Last night I referred to the frequently used phase "who guards the guards?". The Government proposes that the sub-committee of the Committee on Procedure and Privileges — the housekeeping rules committee of the House — should oversee Members, former Members, Senators and members of their families. That would send out all the wrong signals to members of the public who want the issue thrashed out properly. Fianna Fáil supports the motion as amended by its amendment because justice must be done, and be seen to be done, on this issue.
The Government's proposal would put the former Judge Buchanan, the Ceann Comhairle and members of the Committee on Procedure and Privileges in an unenviable position. They are being asked to do the impossible, to adjudicate when that is not possible because of the rules of natural justice. They cannot compel people to appear before the committee. It was interesting to note that none of the Government Ministers who contributed last night referred to the compellability of witnesses legislation, which is important for this House. In two weeks after that legislation was published, with the help of one other person, I spent a great deal of time drafting 11 amendments to the Bill, one of which proposed that journalists appearing before a committee of the Oireachtas should have the ability to plead inability to divulge the source of their information. I proposed that they should have the same privilege as Members of the Dáil. I often wondered since if that amendment caused the go-slow in the passing of that legislation. My amendments did not see the light of day, but the Taoiseach and the Minister for Finance said yesterday they hoped to publish the Government amendments to that legislation in the near future.
The Minister of State, Deputy Higgins, referred to an agreement signed between the Dunne family and the Taoiseach on behalf of the Government the day before yesterday. Will the Minister or Minister of State who concludes the debate indicate if the Government would be prepared to publish that agreement?
The committee proposed by the Government cannot make findings. This matter was well thrashed out in the 1994 committee, of which I was a member. It sat for many hours and became known as the "Danny Wallace committee", formed as a result of the fall of the last Government. I am sure most Members would accept that committee was reasonably successful. Even though it was hamstrung in that it could not make findings, it put all the facts into the public domain and members of the public made their judgment. While it was a case of Fianna Fáil against the rest, I am sure all its members would accept it ended in a draw.
That committee was successful because everybody who appeared before it co-operated and it dealt only with political issues. In this case serious allegations have been made inside and outside the House about whether people received payments and if they did whether they came with strings attached. If it were not for the participation of politicians and advisers in the 1994 committee, it would not have been so successful.
An advice note tendered to that committee on the legal consequences of the committee making findings referred to the famous Jock Haughey case in which Chief Justice O Dálaigh stated:
...a person whose conduct is impugned as part of the subject matter of the inquiry must be afforded reasonable means of defending himself.
The advice note outlines four minimum protections identified by the Chief Justice as follows:
(1) That the person accused should be furnished with a copy of the evidence which reflected on his good name.
(2) that he should be allowed to cross-examine by counsel his accuser or his accusers.
(3) that he should be allowed to give rebutting evidence.
(4) that he should be permitted to address again by counsel the tribunal in his own defence.
None of those protections was available to the people who appeared before the 1994 committee and that is the main reason the committee was not in a position to make findings of fact. The advice note given to that committee went on to state:
In deciding what should be included in its report to the Dáil I think the sub-committee must bear in mind that if it decides to carry out a fact finding exercise based on the evidence which has been brought before it, then the courts will require it to carry out its functions in a judicial or quasi-judicial manner.
Such requirement includes an obligation to apply fair procedures and to arrive at its conclusions in an unbiased and impartial manner. In regard to the latter requirement it is important to note that the Courts in a number of judgments have interpreted the law to require that not only must justice be done but that it must be seen to be done.
Hence, the committee the Government is suggesting is one which would not allow anyone coming before it those four basic minimum requirements as laid down by Mr. Justice Ó Dálaigh in the Jock Haughey case. That is why I said on more than one occasion it puts not only the committee but Judge Buchanan in an unenviable situation. If he contacted any of the people referred to on this list and said he would expose them at this committee, any of them would be quite entitled to get their solicitor to go to the nearest court to apply for an injunction. I am advised such a person would, as of right, get that injunction on the basis that the committee before which it was proposed he or she would go, would not mirror the requirements of Mr. Justice Ó Dálaigh in the Jock Haughey case. They would be entitled to refuse to come before that committee.
There is a precedent for all of this. In 1975 the Committee on Procedure and Privileges examined allegations made in this House by two Deputies, Deputy Molloy and former Deputy Crinnion, in relation to the Minister for Local Government at that time. The Taoiseach might recall those instances. The Dáil referred those allegations to the Committee on Procedure and Privileges but that committee rejected a Garda inquiry into the allegations by a majority decision and decided to investigate whether any breach of privilege had occurred.
The Deputies and the Minister were invited to the committee and agreed to attend but the two Deputies involved refused to participate on the basis that they felt that a doubt hung over the privilege attached to the proceedings of the committee. The committee and the Taoiseach decided that very day to move a motion in the Dáil appointing a tribunal because these Deputies refused to make a statement before the committee.
This precedent is important and we, on this side of the House say that, rather than get bogged down in the Committee on Procedure and Privileges and its subcommittee, the Government should have started by appointing a tribunal because that is the only way we will get to the bottom of all this.