Seanad Éireann debate -
Thursday, 30 Apr 1998

Vol. 155 No. 8

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

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

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

The purpose of this short Bill is to amend the law contained in the Tribunals of Inquiry (Evidence) Acts, 1921 to 1997, to expressly provide, subject to certain conditions, for amendment of an instrument which appoints a tribunal, incorporates terms of reference of the tribunal and applies the provisions of the Tribunals of Inquiry (Evidence) Acts to the tribunal.

The Tribunal of Inquiry into Certain Planning Matters established under the Chairmanship of Mr Justice Flood requested, in its Interim Report of 26 February 1998, a change in its terms of reference. The Bill will facilitate change in those terms of reference.

The terms of reference, of tribunals that are in question in the Bill, are those which have been adopted by resolution of both Houses of the Oireachtas. Section 1 of the Tribunals of Inquiry (Evidence) Act, 1921, with which the Bill is concerned, requires both Houses, in the making of a resolution to which the Acts of 1921 to 1997 are intended to apply, to resolve that it is expedient that a tribunal be established to inquire into a definite matter of urgent public importance. The importance of the provisions contained in the Acts of 1921 to 1997 are that they give to such a tribunal the powers, rights and privileges that are vested in the High Court for evidential purposes. Such a tribunal can enforce the attendance of witnesses, examine the witnesses under oath, and compel the production of documents. By virtue of these powers, tribunals are in a position to thoroughly and properly investigate those matters of urgent public importance which are of concern to the Houses of the Oireachtas.

Since the 1921 Act, the law in relation to tribunals has been developed not only by provisions in the Acts of 1979 and 1997 but also by the courts. The courts have explained in various decisions that the presumptions providing for fair procedures and natural and constitutional justice apply to the procedures before tribunals of inquiry. The overriding concern, therefore, in relation to the operation of tribunals is to ensure that appropriate procedures apply to enable justice to be done to persons giving evidence before those tribunals.

Various views have been put forward as to whether the terms of reference of a tribunal, which has been established pursuant to a resolution of both Houses and to which the Tribunals of Inquiry Acts apply, can be amended. The stated view of members of the Government is that once a tribunal is established, the tribunal should be allowed to proceed with certainty in the knowledge that its terms of reference will not be changed. If otherwise, the obvious danger is that persons who have co-operated with the tribunal, on the basis of its established terms of reference, might find their position prejudiced under any proposed new terms of reference. A change in terms of reference, without safeguards, could jeopardise the operation of a tribunal at a stage when, perhaps, a considerable amount of effort and resources have already been expended in establishing facts which are relevant to its original terms of reference.

The contrary view of some spokespersons is that certain words in section 1 of the Act of 1921 allow for amendment of the original instrument made on foot of a resolution of both Houses. Those words provide that "the instrument by which the tribunal is appointed or any instrument supplemental thereto may provide that this Act shall apply". The advice available to the Government, however, is that the words "any instrument supplemental thereto" do not bestow a power of amendment of the original instrument and that what is envisaged by those words is that the original instrument may contain the terms of reference of a tribunal and the appointment of one or more members of the tribunal but the original instrument would be silent as to the application of the Act of 1921.

In this context, the purpose of a supplemental instrument is to apply the Act to a tribunal subsequent to its establishment. This view is supported by the reference in the first line of section 1 of the 1921 Act which states "Where it has been resolved (whether before or after the commencement of this Act).". This clearly envisaged the setting up of a tribunal prior to the coming into force of the Act to which the panoply of powers contained in the 1921 Act could be applied. Accordingly, if an instrument existed by which such a tribunal had been appointed, a further instrument — an instrument supplemental thereto — can further provide that the 1921 Act may apply to it.

The supplementary instrument is merely a supplemental instrument to apply the 1921 Act and the powers of enforcement which that Act imports. It further contemplates the making of an instrument without reference to the 1921 Act at a future date and an instrument supplemental thereto applying the 1921 Act to a tribunal already established.

Of relevance in the context of debate on tribunals of inquiry is the 1966 report of the English Royal Commission on Tribunals of Inquiry which reviewed the working of the Tribunals of Inquiry (Evidence) Act, 1921, the Act which also applies here. That report, which runs to 57 pages, contains a comprehensive analysis of the 1921 Act but nowhere does it contemplate an amendment in the terms of reference of a tribunal. Moreover, it makes clear that no tribunal should be set up to investigate a nebulous mass of vague and unspecified rumours; that the terms of reference of a tribunal should confine the inquiry to the investigation of the definite matter which is causing a crisis of public confidence and that it is essential that the tribunal should not be fettered by terms of reference which are too narrowly drawn.

It is reasonable to assume that when the Act of 1921 was framed it did not envisage amendment of the terms of reference of a tribunal of inquiry or the instrument by which the tribunal is appointed. If the Act had envisaged such change it would likely have expressly provided for any such amendment. On another view, there is the argument that tribunals are not established as such by the Act of 1921, rather they are established by resolution of both Houses and the Act of 1921, in so far as its evidential provisions are concerned, is merely applied to such tribunals.

I am advised by the Attorney General that if the Houses were to pass a resolution with amending terms of reference and a Minister of the Government were to make an instrument appointing a new tribunal and applying the Act of 1921 to the new terms of reference, the new instrument would not be an amending instrument but a distinct instrument with separate terms of reference. The effect would be the creation of another tribunal, side by side and parallel to the original tribunal. The tribunals would be distinct entities, albeit they may have the same individual as chairperson. This, of course, could not have been intended by section 1(1) of the Act of 1921 and would produce an absurd result.

However, because there is no express power of amendment of an instrument this would be the legal effect of passing new resolutions and making another instrument applying the Act of 1921. The new instrument would apply the Act to the new terms of reference only. The Bill addresses those legal/technical diffficulties and the effect is not to create another tribunal but to allow for amendment of the instrument containing the original terms of reference. The advice available to me is that it is now the prudent and legislatively responsible course of action to create an express power to so amend and put the matter beyond doubt.

The advice of the Attorney General, with which the Government agrees, is that primary legislation is necessary to deal properly with the matter. This view is supported in independent legal advices which were obtained by the Attorney General for the purpose of analysis of the request of Mr. Justice Flood for an amendment of the terms of reference of the tribunal, of which he is chairman, established to inquire into certain planning matters. That tribunal was established following a resolution of both Houses in October, 1997 and the instrument establishing it provided that the Tribunals of Inquiry (Evidence) Acts shall apply.

The terms of reference of the Flood tribunal include the following at paragraph A5:

In the event that the tribunal in the course of its inquiries is made aware of any acts associated with the planning process committed on or after 20th June 1985 which may in its opinion amount to corruption, or which involve attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it shall report on such acts and should in particular make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of its inquiries.

The tribunal's interim report indicates, at paragraph 19, that a number of matters which are said to have occurred prior to 20 June 1985 have come to its attention and that it has been advised that evidence in relation to such matters is admissible if, and in so far as, it is relevant to matters which occurred after 20 June 1985. However, the tribunal considered that the fact that such a date had been specified in its terms of reference might give rise to a legal challenge which would inevitably delay proceedings. Consequently, notwithstanding its legal advice and to avoid any such legal challenge, the tribunal requested the Oireachtas to amend paragraph A5 by the deletion of the words "committed on or after the 20th June 1985".

I have detailed, for the benefit of the House, the background to the Bill. It is the desire of the Government to clarify the position in relation to amending terms of reference of tribunals to which the Acts of 1921 to 1997 apply. I propose now to deal with the provisions contained in the Bill and to explain how it is proposed that the law should operate in this area.

Section 1 of the Bill inserts a new section 1A into the Tribunals of Inquiry (Evidence) Act, 1921. Subsection (1) of new section 1A provides that an instrument to which the new section applies shall be amended, pursuant to a resolution of both Houses of the Oireachtas, subject to certain conditions which are specified in paragraphs (a) and (b) of the subsection. The conditions in paragraphs (a) and (b) are that the tribunal has requested the amendment and that it is 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 terms of reference.

Subsection (2) of the new section provides that where an instrument to which that new section applies is so amended, the Tribunals of Inquiry (Evidence) Act, 1921 shall apply to the instrument as amended. Subsection (3) provides that in the case of a tribunal to which the Act of 1921 is applied, the new section applies to the instrument by which the tribunal is appointed. Section 2 of the Bill is standard and provides for the short title and collective citation.

The new section of the 1921 Act is obviously the core of the Bill and gives legislative effect to a number of principles in a coherent and structured way. First, it makes clear that an instrument by which a tribunal is appointed may only be amended following a further resolution of the Houses of the Oireachtas. Second, it provides that the instrument by which the tribunal is appointed may be amended following such further resolution even if it was made prior to the enactment of this Bill. This clearly 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. Third, it sets out clearly the conditions which must be satisfied prior to the initiation of this process.

The first condition, that the tribunal must have requested the amendment, ensures that when a tribunal sets about its task of publishing its terms of reference in newspapers, requesting information, considering whether information supplied is within its terms of reference, considering requests for representation and taking evidence, it would be able to proceed with some certainty in the knowledge that a change in its terms of reference would be rare and then only on the basis of its own initiative. Where it is contemplated that any change be made to the terms of reference of a tribunal, the tribunal itself is best placed, given the facts already before it, to determine the nature of any such amendment.

The second condition, that the tribunal must satisfy itself that the amendment would not prejudice the legal rights of any person who has co-operated with or provided information to it under its terms of reference, is intended to ensure that the effect of the amendment of the terms of reference of the tribunal would not result in unfairness to any person who has co-operated with or supplied information to it.

The Government is satisfied that the Bill represents a clear statutory framework on the position that should obtain where a tribunal, to which the Act of 1921 is applied, requests a change in its terms of reference. Where both Houses are asked to resolve that an amendment be made and that the full panoply of powers which the 1921 Act imports should apply, they will do so on the basis of the law in section 1 of the Act of 1921 which requires the Houses to resolve that the matter in issue is "a definite matter of urgent public importance". In such circumstances both Houses will be required to have regard to the provisions contained in new section 1A.

The Bill, when enacted, can be applied to a sitting tribunal whether such tribunal is established before or after the passing of the Bill. It is important that tribunals have a clear statutory framework on which to base their position in circumstances where they seek a change in their terms of reference. The Bill is intended to achieve that clarity.

I commend the Bill to the House.

Mr. Connor

Members on this side of the House are not opposed to acceding to the request of Mr. Justice Flood in respect of the terms of reference of the Flood Tribunal. However, the Bill goes much further in that regard and we oppose it and will seek to defeat it. The Bill is opposed because it is not necessary. It must also be stated that the Bill was conceived amid a web of intrigue and secret manoeuvring in which the Minister was centrally involved.

Let us first consider what caused this matter to be returned to the Houses. In the interim report of the planning tribunal, which was published on 26 February last, its sole chairman, Mr. Fergus Flood, requested that the terms of reference in the order be changed to remove the date of 20 June 1985 as the commencement date on which he could commence his investigation. He had obviously discovered that a number of the amazing goings on in planning matters in north County Dublin had their genesis before that date. When the request was made, everyone agreed that what was required could be achieved on foot of agreement from both Houses under the existing Tribunals of Inquiry Act as amended. However, the judge's request caused absolute consternation among Cabinet members in view of their obstinate opposition to the public and political demands that the terms of reference of the Moriarity Tribunal be changed in order that it could investigate the Ansbacher accounts.

In response to the continued and correct demands that the Ansbacher deposits be opened to scrutiny, the Government dispatched its second most senior Minister — the Minister for Finance, Deputy McCreevy — to inform the Dáil with unalterable finality that once a resolution has passed both Houses of the Oireachtas and once an order is made appointing a tribunal under specific terms of reference, the power to amend that order does not exist in the legislation. That is absolutely wrong and it was proven to be so by Mr. Justice Flood and the Government's response to his request. In the debate on the Bill in the Lower House, the Minister for Finance did not avail of the opportunity to withdraw and apologise for making his earlier statement to that House, which was, at best, misleading; nor did the Taoiseach, the Minister for Justice, Equality and Law Reform or their colleagues attempt to withdraw or correct it. That is not good enough. The Government's action was part of the web of intrigue surrounding the introduction of this legislation, which does not deal with Mr. Justice Flood's request on its own Matters continued to deteriorate. When Mr. Justice Flood's grenade blew to pieces the stated position of the Government, the Minister for Justice, Equality and Law Reform was obliged to act to amend the terms of reference of the Flood Tribunal. It gives me no pleasure to say it but the Minister chose to act in the most devious manner. The outcome of that action was to draft this new amendment to the Tribunals of Inquiry Act which will have the effect of emasculating the Dáil and the Seanad in respect of proposals to extend or amend the terms of reference of future tribunals of inquiry established by the Houses. That very important initiative which rests with us would be removed and it would have to be initiated by the chairperson. There is nothing wrong with the chairperson initiating it in consultation with the Houses of the Oireachtas or the relevant Minister. However, we must always retain the right of initiative in these matters.

When Mr. Justice Flood's request was received and the Government realised it had to act, it is possibly true that the Attorney General believed at the outset that amending legislation was needed to strengthen the right of the Houses of the Oireachtas or the chairperson of a tribunal to request a change in the terms of reference. I do not believe there is a need for legislation, but that is as far as such legislation need go. However, when officials of the Department of Justice, Equality and Law Reform consulted officials of the Attorney General's Office and the parliamentary draftsman it was concluded — this has been reported in the newspapers and it has not been denied — that legislation was not necessary. That was the advice the Minister received from these sources. It was further indicated that the matter could be dealt with under the existing law. In other words, the Minister need only bring forward a proposal on the need to extend the terms of reference to both Houses. I am sure the Houses, possibly without debate, would have acceded to such a request.

The Minister, because of the implications of this matter for the Moriarty Tribunal, whose powers in respect of the Ansbacher deposits he intends to hold in check at all costs, decided to hatch his own little plan. I am reminded of a line from Gilbert and Sullivan "When a felon is not engaged in his employment or nurturing his felonious little plan, little plan". The Minister contrived to ensure that the proposed legislation before us would remove the initiative in these matters from the Oireachtas and from the Members of this House who form part of the elected Parliament of this country. I can no longer address myself directly to the Members of the Lower House, but I say to the Members of this House that we should never allow that to happen.

The Minister's manoeuvrings to get his way were amazing. He knew the senior officials in his Department, those in the Attorney General's office and the parliamentary draftsman saw no need for legislation. However, he did not want this to become obvious so he prepared two plans for the Cabinet. One option would allow the Minister, with the consent of the Oireachtas and in consultation with the chairperson of the tribunal, to initiate an amendment of the original order establishing the tribunal. This would mean that no change would be needed. We do not know if legislation would be required to achieve this end and we must assume that this power is contained in the relevant section of the 1921 Act.

We would not object if that was all that was in the Bill. It would not change anything and the chairperson of a tribunal could initiate a proposal for an extension of the order and the Minister or a Member of either House could initiate a proposal for an extension or a change in the terms of reference.

The Minister's second option, which he wanted dearly, would only allow the original order as passed by both Houses to be amended where the chairperson of the tribunal so requested. This would remove any role in initiating an amendment from the Minister and the Oireachtas. We were told at the end of February and in early March that the Attorney General sought independent advice. At that time there was a lot of debate in the newspapers on this matter and the spin doctors put it out that the Attorney General was seeking independent advice, notwithstanding the advice he had received from the senior officials in his office. I have already mentioned how clear their advice was and the Minister cannot gainsay it.

It is not clear whether the independent advice sought by the Attorney General was available when the Cabinet met to decide what to do on 10 March; it seems the Minister claimed that it was. That is doubtful to say the least. He further claimed that the independent advice was in favour of his point of view, the second option I outlined. It would appear the Minister got his way in Cabinet.

Why did the Minister want this legislation which attacks and restricts the Houses of the Oireachtas? He is a Member of the Oireachtas and a Minister by virtue of that membership yet he wants legislation which attacks the powers of the Oireachtas because he fears the Moriarty and Flood tribunals may uncover other shocking scandals which may lead to major political controversy and public pressure to further extend the tribunals' terms of reference. If that scenario were to come to pass the Houses of the Oireachtas would not be able to respond to the public mood to help the tribunals further their investigations. If the tribunals uncover matters even more sensational and controversial and need further powers to extend their inquiries we will not be able to give them those powers and we will not be able to discuss the matter if the Bill is enacted.

I address myself to the Members on the Government benches, scarce as they are. If we are so mad as to pass this law which will rob us of the power given to us by the Constitution, we are not worthy of membership of the House. The same applies to the Members of the other House.

When the Moriarty tribunal gets under way, the court challenges having been dealt with, it is inevitable that sensational matters or events will be uncovered relating to these accounts. There may be a furious political row because it may be felt that there is a need to extend the terms of reference to allow further investigation of these accounts. At the heart of any such future row will be the fact that, if the Bill is enacted, the Houses of the Oireachtas will have no role in a demand to extend the tribunal's terms of reference. That will lead to a huge political row in itself.

The last thing the chairperson of a judicial inquiry wants is to be embroiled in a political row. If the chairperson of a tribunal felt that further powers were needed having reached a certain stage in an investigation, he or she would be reluctant to seek them for fear of becoming embroiled in a political row which would undermine his or her position. That is the fundamental tenet of my argument and the reason the House should not accept that provision in the legislation.

It was revealed yesterday that about 130 Department of Finance files relevant to the Moriarty tribunal have disappeared. Those papers did not disappear of their own volition. It is reasonable to assume that the tribunal will require its remit to be extended to inquire into the reason for the disappearance of the files. There will be a political row about that if the Oireachtas has no role in extending the tribunal's terms of reference. I address my arguments to the Members of the House, not to the Minister because his mind is closed on the matter. As elected representatives we should be vigilant about our powers.

Mr. Justice Moriarty has already made ominous mention of the Ansbacher accounts and if his work gets under way he may have further comments to make which will lead to political controversy. What will happen then? The Government will resist at all costs a closer examination of the Ansbacher accounts. The Minister professes zero tolerance of all crime and wrongdoing but he will show a perverted zero tolerance of criticism of him or his decisions. I appeal to the House not to agree to this legislation. It should not allow the powers given to it by the Constitution to slip out of its hands.

Mr. Chambers

I support the Bill, the purpose of which is to provide the changes necessary for the progress of the Flood tribunal. The chairperson of that inquiry has requested the Oireachtas to amend the terms of reference to enable him to examine certain matters which are said to have occurred prior to 20 June 1985 and which have come to his attention.

The purpose of the Bill is to help deal with the business that is required and to put the legislative framework in place so that the tribunal can conduct its business in a proper fashion. The Bill expressly provides for an amendment of the instrument which establishes a tribunal and applies the Act of 1921. It also provides for appropriate safeguards by requiring that amendments be made only made on foot of a request from the tribunal and only where the tribunal is satisfied that such amendments would not prejudice the legal rights of any person who has co-operated with, or provided information to, the tribunal under the terms of reference already there.

Many legal opinions have been expressed on the document as to how this matter should be approached. The best considered way of making the necessary amendments to the instrument has been set out clearly by the Minister. Senator Connor implied that there was an element of avoidance in respecting the wishes of the Oireachtas. I am satisfied, however, from the way the Minister has approached this matter and others that he will respect the wishes of the House. I am sure he will allay any fears Senator Connor may have about the amendments before the House.

The Minister said:

Of relevance in the context of debate on tribunals of inquiry is the 1966 report of the English Royal Commission on Tribunals of Inquiry which reviewed the working of the Tribunals of Inquiry (Evidence) Act, 1921 — the Act which also applies here. That report, which runs to 57 pages, contains a comprehensive analysis of the 1921 Act — but nowhere does it contemplate an amendment in the terms of reference of a tribunal [which is already set up]. Moreover, it makes clear that no tribunal should be set up to investigate a nebulous mass of vague and unspecified rumours;

When the Bill was first introduced in the House Members wanted the powers of the tribunal to be expanded. The terms of reference in relation to British law refer to "a nebulous mass of vague and unspecified rumours". The Minister continued quoting the 1966 UK report as follows:

. that the terms of reference of a tribunal should confine the inquiry to the investigation of the definite matter which is causing a crisis of public confidence and that it is essential that the tribunal should not be fettered by terms of reference which are too narrowly drawn.

The purpose of this tribunal is to examine properly the terms of reference that are put before it. The tribunal chairman, Mr. Justice Flood, made his request to the Oireachtas in order that the tribunal can carry out its function in a proper, open and specified way in the public interest.

The view of the Members on the Government side has been that once a tribunal is established it should be allowed to proceed with certainty in the knowledge that its terms of reference will not be changed. If otherwise, the obvious danger is that persons who have co-operated with the tribunal on the basis of the established terms of reference may find their position prejudiced under any proposed new terms of reference.

It is the view of the Minister and of this House that the overriding concern in relation to tribunals is to ensure that appropriate procedures apply to enable justice to be done to parties before those tribunals. A change of terms of reference, without safeguards to the people who have already participated by giving evidence, could jeopardise the tribunal's operation at a stage where perhaps a considered amount of effort and resources has already been expended in establishing facts that were relevant to its original terms of reference.

The legal advice is that primary legislation was necessary to deal properly with the matter by amending section 1 of the 1921 Act expressly providing for the amendments of the terms of reference of an instrument appointing a tribunal and applying the Act to the tribunal. The importance of the provisions contained in the Acts of 1921 to 1997 is that they give to such a tribunal the powers, rights and privileges that are vested in the High Court for evidential purposes. The Government clearly stated that this was necessary for the tribunal to conduct its business in a proper way and to have the necessary investigative powers to conduct its work. Such a tribunal can enforce the attendance of witnesses, examine the witnesses under oath and compel the production of documents.

One sees that this is necessary for the tribunal to conduct its business properly as well as allaying public concern. While it is difficult, one accepts it must be done in the public interest and that it will allay fears as well as improving the public concept of the political process. Public opinion will be properly satisfied in this way. By virtue of these powers tribunals are in a position to thoroughly and properly investigate those matters of urgent public importance which are of concern to the Houses of the Oireachtas.

The Minister outlined the legal view that any changes to the terms of reference of an existing tribunal, without legislation, would set up another tribunal. We could find that the same chairman was chairing two tribunals. These legal opinions have been put forward by professional people. Looking at what has been put before us on the basis of the British tribunal system and examining the legislation, the Minister has decided, correctly and in the best interests of the public, what is required to give the necessary powers to Mr. Justice Flood. He said:

I am advised by the Attorney General that if the Houses were to pass a resolution with amending terms of reference and a Minister of the Government were to make an instrument appointing a new tribunal and applying the Act of 1921 to the new terms of reference, the new instrument would not be an amending instrument but a distinct instrument with separate terms of reference; the effect would be the creation of another tribunal, .

This would not serve any purpose. It would not be in the best interests of the examination or of the people. The Minister continued:

The tribunals would be distinct entities, albeit they may have the same individual as chairperson. This, of course, could not have been intended by section 1(1) of the Act of 1921 and would produce an absurd result.

I support the Bill's Second Reading.

Ms O'Meara

I was notified earlier that the House would only take the Second Stage today. It is unsatisfactory that we were informed at such short notice that all Stages of the Bill would be taken today. It shows disrespect to the House and suggests it is a rubber stamping mechanism. The Minister and the Government ask us to consider a Bill without giving us time to examine it, which undermines our proper role as legislators. The public cynically sees us as not living up to its expectations, while to a large extent we are not being given an opportunity to do so.

I am dissatisfied with the approach to this legislation. We are capable of ordering our business properly. We should be able to make arrangements which allow for sufficient time to debate legislation and motions, while not giving so much time to them that there are not enough speakers on the Bill, about which the Government Whip and the Leader of the House are concerned. These problems could be solved with some discussion and advance notice. If we had been told yesterday that we were taking all Stages today, I would have objected but I would have had time to do some work in advance. Proper care and attention is not being given to legislation.

No legislation is small or unimportant. This Bill, like all legislation, requires time for consideration. Amendments need to be carefully looked at and responded to by the Minister. A rush job does not do justice to the Bill, the Minister or our responsibility to the public. This Bill is important as regards the number of tribunals sitting at the moment. We should also be concerned that Mr. Justice Geoghegan, in the case taken by the former Taoiseach, Mr. Haughey, this week in relation to the Moriarty Tribunal, said the terms of reference were vague.

While we gave sufficient time to discussing the terms of reference for the Moriarty tribunal, obviously not enough due care and attention was paid to it. Despite the Government having the best legal advice available, a judge still says the terms of reference are vague and possibly open to more than one interpretation. However, we failed to get the message and we are now rushing through legislation relating to a different tribunal.

This Bill is significant because it contains a change which, when on the Statute Book, will require another Bill to change it. Only the chairman of a tribunal can initiate any change to its terms of reference. Therefore, the power of the Oireachtas to do so is significantly diluted. The power to establish a tribunal is an important one and is only held by the Government. We must be seen to be concerned about any change to this.

We have been advised that this Bill is unnecessary as the request made by Mr. Justice Flood is in the scope of the 1921 Act. However, the Minister differs with me on that point. The Government is determined to pass this legislation as soon as possible. It is ironic that it jumped so quickly to deal with the request of Mr. Justice Flood as regards the terms of reference of the tribunal which he is chairing. However, the many entreaties made by Members of the Oireachtas and public representatives to widen the terms of reference of the Moriarty Tribunal to include the Ansbacher accounts were met with a stony silence.

The shadow of the Ansbacher accounts still hangs over us and the chapter will not be closed until satisfactory answers are given to the grave public concern about their operation. I have no doubt, that in two, five or ten years' time, the Oireachtas will be debating the terms of reference for a tribunal of inquiry into the Ansbacher accounts.

We seem to be in an era of tribunals and I do not blame any member of the public for being confused. There has been a great deal of criticism and many people have become cynical about the need for tribunals. The power to establish a tribunal of inquiry into any matter of public concern is an essential part of any democracy. We are moving into a new democracy as we approach the end of the century and we must deal with issues which have been hidden for so long.

It is good that tribunals provide some form of accountability and that a judge has the power to inquire into murky subjects. People may have suspected these were happening but we could not face up to it. It is good that we are maturing sufficiently as a democracy to do this now. If the information which emerges is not what we want to hear, so be it. It is in the past and is the type of democracy we created. We must ensure it never happens again and that we learn from our mistakes.

I recently spoke to a group of transition year students in the Sacred Heart Convent in Roscrea, County Tipperary, about a career in politics. They declared themselves to be totally cynical about the political system. There are a group of students in the Public Gallery and I wonder if they feel the same. I asked the students in Roscrea why they were so cynical. Most of the information they receive is from television. They believe all politicians are corrupt, the system is useless, we are all in it for our own gain and none of us can be trusted. It is worrying to think that is their only reaction to politics when they are not even voting yet. They are negative about a political system which they see as one scandal after another.

We need to be careful about how we respond to the publication of reports and how we put information in the public domain so we do not feed that cynicism. We must not be seen to hide information, especially as regards the Ansbacher accounts, where it still appears the system is trying to protect itself by being secretive. In an era of openness and the free flow of information, one cannot proclaim certain matters to be unexplorable.

Finally, I wish to express my dissatisfaction at the manner in which this legislation has effectively been rushed through the House.

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

I thank Senators for their contributions. Not since Jonathan Swift have I witnessed such a vivid imagination as I did in Senator Connor's contribution.

Mr. Connor

I am delighted to be compared with Swift.

Mr. O'Donoghue

It would only lend even the slightest credence to the Senator's comments for me to respond in great detail.

Mr. Connor

I did not consider the Minister would respond.

Mr. O'Donoghue

The Senator might consider taking up novel writing because he has missed his vocation.

Mr. Connor

It would be better than tormenting the Minister.

Mr. O'Donoghue

The Bill will allow an amendment of the instrument by which a tribunal is appointed 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 it under its original terms of reference. The Government is conscious of the need to ensure the provisions to be put in place for the amendment of the instrument establishing a tribunal and incorporating its terms of reference will guard against the possibility of a successful challenge to it. The approach taken in the Bill is the safest one and the safeguards in paragraphs 1(a) and 1(b) of the proposed section 1(a) of the 1921 Act will achieve this.

The first safeguard, that the tribunal itself must request the amendment, ensures when a tribunal sets about its task of publishing its terms of reference, asks for information, considers whether information supplied is within its terms of reference, and makes requests for representation and the taking of 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 Dunnes Payments Tribunal as set out in the instrument signed by Deputy John Bruton as Taoiseach on 7 February 1997 which comprehended an extension of its terms of reference following a recommendation by it.

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 safeguards take account of the fact that the tribunal itself is best placed, given the facts already before it, to determine the nature of any such amendment. This is the more certain way to proceed if we are to guard against challenges to tribunals and to do otherwise would be irresponsible.

I turn to issues raised by Senators but because of the limited time available I propose to deal with the more important points. I have explained on many occasions the situation in regard to the Ansbacher accounts ad nauseam. I have given full and comprehensive responses on the matter and in those circumstances I do not intend to go over the same ground. However, I stress these accounts are the subject of intensive scrutiny by the Revenue Commissioners and the authorised officer appointed by the Tánaiste and Minister for Enterprise, Trade and Employment, under the Companies Act, 1960.

The chairman of the Revenue Commissioners stated the proceedings of the tribunal were monitored closely by them and that appropriate action would be taken. The Minister for Finance also indicated that any additional powers which might be required by the Revenue Commissioners can be provided for in legislation. The Moriarty tribunal has a brief to examine certain aspects of the accounts. Its terms of reference permit inquiry into the 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 to whose benefit money was held in them conducted any act in public office to confer any benefit on any person who was the source of that money or directed any person to carry out such an act.

Any deposit holder discovered by the tribunal to have made payments into 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. The deposit holders who did not arrange such payments will not be publicly identified.

The question which arises with regard to the accounts relates to the possibility that the depositors might be evading tax and the tribunal of inquiry is not required to conduct any investigation into tax evasion. Its terms of reference include the making of recommendations for the purpose of the protection of the State's tax base from fraud or evasion through the establishment and maintenance of offshore accounts and to recommend whether change should be made in tax law to achieve this end. Consequently, to make recommendations the tribunal must investigate offshore accounts to establish how they work, the purpose 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 which should be implemented to prevent this. The extent to which offshore accounts, including the Ansbacher accounts, facilitate tax evasion will be investigated by the tribunal, but it will not investigate whether individual deposit holders were guilty of tax evasion. That is an issue between the Revenue Commissioners and the individuals concerned.

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. The Dunnes Payments 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, and that may still be the case, given the well recognised principle in international law 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 for that stated purpose would have been refused thus jeopardising the primary focus of this tribunal relating to propriety in public life.

If we assume that this happened and that because of the change in the terms of reference the primary focus of the tribunal regarding an investigation into propriety in public life was prevented, there would be a hue and cry across the floors of both Houses from the Opposition benches and I would be accused of having wittingly interfered with the terms of reference of the tribunal when I should not have done so. In those circumstances it is impossible to win.

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 positions prejudiced under any new terms of reference. The shifting of goalposts by amending them might result in individuals or institutions who are bona fide on the basis of the existing terms of reference providing information to the tribunal and then requesting that no use be made of that information. Under proceedings currently before the courts, it could be argued that the process of altering the terms of reference was flawed or illegal and thereby jeopardised the State's defence of these proceedings.

I gravely resent any suggestion that the Government is, in some way, attempting to shield any Ansbacher account holders as such a suggestion is false, malicious and without foundation. On the passing of this legislation, it will be open to Mr. Justice Moriarty to seek an amendment of the terms of reference should he consider that to be appropriate. Nobody is in a better position than he to decide whether those terms of reference should be amended. Only Mr. Justice Moriarty is in a position to determine, on the basis of the evidence before him, whether any changes are warranted in the terms of reference. Should such a request be received, it will be dealt with under this legislation. I cannot put the matter any more clearly than that. It is frustrating to hear the same old arguments being trotted out about the Ansbacher accounts over and over again after I have explained the position ad nauseam and given assurances.

I have heard Members of the Opposition state that there is no need for this legislation. That is a fallacy; the reality is that the previous Government was given precisely the same advice as this one. The Opposition, when in Government, was advised that primary legislation was necessary and that section 1 of the 1921 Act required amendment to expressly provide for an amendment of an instrument incorporating terms of reference and appointing a tribunal to which the 1921 Act applies. Of course, Opposition Members now wish to deny this and, for political purposes, would have people believe that there was no need whatsoever to amend the legislation.

It is abundantly clear from the provisions of the order made by the previous Government on 7 February 1997, which set up the Dunnes Tribunal, what the true position is. That Government envisaged the necessity for a further resolution of the Dáil and Seanad in the event of any matters arising before that tribunal and specific provision was made in the original order providing for its amendment. Accordingly, the order allowed the Dáil and Seanad to make a further resolution which would automatically apply to the original tribunal. The provision was inserted by that Government because there was doubt as to the power to amend the order establishing the tribunal once it had been made.

The current positive assertions being made by the Opposition to the effect that legislation is not required are, to say the least, strange given the vivid evidence that their parties did have some doubt about this when in Government and were clearly given precisely the same advice as this Administration.

Mr. Connor

That is not so.

Mr. O'Donoghue

I have outlined the precise position on this matter. The previous Government was given precisely the same advice as this one.

Mr. Connor

That is not so. The Minister should not mislead the House.

Mr. O'Donoghue

I would like to deal with Senator Connor's query as to whether the advice given to the Government in this matter was independent. The facts are that, in tandem with a detailed analysis of the drafting of this Bill, the Attorney General sought independent legal advice on a number of issues relating to the request made by Mr. Justice Flood for an amendment to the terms of reference. One of the issues raised related to the amendment of the terms of reference of a tribunal of inquiry which was already established under the Tribunals of Inquiry (Evidence) Acts, 1921-97. That independent advice, which was provided by an eminent senior counsel, concurred with the advice of the Attorney General's Office.

In the course of the debate on this legislation in this House and in the Dáil, precisely the same line of argument has been taken in regard to whether amending legislation is required. I outlined, to the best of my ability, why a change in the law is required in my introductory remarks here today. I should set that argument out clearly again at this stage. The legal advice received by the Government is that primary legislation is necessary to deal properly with the matter by amending section 1 of the 1921 Act, expressly providing for the amendment of terms of reference of an instrument appointing a tribunal and applying the Act to it. Nowhere does the 1921 Act provide for the amendment of the instrument which establishes a tribunal and it is the prudent and legislatively responsible course of action to create an express power to so amend the legislation and put the matter beyond any doubt.

The Government's view is that once a tribunal has been established it should be allowed to proceed with certainty in the knowledge that its terms of reference will not be changed. The overriding concern in regard to tribunals is to ensure that appropriate procedures apply to enable justice to be done to parties before those tribunals. Where a change in the terms of reference is deemed necessary, such a change could jeopardise the operation of a tribunal unless sufficient safeguards are put in place. While it is argued that any instruments supplemental thereto bestow a power of amendment on the original instrument, the advice received by Government is that what is envisaged by those words is that the original instrument may contain the terms of reference of a tribunal and the appointment of one or more members of it but the original instrument will be signed under the application of the 1921 Act. The purpose of a supplemental instrument is to apply the Act to a tribunal subsequent to its establishment. To attempt to amend the terms of reference simply by a resolution of both Houses and without express legislative provision would result in the creation of another tribunal parallel to the original one. The tribunals would be distinct entities and would not have the same chairman. That would be absolutely absurd; I cannot make the matter much clearer.

I thank Senators again for their contributions even though some of them took the liberty of journeying into fantasy land. Senator O'Meara may be assured that it was not I who sought to rush the legislation through the House today having only learned that this was to be the position when I arrived here. Indeed, it might have suited me better for Committee Stage to be taken at a future date. However, I understand the constraints under which the Leader is operating and consented to his request to take all Stages of the Bill today.

Mr. Cassidy

I thank the Minister and the Opposition for their understanding in regard to the dilemma in which I found myself.

Question put and agreed to.

Acting Chairman

When is it proposed to take Committee Stage?

Mr. Cassidy

It is proposed to take Committee Stage after an adjournment of 15 minutes.

Committee Stage ordered for 12.45 p.m.

Sitting suspended at 12.30 p.m. and resumed at 12.45 p.m.