already briefed the Joint Committee on Investigations, Oversight and Petitions on the details of the enabling legislation. I see copies of my speech arriving. Assuming the people vote for it and the Bill is enacted, it will give the committee real powers to make decisions in relation to both the scope of an inquiry — the mere fact it is warranted and should be held — and its terms of reference.
The Bill’s primary purpose is to amend section 10 of Article 15 of the Constitution in order to provide for the Houses of the Oireachtas to conduct full inquiries. Section 1 of the Bill provides for the insertion of the text set out in the Schedule. Section 2 contains a standard provision that specifies how the amendment and the Act shall be referred to. The Schedule contains the proposed text of the constitutional amendment in the Irish and English languages. If the electorate expresses approval in the referendum, the three new subsections set out in the Schedule will be inserted into article 15.
Subsection (2) of the Schedule ensures there is absolute legal certainty that the Oireachtas is empowered to hold inquiries into matters of general public importance. The absence of specific and explicit recognition in the Constitution of a role for the Oireachtas in undertaking inquiries in which findings of personal culpability or responsibility could be made could provide grounds for a legal challenge to Oireachtas inquiries on the basis of institutional bias. This is the legal concept that, irrespective of the circumstances of a particular case, a body might be inherently biased on account of its political nature and composition. I reject the contention that, simply by virtue of its political structure, a body cannot make objective decisions. We need to deal with that. However, the wording does not and cannot discharge the members of an Oireachtas committee of inquiry from the requirement not to prejudge the outcome of an inquiry and to behave impartially in respect of any matter that is the subject of an inquiry. The legislative framework governing the operation of the inquiry system requires the setting of clear protocols that minimise the risk of the committee of inquiry not behaving in an impartial manner.
In addition, subsection (2) provides that the inquiry must be into a matter “stated by the House or Houses concerned to be of general public importance”. The enabling legislation contains the proposed process to be undertaken and states the evidence to be provided to allow the Houses to make an assessment that a matter is of general public importance. Matters must be of grave public concern and of a magnitude and consequence that require an inquiry. It is intended that such full inquiries will be into issues where the Oireachtas has a clear legislative, oversight or public policy role in making findings and recommendations firmly underpinned by extensive fact-finding. This provides a clear, well defined context within which such inquiries may take place.
Subsection (2) also provides that the manner in which an inquiry is conducted will be provided for by law. The draft heads of the enabling legislation provide a framework within which the Houses of the Oireachtas can formulate rules and guidelines governing the conduct of inquiries. The published draft heads are extensive, but if Senators have suggestions that would enhance the system, I invite them to provide their ideas before I publish the Bill in advance of the referendum; I would very much welcome any submissions that Members wish to provide and I have issued the same invitation to the other House.
Subsection (3) of the Schedule to the Bill grants the Oireachtas a power to investigate the conduct of individuals and make findings. In doing so, it addresses two of the major concerns that the Supreme Court identified in the Abbeylara judgment. In order for Oireachtas inquiries to be effective and consistent with the role, function and responsibilities of the Oireachtas, it is considered essential for them to be able to investigate individual conduct. This is particularly true where individual conduct or the conduct of a group of individuals played a significant role in giving rise to the set of circumstances that required the Houses to carry out an inquiry in the first instance. It should be possible to make findings of individual misconduct, wrongdoing or incompetence if such findings are necessary and consistent with the facts adduced. This would be done with the object of making recommendations for change. Such recommendations could relate to legislative or regulatory frameworks or the role, structure, governance and management systems of public bodies. Subsection (3) 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.
Subsection (4), as amended in the Dáil, makes it clear that an Oireachtas committee of inquiry must strike an appropriate balance between the rights of persons and the public interest, having due regard to the principles of fair procedures. In full parliamentary inquiries, the balance between the rights of persons and the public interest must be consistent with the constitutional principle of fair procedures. There is no doubt about that. Fair procedures and the rules of natural justice must be respected in any inquiry that puts good name or reputation on the hazard list. It is important to state that the manner in which the Oireachtas strikes the balance between the rights of persons and the public interest will be reviewable by the courts. That is the strong, clear legal advice the Government has been given. In assessing the issue, the courts must then take into account the responsibility assigned to the Oireachtas to determine this balance. In addition, in reviewing the procedures of any inquiry, the courts will assess the balance the inquiry has sought to strike between natural justice and the public interest.
As I highlighted earlier this week in the Dáil, I have no doubt that there will be practical difficulties for the Committee on Investigations, Oversight and Petitions and the inquiring committee in ensuring that the balance is exercised fairly and objectively and that it is achieved. However, the difficulties can be teased out and they are not a reason to shirk our responsibilities as a Parliament. Subsection (4) is necessary if inquiries are to implemented in a pragmatic way and to employ fair procedures in a manner that is balanced against the public interest. It ensures that inquiries will be effective, cost efficient and completed within a reasonable timeframe. Members will not need to be reminded that justice and the people’s interest have been thwarted over decades with protracted commissions of inquiry constantly being drawn into court challenges, going on endlessly and costing a fortune. We must have alternatives available and enable the Houses to do the people’s business.
Witnesses to Oireachtas inquiries will, of course, have an extensive range of legal rights. However, if Oireachtas committees of inquiry were required to provide in all circumstances the full spectrum of rights normally afforded to witnesses in tribunals of inquiry, the costs and duration of Oireachtas inquiries would be likely to be prohibitive. We would simply be replicating what has happened at the tribunals. The constitutional amendment before us does not disregard the rights of witnesses to fair procedures. I want to say that explicitly. As set out in the draft heads of the underpinning legislation, high hurdles have been set to ensure that fair procedures are adopted and that inquiries are carefully and correctly conducted.
For example, the legislation envisages that all of the primary procedural rights will be available in the proposed new Oireachtas inquiry system. These rights were previously identified as necessary by the courts to ensure that the rules of natural justice are observed. It is intended, however, that it would be a matter for each Oireachtas committee of inquiry to determine how these rights should be afforded to witnesses in any particular instance, having due regard to the principles of fair procedures. This will depend on the specific circumstances that pertain in each individual case and will be governed by rules agreed by the House or Houses concerned. To put it simply, if a witness is merely giving technical evidence, he or she does not need to be accompanied by a lawyer and the State should not have to pay for that, which should be clear enough.
However, if somebody is fundamental to an inquiry and his or her good name is very much at risk, it may well be determined by the committee that the person should be represented by counsel at the inquiry. That is the balance the committee itself must strike in the first instance and ultimately, if the citizen involved feels that the balance is not consistent with fair procedures or natural justice, or is incorrect, of course, he or she will have the right to have the decision reviewed by the courts.
It is my intention in the coming weeks to publish a further revised Bill. This will be done, having reflected upon and considered the debates today, any other points that Members might make in submissions to me. If the referendum is approved by the electorate, this Bill will be formally initiated in both Houses. Discussion of the Bill by the House will provide an opportunity to review the proposed system of inquiry further.
There are significant public policy benefits from the operation of an effective system of parliamentary inquiry. We need to harness these benefits. These included the ability to lead change, to govern effectively, to hold the Executive to account and above all to better serve citizens. I have believed for many years that we need to restore real powers to the Houses of the Oireachtas to do the people’s business in a way that is at present absent and is not mirrored in other parliaments that take parliamentary inquiry as part of its normal business. I believe the people will support this. If it is supported and enacted, it will devolve new onerous responsibilities on the Members of the House, particularly those on the oversight committee in the first instance to make impartial decisions.
Let me refute the suggestion made in a commentary on a television programme that somehow the Executive will be setting the terms of reference of inquiry. The terms of reference will be set by the oversight committee which is chaired by a member of the Opposition and I indicated when I was in discussion with that committee that as a rule, I would regard it as improper to have Whips applied to those making the decisions. I believe it should be done on the basis of objective evidence presented to the committee.
Deputy Brendan Howlin: This is a challenge to the committee and I ask Members to look beyond what happened in the past and to see how we can grasp the potential to make this Parliament effective, to do the people’s business and to ensure that we do not allow people with deep pockets and endless resources to frustrate the public good and never achieve a proper inquiry or see an end result to issues that have animated public concern over many years.
Senator Darragh O’Brien: I thank the Minister for his comprehensive outline of the legislation. I give the Bill a guarded welcome. The Minister rightly suggests that we are entering new territory. I have some genuine concerns about the Bill. I served on the Committee of Public Accounts in the previous Dáil and I saw how the Abbeylara judgment inhibited the effectiveness of that committee in the writing of reports. The case of FÁS was a prime example.  It also showed, however, what committees can do in delivering speedy, comprehensive and cost effective reports on behalf of the citizens. We are bringing forward real powers of inquiry in this Bill. I have a number of questions.
I am on the committee that has been established to initiate these powers. Will the referendum affect the Committee of Public Accounts in a positive way, in regard to setting aside the implications of the Abbeylara judgment? In my view the Committee of Public Accounts is the more important committee of the House. Should the legislation be passed by the referendum, will the Committee of Public Accounts have additional powers?
The Minister has referred to the setting of protocols and has extended an invitation to Members to make submissions. My party colleague, Deputy Dara Calleary, has made one. The Minister said: “In addition, the courts in reviewing the procedures of any inquiry would assess the balance which the inquiry has sought to strike between natural justice and the public interest.” Is that after the event? Members of the Oireachtas are privileged to have parliamentary privilege when speaking in the Oireachtas. In the main, Members do not abuse this privilege and it is guarded very carefully. All of our citizens are entitled to their good name and this is a given when a citizen appears before a committee, yet we are introducing a mechanism that if somebody has a complaint about the way a committee has treated or ruled against the person, he or she has recource to the courts. I wonder whether in the terms of reference of a given inquiry should individuals who will be called to appear before it have an opportunity to look at its terms of reference, rather than letting the committee make a ruling. If a ruling is made, it is in the public domain and we know that people can be tainted from that.
Is the Minister planning to preclude any Government or any Minister or member of the Government party from instructing or suggesting that the investigative committee make inquiries? I have seen how the Committee of Public Accounts, on which Senator Clune and I served under the chairmanship of the former Deputy, Bernard Allen, worked very well on a non-political basis across parties. This proposed investigative committee will have members who are new to the Oireachtas. It will need to be watched over very carefully. Has the Minister plans to preclude this and future Governments from making suggestions on instructing the committee to carry out certain investigations?
The Minister mentioned the rule that the party Whip will not be applied when members are serving on this committee. If it is possible, that should be tied into the Standing Orders of the committee and if at all possible tied into the legislation, as is the case with the planning Act that governs all the local authorities for county development plans where there is supposed to be no Whip system in place. Unfortunately, in practice, the Whip is applied.
Everybody who has served on a committee will know that certain members will prepare well while others do not and will simply throw out the best phrases to gain media attention. What is crucial for a committee which effectively will have the power to make a ruling, and findings of fact against persons or bodies, is the support of a secretariat in the first year of its establishment. The members of the committee — I do not suggest that members are not serious about this work — need to be informed about the importance of their role and to guard the real powers that are available to them.
Will any measures be introduced whereby a member of the committee who is acting in an overtly political or biased manner, or who has a conflict of interest, can be sanctioned by the committee, its chairman or a committee on members’ interests?
Senator Darragh O’Brien: Any sort of ruling. Most people in the north east of the country would be aware of a medical case that has gone to court but there is still great interest in the House about how it is being dealt with. If an issue has already been ruled upon in the courts, is the committee open to calling those people or bodies before the committee to begin an investigation all over again, even though there is already a ruling by the courts?
The Minister stated, and I agree, 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. The committee through its establishment, however, will put at risk the good name of bodies, organisations and individuals.
Senator Darragh O’Brien: I agree but I am referring to instances such as someone being wrongly jailed. There are many bodies and individuals who need to be brought in and their good names must be at risk but there are others who, if it happens in the next couple of years, might have their names blackened and then it could be found that the committee has acted improperly. The committee will be open to legal challenge, there will be another Abbeylara type judgment and the whole house of cards will come tumbling down. I support what the Minister is trying to do, although I am nervous about it.
Senator Darragh O’Brien: This was a commitment in the programme for Government but was it necessary to introduce the Bill so quickly? The Minister said he would revise the Bill in the next couple of weeks but the referendum is set for 27 October. Any Bill the Minister’s produces will be another that must be guillotined.
Deputy Brendan Howlin: It will not be enacted until after the referendum. It is merely for information so that people, before they vote, will have a clear idea of the detailed process. That is why I decided to publish extensive heads and then a complete Bill in advance. It will not be introduced until people vote for it, presuming they do vote for it; it will not be introduced if they do not.
Senator Tom Sheahan: Under the heading of parliamentary reform, the programme for Government commits to holding a referendum to amend the Constitution to reverse the effects of the Abbeylara judgment to enable Oireachtas committees to carry out full investigations. Both Fine Gael and the Labour Party had committed to this in their general election manifestos. In the “New Politics” policy document of 2010, Fine Gael committed to radical reform of political structures, including a reversal of the Abbeylara judgment, which limits the powers of Dáil committees to conduct investigations.
The key issue arising from the Abbeylara judgment from the point of view of Oireachtas committees is that no Oireachtas investigation can be pursued if the good name of any citizen who is not a Member of the Oireachtas might be impugned. The right to a good name is protected by Article 43 of the Constitution and the Oireachtas does not have the inherent general power to set up an investigative committee.
Following the shooting dead of John McCarthy by Garda officers in Abbeylara in April 2000, the Oireachtas established a subcommittee to inquire into the circumstances surrounding his death. The possibility arose that the findings of the subcommittee might have an adverse effect on the constitutionally protected right to a good name for some of the gardaí concerned. A number of gardaí, having been compelled to appear before the subcommittee, challenged its constitutional standing on the basis the Oireachtas did not have the power to establish such a committee. That is why we are here today.
The Supreme Court subsequently found the Oireachtas did not have the general power to set up an investigative committee. Rather, under the Constitution, it had limited powers to inquire into certain matters with a view to drafting protective legislation. In the Abbeylara investigation, there was no suggestion the Oireachtas was considering making legislation. The sole purpose of the subcommittee was to investigate the circumstances surrounding Mr. Carthy’s death. This was beyond the inherent powers of the Oireachtas under the Constitution.
The Supreme Court further held that the powers of the Oireachtas under the Constitution did not allow it to make findings of facts that could potentially damage the good name of persons who were not Members of either House of the Oireachtas. As the Minister outlined, there are names that must be brought in and put to the test.
Another important factor considered by the Supreme Court concerned the constitutional right to fair procedure. The court held that in restricting the right to cross-examine witnesses before the subcommittee, the committee had breached the constitutional rights of those concerned. Gardaí called to testify before the subcommittee were permitted to cross-examine witnesses only at the end of the subcommittee oral hearings and then subject to the approval of the subcommittee. The Supreme Court concluded this approach did not meet the constitutional requirement of fair procedure.
The Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill, which has been published by the Minister, is to ensure the Oireachtas has an effective system of inquiry to secure effective and cost efficient parliamentary scrutiny of issues of significant public importance and is essential in facilitating more open, transparent and better government, as promised in the programme for Government. This is a key element of the Government’s ambitious political reform programme. This Bill will enable the constitutional reform to allow the Houses of the Oireachtas to undertake full inquiries into matters of general public importance in an effective and efficient manner, responding to the issues raised by the Supreme Court in the Abbeylara case.
The late Deputy Jim Mitchell was the instigator and chairman of what is generally considered to have been the most successful Oireachtas inquiry to date. The success of the inquiry is attributed to its relatively low cost, efficient turn-around, tangible outcome and importance in the public policy context. In 1998, the media published allegations that the Revenue Commissioners had made a deal with AIB over a significant deposit interest retention tax liability owed to them. Within days of the issue being reported in the media, the Chairman of the Committee of Public Accounts, Deputy Jim Mitchell, sought Dáil support to conduct an investigation into the matter. The Committee of Public Accounts established a sub-committee and within 14 months had secured the necessary powers to hold the inquiry. It held public hearings and published its first report. In the year that followed, the Revenue Commissioners conducted a look-back audit generating £173 million —€220 million in today’s money — in payments from the financial institutions in tax, interest and penalties. Individual bogus non-resident account holders were subsequently targeted in a massive sweep that brought hundreds of millions of pounds to the Exchequer.
Commenting on the inquiry, The Irish Times noted it cost £1.8 million and the televising of its public hearings enthralled a large section of the public. People could see their representatives demanding answers from representatives of the State bodies and financial institutions involved in that scandal. The inquiry’s work helped to restore trust in the political system which had been shaken by damaging revelations concerning payments to politicians and low standards in public office. Perhaps the Minister will indicate what can be covered by these inquiries. It would be generally accepted that as a consequence of the Abbeylara decision the Oireachtas is not in a position to conduct an inquiry into the most recent banking scandal. I would favour constitutional change to allow for such an inquiry.
Speaking in April, following publication by the commission of investigation of its report into the banking sector, Misjudging Risk: Causes of the Systemic Banking Crisis in Ireland, the Minister, Deputy Noonan, indicated that while he favoured the holding of such investigations by the Oireachtas, owing to the failures of the previous Government to effectively address the Abbeylara judgment it is not possible for Oireachtas committees to effectively fulfil this important oversight role. He stated that the Government would, therefore, hold a referendum to address the consequences of the Abbeylara judgment and would bring forth proposals in this regard in the course of the year. Hence here we are.
I have a few questions for the Minister. Can the Minister give us examples of the possible subjects of inquiry? Public concern in regard to certain issues may assist in decisions on what needs to be investigated. I believe we should have a full investigation into the banking issue. It was revealed earlier today by FÁS that it provided false information to a committee last year. What type of sanctions will be applied in that regard? Can persons brought before an inquiry block inquiries through the courts? What procedures are in place to permit smooth movement of an investigation through a committee so as to ensure people with deep pockets cannot block them through the courts? A particular case comes to mind.
Senator Tom Sheahan: Will legal representatives be asked or summoned to appear before an inquiry? Following the committee inquiry in regard to impeachment of Judge Curtin, legal fees of €2 million were sought and that was in respect of attendance at only a few meetings. It is hoped that will not happen again. What sanctions will be in place in respect of people who, having been called as witnesses to attend before the committee, do not co-operate and opt to take the fifth amendment?
Acting Chairman (Senator Paschal Mooney): Apologies. I am aware Senators have undertaken a lot of research in this area. While we are dealing here with complex legislation, the chairman may only allow each Member the amount of time allocated in today’s Order of Business.
Before calling the next speaker, I welcome Councillor John McCartan who is in the Visitors Gallery. Councillor McCartan is a colleague of mine from County Leitrim whose father Mr. Joe McCartan served this House with great distinction for many years, both as a Member and as Leas-Chathaoirleach. He also went on to become a Member of the Dáil and European Parliament.
Senator Jillian van Turnhout: I welcome the Minister, Deputy Howlin, and the Government’s proposed amendment to the Constitution, which will give the Houses of the Oireachtas full inquiry jurisdiction and rectify the deficiencies identified by the Supreme Court in the Abbeylara judgment.
Senator Jillian van Turnhout: I am sure the Senator did not mean it in the same spirit as Sir Humphrey Appleby. I worked in a previous capacity with the Minister and I am aware of his commitment to fairness on this issue.
In July, we had an opportunity to speak in this House on the Cloyne report, which right I fully exercised. I take this opportunity to reiterate my admiration for the work done by Judge Yvonne Murphy, as chairperson of the commission, and her fellow commission members. The Murphy reports were empowered under the Commissions of Investigation Act 2004 which was enacted to provide a more timely and cost-effective option to the tribunal of inquiry mechanism by taking a less adversarial approach, thus reducing the likelihood of resource to judicial intervention.
The Murphy reports have shown that this legislation is capable of providing for a robust, effective and efficient means of conducting investigations into matters of significant public concern. I understand that the proposed amendment is intended to provide a further improvement to and additional option within our inquiry mechanisms. I fully support the finding of the Joint Committee on the Constitution that the Constitution should expressly provide the Oireachtas with the power to conduct inquiries into matters of general public importance for the purpose of making findings in respect of the conduct of named individuals. I believe that subsections (2) and (3) of the proposed amendment meet these criteria. However, subsection (4) is a cause for concern for me. It gives the Oireachtas the power to “determine the appropriate balance between the rights of persons and the public interest and for the purpose of ensuring an effective inquiry”. I am concerned about where that balance is.
Senator Jillian van Turnhout: My apologies. I expected this legislation to be taken later today and had not obtained an amended copy as I was attending a committee meeting. I will reserve my comments in that regard to a later stage. I support what the Minister is trying to do. I will examine the amended text and come to it on Committee Stage. I support the purpose of the Bill.
Senator Ivana Bacik: I welcome the Minister to the House and apologise to him for not being here for the earlier part of his speech. I appreciate, as I am sure do all Senators, the Minister’s work in the past and the risks he and his colleague, former Deputy and now MEP, Mr. Jim Higgins, have taken in terms of investigation and bolstering the role of Oireachtas Members in conducting investigations.
I support the amendment, the purpose of which is to ensure dynamic and effective parliamentary inquiries. As stated by the Minister in the Dáil, it is also about rebalancing powers of the Legislature against powers of the Executive. The Minister has long been a critic of the over-dominance of the Legislature by the Executive. I agree entirely that it is unhealthy in any democracy for the Executive to have too much power. It is important we give our Legislature robust powers, including powers of inquiry.
Senator van Turnhout rightly referred to the recommendation of the Joint Committee on the Constitution in its fifth report, published earlier this year and which specifically recommends that, following the Abbeylara judgment of the Supreme Court, an amendment should be introduced to expressly provide the Oireachtas to carry out inquiries. The Supreme Court found, in the Abbeylara judgment, that any implicit powers of the Oireachtas did not extend to making findings of fact concerning individual culpability of non-members of the Oireachtas which involved damage to the good name of such individuals. It was necessary to introduce this amendment.
While Senator O’Brien stated that this legislation is being in some way rushed, I do not believe that is fair. The Joint Committee on the Constitution did a great deal of work on this issue, which has been a matter of public debate for some time. Nine years have passed since the Supreme Court issued its judgment and 11 years have passed since the tragic shooting of John Carthy in Abbeylara. It was necessary to introduce this amendment early in the lifetime of this Oireachtas in order to make it a relevant and effective body and to give us, as a Parliament, powers to carry out investigations. I believe in the right of parliaments to make inquiries.
As it happens, I am not sure the Abbeylara inquiry was the appropriate type of inquiry for us to launch. At that point, concerns were raised about the effectiveness or relevance of the Garda Síochána Complaints Board, which predated the Garda Síochána Ombudsman mechanism, which is the clear mechanism for investigating such shootings. Like other speakers in the Dáil and this House, I extend sympathy to the family of John Carty. A question is raised as to whether it was the appropriate type of inquiry.
More appropriately — others have spoken about this — the far more obvious type of inquiry which needs to be undertaken, assuming the referendum is passed early in the term of the Oireachtas, is an inquiry into how the bank guarantee came to be passed. What were the events of that fateful night in late September 2008 about which, despite the volumes which have been written, we are still unclear? The Labour Party voted against the bank guarantee and we were the only party to do so. At the time I was an Independent Senator, and I was the only Independent Senator to vote against it. The Labour Party had very clear reasons for voting against it, which have been vindicated since. It would be important to see where the root of the bank guarantee came from and it would be an ideal theme for an inquiry.
To speak briefly about parliamentary inquiries, having seen committees in action as a member of various committees in the previous session and this one, the committee system can show parliamentary inquiries at their best where there is forensic questioning by a small number of well-informed Deputies and Senators who are investigating and asking questions of individuals or representatives. However, at their worst committees can be terrible talking shops and hot air fora, and a great deal of waffle can be spoken. It is important to keep committees tight in general and to keep their powers focused.
Looking at the heads of the Bill, which helpfully have been published along with the referendum wording, it is useful to note a good deal which is included borrows from our experience with the different model of the Commissions of Investigation Act 2004. It is good to see many of the procedures used in that Act will be incorporated into the powers of inquiry Bill if it is passed. We have learned that this model can be a more useful and forensic model of investigation.
To turn to the words of the constitutional amendment, in so far as there has been criticism of the amendment — generally it has had a great deal of cross-party support — it has been of the proposed article 10.4°, which was amended by the Dáil on Tuesday to insert the words “with due regard to the principles of fair procedures”, and this answers at least one of the amendments being tabled today.
Like many lawyers and other people, I was concerned that as originally drafted, there appeared to be at least a diminishing of the role of the courts in conducting judicial reviews of the way in which parliamentary inquiries were conducted. The amendment, which as the Minister stated made explicit something he already regarded as implicit, puts beyond doubt the ongoing role of the courts. I thought Donncha O’Connell put it very well in an article he wrote, where he stated with regard to the original wording that just because deference might be suggested in the terms of an article it did not mean that judicial deference would be shown. In other words, that judges would certainly not regard themselves as excluded.
Senator Ivana Bacik: They are not timid, as we know. Judges have done a very important job in preserving this principle and I have no doubt it would have been preserved. However, this puts it beyond doubt.
Concern was raised that the wording, “It shall be for the House or Houses concerned”, implied it should exclusively be for the House or Houses. This is the phrase that implied exclusivity. This reading of the amendment is now clarified by the insertion of “with due regard to the principles of fair procedures” because the due regard the Houses would have would be a matter for the courts to judge. In other words, they will look at whether the House had due regard to the principles of fair procedures. This may have been the kernel of the difficulty with the original wording. The courts will decide whether the regard the House or Houses had to the appropriate balance was due in accordance with the Constitution.
I am glad this amendment has been proposed. Donncha O’Connell and Eoin Daly had raised concerns and various points had been made in the media about the spectre of McCarthyism and vindictive Members of Parliament conducting inquiries that went well beyond any type of reasonable exercise of parliamentary investigative powers. This criticism was somewhat overblown but nonetheless I am glad the amendment has been proposed.
Yesterday, the Minister, Deputy Shatter, referred to an amendment he made in the Dáil to the wording of the amendment on judicial pay to insert the word “proportionate”. He called it the “to be sure to be sure” amendment and the same description could be used about this.
Looking at the heads of the Bill published by the Minister, it would be worth strengthening some of them in light of the “to be sure to be sure” amendment, particularly head 11 which refers to the oversight committee and making rules relating to the conduct of proceedings. It states the rules shall include rules relating to fair procedures applicable to witnesses and that these rules should also refer to the granting of legal representation or rights to cross examine which, as the Minister stated, might be granted in certain cases. They are not by any means precluded under the legislation. Head 11(4)(h) refers to the type of rights that might be balanced, and specific reference should be made to the rights of persons against whom allegations of wrongdoing have been made, in particular the right to a good name. This is referred to earlier in head 11 but it would be worth emphasising it as a right to which the Houses of the Oireachtas would have to have regard in drawing the appropriate balance that is required to be drawn.
Senator Ivana Bacik: This is the substantive point I wanted to make. I also wanted to raise some procedural points on how the investigators would be chosen. Very detailed provisions are made about the tendering process by which persons would be appointed to assist investigators. Who are the investigators themselves would depend on the ambit of the inquiry; for example, they might be accountants or auditors in an inquiry into banking.
I very much welcome the Bill. It is very important that the amendment is passed to ensure robust powers of investigation to us as an Oireachtas and that it will assist in rebalancing our powers against those of the Executive.
Senator Rónán Mullen: On a point of order, Senator Barrett will speak first from our group but I would like to ask in view of the importance of this topic, and the fact that I have tabled an amendment and so would like to speak for a little longer on Second Stage so as to avoid an excessively protracted Committee Stage, whether the Deputy Leader will agree to allow the second rota of speakers to speak for eight minutes if they wish to do so.
Acting Chairman (Senator Paschal Mooney): To confirm, it is proposed that all non-spokespersons will have eight minutes rather than the original five minutes to contribute on Second Stage. Is that agreed? Agreed.
Senator Sean D. Barrett: As the Minister came to the House early I might finish early and donate some time to other Members. I agree with virtually everything that has been said on all sides of the House on this matter, where people have caveats and where they strongly support it. My heart is enthusiastic, my head supports it but my wallet is a bit worried and if I wore a wig of the legal kind I would be delighted at the prospect of more litigation, but this is the path we run.
I admire greatly the introductory part of the Minister’s speech, as I admire the reforms he has made in other areas. We need to make Parliament relevant. It is a huge part of why I have been sent here. Public trust and confidence has been lost in many institutions and this certainly influenced me to want to be here. Parliament is crucial for a country which has so much despondency with institutions and which had to be rescued by the International Monetary Fund, the EU and the ECB. The general election was not about changing the Government, it was about changing governance and I am delighted to see that we are doing so.
The Abbeylara decision filled the country with despair because we felt no redress was available. We need to restore confidence in the idea that the citizen has rights. This is what the Minister has done. The early parts of his speech harked back to a time when Parliament was held in high esteem by the people. Henry Grattan never held office, but what was known as Grattan’s Parliament played host to oratory. Edmund Burke, an important person in the development of Westminster Parliament, was of Irish descent. Daniel O’Connell achieved major gains for the majority community of this country through his membership of the Westminster Parliament.
As the Minister stated, Parliament is not a tool of the Executive. Many of the Comptroller and Auditor General’s reports to the Committee of Public Accounts are excellently researched and contain thorough analyses and scarifying numbers. The committee’s Chairman issues these reports, but they disappear into the sand. We must examine how to develop the research element undertaken by that valuable constitutional officer, namely, the Comptroller and Auditor General.
The question of the banks is the leading issue. The Joint Committee on Finance, Public Expenditure and Reform, chaired by Deputy White, has asked that those involved send on their accounts of the event, an idea that relates to a query by Senator Bacik. Deputy White’s post box is not overburdened by responses as to what the bankers believed they were doing. The banks do not realise the damage they have done to the country and are largely insulated from the consequences of their actions. In that light, this procedure is necessary. It is also necessary, given the number of people in Departments who do not write anything down because someone in the press might discover it under the Freedom of Information Act. That Act has led to less information being revealed than we had hoped.
Like other Senators, I support the Bill broadly. A caveat relates to section 4. I appreciate the Minister’s work in this regard. A committee chairman will need to be alert in case a member steps out of line. Even then, he or she might be too late and people who felt aggrieved by the proceedings could look for compensation. This would open up another gravy train, which we do not want. Members will need certain training to be able to fulfil the requirements contained within section 4. We do not want to get the Oireachtas into trouble or incur extra burdens on the taxpayer. We need to know the fair procedures fully.
I am concerned about people bringing their lawyers into the Oireachtas. Where it occurs in other jurisdictions, no one answers a question until a cadre of lawyers tells him or her what or, more likely, what not to say. This is a danger. Everyone also fears the example set by US Senator McCarthy, which is another situation we do not want.
Hopefully, this procedure will not lead to yet another round of litigation, we will all be prepared and there will be good chairpersons. I am glad that the Whips’ rule will not apply. It is a part of the Irish parliamentary tradition. Parnell invented the Whip system as a Member of the UK Parliament.
Like the Minister, I am concerned about people with deep pockets. Two eminent people outside the front gate of Trinity come to mind. Edmund Burke stated: “A perfect democracy is therefore the most shameless thing in the world.” I commend this amendment, as it advances our democracy. However, Oliver Goldsmith stated: “Laws grind the poor, and rich men rule the law.” Through Parliament, people who are not rich will have redress to secure their rights.
Senator Deirdre Clune: I welcome the opportunity to contribute on the Bill and the welcome change it proposes. The people will be able to decide whether they want to change their Constitution to ensure the Oireachtas is given powers of inquiry. As other Senators have stated, it will rebalance the power deficit between the Legislature and the Executive. The people will be consulted, an important factor at a time when, according to some, there is a democratic deficit and people do not feel involved with their local and national representative bodies. From this point of view I welcome the Bill. The Minister has championed this cause for many years. It is appropriate that he be the person to steer this and related legislation that is to be published soon through the Parliament.
I have listened to the contributions of Members from both sides. While I share some of their concerns, I welcome the amendment because we will be well able to step up to the challenge. However, I am concerned about committee members speaking out of turn and inciting defamation court cases by impugning people’s good names. According to the Oireachtas Library’s documentation on this Bill, the Supreme Court was particularly concerned about members of the Abbeylara sub-committee commenting openly in the media prior to and during that inquiry. This concern was raised a number of times during the Dáil’s consideration of this Bill. It can be addressed so that members will take the situation seriously. Committee members will be well briefed and supported in their work.
Like Senator Darragh O’Brien, I was a member of the Committee of Public Accounts during the previous Dáil. The committee never divided, as its members worked together to deal with the business before them. They were supported ably by the Comptroller and Auditor General. The committee’s work under various chairpersons stands to its reputation. It is a leading light of the Parliament. It does its work without fear or favour. I hope and expect this approach will be taken by other committees. The Minister is well aware of the potential pitfalls, but we should all embrace this opportunity.
In my experience, the Committee of Public Accounts takes its business seriously. The Joint Committee on Investigations, Oversight and Petitions will also step up to the plate and perform its duties in a way worthy of the electorate.
I will bore the Government side by pointing out that it is a specific commitment in the programme for Government not to hold all Stages of a Bill on the same day. I have no problem with guillotines and time limits should be applied when scheduling business. We never seem to use the time we have anyway. However, holding Committee Stage straight after a Second Stage debate is pointless. We might as well not have Committee Stage, as one will not have had enough time to reflect on the issues and to be informed by the Second Stage debate.
The procedure on most legislation in this House now flies in the face of specific commitments from the Government, which is not right. We will make that point time and again, using whatever procedures we must to continue to do so. There is a rush now but the Government has been in power since February. This could have been dealt with.
Senator Thomas Byrne: The election was on 25 February. I accept the Government was formed in March. We support the legislation but we have concerns about it. I do not claim to have expert knowledge but I would like the Minister to answer on an issue, as I presume it has been dealt with by the Government or the Attorney General. The Abbeylara decision referred to a prohibition on making adverse findings of fact.
Senator Thomas Byrne: I wonder why the word “adverse” will not be in the constitutional amendment. The constitutional amendment refers to findings of fact but in my brief reading of the Supreme Court judgment, it refers to adverse findings of fact. Does that create any difficulties? I am sure the Minister will have the answer and I do not claim to have any specific knowledge on the matter. As far as I can see, we are providing for a different position which might not be as strong as could be required. I acknowledge that many people have studied this issue in greater depth than I.
Senator Thomas Byrne: The Supreme Court found it unconstitutional to make adverse findings of fact. I am wondering why we are not allowing for the Oireachtas to make adverse findings of fact. Could somebody make the argument that a finding of fact does not mean an adverse finding of fact? That is significant and I would like to know the advice given. I am not making a case or claim but the issue occurs to me having briefly read the judgments.
The operation of this legislation will require behavioural changes for Members. It is all very well for us to speak about any issue and criticise individuals, which all of us do. We all talk about bankers, developers and how they have ruined the country. Most of us expressed our disappointment with the likes of Seán FitzPatrick and Michael Fingleton. I have made strong statements about those individuals and a vice chairman of a committee made strong and derogatory statements about Michael Fingleton and Seán FitzPatrick while in the Seanad. They are correct. However, if those individuals were to be brought before an Oireachtas inquiry, will the fact that Oireachtas Members could have already prejudged their position on the individuals, as evidenced in Seanad and Dáil debates, harm the role of the Oireachtas in investigations? I have mentioned two individuals but do not want to prolong difficulties; I have made statements about them before. Surely such individuals could protest against a Deputy’s presence on a committee if he or she has already criticised them in the Dáil or Seanad.
How can this be dealt with? I presume a fundamental point of fair procedure would be for those on the committee not to prejudge an issue. I could not sit in judgment of the individuals I mentioned as I have prejudged them; they have contributed to ruining the country. That opinion should exclude me from the workings of a possible committee. It is difficult as nobody can blame Oireachtas Members for being angry at those individuals. These powers will mean Members must moderate language and statements in the Houses of the Oireachtas, despite our full privilege to say what we like. I presume somebody could make a case that a judgment has already been made in a matter.
We must be aware of that matter and the potential difficulties for a banking inquiry. I would like to see the bank guarantee fully investigated, although I know the late former Minister, Mr. Brian Lenihan, gave his full side of the story before his unfortunate departure to the next life. We would like to see exactly what went on because we have felt significant consequences. It is also worth noting that there have been at least three inquiries into the bank guarantee, including a commission of inquiry.
What concerns me is that conclusions in those reports were not accepted by the parties now in Government. We are afraid that a commission of inquiry could occur under relevant legislation, with certain procedures and eminent people put in place to make those investigations, but the Government may not be happy with the outcome; in such a case the matter could be put before an Oireachtas committee that could be prejudged and political. These are obvious dangers.
Senator Thomas Byrne: We must reflect the frustration of the people at times. There is no doubt that when unemployment is so high and our problems have been caused by so few, that is entirely understandable. If we sit in judgment of individuals we will enter a different scenario. These are the small issues I have. I have not had the opportunity to read the Bill because of a lack of time.
Senator Thomas Byrne: We must be very careful in this regard. There will be significant responsibilities and burdens on Members in investigating people. The text of the constitutional amendment does not seem to exclude the possibility of making criminal findings against individuals, where we can argue that somebody is guilty of a crime. I am not sure that would be a role for the Oireachtas but it is not excluded by the current wording. I wonder if that is the intention.
Senator Thomas Byrne: I do not know how a future Supreme Court will interpret this provision if it is litigated upon. If amendments are proposed by Senator Mullen and rejected by the Seanad, there may well be a negative impact in the interpretation of the Supreme Court.
Senator Rónán Mullen: I welcome the Minister to the House. I am sure he has come across a play I am very fond of, Robert Bolt’s screenplay of “A Man for All Seasons”. There is a moment in that where Sir Thomas More addresses the man who will be his son-in-law, Will Roper, and states:
I have grave reservations about this referendum proposal, although I acknowledge the Minister’s bona fides and commitments in this issue. We are making a mistake and losing sight of important principles, and certainly the separation of powers. There is also a need to respect fair procedures in a very fundamental way. My proposed amendment on Committee Stage will reflect that.
There are three parts to this proposed constitutional amendment. There is the idea that the Houses will have powers to conduct inquiries on matters of general public importance, but I am not convinced. We should see our role as scrutineers of policy and legislation——
In the course of such inquiries we may make findings on conduct. I thought, as I listened to Senator Thomas Byrne, of the line “he strikes but fears to wound”. I am worried that even at a time like this the best we can get, by way of opposition, is some form of general warning, wringing of hands and concern that “there might be issues here lads” without any real commitment to putting forward well thought out amendments that might address issues of possible concern. We can foresee, at this time of weak opposition, what future abuses we might have to contemplate when there is even less opposition in Parliament. We are making a great mistake.
I note the recent effort to amend this to read “it shall be for the House or Houses to determine but with due regard to the principles of fair procedures”. The fact is it is left to the Houses to determine the balance between the rights of persons and the public interest. The Minister said — I paraphrase him and hope not unjustly — we should not worry about or be hidebound by what went on in the past and warned about people with deep pockets presumably having access to the courts. Such access is a fundamental right and should never be denigrated in any way in this Parliament. The whole concept of the separation of powers means that we should never make the slightest attack on people’s access to the courts. By analogy, the attitudes underlying this legislation mean that the High Court rather than the Seanad Committee on Members’ Interests was wrong in the case of former Senator Callely. We need the courts to make rulings on fair procedures and human rights even when they risk making unpopular decisions and delaying inquiries. We are going down a bad road if we set up politicians to judge these matters when politicians, time and again, have shown themselves to either lack the calibre to make fine distinctions and judgments on serious issues concerning people’s reputations or lack objectivity and are too prone to give into the temptation of partiality depending on their party political interests.
I shall cut to the chase. It is the final subsection of the proposed wording contained in the Bill that I worry about because it strips the constitutional protection of natural justice from those who are the subject of Oireachtas inquiries. This is the case even allowing for the recent amendment that substituted the phrase “it shall be for the House or Houses concerned to determine the appropriate balance between the rights of persons and the public interest” with “it shall be for the House or Houses concerned to determine, with due regard to the principles of fair procedures, the appropriate balance between the rights of persons in the public interest”. The amendment changes nothing because it remains with the Houses of the Oireachtas only to decide what constitutes an “appropriate balance with due regard to fair procedures”. As such, this Bill effects a very dangerous power grab by the Executive via a vetoing of the possibility of judicial review.
It also means that the voluminous criticisms of the Bill levelled prior to the amendment stand. The Minister has adopted a rhetorical strategy similar to the Minister for Justice and Equality, Deputy Shatter, vis-à-vis the Twenty-ninth Amendment of the Constitution Bill which is to say that all inadequacies in the text itself can somehow be resolved by the jurisprudence of the higher courts, a jurisprudence which seeks to harmonise all constitutional provisions. This ignores the simple fact that the text, as it stands, is simply not in harmony with the separation of powers doctrine inherent in the Constitution as well as the clear case law supporting a person’s right to benefit from the principles of natural justice nemo iudex in causa sua and audi alteram partem.
This issue is no small matter given the political composition of an Oireachtas inquiry and the potential impact on a citizen’s good name resulting from any adverse findings. It is one thing, and perfectly legitimate, to allow Oireachtas inquiries to make robust findings of fact and to draw conclusions from them. This can only happen after the most thoroughly and patently fair investigation because the alternative is McCarthyism. A citizen whose reputation is impugned by the findings of an Oireachtas inquiry may not challenge the findings in the courts because of parliamentary privilege. His or her only hope of making sure that conclusions are rooted in fact is to be allowed to put forward his or her side of the case before a neutral arbiter. This is all that natural justice means, to have an unbiased committee that listens to both sides of a case before making any decision. How worrying it is then that we are seeking to deprive individuals of the fundamental right to fair play under the guise of cost effectiveness. There are broader concerns at play here. To exclude the courts entirely from reviewing the fairness of an inquiry is an attack on the separation of powers which must be justified by more than political expediency.
In the heat of a general election the people of Ireland were called upon by the Labour Party and Fine Gael to vote for real change, yet the first page of Fine Gael’s new policy document identified “a hugely centralised State with few real checks and balances and an over powerful Executive that increasingly ignores the Dáil” as key failures of the political system in Ireland. The Government seems determined to push forward with their own initiatives which have the potential to reduce transparency, undermine fair play, indirectly extend Executive power and dangerously tilt the balance of rights in the Constitution.
Senator Rónán Mullen: The Minister’s answer to this charge has been that he has published the draft heads of a Bill that will commit the Government to natural justice during any inquiry. Leaving aside the various objections to the text of the heads, it may simply be answered that protection at a legislative level is much weaker than protection at a constitutional level. It is the easiest thing in the world to change an Act of the Oireachtas if the safeguards contained in it do not suit any future Government and this is the reason those who framed the Constitution saw fit to protect us from this kind of petty tyranny by giving us the safeguard of natural justice at a constitutional level.
Not only that but almost all of the most recent Oireachtas inquiries, such as the DIRT and Curtin inquiries, as well as the independent inquiries such as the Murphy commission, required special legislation to deal with their particular circumstances. This being the case it is highly likely that a future Government will be tempted to weaken the safeguards in the Minister’s heads of Bill.
I shall conclude shortly and ask the Acting Chairman’s indulgence. When one considers what is at stake it is highly likely that a future Government will be tempted to weaken the safeguards in the Minister’s heads of Bill when passing future special legislation to deal with an inquiry under the amended constitutional article. I need a few more seconds and I would grateful for the Acting Chairman’s indulgence given all that has been said today about guillotines and so on.
Senator Rónán Mullen: I am grateful but the Senator will see the justice of my position. She may be satisfied that I will conclude with a quotation from a member of her party: “The joint committee’s eventual wording was widely accepted as being a sensible and balanced amendment.” I have endeavoured, in my amendment, to reintroduce this wording into the text of the amendment Bill. It is such a pity then that the Government has seen fit to amend the wording of the final subsection that was arrived at after such careful consideration. Instead it asks us to take what Donncha O’Connell, NUIG, whom I believe to be a member of the Labour Party, writing in The Irish Times last week called “frankly a rather Olympian leap of faith”.
I ask the House to ponder seriously whether this Bill lives up to the ideals of fair play and justice to which Ireland is committed. Equally, it should ask itself whether the commission of investigation we brought to life a short seven years ago, and has done so much good since, might not be the best way forward if there is need for a public inquiry.
Senator Paschal Mooney: I am afraid that I am one of those people who is betwixt and between. I hate being in such a position because the arguments put forward by both sides contain considerable merit. I was in the House when the Abbeylara inquiry was brought to a sudden halt, literally overnight. I remember the late Seán Doherty chaired the committee investigating the telephony elements of a tender that was within 24 hours of completing witness statements and producing a finding. In its aftermath I applauded the efforts by the Minister present and Mr. Jim Higgins, MEP. I particularly applauded the efforts of Deputy Alan Shatter, now the Minister for Justice and Equality, who if I am correct went to the High Court at his own expense, or perhaps at the expense of the Houses, representing the Houses of the Oireachtas. The initiative was taken within these Houses to challenge the decisions taken that stopped the inquiries. I applauded that instinctively at the time because I felt that the people are sovereign and elect the Members of both Houses to represent them in all things. While I accept the idea of the separation of powers, Members were obliged to act in the public interest at all times and that was the motive behind the initial inquiries that were stopped suddenly.
That was my starting position but then I read articles in the immediate aftermath of the publication of this Bill that seemed to suggest that a certain architecture had subsequently been put in place that addresses the difficulties that arose around the time of the Abbeylara and other inquiries and focused the minds of the Judiciary to such an extent that they stopped us collectively from conducting similar investigations.
I was struck, and still am, by the fact that Governments have appointed judges or former judges to head inquiries and those inquiries appear to have been carried out in a fair and judicious manner with minimum cost to the State — the Murphy report is one example — and in a speedy and efficient manner. That raised the question in my mind of whether taking this road will result in a lawyers’ charter. All the safeguards that are built into the Bill, coupled with those that Senator Mullen suggests are not included, appear to be centred around the rights of the individual, and those constitutional rights must be protected at all times. A citizen, therefore, much as they might believe they are competent in the area of law, will inevitably have recourse to the legal system. The question thus arises as to whether these inquiries, once they are initiated, become a lawyers’ charter and we ultimately find ourselves in a situation where we should not have taken this road at all. That is where I am betwixt and between.
I assume the Referendum Commission will discharge its obligations to the public in advance of this referendum by putting forward the for and against positions; in other words, it will explain the reasons for them. The Referendum Commission takes a neutral position on referenda and puts forward the pros and cons to the voters, like a balance sheet——
Senator Paschal Mooney: Fair enough, but in that explanation it outlines the upside and the downside. That is what I am attempting to confirm. The McKenna judgment ensures that the Government of the day, even though it has the right to initiate legislation leading to a constitutional referendum, cannot now use public funds to put forward that view actively. That is where the Referendum Commission steps in. It appears that the Minister will not only be under the scrutiny of these Houses in this regard but also under the scrutiny of the Referendum Commission, which I believe is a positive aspect of an open democracy. The Referendum Commission has done a very good job to date and undoubtedly if and when legislation comes before the Houses to abolish the Seanad, the commission will come into its own in ensuring that the people of Ireland have a fair and balanced approach to the workings of this House.
Will the Minister clarify, when this legislation is passed and, presumably, approved by the people in a referendum, what will happen the architecture already in place which appears to have served us relatively well, particularly where the Government has the right to appoint somebody to investigate matters of public interest, as it has done successfully previously? As we inherited practically all our parliamentary practices from the “mother of parliaments”, it is striking that its system also provides for the government of the day to appoint judges, former judges or people of expertise to carry out inquiries, for example, the Chilcot inquiry. John Chilcot, whom I had the pleasure of knowing in his other role as the head of the Northern Ireland civil service during the Troubles, headed the inquiry into the Iraq war.
Will all that go by the board? In future, where matters of public interest arise, will that particular procedure not be activated by the current or any future Government? Will the Government simply decide it has no need for that system any more because the Houses now have the right to carry out these investigations? That raises all the issues Senator Mullen mentioned with regard to impartiality and independence. We are all prejudiced to some degree and that prejudice, be it for good or ill, is based on past experiences or knowledge. I remember the McCarthy investigations when I was a child, and Senator Mullen has also referred to them. That was an extreme example. In fact, we tend to look to the American democratic system as the most effective in terms of the inquiries that are regularly carried out by the members of Congress. They are open and transparent, and that is the American way of doing things. Generally, we have applauded that. They appear to have been able to investigate those who are involved in a particular subject to such an extent that a great deal of information emerges from the questioning and the inquisitorial nature of congressional committees. I presume the Minister is influenced to some degree by the American system of congressional committees of inquiry. In my opinion, that appears to influence a great deal of what is in this legislation.
Ultimately, the people will decide on this. Considering the most recent experience of politicians investigating themselves, which has already been referred to, we have not really done a very good job and the commentary outside the House on this legislation has focused on that. Where there have been internal inquiries carried out by politicians, they have not worked.
I am not sure I fully agree with Senator Byrne’s contention that if we make public statements criticising individuals who subsequently might appear before a House committee, that somehow disbars us from participating in those committees. This issue has arisen a few times and perhaps the Minister has an opinion on whether prejudicial remarks made by politicians will disbar them from subsequently being involved in committees of inquiry. The way the legislation is framed suggests that irrespective of the personal opinions or those publicly stated in these Houses under privilege it should not necessarily disbar them. Ultimately, it is about findings.
Am I right in suggesting that the conclusions of any inquiry are essentially findings? If subsequent legal sanctions are to be introduced, does that mean the separation of powers comes into play and the Attorney General or the Director of Public Prosecutions can then, as happens with the current tribunals, act on those findings if the findings indicate there is some implication that the law has been broken? If this legislation passes, is it correct to suggest that these inquiries will essentially be providing findings and that they will come to a conclusion but they will not necessarily be acting in a judicial context? Will they be quasi-judicial——
I have been reflecting on this matter for a long time, and I worked in the all-party committee on it. I will deal with the specific points raised as I realise people’s thought processes are evolving. However, I ask them to start from the basis of respect for democracy and for the people’s choice in selecting Members of these Houses. They should not be fearful that somehow the elected representatives of the people are so unworthy and flawed that they cannot be trusted to act fairly or impartially, as was implicit in some of the comments. There is almost a notion that we are so flawed that we cannot be trusted so we will leave it to the courts or tribunals or somebody else. However, the really accountable people are those who put their names on a ballot paper and are elected.
I am not suggesting that we trample on the separation of powers; in fact, it is the reverse. I am saying we should assert the separation of powers by giving to the courts what is for the courts, but not shrink from what is properly the purview of parliament, as has been the case for too long in this jurisdiction.
Deputy Brendan Howlin: Some people want to continue that. They can create as many straw men as they wish to show how flawed we are to do the work but, objectively, there are many decisions in the courts that are the law but are not necessarily just. We need to have that debate.
This is a simple proposal. It does not trample on the separation of powers in any way; it simply asks Parliament to function like virtually every other parliament on earth, to hold inquiries and to find facts that impact on policy and legislation and that hold public officials to account. It is not so shattering or awful; it is normal. Many things that are normal elsewhere are not normal in this jurisdiction and we want to reassert that.
Senator O’Brien talked about the impact of the proposal on the Committee of Public Accounts. I went through the structure of this in detail and how it would operate, assuming the people supported it. A committee of the Houses could determine an issue was of such importance it needed to be investigated. It would apply to the Committee on Investigations, Oversight and Petitions and make a case and the Committee on Investigations, Oversight and Petitions would decide if investigation was merited. If it determined it merited investigation, it would draw up the terms of reference and prescribe a timeframe and make a submission to the Dáil and-or the Seanad and the Houses would then vote on the proposal. If the Committee on Investigations, Oversight and Petitions did not feel investigation was warranted, there would be no further appeal. It has the power over this objectively. The chairman is independent and drawn from the Opposition benches, currently a member of Sinn Féin, and would operate without a Whip in making that decision. That is how a functioning parliament would work. The Committee of Public Accounts would be the same as any other committee; it would simply make an application. This would enhance its powers but it would not be able to determine any more than any other committee that an inquiry should take place, it would be a matter of making a case.
The legislation provides for a mirroring of the procedure carried on in the DIRT inquiry, with a fact finding phase. The first phase would be the gathering of information privately to form the basis of the inquiry. The fact finding could be done by the Comptroller and Auditor General, the Ombudsman or someone completely new where the facts are not adduced in private first, such as a lawyer, an accountant or someone with a specific knowledge of the skills required in a particular area. That would be the basis for making the determination, the same as the Comptroller and Auditor General does for the Committee of Public Accounts.
Would the protocols be subject to court oversight? It is important to be clear on this. From the very beginning, the focus has been on subsection (4) of the Schedule, “where it shall be for the House or Houses concerned to determine with due regard to the principles of fair procedures”. I put in “with due regard for the principles of fair procedures” although I was absolutely assured by the Attorney General that of course fair procedures apply under Article 40.3 of the Constitution and would be vindicated and justiciable by the courts. Putting it in explicitly, however, makes it crystal clear that someone must determine with due regard to the principles of fair procedures if it is alleged the Houses have not applied them fairly and of course the courts would do that. The notion that somehow the courts would be timid in asserting that right flies in the face of our experience and all advice I have from the law officers of the State.
Someone might feel aggrieved in the balancing act that the Oireachtas should do. We will deal with that in Senator Mullen’s amendment, where he wants to ouster the Oireachtas from the balance. It is a matter of practicality. The line committee, having been authorised by the Committee on Investigations, Oversight and Petitions, is sitting and someone makes an application. The ruling must be there, we cannot trot off somewhere else on a day by day basis for ruling. Practically it should be for the Houses under set norms and protocols to make that determination. If someone feels their constitutional rights, or rights beyond the Constitution in terms of our international obligations or the provisions of the European Union Charter on Fundamental Rights, have been breached, he has the right to have that oversight checked by the courts. It is not an issue.
The notion that Minister’s should not make suggestions and questions about the role of Whips arose. Ministers should not be any different from anyone else in having views on this. Many Members suggested there should be an inquiry into the banking system. Am I to be precluded from having an opinion on that? I should not be, I am an elected Member of the Houses and should be allowed a view.
The oversight committee is restricted, it will not conduct the investigation, it will determine the terms of reference; it is the gatekeeper of the investigation. It will determine if the issue is of such importance that it requires investigation and will craft the terms of reference. The line committee or a subcommittee of it will actually conduct the investigation.
In the past, the Executive set the terms of reference for tribunals of inquiry. I have been involved in one or two inquiries; I worked hard to get the Morris tribunal established and its terms of reference, which were voted through the Houses by a majority. My original proposal to establish a tribunal of inquiry into activities in Donegal was defeated by one vote. Amazingly, included in the terms of reference of the Morris tribunal, which people say is the model we should use, was the conduct of Jim Higgins and me as whistleblowers but excluded from the terms of reference was the conduct of the Minister for Justice, Equality and Law Reform. It was an extraordinary set of circumstances because that was the nexus of where decisions were made.
Deputy Brendan Howlin: I am saying what the law is and I would like the House to engage with this and not with who said what. This is a process and I recommend it be approved. It is modern, democratic and open.
I have not responded to all Senator Darragh O’Brien’s points yet. Obviously legal and secretarial support will be required. On the issue of bias and the suggestions that if anybody made a general utterance, he or she would be precluded from involvement in a committee, my experience is that judges allow themselves a great deal of tolerance. They do not preclude themselves if they were involved in cases but objectively discussing the banking system in general principles is quite different from being involved in an investigation of a narrow terms of reference. There must be a test of objective bias and that will be determined in the selection of members who are appropriate to serve on any committee.
Deputy Brendan Howlin: You can create straw men to defeat any proposal and then one is left with the status quo. The status quo is not working. We have had tribunals of inquiry that have lasted decades and cost hundreds of millions. We want an efficient system. We want Parliament to work. We want people to engage with Parliament rather than creating straw men who will say it cannot work and we will do nothing and leave it as it is, at the mercy of God.
Deputy Brendan Howlin: Instead of that, let us try to engage in a process and see what happens. Why should the Members of the Oireachtas uniquely be incapable when every other parliament that I have looked at can do it well and impartially and do not ridicule their Members for having opinions?
Deputy Brendan Howlin: Let us consider the role of the Houses of the Oireachtas and the separation of powers. As I said, it will not be a role for the committee to second guess the courts. I accept Senator O’Brien’s natural admonition “Bí curamach”, but we must be courageous as well. We have to test the waters, if this model is not completely robust, we will tweak it again but the constitutional framework will give us the scope to do that. If the issues are explained properly to the people, they will welcome it. Senator Sheahan alluded to the promised radical reforms; these promises reforms will be delivered. He also spoke positively on the role of the Committee of Public Accounts.
I do not think I should venture into the scope of inquiries. I will allow individual committees to discuss that and come up with suggestions. I do not expect a queue of inquiries. As Members have alluded to, there will be three different mechanisms if this Bill is enacted to look into matters of public concern. We have two at present — the tribunals of inquires mechanism under the 1921 Act, the original Act that has proven fraught; and the more recent mechanism, the Commission of Investigations Act 2004, which has worked but is not completely satisfactory. When a report on an issue such as an accusation against Fr. X or Brother Y, and it is a matter of public policy, people want to see public accountability. There needs to be more than that, in some circumstances. Not everything will be suitable. If we have three different mechanisms to hold inquires, all the better.
As I say, most of the focus has been on subsection (4), the power of the Oireachtas with the specific additionality that I included with due regard to the principles of fair procedures. There can be no doubt that the Oireachtas must have regard to the principles of fair procedures. There was never any doubt in the advice I have, but now it is stated explicitly. I assure Members that where it is believed that the fair procedure is breached, the courts will be there to vindicate people’s rights in that regard. It is the intention to insert that balancing in the public interest. In all the discussion, and we can dress it up how we like, on the balancing of fair procedures and the rights of the individual, we must take account of the public good and the rights of the overwhelming majority. The idea is that in the first instance it will be done by the Oireachtas in this process.
Senator van Turnhout raised the Cloyne report, which I mentioned and Senator Bacik raised the need for a robust parliament, which I totally agreed with. She also referred to balancing the Executive and wondered if the Abbeylara sub-committee selected the right subject matter. The consequence is that what was exposed in the court case was that there was no inherent power to have any inquiry. I must say, and I am entirely biased, that I believe that had the Abbeylara sub-committee been allowed to complete its work, it would have been very efficient and balanced and would have been much less costly than the tribunal of inquiry that took years to conclude its business. That, however, is a matter for debate.
Senator Bacik made the point on paragraph 4 that “it shall be for the Houses to exercise this balance”. I have taken a legal opinion on this section. Had it been the intention of the drafters of that subsection that it was an ouster clause for the courts, the words “exclusively” or “solely” would have been used. These were not used deliberately because it is not an ouster clause and is not intended to be.
Senator Sean D. Barrett talked about making parliament relevant, and I entirely agree with him. I noted his phrase “that it not about changing Government alone, but about changing governance”. That is important. He also raised ways of avoiding the cadre of lawyers descending upon us.
Deputy Brendan Howlin: I think there must be balance in all of this. There will be issues in the future where people’s good names are at risk and where it is right and proper for them to have legal advisers on hand but there will be cases where not everybody needs to be “lawyered up”, to use the American phrase, for every issue all the time. If the very simple objective is to get to the truth and tell the truth, the vast majority of inquiries can be held expeditiously and well. Senator Clune referred to her experience as a member of the Committee of Public Accounts. Senator Thomas Byrne criticised the process of taking all Stages together, but I will leave that to the House to decide. He also spoke at length on the objective bias issue. Those involved in an inquiry cannot make utterances during the course of the inquiry which would prejudice the independence of their decision making. It will be a discipline for those involved in any inquiry in the future to stay schtum until the inquiry is over. This will evolve in time as we have more experience with the process. To reiterate the interjection of Senator Bacik, there is no role to determine criminal guilt in any inquiry under the separation of powers.
I indicated that it is important that members of the committee may not make public comments that might appear to prejudge specific evidence before the committee of inquiry. Indications of a view being held by a committee member while the hearing is proceeding would be contrary to the normal accepted principles of fairness. The courts have developed legals tests for the objective or individual bias issue and I expect these will be applied too in the cases of Oireachtas committees of inquiry. It is fair to say that these tests do not support the view that any public representative in the Oireachtas who has expressed his or her opinion on the cause of the banking crisis would necessarily be precluded from participation in the inquiry. It would certainly not be the case that the Oireachtas could not hold an inquiry into the banking crises on account of public comments of Members. One can have a general view of banking without prejudicing any individual inquiry and hearing evidence on it. This can be done.
Deputy Brendan Howlin: While I respect Senator Mullen and consider his voice to be important in this House, I heard in his contribution a total disregard, a disparagement almost, for elected Members. That is worrying in somebody who is elected to a House of Parliament.
Deputy Brendan Howlin: I respect Parliament and all those who are elected to it. While I do not agree with everyone who has been elected, by and large they represent a cross-section of the population. I do not disparage anybody who is elected but respect all of them and the people who elected them. The notion that somehow this House is so flawed that we cannot do people’s business in an objective way is, as a general principle, wrong.
Deputy Brendan Howlin: For all the straw men that Senator Mullen puts up, the net issue is simply that he does not want parliamentary inquiry. I did not hear his reasoning for the belief that Ireland, uniquely, should not have such inquiry. God knows the experience of the past decade and the types of activity we had across the public sphere indicate that this country needs parliamentary inquiry.
The Senator is wrong in arguing that the implication of introducing the legislation is that the Abbeylara judgment was wrong. The decision by the courts was an interpretation of the Constitution, which is the absolute prerogative and right of the courts to determine. They saw objectively, factually and accurately that there was no inherent power to conduct inquiries. The Government has stated it will redress and fix that and that is the job of the Legislature. It is not a criticism of the judgment. The courts tell us all the time that we must legislate to fix loopholes. The problem is that we do not normally proceed with sufficient alacrity to fix such loopholes. It is a perverse view that this enactment is a criticism of the court ruling in the Abbeylara case.
As I have stated repeatedly, the proposal does not in any way deny access to the courts to the general public or anyone involved in an inquiry. The courts will retain oversight in respect of anybody who is aggrieved by the decision subsection (4) would give to the Houses of the Oireachtas to make a discernment, balancing the principles of fair procedure and the public interest. Parliament needs to do this and if it does not get it right, the matter can be determined elsewhere.
Senator Mullen asked why we would choose this legislation as the first issue to address. It is an important issue because it strengthens the hand of Parliament and the earlier the Oireachtas strengthens its hand, the better as it will allow us to do all the other things we need to do in committees and investigations. Matters could arise tomorrow or the next day which would require investigation in the House but we are currently precluded from conducting such investigations. The Senator argued that this indicates we do not have any interest in other matters.
Deputy Brendan Howlin: He referred to further constitutional change. As the Minister with responsibility not only for public expenditure, but also reform, I have established a political reform division in my Department and intend bringing to the Houses an array of legislation and constitutional proposals, including whistleblowers legislation, a Bill on the registration of lobbyists and an amendment to the Freedom of Information Act to restore the position that existed prior to the enactment of recent changes. I met the Committee on Procedure and Privileges last night to discuss another constitutional referendum to deal with communications by citizens with Members of the Oireachtas regarding allegations of wrongdoing. I also intend, with my Government colleagues, to establish a forum on the Constitution next year. Other constitutional amendments which will be brought before the Houses include a referendum on children’s rights, which we have committed to holding early next year, and there will be other referendums.
Senator Mooney, who is unfortunately no longer present, referred to the separation of powers and his fear that he was both in favour of and opposed to the legislation. I heard a similar tone in many speakers’ contributions. Maintaining the status quo is always easier than taking a step forward but we must take a step forward on this issue.
Senator Mooney also referred to a number of other vehicles for inquiry, namely, the type of inquiry that produced the Cloyne report and inquiries under the original 1921 Act, all of which will remain in place. The Houses will have options when making a determination. The Senator also referred to the mother of parliaments. Westminster has various instruments available to it, one of which, the Crown inquiry, is normally but not necessarily conducted by an eminent judge. The Saville inquiry was an example of this type of inquiry. We have seen how effective parliamentary inquiries can be in the United Kingdom in the case of the most recent controversy surrounding phone-tapping. In that case, individuals were brought before a parliamentary committee and asked questions directly, which is not possible in the Oireachtas.
We want to make the Oireachtas more effective in doing the people’s business. This is an important but not excessively radical step. We must convince people to support the proposal, which will involve debunking some straw men which will be put up to confuse issues.
Deputy Brendan Howlin: I am sorry if the Senator considers my language disparaging. I hope I will deal fairly with the content of his contribution to which I listened objectively, as I did in the case of all the contributions in the other House. It was for that reason that I tabled an amendment to address a number of issues that were raised. One finds, in dealing with any legislation, that I never regard my side of the House as having a monopoly of wisdom and I listen to Members’ contributions. However, if the principle involved is to find a mechanism to stop me, which I believe to be a principle I heard in the tone of the Senator’s delivery, which basically was that——
Deputy Brendan Howlin: We can have this provision enacted. We will have further debate if people support the legislation. It is probable that we will have some experiences in the inquiry system which may cause us to revisit the issue in future. I strongly commend the Bill to the House.
|Last Updated: 08/03/2013 18:53:33||Page of 10|