Dáil Éireann debate -
Wednesday, 10 Dec 1997

Vol. 484 No. 4

Private Members' Business. - Tribunals of Inquiry (Evidence) (Amendment) Bill, 1997: Committee and Remaining Stages.

Section 1 agreed to.

SECTION 2.

Dr. Upton

I move amendment No. 1:

In page 3, line 18 after "order" to insert "or request".

Under the Bill persons who send or produce documents pursuant to an order of the tribunal are given the same immunity as witnesses before the High Court. We are simply suggesting similar immunity should be extended to people who send documents to the tribunal arising from an informal request by the tribunal. Such requests would be similar to the letters we received in the past month seeking information on an informal basis. People might feel obliged to protect themselves from exposure to legal risk by waiting for a formal order before producing documents. This amendment would speed up the informal work of the tribunal. I understand a large proportion of the work done at the early stages of a tribunal is carried out on an informal basis.

Mr. Rabbitte

I would like to hear the Minister's view on whether there is a distinction in legal terms between the word "order" and the words "or request". In every day language Deputy Upton's amendment seems perfectly reasonable, but does any letter from the tribunal constitute an order? Is every communication from the tribunal an order within the definition of subsection (4)?

In the event of documents being furnished to the tribunal from outside the jurisdiction, what is the official opinion on making the senders amenable to the tribunal? Even though I strained my ears, I did not hear the Minister's reply to that matter.

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

There must be a blue moon tonight because it appears Deputy Rabbitte and I agree on Deputy Upton's amendment regarding the status of the words "order" and "or request".

Mr. Rabbitte

I hope we do not start baying at it.

Mr. O'Donoghue

I doubt that. Section 2 provides that a person who produces or sends a document to a tribunal, pursuant to an order of that tribunal, shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court. Deputy Upton's amendment proposes that the words "or request" should be inserted after the word "order" so that a person who produces or sends a document to a tribunal, pursuant to an order or request of that tribunal, shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court. The amendment is of a drafting nature only. All directions by a tribunal to persons to furnish documents are sent on foot of an order of the tribunal. Consequently, as intimated by Deputy Rabbitte, the inclusion of the words "or request" are not necessary. The parliamentary draftsman was consulted and agrees the amendment is not necessary.

In reply to Deputy Rabbitte's question which he posed originally on Second Stage, the documents the tribunal would request or be furnished with would be the subject matter of the immunity and the fact that the individuals concerned were outside the jurisdiction would not adversely affect that position. Perhaps the reason Deputy Rabbitte was straining his ears regarding the other question he raised about the possibility of those people being made amenable to the tribunal was that he did not ask it on Second Stage.

Mr. Rabbitte

I apologise. I thought I did.

Mr. O'Donoghue

I do not believe he raised it on Second Stage.

In so far as I am aware, such people could be made amenable to the tribunal.

Amendment, by leave, withdrawn.

Section 2 agreed to.

SECTION 3.

Acting Chairman

Amendments Nos. 2, 5 and 6 are cognate and, therefore, we will take them together by agreement.

Dr. Upton

I move amendment No. 2:

In page 3, subsection (1), line 25, to delete "chairman" and substitute "chairperson".

This is a straightforward drafting amendment. I understand this proposal is in accordance with modern terminology. However, I introduce it with a certain element of reluctance. If I may dare to say so, it is a thought that comes from the school of political correctness, a school on which I have looked with a jaundiced eye for a long time. We all become victims of circumstances from time to time. I understand the amendment is in accordance with proper behavioural standards in the modern world and I hope the Minister can accept it.

Mr. O'Donoghue

In a chivalrous exhibition of pure political ecumenism, I accept the amendment.

Amendment agreed to.

Acting Chairman

Amendment No. 4 is an alternative to amendment No. 3. Therefore, amendments Nos. 3 and 4 can be taken together by agreement.

Mr. Higgins (Mayo)

I move amendment No. 3:

In page 3, subsection (1), lines 27 to 29, to delete "(including the terms of the resolution passed by each House of the Oireachtas relating to the establishment of the tribunal)" and substitute "such as a failure to co-operate or provide assistance to the tribunal in the course of its functions; knowingly providing the tribunal with misleading information; the terms of the resolution passed by each House of the Oireachtas relating to the establishment of the tribunal".

At the rate we are going, there will be a blue moon every night because I think we are in broad agreement on this amendment also. Section 3 is an amendment to section 6 of the Tribunal of Inquiry (Evidence) (Amendment) Act, 1979. The tribunal or the chairman may order that the costs, in whole or in part, of any person appearing before the tribunal, or costs incurred by the tribunal, should be sought in certain circumstances. We should set out in more specific terms what we mean by sufficient grounds to grant such costs.

This Bill arises from the frustration of the previous tribunal with a person appearing before it who not only failed to co-operate and refused to tell the truth but, as stated by the chairman in his report, told a tissue of lies. The Minister said that I was casting doubt on the propriety of the Minister for Public Enterprise. The purpose of this measure is to give further teeth and effect to the tribunal to draw down payments from people who frustrate it. We want to ensure people do not fail to co-operate with or attempt to frustrate the work of the tribunal. Essentially, we are talking about the co-operation of Mr. Haughey, Deputy Lowry and others who may have facilitated their lifestyles or finances.

I correctly drew the attention of the House to two particular instances. The first is the Mafouz passport affair in which, by any standards, Mr. Haughey had an extraordinary hands-on involvement. Huge amounts of money were involved with a major individual who was subsequently found guilty of the biggest banking scam in history. The second is the Carysfort issue. I have pointed out that this was not sufficiently investigated at the time by the Committee of Public Accounts in view of the fact that the key personalities did not appear before the committee, although civil servants and representatives of the Higher Education Authority did.

It will require the co-operation of everybody involved to enable the tribunal to discharge its function properly. In the case of Carysfort we are talking about an unfathomable decision where a large sum of taxpayers' money — a neat round sum of £5 million — was given to an individual, who had a particular affinity with a political party, for holding a property for a mere six months. The co-operation of everyone involved —indirectly or, more importantly, directly — in facilitating this project is required, including civil servants and Ministers. I mention Ministers because that is where the buck stops in such cases. I am making that point in the context of substantiating this amendment.

Mr. Rabbitte

I support the gravamen of Deputy Higgins's amendment. Taking the phrase included in that amendment, "knowingly providing the tribunal with misleading information", Deputy Higgins has a very strong case in this regard. One can go back over the history of tribunals and, unfortunately, we require a certain jurisprudential knowledge of tribunals in recent times. I am satisfied, however, — and I say this with a full sense of consciousness — that misleading information was knowingly provided to the beef tribunal. Surely we should take this opportunity to at least specify the situation where someone sets out not just to obstruct the work of the tribunal but to provide misleading information.

I want to give a separate instance that does not have a political dimension to it and, therefore, the Minister may be more amenable to hearing me clearly. In the case of the beef tribunal, it accidentally emerged that a civil servant in the Department of Agriculture admitted that he had changed a material document submitted in evidence before the tribunal. The significance of that change was it would have shown that the origin of the beef, the subject of export credit insurance, had been sourced outside the State. The original CBF documents had that section in them, but this official took it on himself, for whatever reasons. to excise that. It emerged by accident at the tribunal. I am not imputing to that civil servant any malevolent purpose or anything like that, I am merely saying it is a fact. It is not for me to pass judgment as to why it happened, but it happened. The enormity and significance of it can be seen in terms of an outstanding case against the State, that has never been withdrawn, for £120 million or £180 million. That was the subject of the famous row that broke the Government. The row was between the then Minster for Industry and Commerce and the then Taoiseach over precisely how much was at stake, but that would have shown that the beef in question was sourced outside the jurisdiction.

Surely we ought to take the opportunity of Deputy Higgins's amendment to provide against the situation where misleading documents are deliberately or otherwise provided. Let the tribunal be the arbiter of whether they were provided for a purpose to subvert the work of the inquiry, but we ought to have a provision that where it is knowingly provided the tribunal can act accordingly.

Mr. O'Donoghue

The general effect of amendment No. 3 from Deputy Higgins and my amendment No. 4 would be to expand the examples of issues which the tribunal might take into consideration when assessing costs. The examples in each of the amendments are the same. On that basis I accept the principle of his amendment, but I suggest that in technical drafting terms my amendment be favoured. I am, therefore, asking Deputy Higgins to withdraw amendment No. 3 in favour of amendment No. 4.

With regard to the comments of Deputy Rabbitte, I have no doubt he is correct when he states that much misleading information was given to the beef tribunal. If the pun can be excused, I have no wish to rake over the bones of that tribunal. However, nobody is more qualified to know that misleading information was given to the beef tribunal than Deputy Rabbitte because, in the chairman's own words, many of the allegations that Deputy Rabbitte made simply did not stand up. The logical conclusion, therefore, is that the information given to the tribunal regarding these matters was misleading.

In so far as I recall it, and I have no wish to fight old battles, Deputy Rabbitte stated that one of these allegations was made to him by a man in a public house. I do not think that allegation stood up. So, when pursuing these matters in future, I strongly suggest that Deputy Rabbitte should carry a breathalyser kit.

Acting Chairman (Mr. McGrath)

On that sober note I will ask Deputy Higgins if he is pressing his amendment.

Mr. Rabbitte

If Deputy Higgins will permit me I would like to say something. It is profoundly disturbing that the Minister either has not got the confidence or the seriousness to deal with a serious point made here. He seems to be implying that I cannot draw on the experience of the beef tribunal to make a point in support of an amendment proposed either by Deputy Higgins or himself. What else are we here to discuss but to try to shut off a loophole in the legislation that provides for the establishment of tribunals of inquiry? The Minister has made a trivial and non-sensical point.

The Minister is wrong, of course, about the point made to me in a pub, as he puts it. The point concerned Master Meats and giving £10 million export credit insurance to Paschal Phelan, a friend of the then Taoiseach, Deputy Albert Reynolds, even though he had made no application for export credit insurance and even though Halal in Ballyhaunis had complied with all the requirements but did not get it. When Paschal Phelan, with Oliver Murphy of Hibernian Meats, went to the then Taoiseach, Deputy Reynolds in his office, Deputy Reynolds said to Mr. Phelan: "There is £10 million left, Paschal, would you like to take it yourself?" Mr. Phelan was not doing business with Iraq and did not contemplate doing business there, yet that——

Acting Chairman

May I suggest that there is no need to replough that ground? Perhaps we can move on with these two amendments.

Mr. Rabbitte

I defer to your ruling, but it is infuriating that recent experience of tribunals has shown up defects in one sense or another. Mr. Justice McCracken dealt at some length in his report with the defects he encountered. We are having this debate because Mr. Justice McCracken highlighted them and put it up to the Oireachtas to do something about it. When one adduces arguments from the jurisprudence which is on hand from recent tribunals, the Minister reacts in a purely partisan political way, making nonsensical and irrelevant attempts at petty point scoring and refuses to deal with any of the gravamen of the complaints that have been raised. It is profoundly disturbing and I instanced the case of a civil servant because I did not want to raise the Minister's political hackles but he responded in an entirely political way. One wonders whether the Minister can stand up and deal with legislation he brings before the House without having a note put into his hand to read out, and if he misses a comma or mistakes it for a full stop everyone is at sea.

I expect more from him because he is an intelligent and honest man. I do not know why he is sensitive and defensive and while I am not trying to hang the sins of his predecessors around his neck he is provoking me to do so.

Acting Chairman

I would prefer if Members dealt with the amendments. They are similar and Deputy Higgins is prepared to withdraw his, thereby allowing the acceptance of the Minister's amendment. We are drifting from the amendments and I ask the Minister to keep to the text of them. We have had enough exchanges.

Mr. O'Donoghue

The amendment was treated seriously as I indicated my acceptance of it and requested Deputy Higgins to withdraw his amendment in favour of mine. I thank him for that and sincerely hope that indicates the seriousness with which the matter is being treated. However, I do not regard it as acceptable that any Deputy should come into the House and lay political charges without expecting a reply. Deputy Rabbitte is not pulling the wool over any-one's eyes. I may not have a halo similar to his since returning to the Opposition benches, but when he spoke about misleading information, the beef tribunal found that most of his allegations were nonsense.

Mr. Rabbitte

That is not true.

Mr. O'Donoghue

Those are the facts. I am prepared to proceed with this or any other matter in a civilised way but I will not allow the Deputy to impugn my ability to deal with legislation through the mean, insidious and false comments which he continues to make on my performance.

Amendment No. 3, by leave, withdrawn.

Mr. O'Donoghue

I move amendment No. 4:

In page (3), subsection (1), line 29, after "tribunal" to insert "or failing to co-operate with or provide assistance to, or knowingly giving false or misleading information to, the tribunal".

Amendment agreed to.

Dr. Upton

I move amendment No. 5:

In page 3, subsection (1), line 30, to delete "chairman" and substitute "chairperson".

Amendment agreed to.

Dr. Upton

I move amendment No. 6:

In page 3, subsection (1), line 31, to delete "chairman's" and substitute "chairperson's".

Amendment agreed to.

Section 3, as amended, agreed to.

Section 4 agreed to.

NEW SECTION.

Dr. Upton

I move amendment No. 7:

In page 4, before section 5, to insert the following new section:

"5 — An application to the High Court by a tribunal pursuant to Article 28.4.3º of the Constitution shall be made in a summary manner, on notice to the Attorney General, every person represented before the tribunal pursuant to section 2 (b) of the Principal Act appearing to the tribunal to have an interest in the application, and any other person specified by order of the High Court.".

The amendment sets out a procedure that is not provided for whereby a tribunal could refer to the High Court a question on whether the Cabinet confidentiality rule should be lifted by it. There is no procedure in the Bill to cover this eventuality. It will be a matter for the High Court to determine whether Cabinet confidentiality should be breached and we are simply proposing a means by which this can be done.

Mr. O'Donoghue

The reference in Deputy Upton's amendment is to Article 28.4.3º of the Constitution as accepted by the people in the recent referendum. It provides that the confidentiality of discussions at meetings of the Government shall be respected in all circumstances, save only that the High Court determines that disclosure should be made in respect of a particular matter in the interests of the administration of justice by a court and by virtue of an overriding public interest pursuant to an application on that behalf by a tribunal.

The tribunal must be one appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance. The tribunals in question are of the kind covered by the Tribunals of Inquiry Evidence Acts, 1921 and 1979. The Deputy's amendment does not attempt to change the law in Article 28.4.3º of the Constitution because what is in question is a fundamental provision in regard to the Constitution nor does it attempt to change the substance of law in those Acts.

The amendment is an attempt to prescribe what form the applications from a tribunal should take where it applies to the High Court for disclosure by the Government of confidential Cabinet material. The effect of the amendment would be to provide that where a tribunal makes such an application, it must be made on foot of a summary summons.

I will outline the manner in which civil proceedings are commenced in the High Court in the context of the amendment. All civil proceedings with the exception of petitions are commenced in the High Court by way of either a plenary, special or a summary summons, all of which are provided for in the rules of the superior courts. A plenary summons is used for cases requiring pleadings and oral evidence while a summary summons is used for proceedings to be heard on affidavit without pleadings and may in certain circumstances be supplemented by oral evidence. A special summons is used mainly for equity claims, such as probate matters or the administration of trusts. The summary summons procedure in the High Court is the exception rather than the rule.

Given the fundamental nature of the applications from tribunals that would be in question, it would be wrong in principle and practice to rule absolutely that all applications to the High Court should be made in a summary manner. The experience may be that a good proportion of applications from tribunals should more appropriately be made on the more particularised basis provided for in the plenary or special summons.

The range of matters the Oireachtas may decide need to be inquired into by a tribunal may be extensive. It is not possible to determine at any time what issues may be the subject of a tribunal of inquiry or in what circumstances it may be necessary for a tribunal to apply to the High Court for disclosures of confidential Cabinet material. To specify now by way of legislation the form the applications should take is not the way to proceed. The procedure that should apply before the High Court is in question. Legislation already empowers the various court rules committees to make rules on pleadings, practice and procedure before the courts. As Minister, I must concur in the making of any such rules. The rules for the purposes of applications to the courts under Article 28.4.3º would, therefore, be a matter for consideration by the superior courts rules committee. Where rules are not specially prescribed allowing for procedure by summary or special summons Order 1, Rule 6 of the rules of the superior court provide that in all proceedings other than to take a minor into wardship commenced by originating summons procedure by plenary summons should be obligatory.

However, should the House continue to have concerns in the matter of rules that should apply for the purposes of Article 28.4.3º, I would be happy to bring them to the notice of the rules committee but I cannot favour the amendment and I am unable to support it.

Mr. Rabbitte

I thought I might get further with the Minister if I asked him to explain something rather than saying something that he could deem to be critical. What are we saying here? We are prescribing the fashion in which an application may be made to the High Court. Does Deputy Upton's amendment require that it shall only be done with the assent of the Attorney General? It is desirable that the tribunal ought to have freedom to make such application as it thinks appropriate. We can remember a case in recent history where the Government was divided in itself and where counsel for the State was acting only for some Ministers in Cabinet on the instruction of the Attorney General and not on behalf of other Ministers in the same Cabinet or former Ministers. I would be obliged if the Minister would explain this.

Mr. O'Donoghue

There are three ways of originating the proceedings: the special summons, a summary summons and a plenary summons. The summary summons which Deputy Upton proposed in his amendment, would be made only on foot of a notice to the Attorney General. Therefore, Deputy Rabbitte's interpretation of the amendment is correct.

There is a superior courts rules committee to deal with the question of practice and procedures before the courts. My considered opinion is that it would be a matter which would be better considered by that committee. If the House has concerns in relation to whether it should be by summary summons on notice to the Attorney General or by summary summons — as Deputy Rabbitte said — without notice to the Attorney General, this would be best considered by the committee which is charged with framing the rules by which our superior courts operate. I would be happy to ask the superior courts rules committee to look at the suggestion put forward by Deputy Upton in his proposed amendment, though the argument can certainly be made that the plenary summons is the more appropriate way of initiating the relevant procedure. It is not open to me to accept the amendment but I am prepared to ask the superior courts rules committee to look at the matter and report back.

Dr. Upton

I am happy to accept the Minister's offer, to await what the committee says and take it from there. I look forward to the Minister reporting back in due course.

Amendment, by leave, withdrawn.

NEW SECTION.

Dr. Upton

I move amendment No. 8:

In page 4, before section 5, to insert the following new section:

"5. — For the avoidance of doubt, a person shall not be entitled to refuse to disclose information to a tribunal, pursuant to an order of that tribunal, by reason only of—

(a) the provisions of section 16 of the Central Bank Act, 1989, relating to disclosure of information, or

(b) any other rule of law or provision of an enactment providing that such information may be required by a court only in connection with criminal proceedings.".

This amendment arises primarily from indications which have emanated from the Central Bank in relation to rules of disclosure of information which is available to the bank in relation to transactions and proceedings with it regarding accounts located outside the country, set out in section 16 of the Central Bank Act, 1989. The amendment proposes that section 16 of the Central Bank Act, 1989, should not apply to the tribunal and that recourse to this section of the Central Bank Act, 1989, would not provide the Central Bank with a basis for refusing to make disclosures and information available to the tribunal if it so requests. As I understand the position, there is some doubt about this question and the Central Bank seems to have made some oblique indications to suggest that this section of the Central Bank Act would prevent it from making available relevant information to the tribunal in event of a request to this effect being made. For this reason we have tabled the amendment. I sincerely hope the Minister will accept it to allow whatever relevant information is needed by the tribunal to be made available by the Central Bank.

Mr. O'Donoghue

With the greatest respect, Deputy Upton's amendment is flawed. He uses the words "for the avoidance of doubt". The law does not operate in that matter and it is wrong to suggest it does by attempting to remove doubts. The law governing the confidentiality requirements of the Central Bank is clear, it is subject to extremely strict confidentiality requirements set out in section 16 of the Central Bank Act, 1989, and subsequent amendments. Under pain of severe penalties no former or current governor, director or officer of the bank may disclose information about the business of individual persons or entities to third parties other than in exceptional circumstances, which are specified in the legislation. These exceptional circumstances inter alia allow for the provision of information as required by a court in connection with any criminal proceedings. Further, non-disclosure requirements in the Central Bank Acts is subject to the rider that disclosure is permissible to enable the bank to carry out its functions under the Central Bank Acts, 1942 to 1997, which will include exchange control regulations. The exceptional circumstances do not include proceedings before a tribunal because those proceedings are and cannot under the Constitution be criminal proceedings.

The Department of Justice, Equality and Law Reform has consulted the Department of Finance concerning the implications of Deputy Upton's amendment for the Central Bank of Ireland. I understand the Department of Finance consulted the Office of the Attorney General which has advised it would not be possible to comply with paragraph (a) of the amendment as it would entail a serious breach of European law. Article 12 of the first Council Directive on the co-ordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions requires the State to ensure that the Central Bank maintains very strict confidentiality. The Directive, while prescribing certain exceptions, does not permit the proceedings of the tribunal to come within the exceptions prescribed. The amendment also purports to provide in paragraph (b) that a person can be required to disclose information to a tribunal notwithstanding any rule of law or enactment providing that such information may only be disclosed in connection with criminal proceedings.

It is strange we are asked to accept an amendment that would remove a doubt which does not exist. In any event if such a rule of law were to be overridden as suggested, it would fly in the face of our European Union obligations. The amendment appears to demonstrate a certain lack of appreciation of the role and function of tribunals and the law in relation to them. A tribunal is an inquisitorial body and is not a court of law. Clearly proceedings before any tribunal are not criminal proceedings. Tribunals cannot impose sanctions. For a tribunal to have a person before it comply with its orders, it would have to apply to the High Court for enforcement of its orders and, where criminal proceedings before the courts are concerned, which arise out of proceedings before a tribunal, it is in those proceedings that disclosure of information by banks may arise. It is wrong to suggest, as this amendment does, that proceedings before a tribunal are criminal when clearly they are not. It is wrong to suggest the law allows disclosure by banks of an individual's business in tribunal proceedings.

The scope of the Bill is confined to amending the Tribunals of Inquiry (Evidence) Acts of 1921 and 1979. Should Deputies be concerned about the law as it operates under the Central Bank Act or Acts in relation to the disclosure of information I suggest those concerns be addressed in the appropriate way to the Minister for Finance, who has responsibility for those Acts and the financial institutions generally? For the reasons outlined the amendment cannot be supported.

Dr. Upton

I thank the Minister for his reply and his guidance on the finer points of drafting amendments. We all learn a little every day and it would be foolish, short-sighted and simple-minded of me not to learn the art of amendment production. I will take account of that. The Irish Times of 20 November 1997 states: “The Central Bank is expected to challenge the legal authority of the tribunal to investigate its supervision of the Guinness Mahon Bank in Dublin and the extent of its knowledge of Ansbacher accounts, according to reliable Bank sources”. That is the reason this amendment was put down. I am aware that reliable bank sources are not infallible and legal challenges may succeed or fail, but there is cause for concern when the Central Bank specifies its intentions in this regard.

I had hoped the Minister would accept the amendment, even if it is modified, to remove doubts about the provisions of the Central Bank Act regarding the disclosure of what may be fundamentally important information. It would be a great pity if the tribunal proceedings came unstuck or alternatively — this is a greater possibility —if it got bogged down in a turgid visit to the court, as happened day in day out during the Goodman tribunal. I am anxious that should not happen and that is the purpose behind the amendment. I hope the Minister will reconsider the matter.

Mr. Higgins

(Mayo): I support the thrust of the amendment. The putting together of proper procedures for tribunals is a gradual process, and this is another stage in that process. If we are serious about getting the truth in a tribunal we must remove all obstacles to establishing that truth. We must not allow for subterfuge, shelter or evasion. In the last tribunal the Central Bank was not glorified. The Moriarty tribunal is to set down recommendations, rules and procedures relating to the bank and other financial institutions. I have expressed the hope that the Central Bank will be called in to give details of its performance in regard to the Ansbacher accounts.

In recent weeks the absolute right to Cabinet confidentiality was removed. Certain procedures were set down whereby Cabinet confidentiality may be set aside. In effect, we have gone to the heart of decision-making and set aside a time-honoured procedure, yet the edifice of the Central Bank is left intact. We are not trying to prise open every case. It is not a case of going into the archives and digging out information for spurious reasons or for the sake of inquisitiveness. We are talking about such information as may be required by a court or tribunal, about rare circumstances. When trying to establish the truth about a serious matter of public concern, there should be no exceptions. Leaving aside the comments about drafting, I wholeheartedly support the thrust of the proposal put forward by Deputies Upton and Quinn.

Mr. Rabbitte

It is clear from the expression on the Minister's face he finds Deputy Upton's parliamentary draftsmanship sloppy beyond contemplation. I would ask him to set that aside and deal with the net point of the amendment. Will he consider the following proposition? Suppose that a tribunal of inquiry was set up into a matter of alleged wrongdoing and in the course of the inquiry the tribunal discovered the existence of offshore deposits to the tune of £38 million. If the tribunal was of the opinion that there was a flagrant breach of a number of laws dealing with exchange controls and tax evasion which ought to be inquired into, the Oireachtas decided a further tribunal should be established for that purpose and the Central Bank of the day was called before the tribunal to give evidence, is the Minister saying the Central Bank could plead under the Central Bank Act that it need not answer reasonable questions of the tribunal such as how it escaped its attention that such deposits could be organised offshore, arguably for illegal purposes, certainly for purposes of minimising tax liability either by tax evasion, breach of exchange controls or whatever?

Mr. Justice Brian McCracken observed that some of these moneys might conceivably be abroad for a legal reason, but he made clear that other moneys in the account are manifestly not there for normal commercial purposes. Is the Minister saying it is acceptable that the Central Bank should not explain to the tribunal how that state of affairs came about under its supervision, that under the Central Bank Act it does not have to answer that question? If he believes that is not acceptable, as most citizens believe is the case, he should take on board Deputy Upton's amendment. I am sure his officials, who have tremendous experience of the various Acts that have led us into the House tonight, will get the wording right.

Dr. Upton

The tribunal has been asked to make broad recommendations to enhance the role and performance of the Central Bank as a regulator of banks and financial services generally, but how can it adequately address that question if it is not allowed investigate the manner in which the Central Bank supervised the behaviour of Guinness Mahon in terms of the Ansbacher accounts? I would have thought that would be essential background information in making recommendations. I appeal to the Minister to reconsider his attitude to this matter. The public is already close to saturation point in relation to tribunals and if we go down the road of citing law cases and all the rest of it and this becomes a third, difficult tribunal, it will undermine the capacity of tribunals to undertake the tasks for which they were established.

Mr. O'Donoghue

On Deputy Rabbitte's statement to the effect that he could see from my facial expression that I did not approve of Deputy Upton's drafting capabilities, I advise him that his multifarious attempts to paint me may impress in some quarters favourably disposed to him but it fails to impress anybody else.

Mr. Rabbitte

It was intended as a joke and I withdraw it; it was the least important point.

Mr. O'Donoghue

While I have the greatest of respect for the drafting capabilities of Deputy Upton or indeed any other Member of this House, I fully realise how difficult it can be in Opposition to draft amendments which involve a considerable amount of work.

Mr. Rabbitte

The Minister will find it a great deal more difficult to implement them.

Mr. O'Donoghue

The cunning, canny comments of Deputy Rabbitte, designed to paint a picture, by some kind of underhand means, is not something I am prepared to accept from him this evening. I am in no mood for his theatrics; this matter is too serious.

Mr. Rabbitte

Any chance of the Minister dealing with the amendments?

Mr. O'Donoghue

I want to deal with the Bill rather than with some fanciful notions.

Mr. Rabbitte

Filibuster.

Mr. O'Donoghue

Acceptance of Deputy Upton's amendment would be in flagrant breach of European law. Article 12 of the First Council Directive on the co-ordination of laws, regulations and administrative provisions relative to taking up or pursuing the business of credit institutions requires the State to ensure that the Central Bank maintains very strict confidentiality.

It is entirely wrong for a Member to suggest that in my not accepting the amendment, there is some attempt, covert or overt, to prevent criminal investigations since the opposite is the truth. Section 16(1) of the Central Bank Act, l989 states:

A person, who at the commencement of this section is, or at any time thereafter is appointed, Governor or a Director, officer or servant of the Bank or who is employed by the Bank in any other capacity, shall not disclose, during his term of office of employment or at any time thereafter, any information concerning—

(a) the business of any person or body (whether corporate or unincorporate) which came to his knowledge by virtue of his office of employment, or

(b) the Bank's activities in respect of the protection of the integrity of the current or the control of credit,

unless such disclosure is to enable the Bank to carry out its functions under the Central Bank Acts, l942 to l989, or under any enactment amending those Acts.

Mr. Rabbitte

Neither of those relates to this situation; they are entirely irrelevant.

Mr. O'Donoghue

Section 16(2) of the same Act specifically provides:

The provisions as to non-disclosure contained in subsection (1) shall not apply to any disclosure—

(a) required by a court in connection with any criminal proceedings,

(b) made with the consent of the person to whom the information relates and, where not the same person, of the person from whom that information was obtained,

(c) where the Bank is acting or has acted in the capacity of an agent for a person, made to the person in respect of that capacity,..

The facts are simply as I have outlined them.

With regard to the continuing debate on the Ansbacher account, at this point, surely it must be of some interest to somebody that Mr. Justice McCracken found that the Ansbacher account certainly held funds for the benefit of Irish residents, and that the holding of those accounts was not prima facie evidence that any law had been broken. A very serious legal question arises as to the premise or basis on which one could establish a tribunal of inquiry into a matter in respect of which there was no prima facie evidence of wrongdoing. I fully accept this is something which may be quite unacceptable, but it must be faced. In any event, the Bill before the House relates to certain matters concerning costs, immunities and enforcements, to the strengthening of the power of two eminent tribunals of inquiry and does not relate to extending the terms of reference of any tribunal which cannot engage in such an activity even if it wanted.

The facts are as I have outlined them. I cannot put the case any stronger than I have already. If those facts are unpalatable, I can understand that but I cannot understand why incontrovertible facts cannot be accepted.

Mr. Rabbitte

I am at a loss. The Minister has not dealt with the points raised. The issue is whether having those deposits effectively offshore, was in breach of exchange controls. The simple question being put to the Minister is if the tribunal is entitled to inquire into that, even in so far as it relates just to Mr. Charles Haughey — leaving out the red herring about seeking to extend the terms of reference of the tribunal, which is not the issue here.

Mr. O'Donoghue

It is the issue.

Mr. Rabbitte

It ought to be the issue. Let us just deal with it as it relates to Mr. Charles Haughey. Is it the Minister's opinion that, even if it were found that these moneys were held offshore in breach of exchange controls, the Governor of the Central Bank, or whoever appears on his behalf at the tribunal, is precluded, as a result of the confidentiality clause the Minister has read into the record, from answering the reasonable inquiries of the tribunal? I hope that net point is understood. Perhaps the Central Bank itself has found only now that these moneys were offshore in breach of exchange controls. Leaving aside the business of broadening the terms of reference, is the Minister saying that, even though they were held offshore in breach of the law, the Governor of the Central Bank cannot answer questions because of the confidentiality imposed by the relevant section of that Central Bank Act. I would appreciate an answer to that.

Mr. O'Donoghue

I am as anxious as everybody else that the tribunal dealing with this matter gets to the full truth. If there is a breach of the law in relation to accounts held, the tribunal may investigate that but Deputy Rabbitte is operating from the hypothesis that there definitely was a breach of the law. Then, the problem is as I have outlined it. The difficulty is that, whether we like it or not, Mr. Justice McCracken found that the Ansbacher account held funds for the benefit of Irish residents——

Mr. Rabbitte

In that context, he did not find it illegal.

Mr. O'Donoghue

Will the Deputy please listen?

An Leas-Cheann Comhairle

Please allow the Minister to conclude, Deputy Rabbitte.

Mr. O'Donoghue

The Ansbacher account held funds for the benefit of Irish residents and the holding of those accounts was not prima facie evidence that any law had been broken. That was the finding of Mr. Justice McCracken.

Mr. Higgins

(Mayo): There were breaches.

An Leas-Cheann Comhairle

Allow the Minister to conclude.

Mr. O'Donoghue

That was the finding of Judge McCracken. I am not here to defend an individual who has or has not an account in the Ansbacher Bank. I am making the point that that is what Judge McCracken found. There is nothing I can do about it. I cannot extend the terms of reference of the tribunal and, in any event, Judge McCracken has made his view known in relation to this matter. That is the legal position and there is little I can do about it.

An Leas-Cheann Comhairle

As it is now 10.30 p.m. I am required to put the following question in accordance with an Order of the Dáil of this day: "That section 5 is hereby agreed to in Committee, the Title is hereby agreed to in Committee, the Bill, as amended, is accordingly reported to the House, Fourth Stage is hereby completed and the Bill is hereby passed".

Dr. Upton

On a point of order, may I ask if the Minister is accepting amendments Nos. 9 and 10?

An Leas-Cheann Comhairle

I have already put the question, Deputy.

Question put and agreed to.