Dáil Éireann debate -
Thursday, 26 Mar 1998

Vol. 489 No. 2

Tribunals of Inquiry (Evidence) (Amendment) Bill, 1998: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Dr. Upton

At its meeting on 3 March the Government decided that legislation was necessary to give effect to Mr. Justice Flood's request. The Bill before the House was not initiated by the Department of Justice. It did not come about through the normal channels of consultation and discussion. I put it to the Minister that the Government at its meeting of 3 March saw the predicament it was in, realised that Mr. Justice Flood's request exposed the threadbare defence of the amendment to the Moriarty tribunal terms of reference and put its mind to conjuring up some new trick to cover its tracks.

That new trick has now been placed before this House in the form of the Tribunals of Inquiry (Evidence) (Amendment) Bill. However, the Department of Justice, on examining the matter in its preparations of a Bill, came to the conclusion that no legislation was necessary to amend the terms of reference of a tribunal established by the Oireachtas. Newspaper reports reveal that the Department of Justice communicated this advice in writing to the Government and advised that the Minister should not proceed with the Bill.

It is incredible that a Government should maintain the lie that legislation is necessary when civil servants in the Department of Justice and the Office of the Parliamentary Draughtsman had come to the conclusion that no such legislation is necessary.

The Minister has obviously instituted a new branch of zero tolerance of sound legal advice from his Department on an issue of national importance.

The Minister insists that 24 hours before the Cabinet meeting on 10 March outside legal advice supporting the Government's position was obtained by him. Was a memo to Government circulated before this legal advice was obtained in advance of the Cabinet meeting on 10 March? When and from whom was the outside legal advice sought and obtained? Were officials in the Department of Justice, Equality and Law Reform given the opportunity to study and comment on the advice prior to the Government's decision? What were the reasons officials in the Department of Justice, Equality and Law Reform and the office of the parliamentary draftsman had to doubt the need for legislation? Were these reasons conveyed to the outside legal adviser? If the Minister cannot or will not provide full and adequate explanations to these questions, we can only draw the most sinister conclusions from this sorry debacle.

The explanatory memorandum that accompanies the Bill is one of the most extraordinary documents produced in the recent past. It states that nowhere in the Act of 1921 is there an express power to amend an instrument already made. I agree with that statement. However, it does not follow that, because there is no express provision in the 1921 Act, such a course of action cannot be undertaken by the Oireachtas. It is clear that the Department of Justice, Equality and Law Reform and the office of the parliamentary draftsman believe such a power rests with the Oireachtas and that the Bill is unnecessary. I and the Labour Party agree with this view. The Bill is not only unnecessary, it also undermines the power and authority of the Oireachtas. If the legislation is passed, the terms of reference of any future tribunal can only be amended on foot of a request from the tribunal itself. This is a disgraceful negation of the democratic responsibility of the House and an affront to democracy.

The Bill represents one of the most serious breaches of the proper administration of the country. It is obvious that the Minister does not have the support of his Department or the backing of the legal advice available in the Civil Service. In the face of this opposition, the Minister has decided to trawl round the Law Library, desperate to find some helpful soul who may agree with the stance he and the Government have taken. It is farcical and an appalling way for the Minister for Justice, Equality and Law Reform to treat his senior officials.

The Bill is not intended to facilitate the Flood tribunal or to improve the system of judicial inquiries. It is intended to protect the Government from its failure and, for whatever reason, to properly and publicly prevent the people with Ansbacher accounts being investigated. It is the latest and most irresponsible act of the Government in its ongoing efforts to protect the people who hold Ansbacher accounts. It is a disgrace. It should be rejected by the House and all who believe in democracy and fair play and who want the truth about what went on regarding the enormous amounts of money salted away in the Ansbacher accounts, which there is a strong case to suggest belongs to the taxpayer.

Ms McManus

Two days ago the Minister for Justice, Equality and Law Reform refused to accept a Fine Gael Party Private Members' Bill. He stated there had to be a real need for legislation that was in the public interest before it could be introduced. However, those criteria obviously do not apply to this legislation. The only reason for the Bill is the Government's need to cover its back and to bury the investigation of the Ansbacher accounts once and for all.

The Minister's Bill is shameful and brings the House into disrepute. The Minister should do two things in relation to the issue which arose as a result of Mr. Justice Flood's request. He should either do what Mr. Justice Flood requested, which is amend the terms of reference of the tribunal, or introduce proper, comprehensive legislation that reflects the democratic mandate and accountability of the House. However, the Minister is not doing either of those things. He is engaging in a face saving exercise to copperfasten a dishonourable position adopted by the Government in the teeth of opposition not only in the House but also among the public.

We must pinpoint what is at issue. The legislation supposedly arises from a request from the tribunal chairman, Mr. Justice Flood. However, he did not seek an amendment to legislation but a change in paragraph A5 of the terms of reference under which he operates. He wanted the deletion of the words "committed on or after 20 June 1985". Mr. Justice Flood did not seek an amendment to legislation, rather a change in the terms of reference. The tribunal was established by the House. It was not set up by the Judiciary or a body outside the House. Therefore, the House is accountable for its functions and the reason it was established.

Mr. Justice Flood's request was reasonable. The Government is in a pickle, not because of the nature of the request but due to the position it adopted. The disgraceful and discreditable approach it took in relation to the Moriarty tribunal has become apparent. The Government has put forward this ruse to save face and cover its embarrassment. It could not say to Mr. Justice Flood that it could not accede to his reasonable request. It is possible that he would have said that he could not continue to operate if that had happened. However, if the Government agreed to his request, it would have shown up its refusal to change the terms of reference of the Moriarty tribunal.

It is evident that no legal requirement must be met, rather that political expediency is required. The Bill is a fig leaf. It is a shield constructed by the Government to hide behind so it can avoid facing the obvious public desire to investigate the serious matter of the Ansbacher accounts which has been debated in the House but has not been resolved. The Bill is an act of cynicism and hypocrisy.

The resistance to the investigation of the Ansbacher accounts by the Government has been consistent. The Minister for Finance, Deputy McCreevy, told the House on 28 January that there was a strong legal view that once a tribunal had commenced its work on existing terms of reference, they could not be changed. This line has been trotted out repeatedly by Government spokespersons. However, there is a large body of opinion in the legal fora and the House that this is untrue. Any reasonable person can recognise at this stage that there is no legal bar to changing the terms of reference.

The Government lacks the political will to face up to its obligation to investigate the Ansbacher accounts. That is the kernel of what is at issue today and the reason we are being asked to pass unnecessary legislation that is not in the public interest. The Bill does not deal with a common good; the hypocrisy was evident in the Minister's statement earlier. We know there is opposing legal opinion to what he is using as a crutch. More importantly, we know grave doubts have been expressed within his Department. The day before the Cabinet made this decision grave doubts were expressed by senior officials in his Department who have extensive experience and expertise in this regard, but their advice was disregarded and shelved in the interest of expediency.

While I accept this point was made earlier, it is important to reiterate that it is a matter of grave concern when the so-called opinions of a previous Attorney General are being used to back up an untenable Government position. It is on the record that the previous Attorney General specified that such a change would not be possible after public hearings had started. We have not yet reached that stage. The proceedings of the tribunal are at an earlier stage and there is no bar to changing them. Obviously, one must be fair to people appearing before the tribunal, but nobody has appeared before it yet. It is fundamentally wrong for a Government to adopt erroneous positions and use unsustainable arguments that have been refuted.

This is not the type of Bill that should be passed even if one believes the legislation is necessary. It is far too restrictive. Under the Bill the terms of reference of the tribunal can be changed only when the tribunal requests such amendment. That is unacceptable, it is not democracy. The Bill provides that the terms of reference can be changed only when a request is initiated by the tribunal. While nobody would dispute that the tribunal should have a right to initiate such requests, the Dáil must be given discretion to change the terms of reference if the legislation is to be democratic and accountable. Obviously, this should be done only when the Dáil deems it necessary, particularly if new information comes to hand. When the Bill is passed the Government could obtain new information that would not be available to the tribunal which would necessitate a change in the terms of reference, but the House, which represents the people, would not be in a position to do so. The Bill provides that only the chairman can request such a change. That renders the Bill fundamentally flawed and we, and I am sure other parties, will put forward a number of amendments on Committee Stage.

I do not intend to reiterate points that have already been made eloquently by other spokes-people, but there are a number of points about the establishment of tribunals of inquiry which must be noted, even if they do not relate directly to the legislation. It has taken a long time for this tribunal to get up and running. I am not apportioning blame in this regard, but the question of legal fees, resources and facilities had to be addressed. Those issues must be examined by the Minister to enable tribunals of inquiry to start their operations speedily. The need for this tribunal arose out of grave circumstances. A senior Cabinet Minister resigned over the point at issue, but six months later the tribunal has not started its work.

We also need to examine the way the proceedings of tribunals are related to the public. Tribunals of inquiry must be accessible to the public through the key means of communication, namely, television. The public will pay for this tribunal in the same way as they pay for all tribunals. Therefore, there is an onus on the Minister to ensure members of the public have access to its deliberations and conclusions. This can be done effectively only through the medium of television. It is no longer adequate to cover the proceedings of tribunals only in newspapers, even though they provide a good service.

This is a sad day for the House. We are being asked to collude with the Government in covering up its inadequacies, its refusal to face up to its responsibility to investigate the Ansbacher accounts as requested by the Opposition and, more importantly, by the public. We know the public wants that investigation carried out and it should not have a bearing on the Flood tribunal. That tribunal is being dragged into the matter because the Government is not willing to respond to a reasonable request by Mr. Justice Flood to alter the terms of reference in a minor way. The Government is running away from its responsibilities and trying to cover its back on another issue of fundamental public importance. In the past the Minister for Justice, Equality and Law Reform preached frequently and at length about zero tolerance and what is correct, but when he is in a position to do what is right, he is running away in a manner that disgraces him and the Government.

Mr. Sargent

I welcome the opportunity to speak on this Bill. When I heard that Mr. Justice Flood had requested a change in the terms of reference of the tribunal, I was pleased because it highlighted the need to change them.

At the time it seemed the Government would accept the bona fides of the request and would act on it without further questioning. When I heard the Government was to respond, that seemed good news. However, it was a grave disappointment to read in the Bill that the response would be restrictive to the point of tying up in knots any change to the terms of reference of a tribunal. To use a metaphor, this Bill is a combination lock on changing the terms of a tribunal. A citizen may claim it will affect his legal rights in some way and we may have to face a court case. This will take us to the point where a judge will be reluctant to seek an extension of the terms of reference.

I regret this legislation will effectively stifle the progress of a tribunal rather than enable it to get on with its work. The flagrant refusal to respond to Mr. Justice Flood's request that the Ansbacher accounts be investigated highlights the serious questions that hang over the Government's position in relation to these accounts.

Representations are made day in day out to public representatives for funding for various projects, including schools and so on while the amount of uncollected tax on the Ansbacher accounts is allowed to accrue. This is a source of justifiable anger among the public. I need only look to my own constituency to find similar examples. St. Ita's Hospital and carers for the elderly and infirm are inadequately resourced while the Ansbacher accounts remain uninvestigated. We hear on a daily basis of hospital waiting lists. Doctors are told to approach their TD as they do not have the funding. Public transport is under resourced to the point of being ridiculous. Local authorities are looking at small areas of open space in which to build houses, thereby preying upon the easiest targets — the amenities on which people depend for some quality of life. Sewage treatment plants around the coast are inadequately resourced. All these projects require capital investment, yet the Government allows offshore accounts to remain uninvestigated. This is a clear example of the Government's lack of concern for basic needs and basic justice.

The need for the inclusion of 1985 as the starting point for investigation is obvious to those of us, particularly in north County Dublin, who have had any dealings with the local authority where the accusations relating to rezoning are being made. There are other areas also but that would broaden the terms even more.

I was elected to Dublin County Council in 1991. Prior to that I sat in the public gallery after the local election of 1985. Particularly after 1989 and 1990 agendas on the floor of Dublin County Council were never reached because of the number of section 4 motions at the top of each agenda. They were being taken one after the other to the point where the business of the council was ignored and probably dealt with by the officials. The greater part of the time of elected members was utilised in dealing with section 4 motions. This was totally against the advice of the planners, officials and engineers who were qualified experts in dealing with the proper planning of the area.

We are not talking only about development plans but the day to day business of the local authority at that time. It is obvious that one should go back to 1985, at the very least, to investigate properly the background to many of those decisions. Justice Flood realises only too well, having looked at the issues before him, as will anybody who has an interest in public affairs whether a public representative or not, that payments which are the subject of investigation in this tribunal can be made at any time, before or after a decision is made. The allegations should take into account the fact that a decision can be made and paid for retrospectively. There are not many people who would pay a builder before the work is done. That is commonsense and should be taken into account when considering the request from Justice Flood.

Land speculation, an issue close to the subject under discussion, is a long-term activity. Many of us will be aware of land or buildings that have mysteriously sat unattended and have been allowed fall into ruin. One wonders why nobody cares. It happens over a long period. The purchase of such property results in windfall profits for the person who has the resources to invest, given the house price crisis, affecting particularly first time buyers. I hope the Government will respond fully to Justice Flood's request before public anger becomes uncontrollable. Ordinary people are suffering badly on account of the interaction between developers and local authorities.

Local authorities are entering into land swapping arrangements with developers because they do not have the money to buy the land. The local people then discover that the owner of land, which they thought would be used for a certain development, has changed and that the new owner is the local authority or vice versa. Local people are left out of the equation and are treated with disdain and contempt. That is the feeling on the ground. If people were to make their feelings known more forcefully to this Government, particularly at elections, they would get a response.

At present, local authorities are preying upon small green spaces. In Swords, for example, the local authority has put its eye on a small town park because it does not have the money to purchase a proper site for its civic offices. It intends to use the park in the town centre, the equivalent of St. Stephen's Green in Dublin city, for building. That is the result of insufficient resourcing of local authorities caused by practices such as turning a blind eye to the Ansbacher accounts and to common sense requests from people such as Mr. Justice Flood.

The Government's response to Mr. Justice Flood's request, by putting this insulting legislation before the House, defies justification. It means the Minister and the Government will force such requests through the legal wrangles to which this Bill will give rise. There is already a case before the High Court in which a former Taoiseach is challenging the right of a tribunal to investigate his affairs.

This legislation gives carte blanche to a person to challenge a request for information. It will lead to the usual merry-go-round of legal fees which will put in a worse light any type of investigation that might be required. If the problem of legal fees is to be contained, the Government should ensure that the request from Mr. Justice Flood for a change in the terms of reference of the inquiry will result in a speedy and minimal-cost change so we can get to the bottom of what are clear inconsistencies and, I suspect, illegal acts on the part of people who have been in positions of responsibility. That is not a major request, simply basic justice.

This is the last opportunity to take stock of the bona fides of Mr. Justice Flood's request and I urge the Government to accede to it. The problem is his request is not being granted. The request has been heard but it has not been accepted. Instead it has been amended and watered down and forced into a form which, ultimately, will be a hindrance rather than a help to the work of the tribunal. That is the basic issue which the Government has a responsibility to address.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

It is an established component of the human condition that suspicion haunts the guilty mind. There is little else to enlighten me on what has inspired the disgraceful, scurrilous allegations which have been thrown across the House in the course of this debate. I refute, in the strongest language at my command, any allegation that any member of the Government is covering up for wrongdoing on the part of any holder of an Ansbacher account. Such groundless allegations are spiteful, unjustified, disingenuous, untruthful, mean spirited, baseless, unfair and downright dishonest. I have rarely had to listen to such garbled, barbed nonsense as I heard this morning.

Mr. Higgins

(Mayo): Is the Minister going to change them?

Mr. Sargent

Investigate them.

Mr. O'Donoghue

The time has come for politicians to realise that they should not use the cloak of privilege to impugn the integrity of other Members of the House, not to mind members of the Government.

Mr. Higgins

(Mayo): That is hollow coming from the Minister.

Mr. Sargent

And from Fine Gael Members.

Mr. O'Donoghue

It is understandable that the Ansbacher accounts should have been raised in the course of this mean spirited debate. It did not surprise me. However, there are legal difficulties involved, which I have discussed previously. Irrespective of that, the Ansbacher accounts are subject to scrutiny by the Revenue Commissioners and by the authorised officer appointed by the Tánaiste under the Companies Act, 1990.

The chairman of the Revenue Commissioners has stated that the proceedings of the tribunal were monitored closely by the Revenue Commissioners and that appropriate action will be taken. The Minister for Finance, Deputy McCreevy, has also clearly indicated that any additional powers that might be required by the Revenue Commissioners can be provided for in legislation. In addition, the Moriarty tribunal has a brief to examine certain aspects of the Ansbacher accounts.

It is important at this point to refer to the terms of reference of the Moriarty tribunal. They permit inquiry into the Ansbacher accounts to investigate any payments from those accounts to the benefit or in the name of any person who holds or has held ministerial office and to ascertain whether any holder of public office, for whose benefit money was held in the accounts, conducted any act in the course of his or her public office to confer any benefit on any person who was the source of that money or directed any person to do such an act. Any deposit holder discovered by the tribunal to have made payments from the Ansbacher accounts to any of the aforementioned categories of persons will be publicly identified, have their deposits made known, have the amounts paid to the categories of persons made known and have any benefit conferred made public.

Mr. Higgins

(Mayo): That only refers to the politicians and officials. What about the others?

Mr. O'Donoghue

A deposit holder who did not arrange such payments will not be publicly identified. Deputy Higgins is aware of the terms of reference.

The question that arises with regard to the Ansbacher accounts relates to the possibility that the depositors might be evading tax. The tribunal of inquiry is not required to conduct an investigation into tax evasion. Its terms of reference provide for the making of recommendations for the protection of the State's tax base from fraud or evasion through the establishment and maintenance of offshore accounts and to recommend whether changes should be made in the tax law to achieve this end.

Consequently, to make recommendations, the tribunal must investigate offshore accounts to establish how they work, the purposes for which they are established, whether the State's tax base is at risk in the establishment and maintenance of such accounts and, if so, the changes in tax law that should be implemented to prevent this.

Mr. Higgins

(Mayo): Still no names.

Mr. O'Donoghue

Consequently, the extent to which offshore accounts, including the Ansbacher accounts, facilitate tax evasion will be investigated by the tribunal. What will not be investigated, in accordance with the terms of reference, is whether individual deposit holders in the Ansbacher accounts were guilty of tax evasion.

Mr. Higgins

(Mayo): That is the nub of the issue.

Mr. O'Donoghue

That is an issue between the Revenue Commissioners and the individuals concerned.

Mr. Higgins

(Mayo): They cannot do it without the names.

Mr. O'Donoghue

I have outlined what the chairman of the Revenue Commissioners had to say in this respect.

Mr. Higgins

(Mayo): As the Minister is aware, they cannot do it under the 1983 Finance Act.

Mr. O'Donoghue

If the terms of reference were amended by the inclusion of a requirement to investigate whether individual deposit holders were guilty of tax evasion in circumstances where the tribunal may wish to seek information from the Cayman Islands, the work of the tribunal could be seriously compromised for the following reasons. The McCracken tribunal was required to go to the Cayman Islands to acquire information as to the identity of deposit holders in the Ansbacher accounts. When the terms of reference were drafted, it was believed the Moriarty tribunal would have to do likewise. That may still be the case. In view of the well recognised principle in international law, as adopted in our domestic courts, that the courts of one state will not enforce or aid in the enforcement of another state's revenue laws, any inquiry in the Cayman Islands with that stated purpose would have been refused, thus jeopardising the primary focus of this tribunal relating to propriety in public life. If that had happened, I can imagine the hue and cry I would have heard across the floor from the Opposition benches this morning.

Mr. Higgins

(Mayo): It would not have happened.

Mr. O'Donoghue

The main concern with amending the terms of reference of the Moriarty tribunal is that persons or institutions who have already co-operated with the tribunal on the basis of the existing terms of reference might find their position prejudiced under any new terms of reference. The shifting of the goalposts by amending the terms of reference might result in individuals or institutions who have bona fide on the basis of the existing terms of reference provided information to the tribunal requesting that no use be made of that information.

Debate adjourned.