Amendment No. 2 is an alternative to amendment No. 1; therefore both amendments may be discussed together, by agreement.
Tribunals of Inquiry (Evidence) (Amendment) Bill, 1998: Committee and Remaining Stages.
SECTION 1.
I move amendment No. 1:
In page 3, lines 17 to 20, to delete all words from and including "by" in line 17, down to and including "satisfied" in line 20, and substitute the following:
"Where—
(a) (i) the tribunal has requested the amendment, or
(ii) the Government with the consent of the tribunal has requested the amendment, or (iii) the Oireachtas with the consent of the tribunal has requested the amendment, and
(b) the tribunal is satisfied".
The only legislative change brought about by this Bill is a restriction on the influence of the Oireachtas in relation to the terms of reference of a tribunal of inquiry. The Minister is clearly setting out to ensure that in future once an order is made for the setting up of a tribunal of inquiry this House will have no power of initiation, unless a request comes from the chairperson of the inquiry for a change in its terms of reference.
On Second Stage I painted certain future scenarios in relation to the two tribunals which have been instituted by the House in recent months and which are about to proceed with their work. In future it might be seen, not necessarily in the first instance by the chairperson of the tribunal, that an extension of the terms of reference is required. All these issues must be taken in consultation at all times with the chairperson — there is no question of imposing new terms of reference without the consent of the chairperson of a tribunal. It is fundamental that both Houses and the Minister — it appears the Minister might lose the power of initiating changes once an order has been made — retain the power to attempt to initiate change in the terms of reference of a tribunal.
A tribunal of inquiry is a creature of these Houses; it is not a court. It is established by the Houses of the Oireachtas to inquire into a specific issue of urgent public importance. When a tribunal completes its work the chairperson delivers the report to the Ceann Comhairle of the Dáil and the Cathaoirleach of the Seanad in full recognition of the fact that such tribunals are creatures of these Houses.
I tabled the amendment to ensure it is included in the legislation because the Minister is seeking to exclude such provision, although the issue is not clearly stated in the original Bill. I wish to insert these sections which clearly set out the reasons and circumstances in which an amendment to the terms of reference of a tribunal of inquiry can be initiated. It will allow an amendment to be initiated by the chairperson, the Minister and the Houses of the Oireachtas in consultation with the chairperson of the tribunal. It would never be the wish of the Houses — although it may have felt to be so — to impose additional terms of reference or change the existing terms if the chairperson felt it unnecessary.
The issue at stake, namely, the protection of the right of Members of the Oireachtas to retain a measure of control over tribunals, is of fundamental importance. Tribunals are creatures of the Oireachtas and are given the same powers of receiving evidence as the High Court, etc. We must never throw away the authority to re-examine the terms of reference, or the power to discuss and suggest them.
I support Senator Connor. The amendment is extremely useful in that it seeks to address our central concern regarding the legislation, namely, that it weakens and dilutes the role of the Oireachtas in relation to widening the terms of reference of a tribunal of inquiry in circumstances where such widening is required. The legislation only gives power of initiation to the chairman of the tribunal. The amendment introduces a wider range of options in this regard by allowing the public interest to be met through providing that the Oireachtas work with the chairman to widen the terms of reference.
I could easily envisage a situation where terms of reference of a tribunal of inquiry had been drawn up initially and further events took place at a later stage creating a public demand that the tribunal widen its terms of reference, but that the Oireachtas, under this legislation, would have no role in that unless a prior request had been made by the chairman of the tribunal to it. This might occur despite the fact that the Oireachtas might have a strong desire to do so but where the chairman of the tribunal did not agree.
This amendment is designed to allow greater flexibility in that regard and to meet our greatest concern, which is that the Minister is diluting the power of the Oireachtas. We are here to represent the public and to meet public concern. One could easily end up with a situation that there is public demand and demand by Members of the Oireachtas to widen terms of reference to meet a particular concern. That would not be that unusual. It certainly has been envisaged already or at least certain events have shown that it is quite possible for it to happen. This Bill would not allow us to initiate that change and, therefore, meet public concern unless the chairman of the tribunal came forward first. Therefore, I urge the Minister to seriously consider our amendment in that regard as a useful and constructive one.
The Bill provides that an instrument establishing a tribunal, and which establishes the Tribunals of Inquiry (Evidence) Act, 1921, shall be amended pursuant to a resolution of both Houses of the Oireachtas where the tribunal has requested it and is satisfied that such amendment would not prejudice the legal rights of any person who has co-operated with, and provided information to, the tribunal under its terms of reference.
On Second Stage I indicated that the policy in the Bill was to ensure that any amendment of the instrument establishing a tribunal of inquiry and incorporating its terms of reference should guard against the possibility of a successful challenge to a tribunal. I genuinely believe that the course which has been adopted in the Bill is the safest one and that the conditions at paragraphs (a) and (b) of the Bill achieve this objective.
The first safeguard, that the tribunal must have requested the amendment, ensures that when a tribunal sets about its onerous task of seeking information, considering whether information supplied is within its terms of reference and taking evidence, it will be able to proceed in the knowledge that a change in its terms of reference would be rare and then only on the basis of its own initiative. Indeed, this approach is supported by the terms of reference of the McCracken Tribunal, as set out in the instrument which was signed by Deputy John Bruton, as Taoiseach, on 7 February 1997, which comprehend an extension of the terms of reference of that tribunal following upon a recommendation by the tribunal itself.
Where it is contemplated by a tribunal that a change be made to its terms of reference, the second safeguard is that the tribunal must be satisfied that such amendment would not prejudice the legal rights of any person who has co-operated with, or provided information to, the tribunal under its original terms of reference.
Both of these safeguards take account of the fact that the tribunal is best placed, given the facts already before it, to determine the precise nature of any amendment. That, in my view, is the most certain way to proceed if we are to avoid challenges to tribunals in the future. I repeat what I said earlier: I am of the view that it would be irresponsible to do otherwise.
It is important in this context to outline to the House the comments of the 1966 Royal Commission on Tribunals of Inquiry in relation to the terms of reference of tribunals. The commission stated that in view of the inquisitorial nature of the proceedings of the tribunal, the terms of reference require careful consideration and should be drawn as precisely as possible, and that the Act lays down, rightly in its view, that what is to be inquired into shall be a definite matter. It stated that the reference should confine the inquiry to the investigation of the definite matter which is causing a crisis in public confidence. On the other hand, it further stated, it is essential that tribunals should not be fettered by terms of reference which are too narrowly drawn. The commission was of the view that well defined terms of reference were essential to the effective operation of the tribunal. Nowhere in its report did the commission contemplate any amendment of the terms of reference of a tribunal.
Clearly, the position is that there is an onus on Government and the Legislature to see to it that proper terms of reference be drawn at the time of establishing a tribunal. Following on the interim report of the Flood Tribunal, the Government accepts that there may be circumstances were a tribunal, with the evidence before it, may wish to seek a change in its terms of reference. In these circumstances the tribunal is uniquely placed to make such a request. The reasonable assumption is that such requests from tribunals will be rare.
The effect of amendment No. 2, however, would be to allow the amendment of terms of reference of a tribunal in circumstances where the tribunal has not requested or even consented to the amendment. The tribunal would then be charged with establishing whether the proposed amendment would prejudice the legal rights of any person who has co-operated with, or provided information to, it. That task, of establishing whether the proposed amendment would prejudice the legal rights of any person, could be a sizeable one involving the tribunal in a review of the evidence before it. If the tribunal were to report that the proposed amendment would prejudice the rights of individuals, then it is not beyond the bounds of possibility that the process of consultation with the tribunal and possible redrafts of further amendments of terms of reference by the Oireachtas, etc., would begin again. It is not clear what procedure would follow when consulting the tribunal. The amendment is completely silent on that. These comments apply, by and large, to paragraphs (a)(ii) and (a)(iii) of the amendment.
It seems to me that the amendments evoke the likelihood that proposed changes in terms of reference would be sent to and fro between the Government or the Oireachtas and the tribunal which might lead absolutely nowhere and could create tension between the Government or Oireachtas and the tribunal at a crucial time when the tribunal has already commenced its work. It is conceivable, for example, that the Government would have to redraft changes in terms of reference following on the necessary consultations with the tribunal. On each occasion the tribunal would be in a position to veto the proposals for amendment. In cases where the Oireachtas had initiated the change in terms of reference, the same problems would arise and again it is not clear what procedure the Oireachtas would be expected to follow when consulting the tribunal.
I take the view that the amendments are ill-conceived and that they should be rejected. The Bill as it stands comprehends the current situation of the request from the Flood Tribunal, but also takes into account any future requests which are of a similar nature.
The Bill sets out the strict conditions which must be satisfied prior to the initiation of the process under which the terms of reference of a sitting tribunal can be amended. The Bill achieves a proper framework on which the law in relation to sitting tribunals can operate without prejudice to parties before those tribunals. Accordingly, I am not in a position to accept these amendments.
If I may draw the analogy, Senators are seeking in these amendments to change the rules of the game after the game has commenced or to become the referee in the game having been invited only to throw in the ball. That is something which cannot be envisaged. It would not be right and could not be correct. The person who is best placed to decide whether or not amendments to the terms of reference should be sought is clearly the person who has been appointed as judge of the tribunal, the person who comprises the tribunal. To do otherwise, in my view, would be a grave mistake. It would create considerable uncertainty and would lead to this House presuming that it knew more about the tribunal and how it should proceed than the tribunal itself.
As far as I am concerned, that is a nonsensical argument. If the terms of reference require to be changed, then the tribunal can seek change. I have no doubt that if at some future date a tribunal requires amendment of its terms of reference, it will seek those changes and this legislation will facilitate the Oireachtas in changing them. The way I am proposing is more certain and correct. If one is speaking from the perspective of having certainty in the law, this is the only way.
I am interested in the Minister's view about certainty in the law. I will read again what the Minister for Finance, Deputy McCreevy, said in the Dáil on 28 January when speaking on behalf of the Government. He said that "once a resolution has passed both Houses of the Oireachtas and an order is made appointing the tribunal under specific terms of reference, the power to amend an order does not exist in the legislation". We have found that it does. That says a lot for the Government's knowledge of certainty in the law.
The Minister said that if this proposal is accepted and we change the terms of reference after a tribunal has started its work, it will prejudice the rights of people who have already given evidence or co-operated with it. The Moriarty and Flood Tribunals have not yet started their work so there is no question of prejudicing the rights of anyone. We have all been careful to state that we do not intend to impose a change in the terms of reference on any tribunal of inquiry without the consent of the chairperson.
I do not want a scenario to develop where the tribunal of inquiry is set up and Mr. Justice Moriarty, like Mr. Justice McCracken, needs to further examine the Ansbacher accounts but the terms of reference do not allow him to say or do anything. A row then breaks out in this House because of the huge public interest and demands are made to extend the terms of reference so that the matter can be considered further. However, the Government resists, as it always will, further investigation of the Ansbacher accounts. The judge then feels that if he asks for an extension of his terms of reference he could become involved in a political row, which is the last thing a judicial person wants. That is one of the reasons I want to ensure that we can go to the chairperson and say that the extension of the terms of reference should be considered.
The Minister wants to take the Oireachtas out of the equation because he believes these two inquiries will be surrounded by controversy in the future and that this House will want to discuss it. If the Parliament does not have the right to make suggestions and seek to have them implemented, then this is not a democracy. These two Houses have that right as they are the elected Parliament. The Minister does not want the Houses to have the right to debate this issue. That is unacceptable and that is why these amendments seek to give the Members of this House the right to suggest that certain terms of reference should be changed. The chairperson of the tribunal may not wish to take that matter on board so we could deal with it. However, it is wrong and anti-democratic to take away the right of these Houses to debate this issue. I ask the Minister to accept these amendments.
The logic of the Minister's argument is that we would not change the terms of reference. However, this legislation opens up that possibility. He rightly talks about certainty in the law and the need for people who have dealings with a tribunal to know that the terms of reference will not change on a regular basis. However, that is completely undermined once the principle for changing the terms of reference is introduced.
The Minister spoke about the role of the Oireachtas and the Government in setting up tribunals and he used the analogy that we are just throwing in the ball. I suggest that we are doing a lot more in that we are picking the team and writing the game plan by way of the terms of reference. Perhaps we should not write the terms of reference but appoint a chairman and ask him to write them after an Oireachtas debate on the issue. Once that possibility is opened up, as it is in this legislation, to meet the request of a chairman of one tribunal or once the powers of the Oireachtas are diluted, where will it end? These amendments are designed to be helpful and to meet eventualities, which I know is the Minister's intention.
The Government is taking on board the advice available to it so that the tribunal can function properly. One must trust the people appointed to chair such tribunals. It can be argued as to what extent the powers of the Oireachtas and the Judiciary intertwine. Once a tribunal's terms of reference are established and a chairperson is appointed, he is aware of what is necessary and relevant to do the job required of him by both Houses of the Oireachtas in the best interest of the people. If he needs extra powers to carry out his tasks, he has the right to ask both Houses for that and we are entitled to make the necessary changes to his terms of reference without prejudicing the rights of people who have already given evidence. This is a question of balance. I refute the suggestion that this is an orchestrated attempt by the Government to silence debate on the issue. It takes all possibilities into consideration. It is the best way to approach and improve the terms of reference of the tribunal concerned.
The Opposition was adamant about these amendments. Senator Connor appears to be under the impression that the amendments would require the chairperson or member of the tribunal to consent to the amendments proposed by the Oireachtas. That is not the position. The amendments do not provide for that.
They do. They ensure the tribunal is satisfied.
The only thing they provide for is whether the proposed amendment affects the legal right of any person who has co-operated with the tribunal. That is what the word "satisfied" in the amendments provides for.
It is wider than that.
It is incorrect to state that the amendments require the tribunal to consent to the amendments. That is not the position.
They have to be satisfied.
They only have to be satisfied pursuant to these amendments, that the proposed amendment affects the legal rights of any person who has co-operated with it. Should the tribunal decide they affect the legal rights of any persons who have co-operated with it, then pursuant to these amendments, the Oireachtas is empowered to make the amendments to the terms of reference and these may be made even if the tribunal does not want them. That is absurd and could not be countenanced by any reasonable legislator. Since there is a complete misapprehension on Senator Connor's part in relation to what the amendments mean, the only course open is to withdraw them.
I want to correct the record. I do not know if the Minister read the amendments. They deal with the following circumstances: first, where the tribunal has requested the amendment, second, where the Government, with the consent of the tribunal, has requested the amendment, or third, the Houses of the Oireachtas, with the consent of the tribunal, have requested the amendment and the tribunal is satisfied.
The amendments have been comprehensively argued; Members are becoming repetitive.
Question, "That the words proposed to be deleted stand", put and agreed to.
Amendment declared lost.
Amendment No. 2 not moved.
Section 1 agreed to.
NEW SECTION.
Amendment No. 3 not moved.
Section 2 agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Members and staff of the House for their co-operation today. I also thank the Minister, his officials, the spokespersons on all sides and the Whips.
Question put and agreed to.
When is it proposed to sit again?
Next Wednesday at 2.30 p.m.
The Seanad adjourned at 1.15 p.m. until 2.30 p.m. on Wednesday, 6 May 1998.