The Oireachtas Joint Committee on State-Sponsored Bodies was established in December 1976. Almost 16 years later, it is a remarkable fact that this is the first occasion on which the Dáil has formally devoted time to consider any report. That this should be so is remarkable, given the basis put forward for the establishment of the committee. The Minister for the Public Service of the day, Deputy Richie Ryan, adduced three broad reasons in favour of establishing such a committee. First, misgivings in the Oireachtas about the deficit in the amount of information available on the commercial State sponsored bodies; second, the concern in public opinion at the lack of accountability of the State sponsored sector; and third, a long felt desire that the Houses of the Oireachtas should take a greater interest in the affairs of State sponsored bodies. Those reasons are as relevant today as they were in 1976. Ireland's State-sponsored sector has grown dramatically since the establishment of the ESB and the Agricultural Credit Company in 1927. A wide variety of factors has influenced their growth. By and large the bodies have been anad hoc response to different circumstances which are present from time to time. Among the reasons for establishment we can count the necessity to assist in resource development which was catered for by the establishment of Bord na Móna; job protection or job creation, by the establishment of Irish Steel and Arramara Teo., and the development of strategically important activities which were beyond the means of the private sector — for example, the ESB. Among the reasons, we can also count national pride in the case of Aer Lingus, the national flag carrier; private sector failures, which led to the creation of ICC, ACC and Irish Life; private sector excesses, which led to the creation of NET to break a cartel in fertilisers; strategic reasons, which led to the establishment of Irish Shipping and the purchase of the Whitegate refinery; and regional development, which necessitated the development of Min Fhéir Teo. Part of the rationale for the creation of the Sugar Company was regional development and the need to create opportunities in the west.
The interesting aspect about the creation of the State-sponsored bodies is that ideological considerations have never been a major factor in the creation of our State enterprises. Establishment has been largely pragmatic. Pragmatic considerations have also underpinned the move to privatisation in recent times.
Perhaps because the growth of Ireland's commercial State-sponsored bodies has been soad hoc, very little consideration seems to have been given to the institutional links between them and the Oireachtas or between the State bodies and the central Departments of State. In theory the Minister and his Department determine policy and the overall level of resources and control the bodies through their boards. The chairman and board in turn interpret the policy as handed down by the Minister and implement the Minister's and Government's wishes through operational policies which are established with the assistance of management. The boards and their senior management are responsible for day to day management of the individual companies. In this arrangement neither the Minister nor either House of the Oireachtas has any direct input into the day to day affairs of a State-sponsored body.
For many years prior to the establishment of the Oireachtas Joint Committee on State-sponsored bodies the lack of a parliamentary role in this overall picture gave rise to concern. A motion on this matter was debated in the 1950s. In the late 1960s the matter arose again, when the Committee of Public Accounts recommended that a review mechanism should be put in place. Nothing happened. In November 1972 the Informal Committee on Reform of Dáil Procedures recommended that there should be an early examination of the relationship between the Houses of the Oireachtas and State-sponsored bodies. Again nothing happened.
The matter next came to a head in both Houses in the debates on the Ministers and Secretaries (Amendment) Bill, 1973. During the course of that debate the Minister for Finance gave an undertaking which was translated at long last into action in 1976. It is paradoxical that, having created the committee in 1976, both Houses, but in particular the Dáil, have largely ignored the operations of the committee, have allowed them to be stripped of resources and have, by and large, ignored the committee's reports.
Interestingly, this situation was forecast during the course of the debate on the committee's creation in 1976, when Major de Valera put down a query in the House. With remarkable prescience Major de Valera suggested that the committee's reporting system would not be enough to ensure that anything worthwhile would come of the individual reports it produced. The exchange as reported in the official Report of 18 November 1976 at column 346, where Major de Valera was in possession, was as follows:
We are all aware that the device of laying reports or other matters before the House is equivalent to a funeral rite. They are laid there and buried.
Mr. R. Ryan: We do not forget the dead in Ireland.
Major de Valera: Unfortunately, the multitude of the dead in that cemetery are too often forgotten when they deserve to be remembered.
So it has been for 16 years in so far as the Oireachtas Joint Committee on Commercial State-sponsored Bodies are concerned.
Throughout the life of the sixth Joint Committee there has been a growing concern among members that the committee have been working hard but getting nowhere. There has been a common frustration that, while a certain amount of lip service is paid to Dáil reform and to the role that could be played by a fully operational committee system, there is very little practical effort to use effectively the committees which are in place, including the Committee of which I am chairman. This frustration led the committee last year to publish the special report on terms of reference and resources which we discuss today.
On the basis of their experience and on the basis of the experience of their predecessors, the committee have noted three major gaps in their terms of reference — the lack of power to enforce the attendance of witnesses; the lack of any parliamentary arrangement for a follow-up to the committee's reports, and the unresolved issue of privilege for witnesses appearing before the Joint Committee. The committee have further been experiencing difficulties arising from the lack of resources available to them and their experience with the application of thesub judice practice to their proceedings.
The Joint Committee are empowered to send for persons, papers and records in the fulfilment of their responsibilities. However, the only redress open to the Joint Committee in the event of non-compliance is to report the fact of non-compliance to the Houses of the Oireachtas.
There have been a number of instances over the years where persons have declined to meet with or make papers available to the Joint Committee. A number of these are outlined in the report. In 1984 three serious failures to comply with the then committee occurred during the course of the committee's examination of the affairs of Irish Shipping Limited. In August 1984 the Department of Communications refused to submit particulars of the five-year corporate plan of Irish Shipping to the committee. In November 1984 the chairman of Irish Shipping was invited to attend a meeting of the Joint Committee. In advance of the meeting the chairman was furnished with a list of draft questions which the Joint Committee wished to discuss with him. In a reply, dated 12 November 1984, the chairman of Irish Shipping informed the committee that it appeared to him that it would be necessary to obtain legal advice before he could respond and that in the circumstances he believed it would not be appropriate for him to attend the proposed meeting. A further invitation to the chairman to attend the meeting with the Joint Committee was declined by his legal advisers.
In December of 1984 the Departments of Finance and Communications got in on the act and informed the Joint Committee that it would be inappropriate for their officials to attend to give evidence during the inquiry into Irish Shipping. I submit that there are few parliamentary assemblies in the world which would accept that type of response from public servants. This, after all, is the assembly to which all organs of the State should ultimately respond. It is amazing that on three occasions, dealing with one serious report, public officials should be allowed to cock a snook with impunity at this House.
Faced with non-compliance in this most important case, the Joint Committee concluded that they were unable to complete to their satisfaction their examination of the company. A report was made to the Houses of the Oireachtas to that effect. In that report the committee recommended to the Houses that legislation be enacted as a matter of urgency which would empower them to compel the attendance of witnesses and the production to them of all relevant documentation. To date no such legislative change has been made.
In June 1985 the committee again ran into difficulties with witnesses. Officials of the Department of Energy refused to attend the meeting with the committee, stating that the notice had been too short and that further clarification of issues had to be discussed. In September of 1985 the Tánaiste and Minister for Energy was invited to meet the Joint Committee but did not attend.
Again, the committee reported these matters in their report of December 1985 on the affairs of Bord Gáis Éireann. The committee at that time recorded that they were gravely disappointed with the "negative response of the Department of Energy", concluding:
The Department's stance undermines the credibility of the Joint Committee and it has serious implications for the effective discharge of its functions by the Joint Committee. It also has implications for the committee system generally.
Again, in spite of the seriousness of these observations, no action was taken.
In March 1989, Irish National Petroleum Corporation were asked to cooperate with the committee in the course of an investigation. The INPC indicated that it had been directed by the Minister for Energy not to attend. On this occasionsub judice considerations were cited as the substantive reason for nonattendance.
The Joint Committee felt that it was a very shallow argument in view of the specific limited nature of the outstanding proceedings, then in abeyance, in the High Court. Following correspondence with the Minister for Energy, the Joint Committee again reported their difficulties to this House as recently as July 1990. Again nothing happened.
In 1989 and 1991, during the course of examination of the affairs of the Irish Sugar Company, the committee again ran into difficulties. In April 1989, members of the board of the Sugar Company were invited individually to attend a meeting of the committee. I personally made certain that the invitations were addressed individually to each member of the board and delivered to the head office of the company. Only the chairman, secretary and the then chief executive of the company finally, and reluctantly, appeared before the committee at that time. Other members of the board failed to attend, apparently having been advised within the company, and apparently by the chief executive, not to do so. At that particular time I and other members of the committee spoke individually with members of the board encouraging them and exhorting them to come and discuss the affairs of this very important company with the committee. The committee felt that something was wrong but we had not quite put our finger on the pulse. In spite of all the entreaties the board members refused to comply.
In September 1989 the Minister for Agriculture and Food declined to attend before the committee to discuss the affairs of the Sugar Company. In February 1991, there was a further example of non-compliance with the committee's request when witnesses from An Post declined in correspondence and during attendance to discuss the viability plan published for the company, or any matter connected therewith.
In the case of the Irish Sugar Company and An Post important matters which were of the gravest public concern came to the attention of the committee and the committee were effectively spancelled in their efforts to get to the nub of the issues concerned. I believe that if the Oireachtas Joint Committee on State-sponsored bodies had been supported in their efforts to examine, for example, the affairs of the Sugar Company some of the scandals which subsequently emerged would not have taken place. At least the Oireachtas would have been aware of those scandals at an early date. I, the vice-chairman Deputy Kavanagh, and members from all parties on that committee at that time made a valiant effort to get to the bottom of that issue and we were frustrated. Months later hundreds of thousands of pounds of taxpayers' money had to be spent trying to disentangle the affairs of the Sugar Company. The reality is that we got nowhere.
Throughout their existence, the committee have always operated in a very non-aggressive way when dealing with witnesses called before them. Members of the committee are conscious of the fact that public servants occasionally have difficulty dealing with certain areas. Successive committees have always accepted the bona fides of people who decline to meet with the Joint Committee either by their own decision or as a result of Ministerial direction. However, this said, non-compliance can only tend to frustrate and perhaps thwart the Joint Committee in the discharge of their responsibilities. In effect non-compliance means that an individual public servant or an individual Minister has taken a specific decision, for whatever reason, to prevent an arm of the elected assembly representing the people from fulfilling their responsibility to the Houses of the Oireachtas and ultimately to the people of Ireland. In a democratic State that is simply not good enough.
Clearly, consideration must now be given to providing the Oireachtas Joint Committee on State-sponsored Bodies, and indeed other committees and joint committees of the Houses with powers to enforce the attendance of witnesses and with powers tosubpoena people to produce documents in the event of a refusal to comply with a request for attendance or for the production of documents.
The committee are also gravely concerned at the lack of privilege for witnesses. Before dealing with that question I want to add a small point with regard to the issue of asubpoena in respect of documents and cross-examination. I mentioned that the committee have always been non-aggressive in the pursuit of their particular aims. There is a procedure which has been observed time and again by the committee that we will not deal with issues of sensitive commercial importance, issues that could commercially damage a State enterprise. Nor would we deliberately try to use our position on the committee to individual political advantage. The reality is that the Oireachtas Joint Committee have always, throughout their history, operated in the most non-partisan manner. It is very frustrating not just for members from the Government side of the House but also I am sure for members from the Opposition, that, having effectively constrained themselves to operate in a non-political manner, their bona fides is not recognised and that their efforts are frustrated.
The committee are concerned at the lack of privilege for witnesses. Members of both Houses on the committee enjoy the absolute privilege provided by Article 15.12 of the Constitution in respect of their utterances. This privilege is extended by the Committees of the Houses of the Oireachtas (Privileges and Procedures) Act, 1976, to members of parliamentary committees but not to witnesses called by these committees. It is the joint committee's understanding that witnesses before Oireachtas committees enjoy qualified privilege. The joint committee further understand that this type of privilege can be defeated only by proof that the witness was not using the occasion honestly for the purpose for which the law gave it to him and was actuated by some indirect motive not connected with the privilege, for example, malice in the popular sense of the term or irrelevant statements of a defamatory nature. However, in some cases, qualified privilege will obtain only so long as no third parties, for example, representatives of the press, are present.
This, again, is a very serious lack. We are supposed to act here constitutionally as an open assembly. The people of Ireland cannot all attend this assembly but the press and media, on behalf of the people, can attend this assembly and the mere attendance of those people who are there to keep an eye on what we do can negate the limited privilege which exists, and that is simply not good enough.
It would be an exaggeration to suggest that the absence of the protection of privilege has hampered the present joint committee in their work. Indeed, members of the committee present will recall that on a number of occasions recently I had to pull up a witness and point out to him that he did not have privilege. Nevertheless, it would seem prudent to the committee that the legal position of witnesses before parliamentary committees as a whole should be made explicit in law.
This issue has dragged on for over 20 years. It is over 20 years since there was High Court action on this specific issue. At that time we were promised action and nothing happened. In its special report the committee recall, for example, that in 1976 an attempt was made in the Committees of the Houses of the Oireachtas (Privileges and Procedure) Bill, 1976, to address this issue but section 3 of the Bill, which would have conferred absolute privilege on witnesses, was deleted during the course of the Dáil Committee Stage.
The joint committee continue to hold the view that this matter requires urgent attention. In this regard, in a special report to the Houses of the Oireachtas in September 1982, the then joint committee requested the introduction of legislation which would provide that for the purpose of their inquiry into Údarás na Gaeltachta a witness before the committee and a person sending a document to the committee should be entitled to the same immunities and privileges as a witness before the High Court. The Joint Committee at that time also suggested that the two Houses might consider it worthwhile to provide legislation to cover this matter in all inquiries conducted by any committee.
In October 1983 and again in November 1984 there was correspondence between the committee and the private secretary to the leader of this House on this specific issue. In November 1984 the committee were informed that a draft Bill was in the course of preparation by the parliamentary draftsman. In January 1985 the then joint comittee met the Leader of the House to discuss,inter alia the privilege of witnesses. In spite of all of the activity in this area no progress has been made to date.
It is the view of the present Oireachtas joint committee that action on the question of privilege of witnesses is still required. However, the committee would not be in favour of conferring absolute privilege on witnesses and, in this, differs from the recommendation made by their predecessor in 1982. The most frustrating institutional shortcoming in so far as the Oireachtas Joint Committee are concerned is the failure of the Houses of the Oireachtas to adopt an appropriate procedure and mechanism to enable the joint committee's reports to be brought before the House for formal debate.
It is the view of the joint committee that a formal mechanism would go some way to validating their role in seeking to make the commercial State-sponsored bodies more democratically accountable to the Houses of the Oireachtas. I understand that during the lifetime of one of the previous Joint Committees on Secondary Legislation of the European Communities sessional orders were made to enable any report of that joint committee containing a request for a debate thereon to be debated within a specified sitting period in the Seanad initially and, subsequently, in the Dáil. Incidentally, I regard that procedure to be incorrect because, ultimately, control over all the financial affairs of the State should lie with the Dáil and not with the Seanad. This provision was availed of to considerable effect on a number of occasions.
The Joint Committee on Commercial State-sponsored Bodies are of the view that a similar procedure should now be put in place in the Houses of the Oireachtas to enable any report of the joint committee containing a request for a debate thereon to be debated within a specified sitting period. I wish to assure the House that it would not be the wish of the joint committee that every one of their reports should be debated within a specified period but we take the view — I am sure Members would agree — that it is important in relation to reports which deal with specific, important and relevant current issues that we should have the right to highlight the need for an urgent debate.
It is clear that Major Vivion de Valera was correct all those years ago when he suggested that the procedure of laying reports before either House of the Oireachtas was the equivalent of a funeral rite. The members of the present joint committee and, indeed, of preceding committees feel that the purpose and point of an Oireachtas committee is undermined if the committee are reduced to being little more than a talking shop without any effective follow-up action. The first requirement for effective follow-up action would be for the Dáil and Seanad to at least note and adopt the committee's reports and recommendations and to request at a minimum a formal response from Ministers and their Departments to the recommendations and observations of the committees.
I should add in this regard that I have checked many of the reports and recommendations of the committees and found it distressing to say the least that very few of them have been acted upon. Like so many other reports and those of tribunals they have gathered dust on the shelves of this House and in a democratic institution that is nothing short of a scandal.
While I, as chairman of the joint committee, greatly appreciate the opportunity afforded by today's debate I am mystified as to the failure of Dáil Éireann to debate any report of the joint committee or their predecessors before this. It is of course difficult for any committee or anybody to be objective in reporting on or evaluating their own resources. The present joint committee are however, conscious that in the early and formative years of the joint committee that, in addition to the clerk and back-up staff, the joint committee enjoyed the services of a full-time consultant. In the early years they also enjoyed the services of a full-time consultant. In the early years they also enjoyed a substantial budget which enabled other specialist advisers to be engaged. In later years the joint committee have had no full-time consultant and have only had access to a reduced overall budget allocation.
It is a fact that the combined budget for all the committees of the Dáil is less than the budget enjoyed by this particular joint committee a decade ago and this is nothing short of a farce. It is also a fact — the members of the joint committee who are present in the House will bear this out — that when we examined the operations of the national lottery eighteen months ago we did not have the funds to engage a consultant with the result that the clerk, the members of the joint committee and I had to sit down and draft the report. As public representatives, we do not have the time to examine these issues in detail and it is obvious that if it is worth having the joint committee at all they need an injection of additional resources.
At their establishment, the joint committee were seen as heralding a new development of parliamentary accountability and appropriate resources were allocated to them. The passage of time has seen a diminution in the resources available to the joint committee to the point where reduced resources in terms of money for consultancies and the loss of a full-time consultant precludes the joint committee from ever doing an in depth examination of the State bodies under their charge unless they decide to allocate all their annual resources to one specific body. If that were to happen we would have a 30 year cycle before we could examine all the State enterprises. Clearly, this would be a nonsense. We would also negative the joint committee's broad monitoring role if we were to focus all our resources on one State body. In many cases we have to deal with major issues of great concern to the public in a superficial way.
In spite of the dearth of resources the joint committee have undertaken an impressive range of studies in recent years. One can just speculate as to how much more effective the joint committee would be if they were properly resourced. Currently reports are being prepared on Aer Lingus — this is an important issue at the moment — and Aer Rianta. The joint committee are also examining certain elements of the energy sector and a range of other issues but we do not have the resources to be effective and produce the reports in a timely way before this House.
The joint committee have also drawn attention in their report to thesub judice rule. We have, as I outlined, experienced occasions where the sub judice rule has been pleaded as an excuse for non-compliance with a request to appear before the joint committee. The joint committee recognise that work is in hand on this matter and would hope that the review of the sub judice practice is expedited as a matter of urgency.
There is one final area to which I wish to refer, this is, the huge number of State-sponsored bodies other than commercial bodies which operate within the public sector. Over the years, recognising the inflexibilities of operation within the traditional departmental structure imposed by the nonsensical concept of ministerial responsibility, successive Governments have, with the approval of the Oireachtas, hived off substantial areas of administration to non-commercial State-sponsored bodies.
In the initial debate on the establishment of the Joint Committee on Commercial State-sponsored Bodies it was suggested that these bodies should be brought within the joint committee's remit. It was argued at the time that this should not be so on the basis that the bodies concerned were in many ways extensions of Government Departments. I agree that there is logic in that argument.
While this may be an accurate characterisation of the activities of the non-commercial State-sponsored bodies the fact remains to this day that a huge area of public administration is not subject to any form of direct democratic oversight. I understand that proposals to be discussed in this House shortly regarding the role of the Comptroller and Auditor General and the Committee of Public Accounts will touch on this area.
While not making a case for the inclusion of non-commercial State-sponsored bodies within the remit of the Joint Committee on Commercial State-sponsored Bodies it is clearly important that some parliamentary committee, be it the Oireachtas Joint Committee on Commercial-State-sponsored Bodies or the Committee of Public Accounts, be empowered to oversee and report on the general operations and effectiveness of the non-commercial State-sponsored bodies. It is wrong in a democracy that a range of public administration authorities are not subject to democratic questioning and it is wrong, for example, that there is no direct democratic manner of overseeing the operations of the Industrial Development Authority or the decisions made from time to time by An Bord Pleanála.
While I have focused on the many frustrations faced by the joint committee it would be remiss of me to ignore the positive contribution which the committee have made in terms of informing Dáil Éireann, Seanad Éireann and the public in general of the activities of the commercial State-sponsored sector during the past 16 years. I have long believed that the joint committee serve both Houses of the Oireachtas and the people well.
I wish to place on record my gratitude to the members of the current committee, in particular the vice-chairman, Deputy Kavanagh, and to those who have served with me as chairman of the last joint committee. Throughout their operation Members have always put the public interest above narrow party or political interests and put a considerable amount of time and effort into the operations of the Joint Committee. Without that effort and dedication the joint committee would not work. Their efforts and investment of time are all too frequently overlooked.
I recommend that the House note the special report which we have laid before it and hope the Oireachtas will act upon the fundamental decisions and suggestions we have put forward in it. I know I speak not just on behalf of the Joint Committee on Commercial State-sponsored Bodies but on behalf of the chairpersons of all other committees when I say that if we are going to have a committee system in this House that works, and if we are going to become a modern democratic institution which oversees public administration, we need the necessary resources and freedom enjoyed by similar committees in other administrations. I commend the report to the House.