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Dáil Éireann debate -
Thursday, 2 Apr 1998

Vol. 489 No. 5

Tribunals of Inquiry (Evidence) (Amendment) Bill, 1998: Report and Final Stages.

Amendment No. 2 is an alternative to amendment No. 1 in the name of Deputy Jim Higgins. We will discuss amendments Nos. 1 and 2 together.

(Mayo): I move amendment No. 1:

In page 3, lines 17 to 20, to delete all words from and including "by" in line 17, down to and including "satisfied" in line 20, and substitute the following:

"where——

(a) (i) the tribunal has requested the amendment, or

(ii) the Government with the consent of the tribunal has requested the amendment, or

(iii) the Houses of the Oireachtas with the consent of the tribunal have requested the amendment,

and

(b) the tribunal is satisfied".

The thrust of amendment No. 1 is to broaden the capacity to have the terms of reference of tribunals amended.

Fundamentally we believe this Bill is unnecessary, superfluous and restrictive. The Government could have acceded to the request of Mr. Justice Flood to extend the terms of reference of his tribunal in relation to planning matters by a simple resolution of this House. We have no problem with extending the terms of reference of the Flood tribunal to include the time prior to 20 June 1985. It is imperative that the body that established the tribunal, the Dáil under the chairmanship of the Ceann Comhairle, should have the absolute right to establish whether the terms of reference of a tribunal should be extended or amended.

We totally reject what has been said in this House time and time again by the Taoiseach, by the Minister for Finance, and outside the House by the Minister for the Environment, that it was not legally possible to extend the terms of reference of this tribunal, or any tribunal, without having recourse to legislation. Our legal advice is that it could be done by a simple resolution of this House. We believe it is legally possible to do so and that this is how it should be done.

We also believe the reason the Government brought forward this legislation was its realisation that its legal advice was wrong, that it was not sustainable. Therefore, to provide a fig leaf for itself and to protect its Attorney General it decided to bring in this legislation.

The second reason was to ensure that the Ansbacher accounts cannot be investigated. Yesterday it was alleged that the Ansbacher accounts had been overly debated. They have been debated at length inside and outside this House, but they have not been investigated. A key question is why there should be a reluctance on the part of the Government to investigate those accounts. The day before yesterday the Minister made a high profile announcement to the effect that he was determined to introduce all the necessary legislative measures to stamp out fraud. The report of the Dunnes payments tribunal sets out in clear detail gross anomalies in relation to the handling of £38 million of money for individual anonymous depositors which was shifted and shunted within and outside the jurisdiction by Guinness Mahon and by its subsidiary company in the Cayman Islands, but for some reason the Government has decided that it does not want to have these accounts investigated. All one has to do is look at the comments of Mr. Justice McCracken where he talks about the ingenious system where Cayman Islands and Guinness Mahon deposits were in sterling, although some deposits were in other currencies, where the arrangement was that Ansbacher (Cayman) Limited paid to Irish clients interest calculated at 0.8 per cent per annum less than the interest which it received from Guinness Mahon, thus generating a small profit for Ansbacher (Cayman) Limited. The currency in which the money was deposited is not known. One need only look at the 1987 audit report of Ansbacher Cayman Limited, which states:

These clients have a number of key characteristics. They are generally undisclosed except to the senior manager of the company. The principals will not sign any documentation. The principals do not receive any statements of account on a regular basis. The principals only occasionally visit the company to review their affairs. Instructions are usually received by telex from solicitors or other trustees or by telephone from the principal. There is never any direct written instruction from the principal.

If one reads the 1989 audit report of Guinness Mahon Ireland Limited, it states:

A matter of particular concern to us relates to the management of the Ansbacher Cayman deposits amounting to nearly £38 million and constituting almost 35 per cent of the bank's liabilities.

Mr. Justice McCracken rightly called this an ingenious system whereby the money of Irish depositors was kept offshore, no record was kept of deposits in Ireland and yet an interest rate was on offer that was one eighth of 1 per cent less than if the money was deposited in Ireland. We can talk about stamping out fraud and new restrictive measures, but the taxpayer wants to know who these people are. Why did they resort to this so-called ingenious system? What right have they to remain anonymous? Will they ever be named? Why should they be accorded such special treatment, which is effectively an amnesty?

If this House decides it is appropriate to change the terms of reference of a tribunal, it should have the right to do so. However, I emphasise that my amendment holds that this should not be foisted on a tribunal or its chairman. There is no question of imposing additional responsibilities or broadening the terms of reference without the assent of and consultation with the chairman of the tribunal. If evidence comes to light to sustain the argument that the terms of reference should be extended subsequent to the tribunal's establishment, then there must be consultation with the head of the tribunal following a resolution of the House.

On Committee Stage the Minister made a meal of saying this was technically impossible, asking what apparatus would be put in place. In relation to the Buchanan investigation, the persons who conveyed the wishes of the House to the chairman of that investigation were the then Ceann Comhairle and the Cathaoirleach. They also received the Buchanan report. As elected representatives we must retain the right, by resolution of the House, to change the terms of reference of a tribunal if, having consulted the tribunal chairman, it is the will of the House to do so.

Dr. Upton

These amendments arise out of the fundamental belief that this Bill is unnecessary. It is a pity the Minister will not accept them. The proposal that the Oireachtas be empowered to change the terms of reference of a tribunal with that tribunal's assent seems entirely reasonable. It would make the process much more efficient than would be the case if this Bill passes. What is happening is undesirable, it is something of an infringement on the democratic process which restricts the Oireachtas' power.

The Minister obtained two pieces of advice prior to introducing this Bill. One advocated a position in accord with my and Deputy Higgins's views, and the other gave rise to his introduction of this Bill. What was the sequence of events? Why did he look for a second opinion and what inspired the choice of his anonymous adviser? These are important questions, and the Minister should tell us why he sought a second opinion. Which advice came first? Was the first advice in accord with these amendments? Who gave the second advice and what inspired the choice of that person?

I am not suggesting that the person who gave the second advice did not act with integrity, but there are those with contrary views. It is possible to obtain certain advice by going to somebody who is known to have those views. It casts no aspersions on the person's integrity, but if one wants to hear a certain opinion, it is possible to find someone who holds that opinion. Why did the Minister stop at the second opinion? Why did he not seek further opinions when the first two he received were contradictory? Is this normal practice? Does the Minister usually seek a second opinion?

We have debated the Ansbacher matter over and over. Will those people be named? That is my final question. Will we hear the full story if they have broken the law?

The Bill provides that an instrument establishing a tribunal and which applies the Tribunals of Inquiry (Evidence) Act, 1921, to the tribunal should be amended pursuant to a resolution 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 or provided information to the tribunal under its terms of reference.

On Second and Committee Stages, I indicated that the policy of the Bill was to ensure that any amendment of the instrument establishing a tribunal of inquiry and incorporating its terms of reference should guard against the possibility of a successful challenge to a tribunal. I have heard nothing to change my opinion that the Bill's approach is the safest one and that the conditions in section 1(a), and (b) of the Bill would achieve this.

The first safeguard, that the tribunal must have requested the amendment, ensures that when a tribunal seeks information, considers whether such information is within its remit and starts to take evidence, it can proceed in the knowledge that a change in terms of reference will be rare and only on its own initiative. This approach is supported by the terms of reference of the McCracken tribunal, as set out in the instrument signed by the then Taoiseach, Deputy Bruton, on 7 February 1997 which comprehends an extension in the terms of reference of that tribunal following a recommendation by the tribunal. When it is contemplated by a tribunal that a change be made to its terms of reference, the Bill's second safeguard is that the tribunal must be satisfied that that would not prejudice the legal rights of anyone who has co-operated with or provided information to the tribunal under its original terms of reference.

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

It is important to again outline to the House the comments of the 1966 Royal Commission on Tribunals of Inquiry on the terms of reference of tribunals. It stated:

In view of the inquisitorial nature of the proceedings of the Tribunal, the terms of reference require careful consideration and should be drawn as precisely as possible .

The Act lays down, rightly in our view, that what is to be inquired into shall be a ‘definite matter'. The reference should confine the inquiry to the investigation of the definite matter which is causing a crisis of public confidence. On the other hand it is essential that Tribunals should not be fettered by terms of reference which are too narrowly drawn.

The commission was of the view that well defined terms of reference were essential to the effective operation of the tribunal. Nowhere in its report did it contemplate any amendment to the terms of reference of a tribunal.

There is an onus on Government and the Legislature to ensure that proper terms of reference are drawn up when a tribunal is being established. Following the interim report of the Flood Tribunal, the Government accepts that there may be circumstances where a tribunal, with the evidence before it, will wish to seek a change in its terms of reference. In those circumstances, the tribunal is uniquely placed to make such a request. However, it is reasonable to assume that such requests from tribunals will be rare.

Amendment No. 2, tabled by Deputy Upton, would allow amendment of a tribunal's terms of reference even if the tribunal had not requested the amendment or consented to it. The tribunal would then be charged with establishing whether the proposed amendment would prejudice the legal rights of any person who co-operated with or provided information to it. The task of establishing whether the proposed amendment would prejudice the rights of any person could be sizeable, involving the tribunal in a review of the evidence before it. If the tribunal were to report that the proposed amendment would prejudice the rights of individuals, it is not beyond the bounds of possibility that the process of consultation with the tribunal, and possible redrafts of amendments of terms of reference by the Oireachtas, would begin again. It is not clear what procedure the Oireachtas would follow when consulting the tribunal. The amendment is silent on that issue. Therefore, with all due respect, the Labour Party amendment is extraordinary. If it were passed by the House it would turn the entire process on its head.

These comments apply by and large to paragraphs (a)(i) and (iii) of amendment No. 1 tabled by Deputy Higgins, although it at least acknowledges that the consent of the tribunal would be a necessary prerequisite to amend its terms of reference. Nonetheless, amendment No. 2 leaves open the possibility of toing and froing between the Government or the Oireachtas and a tribunal on proposed changes in its terms of reference that might lead nowhere and could create tension between the Government or the Oireachtas and the tribunal at a crucial time when it had already commenced its work. It is conceivable that the Government would have to redraft changes in the terms of reference following the necessary consultations with a tribunal.

On each occasion, the tribunal would be in a position to veto the proposals for amendment. In cases where the Oireachtas initiated the change in terms of reference, the same problem would arise. It is not clear what procedure the Oireachtas would be expected to follow when consulting the tribunal. Amendment No. 1 is silent on this issue. It is also silent as to who would make the instrument which would amend the instrument establishing the tribunal because it proposes to delete the words "by a Minister of the Government" from the new section 1(a) of the Bill.

The amendments are ill-conceived, ill-judged and must be rejected. The Bill as it stands comprehends the current request from the Flood Tribunal, but also takes into account any future requests of a similar nature. It sets out the strict conditions which must be satisfied prior to the initiation of the process under which the terms of reference of a sitting tribunal can be amended. The Bill achieves a proper framework on which the law in relation to sitting tribunals can operate without prejudice to parties before them.

Members of the Opposition again adverted to whether legislation is required. I have resolutely defended the Government's position by stating categorically that it is my view and that of the Government that legislation is required. When they were last in Government — which, unfortunately, is not long ago — Members of the Opposition were advised that primary legislation was necessary by way of amendment of section 1 of the 1921 Act to expressly provide for amendment of an instrument incorporating terms of reference in appointing a tribunal to which the 1921 Act is applied. However, they would now like to deny this. It is clear from the provisions of the order that Government made on 7 February 1997 setting up the Dunnes payments tribunal that I am correct. They envisaged the possible 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 this amendment. Thus, the order allowed the Dáil and Seanad to make a further resolution that would automatically apply to the original tribunal. The provision was inserted by the Government of which Deputy Bruton, the current leader of Fine Gael, and Deputy Quinn, the current leader of the Labour Party, were members, as well as many other armchair critics on the Opposition benches, because there was doubt as to the power to amend the order establishing the tribunal once it had been made.

The positive assertions, now that these parties are in Opposition, that there is no doubt in this regard is, to say the very least, strange given the clear evidence that they had a doubt when in Government. They were clearly given the same advice as this Government has been given.

Deputy Upton questioned the advice received from an eminent senior counsel. It is not unusual for the Attorney General of the day to seek outside advice. In this instance, the advice was sought for analysis. I regret the insinuation Deputy Upton appears to make.

Dr. Upton

I did not make an insinuation.

He appears to suggest that the senior counsel who gave this advice was acting surreptitiously.

Dr. Upton

That is not suggested.

That is not the position. The senior counsel who gave the advice did so independently from his wealth of expertise and knowledge. There would be little point retaining a senior counsel in a matter such as this if one were to tell him the advice he should give. No self-respecting senior counsel——

Dr. Upton

If one knows the advice it would be helpful.

——would listen to that kind of nonsense.

It is disappointing that we have returned again to the Ansbacher accounts issue because I have explained the position many times. I gave a full and comprehensive response to this matter on Second and Committee Stages, yet precisely the same assertions are being made this morning as were made during those debates. I have stated many times that the Ansbacher accounts are subject to intensive scrutiny. They are being scrutinised by the Revenue Commissioners and by the authorised officer appointed by the Tánaiste and Minister for Enterprise, Trade and Employment under the Companies Act, 1990. The chairman of the Revenue Commissioners stated that the proceedings of the tribunal were monitored closely by the Revenue Commissioners and that appropriate actions will be taken. The Minister for Finance, Deputy McCreevy, also indicated that any additional powers which might be required by the Revenue Commissioners can be provided for in legislation. In addition, the Moriarty Tribunal has a brief to examine certain aspects of the Ansbacher accounts and I explained that brief in detail in my Second Stage reply.

I greatly resent any suggestion by the Opposition that this Government is trying to shield or hide people who hold accounts in Ansbacher. When the legislation is passed, it will be open to Mr. Justice Moriarty to seek an amendment of his terms of reference if he considers such a course to be appropriate. He is the only person in a position to determine on the basis of the evidence before him whether such changes are warranted. It is not a case of "Don't ring us; we'll call you". Mr. Justice Moriarty, if he wants to approach the Government with a view to amending the terms of reference, is perfectly entitled to do so, but he has not done so. If the Government, or anyone acting on its behalf, were to meet him and question him on this matter, there would be a hue and cry in the House and the Government would be accused of interfering with the independence of the tribunal.

We must be fair on this matter, and to be so, we should accept that the Government is doing what it can and that there is no question of anyone being shielded. I have explained the position ad nauseam and yet people refuse to acknowledge the reality. It is extraordinary that, despite the fact that I have explained the position several times, Deputies Jim Higgins and Upton still have precisely the same long playing record. At this stage, I have both their speeches off by heart.

Dr. Upton

As we have the Minister's reply.

I am sure they may also have my side of the story off by heart. However, it is clear they have decided not to believe it and have buried their heads in the sand. There can only be one reason for that: they are trying to present an untrue position to the public and to create a smokescreen. They are trying to suggest that the Government wants to hide the identity of the Ansbacher account holders. That is not true and I resent that accusation. I have explained the position in great detail.

(Mayo): The long playing record has not run its course and will continue because there is a public demand——

It will not reach the top ten.

(Mayo): ——for information in this regard. The Minister knows well that, irrespective of promises given as regards investigation of these accounts, assurances given by the Minister for Finance relating to required additional powers and efforts to gloss over the reality by saying the chairman of the Revenue Commissioners is closely monitoring what is happening, the 1993 Finance Act makes clear that the Revenue Commissioners cannot investigate such deposits until the names of the depositors are supplied. By refusing to pursue the names of the holders of the Ansbacher accounts, the Government is frustrating the Revenue Commissioners. By not revealing the names, it means the Revenue Commissioners cannot pursue these account holders for income tax owed to the State. Prosecutions will not follow, names will not be published and income tax and revenue rightly owing to the State will not be sought or paid. The Minister knows the Revenue Commissioners cannot carry out a general trawl unless specific names are supplied. He has already been asked whether the names of the Ansbacher depositors will be revealed. If so, what mechanism will be used? When can we expect the names to be revealed? Will the people who deposited £38 million be allowed to retain their cloak of anonymity? We are not trying to create tension between the Oireachtas and the tribunal. The provision of consent is clearly built into my amendment. The terms of reference of a tribunal can be changed:

"where——

(a) (i) the tribunal has requested the amendment, or

(ii) the Government with the consent of the tribunal has requested the amendment, or

(iii) the Oireachtas with the consent of the tribunal has requested the amendment,

and

(b) the tribunal is satisfied".

There is no question of imposing additional obligations or terms of reference on a tribunal. Where there is a will, there is a way, and for some reason there is no will on the part of the Government to pursue the identities of the Ansbacher depositors.

Dr. Upton

As regards the Minister's reply concerning my amendment, I draw to his attention that it clearly states the tribunal must be satisfied with what is proposed by the Oireachtas. I do not accept his criticisms on that point. We have reached a full stop as far as this Bill and the Ansbacher deposits are concerned. The matter will continue, but we are in danger of being bored out of our minds by prolonging the argument. At this stage, the Minister's replies and our contributions are such that we are going around in circles.

I accept the integrity of the person who gave advice to the Minister. What was the sequence of obtaining that advice? Which came first? Why was a second opinion sought? Why did the Minister stop after receiving two opinions? Is there any background opinion relating to the views held by this person on the matter at issue?

There are experts in other areas who legitimately and with the highest regard to integrity hold conflicting views. If one wants a different point of view to suit one's agenda, one can seek an appropriate expert. No one does that better than various commercial interests. For example, the cigarette companies did it for years. A small number of experts held views which were favourable to the companies' position and they sought their views when the vast bulk of opinion was to the contrary.

I would be grateful if the Minister indicated the sequence of events and what triggered the decision to ask for the second opinion. Is this usual and does it normally stop at two opinions?

I have explained how the Ansbacher accounts are being investigated and the involvement of the Revenue Commissioners, the tribunal and the inspector. The issue of tax evasion is a matter for the Revenue Commissioners and the account holders. If additional powers are required, they will be provided. This has been stated ad nauseam. If Mr. Justice Moriarty wants to change the terms of reference of his tribunal, he can ask the Government to do so. Mr. Justice Flood decided he wanted to amend his terms of reference and asked the Government to do so. It then came forward with legislation. The bona fides of the Government cannot be doubted. That is the position but some choose not to accept it for reasons best known to themselves.

In reply to Deputy Upton, I understand the senior counsel's opinion was sought in or around 5 March. On the evening of Monday, 9 March, the Attorney General's Office advised the Department in writing that the Attorney General was of the view that primary legislation was necessary to amend section 1 of the Tribunals of Inquiry (Evidence) Act, 1921, to expressly provide for amendment of terms of reference of an instrument appointing a tribunal and applying the Act to the tribunal and that this view had been confirmed by independent senior counsel.

Taking into account the Attorney General's advice, the memorandum was submitted to Government seeking approval to proceed with the legislation which is before the House. The following new paragraph was then inserted in the memorandum for Government meeting of 10 March:

It has been suggested by some commentators that tribunals are not established as such by the Act of 1921, rather that they are established by resolution of both Houses and that the Act of 1921 regarding evidence etc. is merely applied to such tribunals. The Attorney General, however, is of the view that primary legislation is necessary to amend section 1 of the Act of 1921 to expressly provide for amendment of terms of reference of the Minister who is appointing the tribunal and applying the Act to the tribunal. This view is supported by independent senior counsel. It is in the light of these advices that the Minister seeks approval to proceed with the legislation.

At its meeting on 10 March 1998 the Government approved the text of the Tribunals of Inquiry (Evidence) (Amendment) Bill, 1998.

There is no mystery.

(Mayo): I have nothing further to add. We have made all the salient arguments and I rest my case.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 2 and 3 not moved.
Bill reported without amendment and passed.
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