Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011: Committee and Remaining Stages
Thursday, 22 September 2011
Seanad Éireann Debate
An Cathaoirleach: Before Committee Stage commences, I would like to deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment, which is contained in the Schedule to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with long-standing practice and Standing Order 122, consideration of sections 1 and 2 is postponed until consideration of the Schedule has been completed. Is that agreed? Agreed.
We are dealing with a constitutional referendum, the fundamental law of the country and what precisely that law should say. It bears repeating that the manner in which the two constitutional referendum Bills in two consecutive days has been guillotined is nothing short of shambolic and, particularly, the issue of hearing it all in one day. The Government has prided itself on instigating a new politics of real change, yet these past two days have seen the worst of the old politics rule in the Seanad.
I take issue with the Minister, for whom I have great respect. I greatly enjoyed his contributions and listened carefully to what he had to say, and to his use of phrases, such as “straw men”. That is not ad hominem but it sidesteps the possibility that people could have sincere concerns. I am giving the Minister a level of opposition on this legislation which he perhaps did not get in the other House or from others but it does not mean that I am not sincere and that I have not done a good deal of homework on it.
Senator Rónán Mullen: I was careful to quote people, such as Donncha O’Connell from his own party. My amendment is inspired by the conclusions of the all-party committee. To use the term “straw men” is to fail to understand that there are issues of great complexity here on which people have been deliberating. The term “straw men” implies improper motivation and I ask the Minister to reflect on that. I know the Minister’s motivation is honourable but I see major pitfalls in what is being proposed and I cannot resile from that position.
The Minister wants to know my attitude to Oireachtas committees of investigation. I have no problem with Oireachtas committees of investigation but I do have a problem with empowering them to make findings adverse to people’s reputations. I said somewhat jocosely that, perhaps, I might be a little close to the issue. I simply meant that the actions of the Oireachtas committee and the Seanad Committee on Members’ Interests last year did not cast Oireachtas investigations in a good light, in terms of the way questioning took place and the way people communicated outside. It is not the answer to say, “We will have to be a little more careful, lads, how we conduct ourselves in future”. I would not find it remotely comforting if I thought that judges were saying to each other, “We will have to moderate the way we express our views or people would think we were biased”. That would leave me with the impression that they are probably still biased, they are just being a little more careful about it.
Senator Rónán Mullen: We do not have a mechanism between people addressing the issue immediately in hand and people making points of order but there are things we have to say. One is that it is ironic that we are talking about strengthening the powers of this Parliament and this Oireachtas when we are doing it in a way that we are not even allowing a free ranging discussion on the issues that surround it, including the issues I am raising.
Senator Rónán Mullen: I am putting this amendment because I am concerned that what we are doing here is giving politicians some kind of a pretend relevance in circumstances where we do not actually get to scrutinise legislation with the effectiveness with which we ought. I am sorry if that sounds like a disobliging comment about the workings of this Oireachtas but on the very reason the Government is proposing to abolish this House is that it is making claims that our democratic institutions are not functioning effectively, I do not see how I can be accused of dissing colleagues. I am not dissing anybody in particular but I am dissing the culture around here and our inadequacy to do certain things.
There is a calibre issue when politicians ask questions. They can be extremely partial in the way they ask questions and certain issues get explored and certain issues do not. That is why we need to be very careful how we adjudicate on issues in regard to fair procedures in particular.
What the proposed legislation contains is that 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. It is my contention that no matter how one reads that, it has, at the very least, a chilling effect and, I suspect, much more in terms of any ability of the courts to make determinations on what has happened in regard to fair procedures and specifically in respect of the balancing of the rights of persons in the public interest.
Balancing the rights of persons in the public interest is a judicial function and it requires skills of a judicial kind, skills we have not generally seen in this Oireachtas. It may be present on occasions but I am not confident, on the basis of the radio advertisement, that “past performance is no guarantee of future reliability”. Past performance is not particularly consoling when one considers how this might operate prospectively. My proposed amendment states:
The amendment seeks to rebalance, to make more explicit the role of the Judiciary in overseeing what goes on so that we guarantee a proper balance of the rights of the individual with the public interest. I am not attacking, in my amendment, the right of these Houses, per se, to conduct inquiries and make findings in respect of the conduct of persons, even though I have grave reservations about how all of that will work out. I will express those reservations in the coming weeks. It would be at least something if there was an acceptance that what is proposed is a constructive amendment. For the most part, this amendment is simply the incorporation of the recommendation of the recent Joint Committee on the Constitution report of January 2011 on Article 15, review of the parliamentary power of inquiry.
The Minister, Deputy Brendan Howlin, sat on the committee and agreed to its conclusions. The joint committee’s eventual wording was widely accepted as being a sensible and balanced amendment. It certainly received none of the opprobrium from commentators that the Government’s proposed wording has received. The virtue of this amendment is that it rectifies the most obvious and dangerous flaw of the Government’s proposal, that of precluding judicial review of inquiries findings and of the success or otherwise of the Houses of the Oireachtas in reaching a fair balance between the rights of the person and the public interest as well as their ability to have due regard to the principles of fair procedures.
The only adjustment I have made to the joint committee’s proposal is to introduce the word “proportionately, after the word “balance”. This does require a degree of scrutiny and some background knowledge. I have included this word because, I believe, the term “balance” by itself, allows too much scope for the courts to be less than rigorous in appraising whether a fair or reasonable balance has been reached between the individual’s rights and the public interest. In this regard I am aware of how the courts have applied the proportionality test during the past decade or so, in such a way as to lean heavily towards the adjudication of public interest considerations over and above personal rights, vis-à-vis property rights. The courts have their trends and tendencies as well.
It is absolutely right and proper that we in the Legislature would seek to shape how the courts do their work but we must never try to usurp what is the proper function of the courts. In a sense I agree with the Minister that there is no interference with the separation of powers once one rebalances in the Constitution what is going on. In theory one could get rid of the courts and have all matters decided by tribunes of the people in Parliament.
We could argue that is not an interference with the separation of powers, because the Bill now redefines the particular separation of powers that is to apply. However, there is an appropriate separation of powers and that is what motivates my amendment. As I said, the courts have applied the proportionality test in the past decade or so in a way that leans heavily towards public interest considerations over and above personal rights, and that in the context of property rights adjudication. The courts have, likewise, adopted a deferential approach to the intentions and means of the Oireachtas in seeking to achieve the end that is public interest. Without the term “proportionately”, the courts will have even more freedom to continue this custom if a case is taken against a finding by an Oireachtas inquiry. That is the rationale for my amendment. I have proposed this amendment after careful consideration and with regard to the reality that the Minister proposes powers to investigate matters and to make findings relating to the conduct of people. It is in the sense that this is the Minister’s proposal that I see it as urgent we rebalance the relationship between the Oireachtas and the courts in terms of determining what is appropriate as we consider both the rights of persons and the public interest.
Senator Darragh O’Brien: Yes, we are on a specific amendment, but on Second Stage I mentioned that there were some issues I wished to come back to on Committee Stage. I also have a comment to make on the amendment.
Senator Darragh O’Brien: The Minister’s response to Senator Mullen may indicate the Senator got under the Minister’s skin a little. To be fair, people have considered this legislation. I have no doubt that Senator Mullen’s amendment tries to safeguard what many of us here are trying to safeguard, namely, to ensure that this legislation is as good as it can be before it goes to the public for a referendum. That said, I remind Senator Mullen that just because my party agrees with the principle of this Bill, this does not mean we cannot put forward robust opposition or ask questions. This is not a question of us wringing hands. In many instances we have no difficulty in putting our cards on the table straight up. If we agree with a Government measure, we will agree openly and will not table amendments for the sake of it. I do not suggest that is what Senator Mullen has done.
I will not say any more on the amendment. I am interested to hear what the Minister has to say before deciding whether to support it. However, I would like the opportunity to comment further when dealing with the Schedule.
Senator Ivana Bacik: I thank Senator Mullen for tabling this amendment because consideration of his amendment has assisted us in robust consideration of the overall amendment in the Bill. On Second Stage I indicated I was concerned initially when reading the wording that the words “it shall be” in paragraph 4° might imply exclusivity. The Minister answered my concern and the concerns of others comprehensively in his Second Stage response. It is worth noting the point he made that it was never intended that there would be an ouster clause in paragraph 4°. Reading it now, particularly with regard to the amendment inserted when the Bill passed through the Dáil —“with due regard to the principles of fair procedures”— I believe it answers the concerns expressed by Senator Mullen and others about potentially excluding the courts from any kind of supervisory role. That is the concern Senator Mullen seeks to address in his amendment, borrowed from the report of the Joint Oireachtas Committee on the Constitution. However, that report proposes a rather different wording at paragraphs 2° and 3°. There is a general change to the wording we are now debating of the Government’s Bill. That is what generally happens. The committee simply puts forward proposals for wording that are of assistance to us.
It is worth looking at what the committee said in its report in respect of this particular provision when one is considering Senator Mullen’s amendment. It pointed out that one cannot exclude constitutional justice considerations. It considered whether that could be done and decided it could not. It went on to mention the need for a robust amendment which would include some constitutional ordinance allowing for re Haughey rights to be balanced against the public interest in the facilitation of effective parliamentary investigations. That is what paragraph 4° seeks to do and it does so fairly, in a way that does not require the amendment tabled by Senator Mullen. The committee report discusses how re Haughey rights have been interpreted in the past. In the beef tribunal, for example, they were interpreted to allow all witnesses, including whistleblower Deputies who had made allegations against others, have legal representation and for a farmers’ association against which no imputation had been made to have legal representation.
What we are talking about here with the Government’s proposed wording is the setting up of genuine inquisitorial or investigative powers for Parliament to empower it. However, this model is different to the models we are used to as adversarial lawyers, which are the more adversarial models at issue in the tribunals. It is rights in an adversarial setting that are at issue in re Haughey. As the Minister pointed out, these are not mutually exclusive models. We now have provision in the 2004 Act for commissions of investigation, as we saw with the Murphy report, the Cloyne report and so on. Those are important models, as are the tribunal models. However, different matters would lend themselves more than others to different types of inquiry. It is clear with the example from Britain and the inquiry into phone tapping, some matters will lend themselves particularly well to parliamentary inquiries. We have hamstrung ourselves in the nine years since the Abbeylara judgment. The previous Government did not see fit to address the inadequacy in our Parliament of not having the investigative powers the Minister has described as being the norm in other parliaments.
There is no requirement for the amendment proposed by Senator Mullen. Having shared concerns with the Senator and other lawyers and individuals who had come to me about the wording, I think those concerns have been answered. I listened carefully to the Minister and to Senator Mullen and believe the Minister has answered the concerns.
It is important to look at paragraph 4° as providing for an admonition or requirement that the Houses of the Oireachtas must concern themselves with the balancing of rights, but not in a way that excludes the jurisdiction of the courts, which ultimately are the final arbiters as to whether the Houses have had due regard — an objective test — to principles of fair procedures in seeking to achieve an appropriate balance. Of course, it is important that in conducting any inquiry the Houses must seek to balance rights. What the Callely case shows us is that the courts have not been deferential to the Oireachtas, far from it. It also shows us that the Houses must have regard to fair procedures. It is useful that this has been made more explicit in paragraph 4° than it would be in Senator Mullen’s amendment or in the draft wording proposed by the committee.
Senator Maurice Cummins: I must take issue with Senator Mullen with regard to his remarks. When addressing Members, he suggested the “calibre” of some people was in question. That was very disparaging.
Senator Maurice Cummins: I am getting to my point. He made a very disparaging remark with regard to the “calibre” of people. These people were elected by the people, who have put their trust in them, particularly the 166 elected Members of the Dáil. We cannot say the Members of this House were elected by the people. A committee will be formed from these people, which will include some Members from this House and there will be no Whip on the committee. The members of that committee will be people who are capable of showing fair balance and proportion. What is suggested does not in any way usurp the functions of the courts.
In questioning the “calibre” of people, Senator Mullen seems to think, as suggested by George Orwell in his writing, that all are equal, but some are more equal than others. He seems to think that he is more equal than others.
Senator Maurice Cummins: In questioning the calibre of elected Members, particularly those elected to the other House, he talks about the people who elected them and it is the “calibre” of the people he mentions.
I say “unfortunately”, because Senator Mullen brings a good knowledge to the debates in here. There is a tendency among Ministers to dismiss utterly anything that comes from this side, and the Minister for Public Expenditure and Reform has shown a slight tendency to do this today. That is unfortunate and we keep seeing it.
There was a serious deficiency with the amendment as originally proposed. Luckily enough, there was much media commentary about it, because frankly, the Houses did not have enough time to discuss the matter. As we rush through this legislation, we cannot be sure that something which might arise is being adequately dealt with here.
Senator Thomas Byrne: I am speaking on the amendment, but I wondered why the Oireachtas is not given power to make adverse findings, and that was not answered. Given the fact that a Minister has already promised an inquiry, how does that fit in? I am not in favour of an inquiry here, but the principle of the Minister——
Senator Thomas Byrne: It is not outside the scope of the amendment. It is about fair procedures. This particular group is very genuine and the particular doctor at issue was referred to as “Dr. Filth” in a newspaper article. I want to be clear that I am not supporting the doctor. However, the Minister was under significant political pressure in respect of a particular doctor, refused a public inquiry, as the previous Government had done, and then two months ago stated that there would be an Oireachtas inquiry once the referendum has passed. That is completely at odds with what the Minister is telling us today.
Senator Thomas Byrne: He may well be, but that is the point. When the Minister of State, Deputy Brian Hayes, came into the Seanad a few weeks ago, he said that there was no Whip in the Seanad, that the Government is not responsible for Seanad Éireann and that his colleagues could vote whatever way they want. However, they all voted with the Government and all the Independents came over to this side for the first time ever.
There is a serious worry about fair procedures. Senator Mullen outlined that case last year, although I will not name it because I do not want to be associated with it or use that person to justify my point. The fact is that during inquiries such as the Abbeylara inquiry, there was a running commentary every day of the week on the plinth about what was going on in the committee. It made the headlines every day. I have not read the heads of the Bill, but this will have to be addressed. Members will not just have to keep schtum, as the Minister suggests, they will have to be obliged by law to do so and not give informal briefings which will lead to reports in the newspapers that an inquiry will find a certain person guilty. These are the dangers involved. The Judiciary never gives briefings to the media, and they have been criticised for not answering in particular cases, but we do not hear off-the-record briefings from judges in this country. The danger is that this will happen and make it a totally flawed process.
This can be good, and I fully believe we should have the right to summons people in here to speak to us. It is terrible when people refuse to come in here. However, we must be conscious that we could destroy the process ourselves if we do not have the right and fair procedures and if we trample on people’s good names. We could ruin it for everybody and then there will be court cases, lawyers and bills. We will blame the Supreme Court, as some people are tempted to do today, but as the Minister said today, the Supreme Court is merely interpreting the Constitution. I said this morning that there is no need for that, because many Fine Gael Senators seem to pronounce on constitutional issues in the Seanad. The court’s job is simply to interpret the Constitution, and it did that correctly in the Abbeylara case. If people’s rights are trampled upon and if Members are out there plugging themselves on television during an investigation, the Supreme Court is going to step in. This will have to be firmly dealt in the law that is passed. In fairness to the Minister, his amendment ensures this, but the fact that he had to amend it in guillotined legislation gives cause for concern.
Senator Jim Walsh: I have followed the debate with interest and I think we have come to the nub of the issue. I hear what Senator Byrne is saying, and I must defer to the fact that he is a solicitor, but my interpretation of the amendment to section 4 differs from his. I find myself much more disposed to the amendment, unless the Minister can clarify its precise legal nature.
The amendment before us seeks to ensure that any laws would balance proportionately the rights of the individual with the public interest. It looks to me as if what we are asking the people to do is to accept that the Houses of the Oireachtas in their sole determination and with regard to the principles of the procedures will in fact strike whatever balance they feel is right and appropriate between the right of the individual and the public interest.
I listened carefully to what Senator Byrne said about the fact that this could be appealable to the Supreme Court. No more than the Minister, I am not a lawyer, but like him, I have a certain analytical bent. It would appear to me that if the Constitution contains a clear provision that the Houses of the Oireachtas can determine the balance to be taken — a constitutional right the Oireachtas is now getting — I cannot see how the Supreme Court can overturn that. Perhaps it might be able to do it in cases where there might be obvious bias involved. That brings us to the kernel of the issue. It is right that the Oireachtas would have the principle of being able to investigate certain matters of public interest. When it comes to balancing individual constitutional rights, we should ensure that these are in no way diminished within our Constitution. This change could give effect to that.
Mention has been made of the Callely case. People who participated on that committee provided their viewpoint in this Chamber and on the airwaves before they ever participated in the committees. It was pretty obvious that some people already had their minds made up. I read the judgment, and the courts found very heavily in favour of Senator Callely. I appreciate that the committee was under much media pressure, but we cannot administer justice strictly along populist lines.
Senator Jim Walsh: I am aware of that and I am conscious of the huge cost that has been incurred to date and that will be incurred. I would like to see far greater emphasis placed on the stressed taxpayers who are trying to meet the public cost and that we would not be wasting money in future. That is one of the reasons I am supportive of the thrust of what we are trying to do here. That balancing issue is a fundamental issue.
It has been said by some commentators that the functioning of these Houses is very much controlled by the incumbent Government. Practically nothing happens in this House without it being handed down from the Government. I made that point yesterday in respect of the Judiciary and it is a point I make today as well. Issues will come up where political influences can and will be brought to bear which will distort the outcome and the findings, and in particular, the independence of the individuals participating on it. I have no doubt that will happen.
I participated, along with some Members here, in inquiries these Houses held on matters of public importance, and there were external attempts to bring influence to bear. We know how our political system works. I have grave concerns in that regard.
This is a wide-ranging amendment to the Constitution. If it is adopted, the powers of the Oireachtas will equate to those of the courts, if the Oireachtas itself decides that an issue should come before an inquiry of either or both Houses. There is nothing I can see — unless the Minister can point me to something — within the referendum that will go before the people that will in any way restrict the range of matters that may go before an inquiry here, as long as somebody decides they should. Unfortunately, it is likely that the power to decide what inquiries will be carried out will be limited to 15 Members of these Houses who happen to be members of the Government. It will be controlled by the Government. That will be the effect of the amendment. Some commentators have said, and I fully agree, that if this provision is introduced, there should be a weakening of the control of these Houses by the Government. I see no expressed or implicit suggestion——
Senator Jim Walsh: ——that will be done. I do not expect it to be done, and consequently I have these reservations. We are now going into a referendum campaign on the issue, and I regret the fact that greater time has not been allocated to teasing out these issues within the Houses because they go to the root of how we wish to see society governed. At issue is the principle of the right of an individual to his or her reputation and good name, which should not be taken away for wrong or opportune reasons. I feel strongly about this, even though I fully concur with the principle of what the Government is trying to achieve.
I have great reservations about the amendment. I listened to the Minister’s explanation, which gave us a legal insight into the difference between what is before us and what will be in the referendum. I would like to see the amendment going further. The precise nature of the issues that can be considered for inquiry by these Houses should be clearly prescribed, not just in legislation, which can be changed by these Houses, but within the wording of the amendment.
Minister for Public Expenditure and Reform (Deputy Brendan Howlin): I thank all Members for their contributions. It has been said that the legislation is rushed, but people have been thinking about this for a long time. We have had a commitment to do this since we negotiated the programme for Government. We said we would do it on the basis of the report of the all-party Joint Committee on the Constitution, which has been in the public domain since January. Before the summer, I wrote to the spokespersons of all Opposition parties, including the Technical Group, and the Cathaoirleach outlining the draft amendment. I invited any Opposition person who wished to receive a briefing over the summer. One party, the Fianna Fáil Party, took up that offer, and was briefed. I wrote again at the end of the summer to those who had not taken up the offer, again offering a briefing, and eventually all parties were briefed. This is a process that has been going on for a while. The net issues, although they are big, are not all that complex. We can talk about them forever, but people need to make up their minds.
I will deal with Senator Mullen’s amendment. As I said on Second Stage, I respect the Senator’s viewpoint, his analytical ability and his perspective. His contribution is important, because these matters must be teased out properly. I was slightly taken aback by some of the phrases used by Senator Mullen; for example, he said that I failed to understand the complexity of the issue.
There are various solutions that the Senator came up with. There are some people who, honestly and legitimately, do not believe that inquiries are at all the proper function of Parliament. That is fine. If that is their view, it is a principled position. However, the vast majority of contributors here have said they agree with the notion that we should be like other Parliaments and have the power of inquiry, but are concerned about the fourth clause of the provision proposed by the Government in terms of its potential to rebalance rights. At the all-party committee, we spent a long time tackling that issue. Up to now, the rights of the individual have consistently trumped the common good. Somewhere along the line, the public interest must be put on the weighing scales.
Deputy Brendan Howlin: Let me quote from the report of the all-party committee. Senator Bacik already did so, fairly. This is the nub of the issue that we tried to grapple with. She said, “A robust amendment would include some constitutional ordinance allowing for re Haughey rights to be balanced against the public interest in the facilitation of effective parliamentary investigations”. Nobody wants to oust the four re Haughey rights that have been clearly set out. Every person has the right to be heard, to be represented by counsel in certain circumstances, to rebut any evidence that is adduced against him or her, and to directly present his or her case to whatever tribunal, investigation or committee is dealing with it. However, these rights cannot be elaborated to the extent that the tribunals of inquiry have, with an endless, expensive process that prevents public business from being achieved. One can talk about a principle or one can talk about the practical requirement of the people. There is a fair balance here.
The joint Oireachtas committee stressed in its report the requirement for a new inquiry system to balance the rules of fair procedure against the public interest in the facilitation of effective parliamentary inquiries. It is intended that it would be a matter for the Oireachtas committee of inquiry, under rules laid down by the House and by the law — I have published the draft heads of a Bill in this regard — to lay out the procedural rights, which have, in any event, been previously identified as necessary by the courts, and should be afforded to witnesses. This will depend on the specific elements that pertain in each individual set of circumstances. As I have said, if the witnesses are merely giving a technical background, they do not need to be represented. As Senator Bacik indicated in her contribution, in some of the tribunals, anybody who applied for legal representation had it, and they sat for months on end with the clock running and the taxpayer picking up the bill.
We cannot have that; we need to have balance, and somebody has to set that balance. I am suggesting that it be set by the committee under clear rules and procedures laid down in law, and that all of it be subject, ultimately, to the oversight of the courts, because if fair procedures were breached there is no doubt — this is a strong legal opinion from the Attorney General — that it is reviewable by the courts. The manner in which the principle is applied in practice will be subject to review by the courts after, in the first instance, the balance has been struck by the Houses of the Oireachtas.
Unfortunately, Senator Mullen’s amendment dislodges that balance and does not advance us in terms of ensuring that we have effective inquiries, which is the purpose of what the Government wants to do. Some of the phrases that Senator Mullen used — he said that when people read the amendment, it had a chilling effect on them because of these extraordinary powers——
Deputy Brendan Howlin: Virtually all the focus on the debate has been as if somehow the inquiry system would be some sort of investigation into individuals. I believe it would rarely if ever involve an investigation into individuals. It would investigate all the matters that cause controversy in the health services or whatever. People would be involved and that is why we must have the potential for findings that might show that someone did not act correctly or to prevent something happening. That might impact on their good name. This is why we need these powers. However, by and large, the normal policy issues will be investigated.
Senator Walsh suggested this would almost be the equivalent of a court. This would be an investigation that comes to recommendations. It cannot find criminal responsibility anywhere, it is not a court of law and it cannot impose penalties. That is a matter for the courts. It is simply to examine policy and to examine activity in the public service or with anyone else.
Deputy Brendan Howlin: Yes. If someone is derelict in their duty and that is found by the investigation and the evidence adduced is clear, should that not be shown? Is the problem in this country not that all the failures are said to be systemic and no one is responsible for anything? I was going to entice myself to talk about financial services but I will resist. It is clear that in certain activities in the past people who were charged with doing a job failed and we should have that investigated. We trust in the Members of the Houses to make laws that impact in a minute, intimate way on the lives of everyone. Often they impact in more ways than on a person’s good name, as important as that is. We make laws that impact on people and we try to do so fairly and in a balanced way. That is our job. We levy taxes and so on and all of this impacts on the citizen. However, there is a view somehow that the issue of a person’s good name is in a class of its own and we should not challenge it in an impartial or fair way but I do not accept that.
Senator Byrne referred to the attitude of the Government to the Opposition. I will try to prove that I genuinely have an open mind and that for any legislation I bring to the House I will be open to hearing the case for any amendment or rebuttal. I did the same in the other House. Deputy McDonald tabled an amendment which I considered to have merit. I spent one day with the Attorney General and her staff. The legal advices I had were to the effect that it was unnecessary and that the oversight of the court and its fair procedures are absolutely implicit. However, I insisted on including it because I sought for it to be explicit in order that there would be no doubt in people’s minds when it came to voting on it.
When the Parliamentary Counsel is drafting constitutional amendments to be put to the people and to be inserted in the Constitution, he measures out words like precious metal. One must argue, parse and analyse each word. The notion of including another sub-clause necessitates pushing the case, especially if the view is that it is unnecessary.
Deputy Brendan Howlin: The word “findings” is an all-embracing phrase. The word captures whatever findings are made. One need not specify “adverse”, “positive” or anything else. “Findings” can be whatever they are.
I do not believe I have left out anything else. I thank Senator Mullen for his contribution and his amendment. I genuinely believe the amendment I have fits the policy as intended from the year long deliberation involving some of the best legal people coming in to discuss the matter with the all-party committee. The intent was to include in the mix the notion of balancing rights; it is not to oust the courts. The courts are in place to vindicate rights not only Article 40.3 rights, but other rights of the Constitution and our international obligations to fair procedures. They are in place.
My fear relates to the other side of things and one of the Deputies in the other House referred to it. My fear is not that the legislation would push people’s rights but that, ultimately, it might not be robust enough in not going down the route of having lawyers in and causing difficulty. However, we will see how that works out in practice. If people engage with it in a fair way and are supportive, it will be an important new development for the Houses of the Oireachtas. However, it will not be the modus operandi in all cases. The 1921 Act inquiry system will still be available if ever it is used again. We will also have the new investigation committees which effectively conducted the Cloyne report. This would represent a new power and vehicle if the people support it and for this reason I do not support the amendment.
Senator Rónán Mullen: I thank the Minister for his response. I reiterate that I do not mean to suggest in any way — I am sorry if I did — that the Minister lacked an understanding of the complexities. I put on record my acknowledgement that the Minister has been heroic in the part he has played in the hunt for accountability throughout the years. I completely accept the Minister’s bona fides and grasp of the issues. However, I have a problem with what is taking place. Issues of complexity arise and I take the view that my amendment addresses this complexity in a necessary way.
The Acting Chairman and I have joked in the past about the phrase “every dog and divil” and its utility in various contexts. The issue of using the word “calibre” is relevant to my amendment. In no sense do I question anyone’s intelligence or integrity, but another phrase about dogs is “there is no point in having a dog and barking yourself”. When it comes to making important and delicate judgments that is where judges come in. This is why we have tended almost always to put judges in charge of tribunals and commissions of inquiry. They have a particular expertise and training. As I said to the Acting Chairman in the course of my informal exchange, I would not offer to audit his accounts because I have no skills in accountancy. The consensus view here appears to be that with regard to the conduct of the Seanad Committee on Members’ Interests last year, some people did not contribute and others did contribute and were vocal. Some had legal training and some did not. In hindsight that mishmash proved to be problematic.
No disrespect is intended. A variety of skills and talents are on offer but first and foremost we are here to be legislators, to consider Government proposals on policy and legislation and to act accordingly. Giving us investigative functions raises important questions. It remains my view that there is a problem with the investigative function that would be conferred in us and with the way in which the balance between the rights of persons and the public interest is sought to be achieved. I am open to correction but I do not recall receiving as the head of the group representative——
Senator Rónán Mullen: Only today I discussed this issue with my personal assistant. We should be invited more often to briefings on legislation by various Departments. The national vetting bureau Bill is a very good development and Senator van Turnhout would share my view. Perhaps the Minister could make that view known at Cabinet. I realise there are certain administrative difficulties when one is dealing with Independents but it would reflect well on the way we do business.
Senator Rónán Mullen: She spoke very eloquently about the undeniable improvement that had been made to the Government’s wording. I do not deny for a moment it is an improvement that there is an invocation of the need to have due regard to the principles of fair procedures. My amendment put the issue beyond doubt.
I invite the House to think of it in this way. One can widen the scope Members of the Oireachtas have to investigate matters and make findings adverse to people’s reputations, among other findings. Given that politicians, for the most part, are not professionally trained to conduct such business, have relatively little experience in this area and are subject to certain temptations in terms of populism and partisanship, we ought not to widen the scope of our potential for investigations and encroach in any way on the guarantees of fair procedures.
We can maintain the limited scope of our investigations to investigate into matters relating to policy or legislation and how they have worked, but we should stop short of making any kind of findings adverse to people’s reputations, or their moral conduct at the very least. If we limited the scope of our potential investigations we might more easily consider the possibility of interfering with the level of guarantee of people’s rights. When one does both one runs into trouble.
We are widening our capacity to make investigations and serious findings. Make no mistake about it, such findings will be ventilated in the public and will be very embarrassing for people. People will wonder why inquiries were allowed to make such findings against them if the same respect is not shown for the right to due process they would enjoy in other fora. That is the issue.
Expanding the scope of potential investigations that may be made by Members of these Houses and at the same time allowing any diminution of the level of guarantee of fair procedures is a dangerous cocktail. That is the essential problem. Perhaps the Minister has an answer to my question. What would happen if a witness before a future tribunal is in a position to pay for his or her legal advice and another is not? Will we tell such a person that as we are not paying for it we will not allow anyone to avail of it? What about a person with a stammer or extreme self-confidence problems who needs to be represented and would regard representation by an advocate as a fundamental right?
Perhaps the Minister has thought about these things. I regard these issues as important. I am providing examples within the limited time available. There are serious issues. There is a problem in terms of widening our powers while not allowing any diminution whatsoever in the respect and attention given to people’s rights to due process and fair procedures. I cannot put it any more urgently than that.
I am glad the Minister and I have reached a position of mutual respect for each other’s sincerity. I regret he cannot accept my amendment and I cannot support the Bill as it stands. My position is considered, not obstructive.
Senator Jim Walsh: I would like to see the amendment to the Constitution restricted in scope in the first instance. If experience taught us the change was right, fair, impartial and had no political influence brought to bear on it, perhaps we could consider expanding it. It may be dealt with in legislation. The headlines in any newspapers in future could be cause for an inquiry in these Houses. I have no doubt some of the inquiries will be generated by the media, whether they have a foundation. I have concerns in that regard.
The issue of training was raised by Senator Mullen and some consideration should be given to it how it informs the conduct of inquiries. We will be under scrutiny when the Bill is initiated and it is imperative that the first few inquiries perform to the standards we aspire to and everyone else wants. Will there be a requirement in law and a declaration or undertaking given by those who will participate to act impartially and fairly in the exercise of their functions in the enquiry? Will legislation make it an offence for any attempt to bring external influences to bear on any individuals before or during an inquiry?
Senator Ivana Bacik: I do not want to prolong the debate unnecessarily because we have thrashed out the issues fully. In response to Senator Mullen, I oppose his wording as the Government’s is infinitely preferable. There is a particular merit, as I said, in having a specific admonition that the House or Houses of the Oireachtas in conducting an inquiry shall determine the balance between the rights of persons and the public interest. It boils down very simply to what we all favour, namely, giving Parliament increased power to investigate matters in this way. It seems some of us do not trust parliamentarians to carry out an inquiry fairly.
Senator Tom Sheahan: The interests of the greater good or the public interest have to be borne in mind. I tried to take in all of Senator Mullen’s arguments and understand his point of view. I would take his stance if I was trying to protect a person or a large body from the public interest. I will keep in mind the public interest and the greater good.
Deputy Brendan Howlin: I am obviously not going to have a meeting of minds with Senator Mullen and I daresay it will not be the first or last issue on which we will have a different view. I hope we will leave respecting each other’s differences. The issues are well rehearsed. The correct balance is in the proposed wording. I reject the amendment because it upsets the fair balance and would bring us back to a situation where the public interest is not well served.
Senators have spoken about the tribunals of inquiry as they stand and what we would happen if we do not make this change. Even on the narrow issue of fair procedures and individual rights, I am not sure that the current tribunal system has been greatly fair.
Deputy Brendan Howlin: There have been instances where significant allegations were made and left hanging for years on end before they could be rebutted. That is not good. People should have the right of rebuttal and the amendment will create a much more speedy system of doing that. Adversarial as these Houses sometimes are, Members of these Houses will demand in a much more overt way that due process be complied with than in any other forum I can think of.
The notion that one will only have legal advice if one can pay for it will not come into the matter. We published the draft Bill setting out how the committee will be conducted. It will be a matter for the committee to determine in individual cases whether someone should have legal representation or not. If someone is incapable of making his or her own case, no colleague in the Oireachtas would say such a person should not be represented. Does any Senator know any colleague who would deny fair procedures like that or who would not be challenged immediately by their colleagues if they did so? I do not think that will arise.
Deputy Brendan Howlin: I am glad he was not around in 1937. If he had been, we certainly would not have the safeguards that are afforded to the Houses of the Oireachtas now in terms of guaranteeing our papers or the right to have privilege. If I were proposing that we should have absolute privilege for any utterance made in the House I think the Senator would be doing a war dance. One may already impugn somebody in the House and take their good name and there is no comeback. That is in the Constitution. Parliament needs certain rights to do the people’s business. In the context of the rights that are there already, this measure is modest enough. I hope people will accept that.
Senator Mullen asked three questions. Practical matters, such as procedures and training, will have to be addressed. The other issues of impartiality, external influence or leaking to the media are covered in the draft heads which I have already published. For example, to leak an accusation against someone before the report is done will be an offence, punishable under law.
Senator Thomas Byrne: I did not have time to read the draft but I am encouraged by the Minister’s response to those questions. There have been leaks from tribunals and there continues to be leaks from them. However, we should not say tribunals are a total waste of time.
Senator Thomas Byrne: Of course there is the issue of cost. On the other hand, the committees of inquiry have done a good job. The Minister was unfair when he talked about Father X or Brother Y. That only happened in certain specific cases where criminal trials were pending. Many priests were named, particularly in the Dublin report. Many of the priests referred to in the Cloyne report had not been brought to court and could not be named for that reason. We had a commission of inquiry on the banking crisis by a foreign individual, but the Government parties were not satisfied with his conclusions. They were not happy, politically, with what he said in his report. The reply from the Minister for Finance, as outlined by Deputy Howlin, was that we would have to reverse the Abbeylara judgment and have another inquiry, presumably in order to get the right political answer. That is what concerns us, in general. I also cite the example of the Minister for Health, Deputy Reilly. He could not provide one inquiry so he offered an Abbeylara inquiry. This devalues the currency of an inquiry.
There have been few tribunals since the legislation was passed. I believe the Tribunals of Inquiry (Evidence)(Amendment) Act 1921 was the last passed by the Westminster Parliament to apply to Ireland. I suppose it is good to be moving away from our former masters. There have been very few commissions of inquiry. We must ensure the matters dealt with by the new system are so important that they are also a rarity. Fair procedures is part of that. It is wrong of Senator Sheahan to accuse Senator Mullen of trying to protect people by looking for fair procedures. Of course he is trying to protect people. If Senator Sheahan was before an inquiry I am sure he would like to know that correct procedures were followed. We are trying to get things right.
Senator Thomas Byrne: There is no point reading the Constitution in any event. One would have to read the late Professor Kelly’s book to show what the Supreme Court said and what the Articles all mean. I do not have €300 to pay Messrs. Hogan and Whyte for their book. This is an issue we might take up again.
Senator Mullen’s amendment consists of two sentences. The first sentence, which states that the conduct of such inquiries should be regulated by law, would be enough. That is the language of the Constitution. It does not generally go further to specify how the regulation by law would take place. I am satisfied that by inserting this provision with due regard to the principles of fair procedure the Minister has come a long way. The debate, in both Houses, shows the intent of the proposal. The interpretation is very clear. However, it will mean armies of lawyers getting their costs and running to the High Court. That is going to happen. As the Minister said, people will assert their rights.
I hope there will be severe penalties for any Member of this House who briefs the media, gives interviews or claims credit either for starting an investigation or for the result of it. That would be unfortunate and it must be provided for in the Bill.
The Minister made several points about tribunals of inquiry. I do not think anyone would disagree with what he said. In my previous existence as an opinion columnist I questioned aspects of how tribunals of inquiry worked. I do not think I heard the Minister make the same criticism of commissions of inquiry. I do not want to invoke the concept of straw men, but we can sometimes have false dichotomies. Does the Minister have the same problem with the way commissions of inquiry have been operating? It seems to me they have been a vast improvement. The Cloyne report, for example, was done in a relatively short space of time and on a very sensitive issue. The commission was headed by a person with the requisite training. The appropriate role for these Houses is to discuss what a good inquiry such as that comes up with and to see what policy or legislative measures should follow it.
The difference between a judge and a politician is that judges, generally, do not care whether they are popular or not. I remember, at a prominent State funeral, a certain judge was seen in the back of his State car. It was remarked that no Minister would do that. Ministers make sure they are seen in the front of their cars.
Senator Rónán Mullen: It is that very remoteness from public opinion that is such an important part of the safeguard of impartiality. All of us here are conscious of what people think of us. That is going to impact. We will be like the young barrister cross-examining the Jack Nicholson character in “A Few Good Men”. We are going to want to say to someone that we want the truth, make them angry and have them tell us we can’t handle the truth. I am worried about the potential for grandstanding this could import. That is not an unreasonable position.
If the Minister is trying to save money we can have measures that involve paying lawyers less. We can curtail costs. However, it does not mean that we should do away with skills which are important. As a general rule, commissions of inquiry are headed by persons with legal experience, generally, but not always, a judge. There is a reason for this practice because we regard ourselves here as being more like a jury at most and better again that we would be the people who scrutinise the findings made by expert impartial people who are not unduly concerned by public opinion. This does not in any way curtail our freedom to make the important legislative and policy choices.
Senator Darragh O’Brien: As the Cathaoirleach has observed, the House has spent two hours on this amendment and there has been a lot of grandstanding this afternoon. Senator Mullen is saying that no politician, no Member of the Houses of the Oireachtas, can make a difficult decision if it will prove to be unpopular. I remind him of those Members in the previous Government who had to pass budgets which they knew were not politically favourable to them.
Senator Darragh O’Brien: I will not delay the amendment any further. However, Senator Mullen is incorrect in two points. He is trying to protect against people who were elected to this House making up their minds. I wish to ensure there is no bias in the process and there are ways to do this. I refer to the Standing Orders of this House and the other House relative to private business——
Senator Darragh O’Brien: It means that people would absent themselves from a committee if something arose at the committee related to their constituency. Then I can understand how there might be a consideration made regarding public opinion. A member of the committee would then be obliged to state that the issue or incident related to his or her constituency or that a conflict of interest had arisen. I refer the Minister to the Standing Orders Relative to Private Business 1939.
I served as Vice Chairman of the Committee of Public Accounts. This committee worked very well on a cross-party basis. Members of that committee did not necessarily need to have been trained as auditors, accountants, lawyers, school teachers or candlestick-makers because it did not make any difference so long as people were well prepared. I suggest that anyone elected to these Houses will have a breadth of experience which many other people in other professions would never achieve, despite having any amount of college degrees. I trust that my colleagues would make proper decisions, even though they may be difficult decisions. I agree that discussion of the Standing Orders of the committee is for another day. We must ensure that when conflict arises, particularly as regards matters relating to a constituency, that it is dealt with.
Deputy Brendan Howlin: I am not suggesting that this mechanism is to trump all other mechanisms; rather, I am saying that we need Parliament to have a mechanism. The commission of investigation route will be used in the future and also the tribunals of inquiry route will be appropriate for other investigations. We are broadening the options available to work in the public interest. This is what is being asked for. I refer to Senator Mullen’s final commentary. His is a fair argument and it is that he does not trust Members of the Oireachtas to hold inquiries——
Deputy Brendan Howlin: Everything we do by way of investigation will impact on people, whether a class of people or an individual person. I trust my colleagues. I acknowledge it will be a new challenge for them. Members will have to recuse themselves from participation in some work on the basis of constituency or previous utterances. A discipline will be required but, by and large, people involved in other work in the past have maintained that discipline. I accept Senator O’Brien’s view that politicians can make difficult decisions in the national interest——
Senator Rónán Mullen: If I may respond very briefly to the issue about grandstanding, I do not know to whom Senator O’Brien was referring but if I was interested in grandstanding, I would try to find an audience first.
Senator Rónán Mullen: I will say what is relevant. I would ask the Minister whether he can think of a single aspect of any commission of inquiry which he found to be unsatisfactory and which necessitates the creation of this new mechanism. I ask for a practical example.
Senator Rónán Mullen: Senators O’Brien and Byrne are somewhat contradicting each other. I have no problem accepting what Senator O’Brien says, that we are capable of making unpopular decisions and of adjudicating certain matters. However, Senator Byrne gave the particular example of the Nyberg report. In the subtext of what Senator Byrne says there is that concern that one group of politicians might use an inquiry of the kind that is envisaged to say some quite unfair things or to draw some quite partial conclusions about other politicians. That is something my Fianna Fáil friends might very well wish to consider.
Acting Chairman (Senator Maurice Cummins): Any Member who has indicated a wish to speak has been allowed to speak and will be allowed to speak but I will not allow any more repetition. I call Senator Walsh.
Senator Jim Walsh: I am a little concerned that the Minister is dismissing the concern to ensure that the rights of the individual would be balanced proportionately with that of the public interest. I have listened carefully to the Minister and I believe these rights are inherent in the measure. From that point of view I am reassured. However, the kernel of my concern surrounds the capacity of individuals to operate independently as individuals in what is a very partisan forum which is the other House and, to a lesser extent, this House. I refer to the influences that can be brought to bear along with subtle pressure, and the partisan nature of the Houses, which could have serious repercussions for a person’s reputation if the make-up of the investigating group was of a different political persuasion. We need to be very careful. All that is needed is one bad example to reflect on the Houses and the whole system. It will be imperative that as many safeguards as possible are included in the legislation to avoid any infringement in that area.
|Bacik, Ivana.||Barrett, Sean D.|
|Bradford, Paul.||Brennan, Terry.|
|Byrne, Thomas.||Clune, Deirdre.|
|Coghlan, Paul.||Comiskey, Michael.|
|Conway, Martin.||Cummins, Maurice.|
|D’Arcy, Jim.||D’Arcy, Michael.|
|Henry, Imelda.||Keane, Cáit.|
|Moran, Mary.||Mulcahy, Tony.|
|Mullins, Michael.||Noone, Catherine.|
|Norris, David.||O’Brien, Darragh.|
|O’Donnell, Marie-Louise.||O’Donovan, Denis.|
|O’Keeffe, Susan.||O’Neill, Pat.|
|Mullen, Rónán.||van Turnhout, Jillian.|
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