Dáil Éireann debate -
Wednesday, 10 Jun 1998

Vol. 492 No. 2

Tribunals of Inquiry (Evidence) (Amendment) (No. 3) Bill, 1998: Second Stage.

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

I move: "That the Bill be now read a Second Time."

This Bill implements the Government's commitment, as indicated by the Taoiseach in the House on 3 June 1998, to introduce as a matter of urgency legislation amending the Tribunals of Inquiry (Evidence) Acts to enable the Houses of the Oireachtas to resolve to change the terms of reference of a tribunal, subject to the consent of the tribunal. That commitment is linked with the Government's stated intention, also of 3 June, to seek, on enactment of the legislation, the consent of Mr. Justice Flood to amendment of the terms of reference of the tribunal, as then outlined.

Once the Government had decided that the investigation should be carried out by Mr. Justice Flood's tribunal it was necessary to bring forward this legislation because without the legislation the Houses would not be in a position to change the terms of reference of that tribunal. If the Government had decided to propose the establishment of another tribunal to deal with the new situation, this Bill would not, of course, have been necessary. However, after careful consideration the Government formed the view that the further investigations would most appropriately be undertaken by Mr. Justice Flood's tribunal so that all matters arising could be dealt with by the one tribunal.

It is only a short time since we debated the terms of the 1998 Bill which led to amendment of the Tribunals of Inquiry (Evidence) Act, 1921. That Bill was framed to meet the particular circumstances which had arisen by the request made by Mr. Justice Flood, in his interim report of the tribunal of inquiry into certain planning matters, for amendment of the terms of reference of his tribunal. The central concern of the Government in bringing forward that Bill was that once a tribunal is established, it should be allowed to proceed with certainty in the knowledge that its terms of reference will not be changed, except in certain exceptional circumstances, and where it is satisfied that any such amendment would not prejudice the legal rights of any person who had co-operated with or provided information to it under its terms of reference. The difficulty faced by the Government at the time was that the Act of 1921 did not expressly provide for the circumstance in which it was desired to have a change in the terms of reference of a sitting tribunal. Accordingly, the Act contained no guidelines on the safeguards which should be observed when deciding on any change in the terms upon which a tribunal is established.

The provisions of the 1998 Act were not lightly proposed by the Government and they were devised on the basis of legal advice from the Attorney General. The Government was conscious that any provisions which were vague, oppressive or in violation of persons' rights would be open to challenge and could jeopardise the otherwise healthy operation of a sitting tribunal. These are also the concerns of the Government in bringing forward this Bill. The overriding concern is to achieve a balance in what is brought forward, to ensure fair procedures and to uphold the principle of justice.

It is argued by some that in the 1998 legislation the Government should have allowed the terms of reference of a tribunal to be amended, otherwise than on the basis of a specific request from the tribunal, by allowing the Oireachtas to initiate the change. The difficulty with the wider approach is not one, even now with the benefit of hindsight, that has somehow disappeared. The difficulty is that the process of consultation with a tribunal in trying to establish change in its terms of reference with its consent could create tension between the Executive, the Oireachtas and a tribunal. Agreement on the amendments of terms of reference must not, and cannot, be expected in all cases. The integrity of the judicial process must be preserved and the onerous task placed on a tribunal needs to be uppermost in our minds in debating those same issues which arise in relation to this Bill.

In the context of the 1998 Bill, following on the request from Mr. Justice Flood, there was simply no need to go further than what was proposed. The best approach, in the Government's view, was to allow for change where a tribunal has requested specific change. That was the situation which the Government dealt with in the 1998 legislation. There are now different circumstances and this Bill recognises that. It, however, retains the central feature of the 1998 Act by requiring that the tribunal is satisfied that a change in its terms of reference will not prejudice the legal rights of any person before the tribunal. In addition it ensures that the tribunal retains its independence through the inclusion of the principle of consent.

It has been argued also that the Government proceeded with the narrower option in the 1998 legislation because it did not want the terms of reference of the tribunal under the chairmanship of Mr. Justice Moriarty changed to have the Ansbacher accounts investigated. I want to dispel that myth because the allegations resurfaced in debate in the House on 3 June, having been raised in debate on the 1998 Bill. The various layers of investigation of the Ansbacher accounts are as detailed and as broad as can be, consistent with the laws, including revenue and international law in this area. The Ansbacher accounts are subject to scrutiny by the Revenue Commissioners, by an authorised officer appointed by the Tánaiste under the Companies Act, 1990, and by the Moriarty Tribunal, which has a brief to examine certain aspects of those accounts.

The other myth which surfaced in the debate on 3 June is that my Department advised that the 1998 Bill was not necessary on the basis that power already existed under the 1921 Act to amend terms of reference of a tribunal. The reality, of which those in the House with Government experience will be particularly aware, is that the practice when preparing legislation is to engage in a detailed analysis of all the issues involved, to tease out the legal principles and all of the practicalities.

In the course of this exercise on the Bill the Department, as it must, and the draftsman raised queries which required to be answered by the legal side of the Attorney General's office. One of the queries was on the necessity for the legislation. The Attorney General's legal advice, which was confirmed by independent counsel, was that it was necessary to expressly provide for, in effect, amendment of terms of reference of a tribunal. Indeed, this Bill is based on that premise and that is also the premise of the Private Member's Bill that is before the House in the names of Deputies John Bruton, Quinn, De Rossa and Sargent.

I propose now to deal briefly with the details of the Government's Bill. It is concerned with tribunals of inquiry to which the Tribunals of Inquiry (Evidence) Act, 1921 applies. Section 1 of that Act requires that prior to the making of an instrument which applies the Act, both Houses must have resolved that it is expedient that a tribunal be established for inquiring into a definite matter of urgent public importance. The provisions in the Act of 1921, as amended by Acts of 1979, 1997 and 1998, give to a tribunal certain powers, rights and privileges that are vested in the High Court for evidential purposes. Such a tribunal can enforce the attendance of witnesses, examine the witnesses under oath and compel the production of documents.

The 1998 Act inserted a new section 1A into the Tribunals of Inquiry (Evidence) Act, 1921, which provided that an instrument which appoints a tribunal shall be amended pursuant to a resolution of both Houses of the Oireachtas where the tribunal has requested the amendment 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.

Section 1 of the Bill repeals and re-enacts, with amendment, section 1A of the Act of 1921. Subsection (1) of the new section 1A provides that an instrument to which the new section applies shall be amended by a Minister of the Government pursuant to a resolution of both Houses of the Oireachtas, subject to certain conditions which are specified in paragraphs (a) and (b) of the subsection.

The conditions are that: the tribunal has consented to the proposed amendment following consultation between the tribunal and the Attorney General on behalf of the Minister, or that the tribunal has requested the amendment.

Paragraph (a) of the subsection represents an additional option to the procedure provided for in section 1A of the 1921 Act as it stands. The effect is to allow the Oireachtas to resolve to change the terms of reference of a tribunal in the absence of a specific request in the matter from the tribunal itself, whether or not that tribunal was established before or after the passing of the Bill.

Paragraph (b), under which the tribunal may request amendment of its terms of reference, is in the law as it stands by virtue of the 1998 legislation.

Subsection (2) of the new section 1A provides that, without prejudice to the generality of subsection (1), a tribunal shall not consent to or request an amendment where it is satisfied that such amendment would prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its terms of reference. It re-enacts the substance of the law contained in this respect in the 1998 legislation.

The new subsections (3) and (4) are technical provisions which also re-enact provisions to be found in the 1998 legislation. The effect of subsection (3) is that where terms of reference of a tribunal are amended, the Act of 1921 will apply to those new terms of reference. Subsection (4) makes clear that the conditions in the new section 1A will apply where terms of reference of a tribunal are amended.

The Private Member's Bill is substantially different from the Government's Bill. It allows for amendment of the terms of reference of a tribunal on the initiative of the Houses of the Oireachtas, but does not expressly provide for amendment on the initiative of the tribunal. The Bill would, moreover, allow amendment of terms of reference of a tribunal in circumstances where the tribunal has not consented to the amendment. The Bill merely indicates that the tribunal must inform the chairmen of both Houses that it is satisfied that the amendment proposed by the Oireachtas would not prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its existing terms of reference.

The Government's Bill is specific on these issues. The terms of reference of a tribunal cannot be changed without the consent of the tribunal and the tribunal itself may, as in the case of the Flood Tribunal, request change in its terms of reference. As I have indicated, a consultation procedure is also specified in the Government's Bill. When considering the question of what tribunal might investigate the further matters in question, I confirm that the Government asked the Attorney General to consult Mr. Justice Moriarty and Mr. Justice Flood in relation to whether they would be willing to undertake the work in the context of the tribunals which they are chairing. Both of them expressed a willingness to undertake further investigative work on behalf of the Oireachtas and neither of them felt that there would be any prejudice caused to persons by such addition to their terms of reference. As I indicated, the Government has now formed the view that the further investigation would most appropriately be undertaken by Mr. Justice Flood's tribunal.

Some Members of the House have, I understand, queried the appropriateness of the approaches made to the two judges by the Attorney. Let me make it quite clear that the approach which the Attorney made was purely to establish whether either would be willing or in a position to accede to an amendment of their terms of reference. The Attorney did not advance any specific proposal to alter the terms of reference of either tribunal.

Both tribunals are impartial and independent. They were established by orders in the terms that were resolved by both Houses and if the terms of reference of either Tribunal of Inquiry were to be the subject of amendment this could only be done under existing legislation pursuant to the provisions of section 1A of the Act of 1921. Moreover, any such amendment can only be made at the request of a tribunal. The approach made by the Attorney to the judges was whether there would be any obstacle to their terms of reference being amended by the Oireachtas, if that should be its wish.

Some Deputies will be aware that it is quite normal and proper for the Attorney to act as a channel of communication in this way and there are precedents. The willingness of either judge to undertake further investigative work on behalf of the Oireachtas is to be greatly welcomed by the House given the heavy work already under way by those judges.

The Bill is sensitively framed to expressly provide for the conditions and the procedures which must be adhered to where it is determined that the terms of reference of a tribunal, to which the Act of 1921 applies, should be amended. I commend the Bill to the House.

Mr. Higgins

(Mayo): May I share my time with Deputy Jim O'Keeffe?

An Ceann Comhairle

Is that agreed? Agreed.

Mr. Higgins

(Mayo): On 26 March during the Second Stage debate on the Tribunals of Inquiry (Evidence) (Amendment), 1998, which sought to comply with the request of Mr. Justice Flood to allow him to investigate possible planning irregularities prior to 28 June 1985, I indicated to the House that I would table an amendment to enable the Government to seek to change the terms of reference of a tribunal provided that the consent of the tribunal had been obtained. The Minister for Justice, Equality and Law Reform told the House on that occasion that this could not and should not be done. Indeed, he told us in solemn tones that “anybody who went to Mr. Justice Moriarty, or any other judge in charge of a tribunal, and asked him if he felt the terms of reference of a tribunal should be amended might be considered by many to be interfering with the judicial independence of the chairperson of the tribunal.”

Mr. Rabbitte

Out of the Minister's mouth.

Mr. Higgins

(Mayo): He went on to say that:

If any member of the Government did that, legitimate questions would be asked in the House. I regret that Members of the House suggested that type of legal mumbo jumbo and tried to pass it off as desirable.

On Committee Stage I moved an amendment to the effect that the terms of reference of a tribunal could, after it had been established, be amended pursuant to a resolution of both Houses where "the Government, with the consent of the tribunal, has requested the amendment." The Minister refused to accept the amendment on Committee Stage or on Report Stage on 1 April. What was legal mumbo jumbo according to the Minister last March and April has now become the exact thrust of the Bill he has brought before the House today.

I listened to the Minister trying to dance his usual minuet around a decision he knows was wrong then and has proven to be wrong today. If the Minister had the good grace to accept the Opposition amendment last April, this Bill would not have been necessary as the legislative powers would already be in place to enable the Attorney General to go to Mr. Justice Flood to ask him to agree to accept a widening of the terms of reference to investigate payments to Mr. Ray Burke.

The woeful consequences of somebody going to the tribunal and to be seen to be "interfering with the judicial independence of the chairperson" as we were told, and as has become apparent to the House today, has already taken place in view of the fact that consultations have taken place between the Government and the Attorney General and Mr. Justice Moriarty and Mr. Justice Flood. The abhorrence of last March and April seems to have totally evaporated. Indeed, it is something which will now become part and parcel of the new Bill arising from the consultations which will now be necessary between the Attorney General and the chairman of the tribunal. So much for consistency.

When it comes to accepting worthwhile initiatives from the Opposition there has been a total zero tolerance response from this zero tolerance Minister for Justice, Equality and Law Reform. There was a zero tolerance response to a perfectly well crafted Door Supervisors Bill, produced by my colleague, Deputy Farrelly, to bring about long overdue registration, regulation and supervision of bouncers at discos and places of entertainment. The Minister's proposals are so far down his priority list that they will not even see the light of day for the foreseeable future.

Again, there was a zero tolerance response to the Registration of Sex Offenders Bill, published by my colleague, Deputy Neville. The Bill was rejected by the Minister on the grounds that he will launch a discussion paper on the issue. We are still at the stage of a discussion document while unregistered sex offenders roam our streets and a perfectly good Bill is allowed to languish. Before the Minister even saw the text of my recently published Enforcement of Court Orders Bill, which would end the jailing of fine defaulters and civil debtors by extracting fines and debts from their earnings, he announced he would not accept it but would bring forward his own proposals. It was confirmed by the Tánaiste in the House this week that these proposals will not see the light of day this year.

Each time I ask the Taoiseach about the progress of the Minister's legislation, it becomes patently clear that this issue is not a Government priority. There was a zero tolerance response to the Democratic Left Bill, brought in by Deputy McManus, to grant an amnesty to existing asylum seekers and to enable a fresh, fair and systematic approach to be taken when dealing with asylum applications.

I continue to maintain that this legislation is not necessary and the terms of reference of a tribunal can be changed by a simple resolution of both Houses. The Minister for Finance, Deputy McCreevy, told the Dáil on 20 January that when a resolution has passed both Houses of the Oireachtas and an order made appointing the tribunal under specific terms of reference, the power to amend an order does not exist in legislation. This statement is untrue.

The interim report of Mr. Justice Flood dated 26 February tears that contention to shreds by seeking an extension of the commencement date to before 20 June 1995. Here we have a High Court judge, the chairman of the tribunal, seeking to broaden the scope of his investigations without any reference to the need for legislation to so do. The net situation is that in the wake of the Flood request, the Attorney General maintained that legislation was necessary. Officials of the Department of Justice, Equality and Law Reform maintained it was not necessary and their advice was published in a Sunday newspaper.

The legislation route was taken by the Government to provide a fig leaf and an unnecessary expedient to save the blushes of the Attorney General. As I pointed out last March, it is superfluous, unnecessary and could well be restrictive. The changed terms of reference will have to be clear, specific and comprehensive. They must enable the tribunal to investigate all policy decisions by Mr. Burke when he was Minister for Justice, Communications, Industry and Commerce and Energy between 1987 and 1992 in order to ascertain whether decisions taken by Mr. Burke or Governments of which he was member could have been influenced in any way by payments he or the Fianna Fáil party received in that period. We want the tribunal to establish the real reason Princes Holdings, a wholly owned subsidiary of Independent Newspapers, was granted lucrative MMDS licences either directly or as shareholders in companies which held licences in all but two of the 29 cells for which licences were offered and awarded.

We want to know why Mr. Ray Burke as Minister agreed to all the main terms sought by Independent Newspapers in the granting of exclusive MMDS licences. We want to know the reason Mr. Burke insisted on signing and despatching from his office the letter of comfort to Mr. Joe Hayes, Managing Director of Independent Newspapers. We want to know the reason the Minister departed from official advice in providing "written assurances" sought by Mr. Hayes. We want to know the motivation behind Mr. Burke's assurance to allow existing franchise holders not only to apply for a renewal of their ten year licence, three years after the MMDS systems were established, but to also offer them the comfort that:

I should say that I do not see changes of franchise being made simply for the sake of change. Unless my Department has had cause to express grave dissatisfaction to an MMDS Licensee, it will be safe to assume that Agreements under Regulation 7 will be given to existing licensees".

That was a cast iron guarantee.

We want to know why another O'Reilly owned company, the Fitzwilton subsidiary, Rennicks, visited Mr. Burke's home with a cheque made out to cash for £30,000. We are led to believe no favours were sought or given. Does the Taoiseach, Mr. Burke, or the Minister, Deputy O'Donoghue, seriously expect us to believe that somebody would arrive at your home with £30,000 in cash, in a brown envelope, or by way of a cheque made out to cash and do so out of a sense of admiration for the recipient's principles or prowess with absolutely no strings attached? Much play has been made of the fact that the Rennicks proposal for Kilcoole, County Wicklow, for which it was approved for a grant of £4.2 million, did not go ahead. However, we want to know whether there is any link between the Rennicks £30,000 payment to Mr. Burke and the fact that the Rennicks company was approved for grant aid of £240,000 in 1988 of which it drew down £180,000. We want to know if the delivery of the £30,000 cheque to Mr. Burke in 1988 by Mr. Robin Rennicks and Mr. Paul Power who were senior executives respectively of Rennicks and Novum had anything to do with the fact that in 1989 Novum got £10,000 in grants from Forbairt and received a total of £478,000 in grants up to 1996.

Of particular interest is Mr. Burke's involvement in granting Irish Citizenship to 11 Saudi Arabian and Pakistani nationals, two of whom were involved in the biggest banking scandal in history. Was the fact that these were people dealing in millions of dollars or millions of pounds, as the case may be, a factor in ensuring that the then Taoiseach, Mr. Charles Haughey, took a very personal interest in their passport applications? Was the fact that these were monied people with access to vast millions, instrumental in the unprecedented step of having their certificates of naturalisation signed personally at his home in Swords by the then Minister for Justice, Mr. Burke? Was the fact that these people were millionaires a factor in dispensing with and setting aside the requirement that fees must be paid on the actual issue of the naturalisation certificates, in the setting aside of the requirement of a declaration of fidelity to the State, in dispensing with the residency requirement, in accepting applications for citizenship on wrong application forms and in the failure to insist on definite and adequate investment proposals? My colleague, Deputy O'Keeffe will deal further with this issue.

Are we to take it that Mr. Burke and Mr. Haughey acted in splendid isolation? Are we expected to believe that Cabinet colleagues, including the Taoiseach and other members to the forefront of this Government, did not know or were even suspicious of what was going on? Were they totally oblivious to what was being carried on by their Cabinet colleagues? Questions have been rightly asked about the Taoiseach's judgment in appointing Mr. Burke to high office. There is however, a question about the judgment or lack of action on the part of the Tánaiste in relation to the Burke affair. It is fine for the Tánaiste, Miss Harney, to state that if she had known then what she knows now she would not have entered a Government of which Mr. Ray Burke was a member. The point is the Tánaiste was aware of the welter of rumour and innuendo surrounding Ray Burke and she still waltzed into Government with Fianna Fáil.

The reality is that the Progressive Democrats of today are no longer the Progressive Democrats of yesteryear. Gone is the steadfast determination of the O'Malley era when political expediency must always take second place to what is politically right. Can you imagine the Progressive Democrats of 1987 to 1992 accepting a situation where its leader, let alone a leader who is also Tánaiste continues to stay in Government with the Taoiseach who knew for the past three months, and deliberately decided not to tell her, that Ray Burke got £30,000 from Rennicks, that it was from this £30,000 that Mr. Burke made the contribution to Fianna Fáil and not from his £30,000 JMSE donation as we were all led to believe last October?

Can you imagine the Progressive Democrats of former days clinging resolutely to office, simply for office sake, with the Taoiseach who gave the impression that everything was to be sent to the tribunal? In fact only details of the £10,000 Rennicks-Burke donation was sent and the £20,000 balance which Mr. Burke kept only came to public knowledge because Mr. Byrne of Rennicks spilled the beans?

Can you imagine a former Progressive Democrats leader content to sit in Cabinet with the Taoiseach and a colleague who deliberately withheld information about the £20,000 Rennicks payment, the motive for which could not be investigated under the revised terms of reference of this tribunal, if it had not been for Magill and Mr. Byrne's revelations?

Can you imagine any other Progressive Democrats leader staying in power under a Taoiseach who assured her and the nation that he had dispelled all and any lingering clouds over Ray Burke's suitability for office only to find out in the past two weeks that the investigation amounted to nothing other than a half-hearted, personal, casual query?

One wonders if the reason no proper investigation was carried out or commissioned by the Taoiseach was that he was extremely fearful about the unpalatable truth which would emerge about Mr. Burke, which would make Mr. Burke's appointment to office impossible and which would lead to internal chaos within his party and the Government.

There has been a certain publicly paraded determination on the part of Fianna Fáil to shake off the murky shadows of the past and to present a new squeaky clean image. The Taoiseach has been put out front of the new nouveau clean image of Fianna Fáil. The impression is that the party is being run and managed by a new generation leaving totally behind it the misdemeanours of the past.

It is unfortunate for the Taoiseach that his past close association with Mr. Charles Haughey, who wrote his character reference as the most "cunning and devious of them all", is now haunting him as he purports to lay bare the skeletons in the cupboard. It is unfortunate that his admiration for the style of Mr. Ray Burke caused him to turn a blind eye to the reality of what Mr. Ray Burke was at. If Mr. Burke as a senior figure in Fianna Fáil for 30 years was adopting the approach that as far as political donations were concerned it was a case of "two for me and one for you", then as a Fianna Fáil backbench Deputy said to me yesterday: "How many more of them were at it?"— i.e. short-changing the party.

The squeaky clean image is no more. What we have is a Taoiseach who knew full well the extent and the consequences of the Burke frailties and fallibilities and still appointed him to the most senior and sensitive post in the Government and who reviled the leader of my party for questioning Mr. Burke's suitability.

There are many questions to be answered about the Taoiseach's performance and judgment is but one of them. There are many questions which have been asked of the Taoiseach and too few have been answered but they must be answered.

Mr. J. O'Keeffe

This new legislation is clearly necessary because of recent disclosures and the need to widen the terms of reference of the Flood tribunal. The particular focus of my inquiries has been in relation to the passport for sales issue. Despite a series of parliamentary questions over the past four or five months it has not been possible to get answers to questions, particularly in relation to the operation of the scheme from the time of its introduction by Government decision in December 1988 and the establishment of the interdepartmental advisory group to assess proposals in October 1994. Of the 143 naturalisations under the scheme, 114 applications were received in the period up to and including 1994. During the tenure of office of Mr. Ray Burke as Minister for Justice, 44 persons were naturalised under the scheme.

This Government has conducted an extensive review of the scheme which took over six months, from September 1997 to April 1998, yet it refuses to publish the report or to confirm that it will be referred to the Flood tribunal. From the evidence available to me it is clear that major questions remain to be answered on the operation of the scheme between 1988 and 1994 when the interdepartmental advisory group was put in place. There is evidence to suggest that during that period the Constitution was flouted, the law was broken and the Cabinet guidelines establishing the scheme were also flouted.

Article 9 of the Constitution deals with the question of citizenship and states that the future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law. Article 9.2. states that fidelity to the nation and loyalty to the State are fundamental political duties of all citizens, yet it is clear from a reply I received on 3 March last, in relation to the naturalisations granted between 1988 and 1994, that a total of nine persons, who would normally be required to make a declaration of loyalty to the State and fidelity to the nation, were relieved of that requirement by the Minister of the day. In a further eight cases the Department is apparently unable to say whether such declarations were made or to indicate whether a specific ministerial decision was made to waive the requirement. That is the basis on which I suggest it is clear that the article in the Constitution was flouted.

There is evidence to suggest that the law was broken. Section 15 of the 1956 Act sets out the conditions that shall be fulfilled to secure Irish citizenship. Section 16 gives the Minister of the day power in certain circumstances to waive all or any of these conditions, but section 17 is a stand alone section providing that any such application shall be in the prescribed form. There is no question of any discretion to the Minister. Under section 17, any such application must be in the prescribed form and must be accompanied by certain evidence. The prescribed form is laid down in Statutory Instrument No. 216 of 1956 and that provides exactly the form that needs to be completed by anybody applying for naturalisation. There is evidence to suggest that form was not completed in quite a number of instances.

There is also evidence to suggest that some of the forms that were completed are questionable because the form required three references from Irish citizens. The Irish citizens were to state that they were prepared to support the application from personal knowledge of and intimate acquaintance with the applicant over a certain number of years, which was to be stated. It is clear from the evidence now available that in a number of instances those character references were not furnished. Section 17 was not complied with from that point of view.

There is also evidence to suggest that the character references provided were questionable and there is even a suggestion that a Minister in this Government provided a character reference indicating intimate knowledge of an applicant when it seems clear he could not have had any such intimate knowledge. I raise this issue because there are questions to be answered and it is the responsibility of the Government to answer them. They have not done that.

I mentioned the question of flouting the guidelines established by the Cabinet in December 1988. Those guidelines were clear. There was to be a substantial investment in the manufacturing or services sectors. The applicant had to have purchased a substantial residence and had to have resided in Ireland for a period of 60 days. There is an admission from the Government that in the period from 1988 to 1994 — I refer to the reply to a parliamentary question on 15 October 1997 — the original conditions applying to the scheme began to loosen. For example, some property and forestry developments were taken as qualifying and the 60-day residence requirement was not applied in all cases. I tabled questions on this matter but did not get satisfactory replies. There are a number of instances where the Cabinet guidelines were flouted and in particular I want to know on whose authority the criteria were loosened between 1988 and 1994.

Clearly sufficient questions have been raised in relation to the operation of this scheme between 1988 and 1994 to make it imperative to refer the report to the Flood tribunal. I cannot understand the attitude of the Government in refusing to publish the report or agreeing to refer the report to the Flood tribunal. I received an answer from the Minister in which he said it would not be appropriate to publish the report but he did not say the basis on which it would not be appropriate. Is it appropriate to selectively leak part of the report in an effort to divert attention from the real issues in the report? That reply was followed by a rather intemperate statement from the Minister last Friday, in response to my demand that the report be published and referred to the Flood tribunal, when he referred to my remarks as being scurrilous and downright untrue and alleged that I was misrepresenting the facts.

Mr. Rabbitte

A typical understatement by the Minister.

Mr. J. O'Keeffe

I expect the Minister to deal with the reasonable questions I have raised in a reasonable manner. I believe I have established a case where there are questions to be answered. Those questions have not been answered and it is the responsibility of the Minister to provide those answers. The first answer he must provide is the reason he is not publishing this report. Is there something to hide? Why is he not willing to refer the report to the Flood tribunal? Surely sufficient questions have been raised to justify such a referral.

I tabled a question to the Minister yesterday, which was replied to in the House, on the number of passports issued during Mr. Burke's tenure as Minister for Justice. I received a short reply stating that 44 passports had been issued during that time, yet in this morning's newspaper there is a reference to a Fang family who apparently got 33 passports during Mr. Burke's tenure of office. It seems the Department is willing to give further information to the media; it could not have come from anywhere else. Why was that information not furnished to the House in reply to my question? Why is the minimum information being furnished? As far as the public is concerned there is a failure to publish the report yet there is selective leaking to suit the Government. That is dishonourable behaviour.

Is it important that the facts are established and a signal is sent to the people that we are prepared to ensure they are established? If the Government has something to hide, it will not be able to hide it. The truth will be discovered — the truth is great and shall prevail; when all is done the lie shall rot. I want the Government to publish the report and to refer it to the Flood tribunal. I want this legislation in place as soon as possible so that the terms of reference can include an investigation by the Flood tribunal into the passports for sale scheme, particularly during the tenure of Mr. Ray Burke as Minister for Justice.

Dr. Upton

Today is an important day in the life of many Irish people, particularly the thousands of students sitting their leaving certificate exams. It is also an important day in the life of the Minister. It is his "groundhog day" when the recurring nightmare of tribunal matters from which the Minister and the Government cannot extricate themselves returns to haunt them.

On 26 February Mr. Justice Flood published the interim report of the tribunal of inquiry into certain planning matters. He requested that the Government amend the terms of reference of the planning tribunal. In the wake of this request, the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Harney, stated: "The public can rest assured that the Government will do all it can to facilitate the investigation into allegations of planning corruption ". On 3 March the Taoiseach stated in the House that: "The House has received a request. ..from Mr. Justice Flood for an amendment. This is how we will achieve that amendment and we will do so quickly". However, this was followed by wholly inadequate legislation of 26 March.

Almost four months after Mr. Justice Flood's request, the terms of reference of the planning tribunal have not been amended. That is a disgrace. It is increasingly clear that, in an effort to save their own skins, the members of the Government are willing to spancel the work of the Flood Tribunal. The Government's approach to Mr. Justice Flood's request has been bizarre, unbelievable, lazy and ludicrous. If anyone chooses to construct an acronym from those words, it would also adequately encapsulate the Government's approach. The Government's threadbare defence for refusing to extend the terms of reference of the Moriarty tribunal to include investigation of the Ansbacher accounts was blown apart by Mr. Justice Flood's request.

In a desperate measure to maintain the nonsense that the terms of reference of a tribunal could not be amended by a resolution of the Houses of the Oireachtas, the Government decided to introduce the Tribunal of Inquiry (Evidence) (Amendment) Act, as it is now called. When it was debated in the House less than three months ago, I said it was "unnecessary, unwarranted and an attack on the democratic powers of the Oireachtas". Subsequent events have proved the veracity of this statement and today we encounter the ridiculous situation where the Minister, Deputy O'Donoghue, is forced to introduce legislation to effectively repeal the legislation he introduced less than three months ago. The Bill before the House today is the Tribunal of Inquiry (Evidence) (Amendment) (No. 3) Bill. There have been as many versions of this Bill as there have been "Godfather" films. This is appropriate given the murky and sinister subplot behind it.

Like many Members, I was taken aback a number of days ago when it emerged that the Government would seek a derogation on the implementation of the parental leave directive. Official sources cited at the time said the derogation was being sought on the basis of the heavy legislative programme facing the Department of Justice, Equality and Law Reform. I found this reason hard to understand because the Government's legislative programme listed only three Bills due to be published by the Department in advance of the summer recess. However, the introduction of this Bill clarifies the matter. It is obvious the Department of Justice, Equality and Law Reform is so snowed under with drafting legislation to repeal the Minister's previous Acts that everything else must be put on hold. That is a sorry situation.

The introduction of the Bill must be one of the most embarrassing and humiliating experiences in the Minister's political life. Since it became clear to him that the provisions of his initial Act would not be countenanced by either tribunal, he has seen his desperate ploy to protect the Ansbacher account holders from public scrutiny fall asunder before his eyes. This must be a source of considerable embarrassment for the Minister considering that every speaker on this side of the House highlighted the folly of his actions when we debated his original legislation.

However, embarrassment is something the Minister has become accustomed to dealing with since he attained office. That he ignored the considered opinion of senior officials in his Department about the need for the original legislation has compounded his problems.

It may come as little comfort to the Minister but I feel a degree of sympathy for him. He is the public fall guy for this Government. He is the one who, for the second time in three months, has to propose unnecessary and groundless legislation to protect his Government's backside. He is the Government's answer to the Tory party's Brian Mawhinney. When everything is falling apart, he must publicly attempt to convey the impression that things are under control and going according to plan. It is a rotten job and it is a rotten Government which obliges a Minister to behave in such a fashion.

However, I have a solution for the Minister which will stop the nonsense. The task he has undertaken is unnecessary and he need not put himself through the embarrassment of guiding the Bill through the House. There is no need for legislation to amend the terms of reference of a tribunal because that power is vested in the Oireachtas which establishes a tribunal and can amend its terms of reference. In the interests of democracy and of his reputation, the Minister should acknowledge this and put an end to the ludicrous behaviour we have witnessed from the Government since 26 February. However to expect this degree of realism from a Minister who is prepared to ignore the sound advice of his senior officials is perhaps asking too much. I presume the charade will go on.

I turn now to the detail of the Bill. The Tribunal of Inquiry (Evidence) (Amendment) (No. 3) Bill effectively repeals the Minister's original Tribunal of Inquiry (Evidence) (Amendment) Act. Whereas in March the Minister told us the terms of reference of a tribunal could only be amended following a request by the chairman of a tribunal, it now appears that, in the Minister's opinion, this is no longer the case. The new Bill contains a section allowing a degree of initiative on the part of the Government. Perhaps in his reply, the Minister could inform the House how he arrived at this Pauline conversion to democratic procedure.

The Bill is seriously flawed. It provides the power of initiative to the Government but not to the Oireachtas. This is a bizarre state of affairs as it is the Oireachtas, not the Government, which establishes a tribunal. In effect the Minister is attempting to do two things with the Bill. First, he is covertly accepting the principle that the Oireachtas can amend the terms of reference of a tribunal. Second, he is attempting to restrict the Oireachtas' powers to amend the terms of reference of a tribunal by limiting the power of initiative to the Executive through the offices of the Attorney General.

On Committee Stage the Labour Party will table an amendment seeking to overturn this section. We propose that any Oireachtas group recognised under the Standing Orders of the House will be entitled to consult the tribunal regarding the acceptance or otherwise of a proposed amendment. This amendment seeks to achieve two results: first, to break the strangle-hold on the process of initiation that the Bill seeks to confer on the Government, and second, to avoid the imposition of an unwelcome and potentially dangerous relationship between a tribunal and the Government and thereby maintain the independence of tribunals established by this House.

In his summing up on Second Stage of the Tribunal of Inquiry (Evidence) (Amendment) Act, the Minister made remarks which have been quoted by Deputy O'Keeffe. He also stated that: "If any member of the Government [approached the tribunal], legitimate questions would be asked in the House". However, as it stands, the Bill requires the Attorney General to do exactly what the Minister dismissed in his speech last March. The Labour Party amendment seeks to overcome this problem by restoring the powers of initiative to the Oireachtas and by ensuring equal access to the tribunal for all parties recognised under the Standing Orders of the House.

The Labour Party will also table an amendment to strengthen the provisions in section 2(2) of the Bill. The amendment will limit the grounds upon which a tribunal can refuse to accept an amendment to its terms of reference. The Labour Party will also seek to insert a new subsection into the Bill to provide for the exchange of relevant information between tribunals. There is currently a lacuna in the law in relation to this matter and our amendment to the Bill will seek to address this deficiency. It is a timely amendment and one can envisage a situation developing in the coming months where a provision such as this may greatly assist the operation of the two tribunals currently at work, particularly as it now appears that the matters under investigation are converging.

This Bill is unnecessary. There is no need to introduce legislation to amend the terms of reference of a tribunal. However, the Minister chooses not to listen to this analysis, whether proffered by Opposition spokespersons or senior civil servants in the Department.

This legislation is politically necessary. The Government needs to maintain the myth that this House could not amend the terms of reference of the Moriarty tribunal in January to allow the public investigation of the £38 million salted away in offshore accounts, some of which were conveniently accessible through a bank in Dame Street. The Government's adherence to this line is becoming more threadbare with each twist in this saga. However, it has dug itself in so deep that it has no option but to continue digging. The Minister has been the chief gravedigger in this debacle.

This is the second time in less than three months that we have had to debate legislation amending the terms of reference of a tribunal. With every day the Minister's and the Government's grip on this issue becomes increasingly tenuous. At the conclusion of this debate no doubt the Minister will again accuse the Opposition of having over-active imaginations by linking this Bill to the decision of the Government to protect the Ansbacher account holders from public scrutiny. If the Minister is intent on trotting out this line then I have a challenge for him. With the passage of this legislation the Minister can have no doubt that the Oireachtas is empowered to amend the terms of reference of a tribunal. Will the Minister and the Government use this legislation to enable the Moriarty tribunal conduct a public investigation of the Ansbacher account holders?

I am convinced that the nonsense this House has been put through since February regarding this legislation has its root in the refusal of the Government to amend the terms of reference of Moriarty to allow a public inquiry into Ansbacher. The Minister now has an opportunity to prove me wrong. After the passage of this Bill the Government has the power to amend the terms of reference of a tribunal. Deputy McCreevy stated during the debate on extending the Moriarty tribunal that the power to amend the order does not exist in legislation. This is no longer valid. Will the Government allow a public investigation into Ansbacher or are we to be content with the confidential inquiries being conducted at the behest of the Tánaiste, Deputy Harney?

Over the weekend, Deputy Harney spoke of the confidential investigations into the Ansbacher accounts. She stated: "What has surprised and disturbed me is the extent of what we have now uncovered." She went on to say that her investigations lead her to conclude that some very influential people did not seem to believe that the tax laws were for them. Is Deputy Harney the only person entitled to know the details of these investigations? Are ordinary taxpayers expected to be satisfied with confidential inquiries into one of the most audacious and disgraceful tax scams perpetrated against the people? Does the Government expect that Deputy Harney's infrequent public assurances that her inquiries are going along nicely are what the public expects from an investigation into what is probably one of the largest nests of corruption uncovered in the history of the State? If so it is badly mistaken.

This Bill is an astonishing piece of incompetence on behalf of the Minister and the Government. It effectively repeals the legislation that the Minister brought before this House in March. In bringing this Bill before the House, he has a range of serious questions to answer. One of the most serious of these questions is why the provisions contained in the Tribunal of Inquiry (Evidence) (Amendment) (No. 1) Bill could not be used to amend the terms of reference of either tribunal to investigate the recent revelations regarding Ray Burke? Why is it necessary for the Minister to effectively repeal his previous legislative efforts? Answers to these and many other questions posed during this debate need to be answered by the Minister before this whole saga descends further into farce.

Mr. O'Kennedy

I wish to share my time with Deputy Roche.

An Ceann Comhairle

Is that agreed? Agreed.

Mr. O'Kennedy

I support this Bill with some reservations. I have always seen our role as legislators as setting the terms within which the Judiciary or a judicial tribunal would operate and that that arm of the Constitution would exercise its responsibility independently without regard to political consequences or implications. For that reason, ideally we should set appropriate terms of reference and let the tribunal act and request extensions of its powers.

The purpose of this Bill is to amend the Tribunals of Inquiry Acts to enable the House to resolve to change the terms of reference of a tribunal to which these Acts apply, subject to the consent of the tribunal. This Bill is appropriate in these circumstances. The pace of disclosures in the media has been such as to require legislators and enable tribunals to deal with matters immediately, urgently and effectively.

In an ideal world we would not need tribunals. I wish to make some observations on our responsibility as legislators. When I say that we have a personal obligation to reject any wrongdoing or hint of corruption, I do not cloak myself in virtue, as I have no right to do so. I am conscious of the Lord's maxim "Let he who is without sin cast the first stone." In making these observations I do not set myself up as a guardian of other people's morality.

I cannot but notice that those who have done so, either as individuals or political parties, have suffered the consequences with the public and the electorate. They see that in the human and political condition no one can claim to have total and unblemished integrity. No one can set himself up and claim that he alone has those principles in his personal or political life and then question, criticise and expose the inadequacies of others.

This realisation did not start in this generation. The 1st century Roman satirist Juvenal, who had a fair notion of public fallibility, asked, "Quis custodiet ipsos custodes?”— who will supervise those who claim to supervise? In this situation the public alone can supervise those who claim to supervise. No Member of this House can claim virtue beyond others to expose the shortcomings and inadequacies of others and cloak himself or herself in virtue — it is not my intention to do so.

I reject those who claim that it is their prerogative and fundamental purpose as a political party to be custodians of the standards of others and to claim that Fianna Fáil is not fit or trustworthy to govern on its own. I will refrain from referring to individuals but some of the most honourable, stubborn men of integrity that I have known over 33 years were members of parties on both sides of this House. That is not to say that each one of us could measure up to the standards of those men — how great it would be if we could. However, not once did I hear one of those rugged men of integrity proclaim that they belonged to a higher moral cast than the rest of us or that they were ordained by God to fulfil this role. There has been a fair bit of that in this House in the past few years.

In particular, there have been attempts to insinuate political corruption. I do not want to dwell on this matter. However, while it may have been necessary to investigate matters under the beef tribunal, I reject the implication that people in Government were responsible for the corruption. Those who made those veiled allegations know them to be untrue. The men and women about whom I am speaking did not need a code of ethics, they knew it was essential that they practised what they preached. The old Fenian tag — the fiannaíocht — is appropriate: beart dé reír ár mbriathar, act according to one's words. This should be uppermost in our minds as we select targets. The men and women about whom I am speaking imposed an obligation on themselves to have trust in and mutual respect for each other. To break this obligation was to break the common bond. It is not for me to judge but it is a matter of regret if standards, of individuals or parties, have slipped from time to time because of the damage done to the body politic. The principle of collective responsibility on which this State is based ensured mutual respect and trust; it was not necessary, as has been happening in recent days, to tell someone else in public that they and their party would have to behave according to standards set by others.

Deputy O'Malley is quoted as saying in his latest interview with Eamon Dunphy on Today FM, just days after appearing on "Prime Time", that the prospect of Fianna Fáil in Government on its own is one that would frighten many people. I find this offensive and objectionable. That is not to say that Fianna Fáil can claim that each and every one of us is without sin but I find it objectionable that some people claim they are needed to ensure standards are adhered to. I reject this implication in the name of the many genuine, honourable and honest people throughout the country, none of whom would claim total virtue. Some of the self-appointed gurus in the press may make snide remarks about these innocent or foolish people but they are the salt of the earth. It is an offence to them to imply, much less to state, that Fianna Fáil on its own cannot be trusted.

There are people who served in Government in recent times who did not seem to understand the principles of collective Cabinet responsibility, much less Cabinet confidentiality. This is a matter of great regret. There are people who rose to the highest offices because they found that the best way of promoting oneself and win support was to place the press gurus on the inside track. This is also a matter of regret. We should return to the standards which guided our predecessors in this House. It may emerge at the tribunals that individuals did not adhere to those standards but this does not mean that those who were in Government with them are guilty by association. That is an unfair, unreasonable and unworthy allegation. No one should rush to judgment in advance of the judicial tribunals completing their work.

I have been a Member of the Oireachtas for 33 years. The people for whom I have respect are the ones who never attribute shame, failure or moral turpitude to others but lead by example. I ask Members to have some regard and Christian understanding for the families of those who are being fingered.

On the night the beef tribunal was established I said that I was reluctantly agreeing to its establishment lest there be any suggestion that those in positions of responsibility were trying to cover up corruption or wrongdoing. Tribunals have a habit of turning out differently, tend to last much longer and cost much more than anticipated. It would also be a help if those who call for the establishment of tribunals did not claim privilege in respect of the evidence that they are asked to give when called to appear before them. This would ensure consistency.

When Minister for Agriculture and Food I was asked by Raphael P. Burke who is being targeted from all sides — I know nothing about these events — to deal with the matter of export credit insurance. He asked how he could be expected to make a proper decision. I had agreed to do so when the matter was brought before the Supreme Court. In making judgments we should be conscious of the effect on ourselves, individually and collectively.

Mr. Roche

I have not spoken in any of these debates because the state of Irish politics turns my stomach. This is also the view of the vast majority of the public. Members on all sides of the House have made the point to me that what has happened in recent months has done irreparable damage to politicians and the body politic. It is about time that we put our heads together and came up with solutions to these problems, with ways of investigating these allegations and handling those people who have, undoubtedly, done wrong. There is a pall of suspicion surrounding us all. Cynicism is at an all time high. It is open season for sensation seekers. The major issues have tended to be ignored among the rumours and innuendoes which have been circulated about politicians. It is sad that people who enter public life are now universally regarded with suspicion throughout the country.

I do not wish to comment directly on the allegations which have led us to this state of affairs as they will, ultimately, be investigated by the tribunal. My views on those people and their actions which have brought us to this low ebb are unprintable and unparliamentary. I do want to say something, however, about the manner in which the political establishment as a whole has addressed the mounting crisis in politics. We have spent our time scoring points off each other rather than looking to long-term solutions. The response from the political establishment has been tardy, piecemeal and reactive. More energy has been invested in invective and political point scoring than in seeking to put in place institutional mechanisms that will work not only at this time but into the future.

Some years back I suggested the need for a standing ethics commission which would be charged with the task of examining any allegation which arises regarding any office holder. I suggested at that time that such a commission should exist on a permanent basis, that it would examine and investigate whether any prima facie evidence existed to support any allegation made and that it would necessarily take action either directly or through other State institutions.

When the Fianna Fáil-Labour Administration broke up in 1994 I understood that a considerable amount of thought had been given to this matter and that it had been moved forward to some extent at that time. The establishment of such a commission would be a far more logical response to these continuing crises in politics than the type of response we have in the form of tribunal after tribunal and people arguing on both sides. Such a commission should be established and we should respond to this matter on an all-party basis. Wisdom in this matter and the hurt and concern about it does not reside on any one side of the House. Everybody who cares about politics must be concerned about what has happened. Politics and those who practice it have most to gain from a standing commission.

At present, suspicion about politicians is rife. Every allegation made is given credence. Any criminal, fraudster, self-serving liar can make any allegation he or she wishes against any Member of this House, the Seanad, any councillor or any other person involved in politics and they will be believed. Irrespective of how preposterous or unfounded an allegation may be, the politicians in question face a dilemma. If legal action is initiated, as could be the case for most private citizens when citizens are defamed, the publicity that would follow and the rumours that would abound as a result of it would do irreparable damage. The truth would catch up from the proceedings of the court case a year and a half later, but the damage would be done at that stage.

In addition, most innocent people, I count politicians among them, find the prospect of court action not only expensive but stressful and daunting. Therefore, I cannot understand why there has been a reluctance over the years to put in place some form of standing regulatory body that would have investigative powers to protect those who are good in politics and to expose those who are bad. If an accuser of a politician is a man of straw, then a court action is not a particularly sensible course of action. If a politician were to go on a PR offensive rather than take a defamation action, the headline would read "politician denies" and the politician would be automatically assumed to be guilty until he or she could prove his or her innocence. The old concept, the central thesis of our legal system, that a person is innocent until proven guilty, has long since been displaced by the Irishism "there is no smoke without fire". The third alternative is to do nothing, wait for the storm that blows to pass over and then pick up the pieces.

I strongly believe we need a standing ethics commission. We need it more than most countries because Irish political culture is an intensely personal one. People know everybody in this State, they know things about everybody else and they will put forward arguments that they know things about individuals that they do not know about themselves. The reality is that we are a nation that lives on rumour and innuendo. The longer this goes on, the more damage it will do to politics and politicians.

I was pleased at the weekend when the Taoiseach resurrected the concept of a standing ethics committee. I hope other parties will be party to putting that together. I also hope that we can clean up this mess and the pigsty that is Irish politics at present and that we can be confident that those of us who came into politics to serve the public will not be tainted by the experience.

Mr. Rabbitte

I have a script that does not devote a single paragraph to the rights or wrongs of the issues into which it is proposed to inquire; it deals purely with the Bill and the circumstances surrounding the background to it. Having heard the contributions of Deputies O'Kennedy and Roche, I will have to make a few remarks. Deputy O'Kennedy, in particular, sought to raise the substantive issues, but in his own fashion.

On Deputy Roche's point about an ethics commission, I am not persuaded at this stage by the need for one. I would like to hear the argument as to why the House needs a permanent ethics commission. I do not accept that 98 per cent of the Members on any side of the House need an ethics commission to police them from taking bribes or being involved in corruption. That is an important point. Of course the public say many things, there are many jibes and so on, but that is not generally believed to be the case. Great frustration came through in the two speeches we heard. We must ask why, for the third time in 12 months, we are amending the tribunals of inquiry Act.

Deputy O'Kennedy told us this would not have happened in the time of our predecessors. He told us he resents the type of politics practised today where people are made accountable, where issues that come into the public domain are argued out on the floor of the House and said that would not have happened in the past. Is that not the point? It would not have happened in the past. We are here because of a train of events triggered by a former Taoiseach and a politician who was dominant in this polity for more than two decades. Can anybody seriously envisage former Taoisigh Eamon de Valera, Sean Lemass or Liam Cosgrave being the subject of the type of charges that will be resolved, one way or the other, in Dublin Castle? It is unthinkable and unconscionable. We are dealing with what, I hope, is the legacy of the Haughey era. I do not accept that we have to establish an ethics commission to police the daily lives of every other Member of this House. It may be that our standing has fallen so low and, as Deputy Roche said, that the practise of politics has been so debased that it is necessary to do that in order to restore our standing in the public mind. We have come to a very sad pass if that is the case.

Deputy O'Kennedy is entitled to make any case he likes, but he has given us a long lecture about who is in a position to protect the morals of any other Member here, and that goes without saying. None of us is perfect, but there is a question of quantum involved. If somebody, while in possession of a major office of State, has been found to have received £1.1 million or some other person has confessed to getting £60,000 while in office, that is not the typical venality to which the rest of us, like every other member of the public, is subject. It should not be presented in those terms. Deputy O'Kennedy has a fairly selective memory when he said he warned us on the night of the beef tribunal that the only reason he was agreeing to it was because if a taint of suspicion attaches we have to deal with it. He is correct. However, some of us have been around long enough to remember why that assertion is on the record. As Minister for Agriculture, Food and Forestry Deputy O'Kennedy made a long speech for 25 minutes opposing the notion of a tribunal. An official then came in and passed him a note following a meeting in the corridor between Fianna Fáil Members and the leader of the Progressive Democrats, Deputy O'Malley, saying there must be a tribunal. The Minister, who was still speaking, made a U-turn in mid flight and read the note into the record of the House. This is what happened and there is no point in Deputy O'Kennedy coming to the House like some latter day St. Paul telling us what he said. Future historians can read the record to see what he said, but the subsequent speeches will explain why he said it. He can have any crib he wishes with Deputy O'Malley but the sentence he quoted from the Deputy represents a view held by a proportion of the people.

The questions raised cannot be defended by Deputy O'Kennedy saying they are somehow insulting to people who vote for Fianna Fáil. Nobody is imputing that people who vote for Fianna Fáil are complicit in the events which have transpired in recent times. Certainly, I am not doing so. The Deputy can ask quis custodiet ipsos custodes— who will guard the guards themselves — and speak of beart dé réir ár mbriathar but we all know why we are discussing this Bill, namely, because certain things happened that should not have happened.

There is another place to examine the substantive issues. What Deputy Roche — who has clearly thought about these issues — said may have to be done. However, the issue cannot be presented in the manner which leading Fianna Fáil spokespersons are doing, namely, by saying that whatever the issue, it will be examined by a tribunal in Dublin Castle and that it should be left at that.

The Leas-Cheann Comhairle spent some time on this side of the House and the sight of Fianna Fáil at full bay in Opposition has to be witnessed to be believed. The approach now being presented is that if Fianna Fáil was on this side of the House and the boot was on the other foot its Members would ask, following a quiet word in the corridor, that issues be sent to the tribunal without mention in the House. Deputy O'Kennedy's presentation seemed to imply butter would not melt in his mouth. I am sure he is a man of the highest probity, but he sat around the Cabinet table with the Leas-Cheann Comhairle when many of the events being inquired into were occurring. He may not know anything about them — I am not suggesting he does — but it was he who mentioned the beef tribunal. For the man who sat on top of the heap when all this was going on to put such a construction on it, stretches credibility a little.

This is the third occasion in six months that the Dáil has had to amend the tribunals of evidence legislation. This is a remarkable commentary on the times in which we live. It highlights the uncertainty and contradictions in Government in terms of handling the issue. From the point of view of the public it is a barometer of a legacy of public life that the House would like to put behind it. We are now picking up the pieces of a prolonged period when the interaction between some senior politicians and certain businessmen was a corrosive influence on public life.

Last December the Dáil amended legislation to provide privilege for people producing documents for a tribunal and to close the loophole as a result of which the McCracken tribunal was unable to award costs against Charles Haughey despite the obstructive approach adopted by the former Taoiseach which involved Mr. Justice McCracken in an enormous amount of additional work and which added greatly to the taxpayers' bill.

In March of this year we returned to amend the Act to allow terms of reference to be changed subsequent to a tribunal being established. This arose from the request of Mr. Justice Flood who asked that the terms of reference be altered to allow certain relevant matters prior to June 1995 which had come to his attention be investigated. Despite the fact that Fianna Fáil and the Progressive Democrats, particularly the Minister for Finance, Deputy McCreevy, had vociferously resisted all attempts to change the terms of reference of the Moriarty tribunal to allow wider investigation of the Ansbacher accounts, insisting it could not be done, the Government agreed to Mr. Justice Flood's request, something dealt with by Deputies Jim Higgins and Upton.

The reason we are again discussing this issue is that the Government adopted the narrowest possible approach to amending the law last March. The Government amendment allowed only for the terms of reference to be changed where the tribunal itself so requested. Opposition parties pointed to a possible scenario where additional information may come to light after the establishment of a tribunal which the Dáil would want referred to it, although the tribunal may not have requested that it be added to its terms of reference. Opposition parties tabled amendments to this effect and all were resisted by the Government which insisted terms could only be changed when there was a specific request from the sole member. For the second time in a matter of months, the Government has done a spectacular U-turn and now accepts that the terms of reference can be changed, even when not specifically requested by the tribunal.

Once again the Government has taken the narrowest possible approach to the amending legislation, effectively allowing only the Government initiate the process of change by making change conditional on consultations between the tribunal and the Attorney General on behalf of the Minister, effectively excluding the Dáil from the entire process.

The enactment of the legislation is only the first step in the process of changing the terms of reference of the Flood tribunal to allow it consider the matters initially disclosed in Magill and debated in the House last week. This is an essentially important but technical step. The real test of the Government's bona fides will be the amendment to the terms of reference which will flow from the legislation. The record of the Government regarding terms of reference does not inspire confidence. It has consistently and continually adopted a minimalist approach. Despite intense pressure from inside and outside the House, the Government refused to give the Moriarty tribunal the comprehensive terms of reference which would allow it conduct a comprehensive investigation into all the Ansbacher accounts. Instead, the Government effectively restricted it to an investigation of the accounts only in so far as they related to Charles Haughey and Deputy Lowry.

In his speech the Minister perpetuates the myth that we have dealt with the Ansbacher deposits. He states:

The various layers of investigation of the Ansbacher accounts are as detailed and as broad as can be, consistent with the laws, including revenue and international law in this area. The fact is that the Ansbacher accounts are subject to scrutiny by the Revenue Commissioners, by an authorised officer appointed by the Tánaiste under the Companies Act, 1990, and by the Moriarty tribunal, which has a brief to examine certain aspects of those accounts.

It is not acceptable for the Minister for Justice, Equality and Law Reform, a lawyer, to come to the House to seek to give the impression that all will be revealed in the context of the Ansbacher accounts. He knows very well this is not the case and that the remit of the Moriarty tribunal only applies to certain named politicians or holders of public office. He knows that the report of the authorised officer appointed by the Tánaiste may not be published; that she is prevented by law from publishing it and that the Revenue Commissioner would never publish it in any event. Why is this myth being perpetuated? It may be that the Minister is unaware of what I have outlined, but I greatly doubt this. Perhaps the Tánaiste, who has got herself in a similar fix with NIB, is unaware of the problems. For some reason that escapes me she got marvellous headlines this morning in the Irish Independent in particular about how she is looking for transparency and cannot get enough of it. She wants to publish the names. She is well aware she cannot publish the report of the authorised officer. The Minister led the country to believe she had appointed inspectors to carry out a job in NIB but it transpires the inspectors cannot investigate products which were being sold for the purposes of tax evasion. The Minister is behaving like a drunken man looking for a fight, asking the authorised officer to hold her jacket while the Attorney General holds her back.

If the Minister wants transparency, she should go to court and seek the appointment of an inspector and the court can decide whether to mediate the inspector's report into the public domain. The Minister is fighting a great fight on transparency and the country thinks that is what she wants. If it is, she has a strange and obfuscatory manner of going about it.

In regard to the Flood tribunal, the Government's initial approach was even more restrictive. The initial draft terms of reference produced by the Government made no reference, direct or indirect, to Mr. Burke although it was allegations surrounding him which had set the whole process in train. The Opposition parties battled with the Government for a week on the matter and the Government produced endless drafts of the terms of reference, all of which seemed to be directed at obscuring the central issue, namely, the role of Mr. Burke. The Government was eventually forced to accept terms of reference which included a very oblique reference to an acknowledged monetary donation in the Dáil on 10 September 1997.

I hope we will not witness a repeat of that when it comes to the motion to extend the terms of reference of this tribunal. The terms must be comprehensive and must allow for a full investigation into the financial affairs of Mr. Burke and all the important policy decisions taken by him when he was Minister. A good example of the justification for such a comprehensive approach is the evidence highlighted at the beef tribunal in respect of the export credit insurance scheme for which Mr. Burke had responsibility for a period. The £30,000 donation from a Fitzwilton subsidiary occurred at the same time as another subsidiary, Novum, made a claim on export credit insurance following default on an Iraqi contract in respect of which £2.167 million was paid out. The chief executive involved was Mr. Paul Power and he accompanied Mr. Rennicks to Mr. Burke's home to deliver the £30,000 cheque made out to cash. This is an important matter which the Minister may be in a position to lay to rest.

I recall Novum's interest in the export credit insurance scheme at the beef tribunal. Last Sunday, The Sunday Business Post, noted a payment was made to Mr. Burke in June 1989 and that Novum was particularly keen on getting export credit support, particularly for exports to Iraq in the second half of 1989. I would like the Minister to address that point if he is in a position to do so. It seems somewhat odd that a company which had a bad experience with the default on a 1988 contract by the Iraqis, and was awarded £2.167 million for that under the scheme, came back to do more business with Iraq. The number of people wishing to do business with Iraq at that time was amazing, all of them guaranteed by the State under the export credit insurance scheme.

I have copies of the minutes of the relevant days of the beef tribunal. On 10 April 1992, Mr. Ted O'Reilly, Assistant Secretary in the Department, gave evidence and mentioned Novum had sent a representative to seek overdue payments in 1987. On 8 May 1992, Mr. Barton, a representative of ICI, agents for the State, stated he thought only three or four people in the country knew their way around the political system in terms of accessing export credit insurance. When asked to name them, he mentioned Novum. Mr. Ciarán Ó Coinneagáin, private secretary to the then Minister, when asked if any companies other than Goodman were hassling the Minister for export credit insurance, said Novum stuck in his mind. When asked in what context, he replied he had received many phone calls from the company for the Minister. This happened in spite of the fact the earlier contract defaulted.

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

In the course of this evening's debate, we have been treated by the Opposition to the usual smears, innuendoes, untruths, half-truths, whispers through the half door and slinking in the shadows to which we have become accustomed of late. It has been suggested that the provisions of today's Bill should have been included in the Tribunal of Inquiry Act, 1988, and that, in the course of the debate on that Bill, the Opposition suggested as much. This argument was advanced on the basis that the Opposition had it right then and the Government had it wrong but that accusation does not stand up under the weight of evidence.

The reality of the position is that certain circumstances presented themselves when the 1988 No. 1 Act was being discussed in this House. Those circumstances were quite clear; a chairperson of one of the tribunals sought an amendment to the terms of reference. It was clear legislation was required to deal with that and such legislation was introduced to enable the terms of reference to be amended on the application of the chairperson of the tribunal. I argued at that time that this was the preferred course of action and I still hold that view.

Different circumstances have lead to the introduction of this legislation and the Government has again responded to those. At no stage during the debate on the No. 1 Act did I hear any Deputy put forward an argument as to how the terms of reference should be amended in the context of other matters which should be examined by Mr. Justice Flood. I did hear arguments then, and again today, as to the desirability of a global amendment to provide that a resolution of the Houses of the Oireachtas should be sufficient to enable terms of reference to be amended in order that the Ansbacher accounts could be examined. That is a different matter, albeit an important one. I explained ad nauseam the position in regard to the Ansbacher accounts and believe I did so with credibility.

The 1988 Act was introduced to meet the situation where the chairman of the tribunal sought an amendment to his terms of reference. It is important to state that during the course of that debate the Opposition consistently put forward the view that it did not regard legislation as necessary. Some Members of the Opposition have now changed their minds and are of the view that it is necessary after all.

The circumstances surrounding the introduction of the Bill before the House are unprecedented and could not possibly have been foreseen when the earlier legislation was introduced. During the debate on the 1998 Act, amendments were tabled by the Labour Party and Democratic Left which would have allowed the amendment of the terms of reference of a tribunal where the tribunal has not requested such an amendment. They did not provide for the consent of the tribunal.

It is true that the amendment tabled by Deputy Jim Higgins on behalf of the Fine Gael Party provided for the consent principle but it is important to point out that it did not provide for any mechanism or procedure whereby the tribunal would be consulted. On the passage of the 1998 Act, I admitted that it involved, to an extent, legal mumbo-jumbo. However, I also cogently made the argument that I did not believe it was appropriate to provide for a member of the Government to go to a judicial personage in charge of a tribunal seeking to change the terms of reference. I also said at the time that such a provision would leave the process open to the allegation of interference with the tribunal.

I have today explained in great detail the terms under which the Attorney General, due to the exceptional circumstances which were presented, went to the chairperson of each tribunal. It is of considerable importance that the independence of the tribunals is maintained. In that context, I pointed out then, as I do now, that the amendments tabled by the Opposition parties during the debates on the previous Bill left open the possibility of toing and froing between the Government and the tribunals. Such comings and goings would relate to fundamental matters for the tribunals, proposed changes in their terms of reference, and would occur at a time when the tribunals were already engaged in the inquiries for which they were established.

Unlike the amendments which were tabled by the Opposition parties in relation to the 1998 Act, the legislation before the House today provides for proper procedures whereby the terms of reference of a tribunal can be amended by a Minister of the Government following consultation between the Attorney General and the tribunal on behalf of the Minister. The amendment of the terms of reference will take place on foot of a resolution of both Houses of the Oireachtas, where the proposed amendments will be debated.

An important feature of this legislation is the fact that the tribunal will be consulted prior to the making of the amendment and its consent to the amendment will be required. This requirement preserves the independence of the tribunal. During the debates on the 1998 Act, I stressed that it was of paramount importance that the tribunal retain its independence. It is undesirable that one should have to approach a tribunal of inquiry to ask if it wishes its terms of reference to be amended. I set out the reason for this opinion on a previous occasion. The circumstances which are now present are exceptional and exceptional legislative measures are being brought before the Oireachtas to address them.

I emphatically reject in trenchant terms any suggestion that there has been a conscious attempt by me or by the Government to be minimalist in our approach. That allegation can be proven to be untrue by virtue of the salient fact that we have brought forward legislation to deal with these matters whenever it was required. I doubt that any Member of the House could have possibly foreseen the circumstances which are currently present and are the reason for this legislation.

I listened carefully to Deputy Jim O'Keeffe's comments on the passports for sale issue. It is as if the Opposition arrived in the House with a machine gun and a full magazine and, seeing no target, fired just in case. On this occasion, Deputy O'Keeffe should have pulled the gun from its holster before pulling the trigger. The much vaunted report which the Deputy has been discussing in the media and in the House is an aide memoire to the Government. It sets out interesting facts, some of which might be of considerable interest to Deputy O'Keeffe.

It was reported at the weekend that the then Government decided in March 1997 that 19 passport cases should be proceeded to finality. Notwithstanding this decision however, the Government subsequently decided that additional applicants in respect of three companies should be considered. In respect of one of these companies the Government agreed to the substitution of a new investor for the one who had originally applied. Furthermore, it was decided to accept an additional application in respect of a fourth company. How does this fit into the categories which Deputy O'Keeffe formulated for the House this afternoon? He said decisions were made which clearly broke the law. He said Cabinet guidelines were breached and the Constitution was flouted. He presented no evidence to the House to back up any of these allegations. Perhaps he was referring to the four applications which were considered by the last Administration following a decision that only 19 named cases should be progressed to finality.

It is important that people know what they are talking about. It is of equal importance to the integrity of Members of the House who serve in Government at any time that if allegations are made, evidence should be produced. Failing that, any Member who makes such allegations is in dereliction of his or her duty — not just to his or her colleagues but to the public.

As regards the statements made by Deputy Upton, when circumstances required legislation, it was presented to the House. Deputy Upton was wrong when he said that this legislation effectively repeals the No.1 Act of 1998. That is patent nonsense. This legislation amends the previous legislation to take account of exceptional circumstances. Deputy Upton repeats the allegation that the advice of senior officials was ignored. However, he ignores the fact that the advice of the Attorney General, the first law officer of the land, was accepted. Deputy Upton said legislation is not necessary. However, it has been accepted by the Attorney General's office and by an independent senior counsel that there was, and is, a need for legislation.

How much more minimalist could one have become than not to produce any legislation? That would have led to a position where the terms of reference, as amended, might not be deemed to have the force of law. That would have been so minimalist as to undermine the work of the tribunals.

We have reached a position where the tribunals of inquiry can have their terms of reference amended by a request or in accordance with this legislation. On each occasion we have ensured that any person who has previously given evidence will not be prejudiced by the fact that the terms of reference are changed. The independence of the tribunals has been maintained and there is no uncertainty in so far as that could be achieved.

I do not pretend, nor have I pretended, that this legislation is ideal. I have made clear on a number of occasions why I have reservations about anybody going to a tribunal to amend its terms of reference. However, I have been at pains to explain that the Attorney General was most careful in the approach he deemed necessary.

The Private Members' Bill which has been lauded, naturally, by the Opposition parties and which is also before the House does not provide for the consent of the tribunal to the amendment of its terms of reference. During the debate, Deputies suggested that the only matter with which the tribunal will be concerned is whether an amendment of its terms of reference will prejudice the legal rights of persons who have co-operated with the tribunal. It appears that some Opposition Members consider that the tribunal should have no say in the matter.

This Government wishes to have the fullest possible inquiry into the matters in question. In addition it wants to ensure there can be no successful challenge to the tribunal's work. The tribunal is best placed to decide whether there should be an amendment to its terms of reference and what that amendment should be. Therefore, it cannot come as a surprise that I ensured that even if the approach comes from the Minister through the Attorney General that the consent of the tribunal will be required. To that extent, the integrity and independence of the tribunal has been maintained. I still consider that to foist amendments on a tribunal without its consent would invite a challenge to it, which would in all probability be successful.

The legislation has been presented in good faith. Opposition parties have attempted to say the Government was reticent in bringing forward the relevant legislation. History will show that the Government's actions were prudent, considered, wise and legitimate.

Question put and agreed to.

Committee Stage ordered for Thursday, 11 June 1998.