Dáil Éireann debate -
Thursday, 11 Jun 1998

Vol. 492 No. 3

Tribunals of Inquiry (Evidence) (Amendment) (No. 3) Bill, 1998: Committee and Remaining Stages.

SECTION 1.

Dr. Upton

I move amendment No. 1:

In page 3, line 11, to delete "amended" where it secondly occurs and substitute "inserted".

The point of the amendment is an essentially technical one. The issue may have arisen because the Department has had to perform a rushed job and it seems it has got it wrong. The Minister denied yesterday that he is repealing his legislation of last month but that is precisely what he is doing. Last month's Act amended the 1921 legislation by inserting an entirely new provision, section 1A, which outlined the circumstances under which the terms of reference of a tribunal could be amended. Today's Bill substitutes a new version of that section. It is a replacement of the section the Minister introduced in his legislation of only a few weeks ago. At the time he was warned his package would be ineffective. It is incorrect to say, therefore, that the 1921 Act is being amended by the substitution of section 1A as amended by last month's Act. Section 1A was inserted in the original legislation last month and is now being replaced by the provisions of this new Bill.

Mr. O'Donoghue

What Deputy Upton has said is not related to the amendment tabled and I reject everything he has said. I have explained that this Bill is an amendment to the previous legislation, not repealing legislation. The happy news is that this is only a drafting amendment which proposes the substitution of the word "inserted" for the word "amended" before the words "by the Tribunals of Inquiry (Evidence) (Amendment) Act, 1998" in section 1 of the Bill. Despite the inaccuracy of Deputy Upton's comments, I propose to accept the amendment.

Amendment agreed to.

An Ceann Comhairle

Amendments Nos. 2 and 3 are related and may be taken together.

Dr. Upton

I move amendment No. 2:

In page 3, to delete lines 21 to 25 and substitute the following:

"(a) the tribunal consents to the proposed amendment following consultations between the tribunal and—

(i) the Attorney General on behalf of the Minister, and

(ii) the authorised representatives of any group, recognised for the time being under the standing orders of either House of the Oireachtas, which has sought to enter into such consultations with the tribunal on the question as to whether such an amendment should be made.".

This is a fundamental amendment in that it is at the core of the process. It sets out to broaden the consultation process by allowing the various parties in the Dáil to become involved in the process to a greater extent than is proposed by the Minister.

Mr. O'Donoghue

Under the Bill as it stands, both Houses would be in a position to resolve that the terms of reference of a tribunal be amended where the tribunal consents to the amendment or requests it. Where it consents to the amendment, the Bill stipulates that the consent must follow on consultation between the tribunal and the Attorney General on behalf of the Minister. The responsibility of the Minister would be to make an order incorporating the new terms of reference and designating the tribunal whose terms of reference were changed. It is normal and proper for the Attorney General to act as the facilitator or channel of communication in this way and the Bill gives statutory expression to that role in the delicate context of the matter of amending the terms of reference of sitting tribunals of inquiry.

Amendment No. 2 seeks to provide that the consent of the tribunal must follow on consultation with what are described as:

the authorised representatives of any group, recognised for the time being under the standing orders of either House of the Oireachtas, which has sought to enter into such consultations with the tribunal on the question as to whether such an amendment should be made

In effect, the amendment seeks to provide as a condition of a tribunal's consent to any changes in its terms of reference, that it must have engaged in consultations with representatives of political groups, including their legal advisers, where those groups have sought to enter into such consultations.

This amendment could lead to an undesirable situation whereby a tribunal is confronted with opposing views and would be expected to arbitrate on those views. The appropriate venue for debate on the issues involved in any proposal to amend the terms of reference of a tribunal is the Houses of the Oireachtas and not the tribunal, whose functions were never intended to deal with such matters. To say the least, the amendment would constitute and unwieldy intrusion into the operation of a tribunal and could create considerable confusion for a tribunal.

The exercise involved in formulating appropriate terms of reference and having them agreed in both Houses can be difficult. The amendment would permit a multitude of authorised representatives of any group to conduct separate and distinct consultations with a tribunal. Inevitably, in some cases this would lead to conflicts of proposals for amended terms of reference, delays in agreeing the terms of reference and expose the tribunal to unending representations and correspondence. This would deflect the tribunal from its purpose. I am satisfied the amendment is ill-conceived and unacceptable and I have no basis for supporting it.

Amendment No. 3 appears to assume the Bill does not cater for the circumstance in which a proposal for amending the terms of reference might come from the Opposition. Any such assumption is incorrect. As I indicated in my Second Stage speech, the Bill is concerned with tribunals of inquiry to which the Tribunals of Inquiry (Evidence) Act, 1921, is applied. Section 1 of that Act requires that prior to the making of a ministerial order which applies to 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 Bill provides that the ministerial order shall be amended pursuant to a resolution of both Houses, subject to certain conditions which I have outlined. There is nothing in the Bill or the 1921 Act, as amended, that prohibits the Oireachtas from resolving by way of acceptance of the terms of an Opposition motion, or where the Government joins in the motion, amending the terms of reference of a tribunal. However, the principle of the consent of the tribunal to changes in its terms of reference, the need for which is acknowledged in both amendments, needs to be borne in mind.

Because of the fundamental importance of that consent, it is reasonable to assume that the Houses, under their working arrangements, would arrange in suitable cases through the relevant Minister and the Attorney General for the necessary consultations to be engaged in with the tribunal to seek its consent. There are precedents for the Attorney General working in this way and, in the circumstances, I do not consider that there is need to amend the Bill to cover the point at issue. For these reasons I will not accept either amendment.

Mr. Higgins

(Mayo): What is amusing about the Minister's response is the clarity and definite tones in which he speaks. On 26 March 1998 and 1 April 1998 we made our second stab at getting a Tribunals of Inquiry (Evidence) (Amendment) Bill right. We had the original Bill, the No. 2 Bill and now the No. 3 Bill. When it came to proposing reasonable amendments, the Minister pointed out, particularly in his summation on Second Stage, that the only way of amending the terms of reference of an established tribunal was if a request came from the tribunal. That was in the wake of the request from Mr. Justice Flood to lift the deadline of 20 June 1985 to allow his investigations to be more retrospective.

The Minister stated:

Anybody who went to Mr. Justice Moriarty, or to any other judge in charge of a tribunal, and asked him if he felt the terms of reference of his tribunal should be amended might be considered by many to be interfering with the judicial independence of the Chairperson of the tribunal. If any member of the Government did that, legitimate questions would be asked in the House

I proposed an amendment to the effect that the Government, with the consent of the tribunal, has requested the amendment. That is what this Bill is doing. Had we done so at the time, Mr. Justice Flood's investigations would be up and running. However, at the time the Minister did not have the magnanimity to accept the spirit of what was on offer from this side of the House.

In his Second Stage speech yesterday, the Minister said that while the content of what was proposed was reasonable, the problem was that there was no mechanism to enable it to happen. On Committee or Report Stage we could easily have inserted the mechanism to ensure that everything would be procedurally correct to enable the tribunal to have its terms of reference amended if the Government felt there was a case for requesting a further extension of those terms. However, that amendment was turned down.

Another amendment was also definitively turned down by the Minister. Amending the terms of a tribunal can be done in three ways: first, at the behest of the tribunal, second, subject to a request from the Government, and, third, if the Houses of the Oireachtas, with the consent of the tribunal, have requested the amendment. I made the point in vain on Committee and Report Stages that the Houses are the initiating agency which give powers to the tribunal by way of legislation and by deciding or amending the terms of reference. We vest the tribunal with its powers.

I reiterate what I said on the last occasion we discussed the merits of this amendment. It is right and proper that the Dáil, as the elected assembly of the people, should have the right to decide. It is unlikely that it would invoke that right because if the Government does not want to accede to the will of the Oireachtas it is most unlikely to happen. However, there is nothing wrong procedurally or in principle with inserting into the Bill the principle that if the Houses of the Oireachtas decide by resolution that they wish to amend the terms of reference of a tribunal then that power should exist.

On the last occasion the Minister made a meal of who was going to be the conduit. There would be nothing to prohibit the Ceann Comhairle and the Cathaoirleach of the Seanad notifying the chairperson of the tribunal — there would be no horse trading, no bartering, no ultimatum, no attempt to put a gun to the tribunal's head, to interfere with its procedures or prejudice its independence — that the Houses of the Oireachtas had decided by a majority vote to pass a resolution to extend and amend its terms of reference. It is most unlikely such a provision would be invoked. If the Government does not want it to happen, it will not. Despite the Minister's allegation on the last occasion that this would constitute an unwarranted interference with the work of the tribunal, there is no reason to believe such an amendment would not be accepted as it would be in accordance with best democratic principles.

What issues were considered in the discussions between the Attorney General and the chairpersons of the tribunals, Mr. Justice Moriarty and Mr. Justice Flood, in deciding which was the most appropriate to consider the matter?

Mr. O'Donoghue

This legislation preserves the principle of consent to ensure the independence and integrity of the tribunal are maintained and respected. Under Deputy Upton's amendment various groups would be able to seek an amendment of the tribunal's terms of reference. This means that, in all probability, the tribunal would have to arbitrate. This would not be desirable.

Under the legislation the Oireachtas is empowered to make a resolution provided the tribunal, having been approached by the Attorney General on behalf of the Minister, consents to it. There is a good reason for this, the consultative process will take place prior to the resolution being presented in the Oireachtas. It would be futile for the Oireachtas to pass a resolution to amend terms of reference if it were to transpire the tribunal would not consent to it.

Deputy Higgins referred to what I said during the debate on the Tribunals of Inquiry (Evidence) (Amendment)(No. 1) Bill, l998. I said then that approaches to the tribunal from whatever source would be an undesirable development. It is not something I favour. This legislation relates to exceptional circumstances. I do not envisage approaches being made to the tribunal by the Attorney General on behalf of the Minister except in the most exceptional circumstances. I also said that the mechanism being presented by the Opposition appeared to be fatally flawed in the same way that the mechanism being presented in Deputy Upton's amendment is fatally flawed for the simple reason that it would ultimately result in the tribunal arbitrating on wholly different arguments.

Yesterday, Deputies Higgins and Upton made much of what they considered to be the virtuous manner in which they had tabled amendments which I said were unworkable. They made the argument that there was no need for legislation, despite the fact that the performance of the rainbow coalition Government in relation to the McCracken Tribunal casts doubt on it. In the absence of legislation a resolution passed by the Oireachtas to change the terms of reference would, in all probability, be struck down. This would have extremely serious consequences for the tribunal. I would describe this as the minimalist approach and it is not one the Government is adopting.

I have been at pains to point out that the Attorney General was extremely careful in approaching the chairpersons of the tribunals for the obvious reason that I have advanced time and again in the House, the importance of maintaining the integrity and independence of the tribunals. I have every confidence that the chairpersons of the tribunals would insist on this and that the Attorney General would not have it otherwise.

Deputy Higgins asked what issues were considered in the consultations between the Attorney General and Mr. Justice Moriarty and Mr. Justice Flood. A considerable amount has been made of the consultations between the Attorney General and Mr. Justice Moriarty and Mr. Justice Flood. I want to make it perfectly clear, and it is important that I do so, that the approach the Attorney General made to those two honourable judges was purely to establish whether either would be willing or in a position to accede to an amendment of their terms of reference.

The Leader of the Labour Party, Deputy Quinn, stated during the debate in this House on 3 June last, that he wrote to the chairmen of both tribunals regarding the consultations which took place between the Attorney General and Mr. Justice Moriarty and Mr. Justice Flood. In a joint reply the chairmen confirmed they had been contacted by the Attorney General and were satisfied those approaches by him were in the course of the proper discharge of his functions. They also confirmed the Attorney General did not advance any specific proposal to alter the terms of reference of the tribunals.

It must be clear from what I said that approaches of this nature should and could occur only in exceptional circumstances. I do not believe Deputies can be serious in making a proposal or assertion that any group of whatever hue could approach the chairperson of a tribunal and seek to amend its terms of reference when such groups may have little conception or understanding of the constitutional position and the necessity to maintain and uphold, at all times, due process. In general terms the reservations I expressed are correct. These are exceptional circumstances and only in those circumstances could an approach be justified. The amendment tabled by Deputy Upton would be fraught with danger and, in the final analysis, could lead only to complete confusion and possibly utter chaos. I ask that the amendment be withdrawn.

Dr. Upton

When the Minister was speaking on the earlier Bill there was no mention of exceptional circumstances being grounds for someone approaching the tribunal. At that time there was certainty, but times have changed and the Minister is modulating the story. We now have a proviso, an exclusion clause, which relates to exceptional circumstances. The certainty and sweeping generalities, which the Minister set out earlier, have been modified by exceptional circumstances, which have not been defined.

Regarding what the Minister said about the generality of what I am proposing, he spoke in terms of any group of whatever hue approaching the tribunal. That is an extraordinary interpretation of what I am proposing. I am talking about Members of the Oireachtas, our colleagues who were elected by the people, who were described by the Minister as people of whatever hue. I assume those who were elected by the people are responsible, sensible, understand the Constitution and are committed to upholding due process. I would like the Minister to set out the grounds as to why that is not the case and why I should not make that assumption. The amendment refers to authorised representatives of any group recognised for the time being under the Standing Orders of the Houses of the Oireachtas. We are talking about political parties, groups of political parties or groups of politicians. Our colleagues were described by the Minister in terms of any group of whatever hue and all that is attached to that. That is insulting to Members on this side and Members on the Government side if they wish to categorise themselves under that heading. The amendment is balanced. We are talking about a group of two or more Members who were elected by the public. It is valid to assume our colleagues and those who would be part of such groups would behave in a responsible manner. I believe they understand the Constitution and, if they do not, they would get whatever advice is needed before they dash off to the tribunal. I have no doubt they would uphold due process.

I can understand the Minister has to go on like this and that he is editing as he proceeds. This is a roll over job. Changes and modifications have been made and the Minister has forgotten what he said earlier. We had resonating certainty when the Minister was on this side of the House and a good deal of that remained when he moved to the other side. When he spoke on his earlier Bill there were sweeping generalities and now he has referred to exceptional circumstances. Perhaps he would give us some idea of the scope of those exceptional circumstances.

Mr. Higgins

(Mayo): It is important to emphasise we are not trying to foist on the tribunal, against its will, any additional terms of reference, any change or any obligations without its consent. Built into the principle of what Deputy Upton is advancing and what I am proposing is the consent of the tribunal. The two fundamental principles of consultation and consent are built into it. As Deputy Upton said, to describe in disparaging terms groups of parliamentarians elected here as groups of any hue or persuasion is unfair and ungenerous on the part of the Minister.

I hope we will not have to come back here to deal with a tribunals of inquiry (evidence) (amendment) (No. 4) Bill. We should provide for every contingency and duly acknowledge the right of Members to advance a resolution to advocate a change in the terms of reference and bring it to the attention of the chairman of a tribunal. That should be considered by the Minister. In addition to the tribunal having the right to seek a change in its terms of reference and the Government having the right to seek to make a change to them, we are proposing that the Oireachtas, collectively, by virtue of a majority vote in this and the other House, should be able to recommend that the terms of reference of a tribunal be amended without any obligation on it to accept such amendment and without applying any pressure on it other than requesting it to accede to the majority will of both Houses of the Oireachtas.

Mr. O'Donoghue

What the Deputy is proposing is for the most part contained in the Bill. Deputies Upton and O'Higgins take offence at my saying that a group of any hue could go to the tribunal. However, this is the reality of the amendment being put forward. As a colleague once said, the tragedy is that it is true. Every group has a hue and a group without one could be described as a hue without a group.

Deputy Upton referred to rolling over. At times when I hear Deputy Upton commenting on the legislation, I feel we are rolling over only because he is tickling me. There is no doubt about there being exceptional circumstances, something I have outlined on several occasions. The circumstances are so exceptional that Deputy Higgins is referring to the possibility of having a No. 4 Bill as if this was the third enactment. However, the Opposition's No. 2 Private Members' Bill was introduced between Bills Nos. 1 and 3. Therefore, even though the title of the Bill is the Tribunals of Inquiry (Evidence) (Amendment) (No. 3) Bill, it is only the second Bill.

Deputy Upton has been converted to the view that the consent of the tribunal should be obtained in the context of the Bill. He had no such concerns when the first Bill was being discussed. He simply wanted to provide for a change in the terms of reference whether the tribunal liked it or not. At that time I decried his attempt to amend the legislation on the basis that it would not work. Whilst he has at least come to the conclusion that the tribunal should consent to a change in its terms of reference, he has now decided that any group recognised under the Standing Orders of the House should be allowed go to the tribunal to amend its terms of reference. He says this provision would only refer to a political party. However, I take it the Houses of the Oireachtas recognise more groups than political parties.

Deputy Upton is not proposing what is contained in the amendment but what he interprets the amendment to mean. In these circumstances he should have constructed the amendment to ensure we all knew precisely what he meant so that if his amendment was accepted everybody would know where they stood. On his own interpretation of his amendment, nobody but he would understand it. This is an extraordinary position. Even if he is infallible, he should share his understanding with us.

Regarding Deputy Higgins's amendment, I repeat what I said earlier and cannot add further to that position. This legislation is not repealing legislation but provides for a specific circumstance. In the final analysis the issue is under the control of the Oireachtas because, following consultation, the resolution has to be passed by the Houses. It cannot be passed anywhere else. Therefore, there is no question of a negation of the democratic process.

The Bill amends legislation due to exceptional circumstances which have arisen and which could not have been foreseen. I do not accept what the Opposition has been saying. The legislation is reasonable and the amendments should be rejected.

Amendment put and declared lost.

Mr. Higgins

(Mayo): I move amendment No. 3:

In page 3, between lines 25 and 26, to insert the following:

"(b) the Houses of the Oireachtas with the consent of the tribunal have requested the amendment, or".

Amendment put and declared lost.

Dr. Upton

I move amendment No. 4:

In page 3, to delete lines 28 to 35 and substitute the following:

"(2) A tribunal—

(a) shall not request an amendment under subsection (1) where, but

(b) shall consent to an amendment under that subsection unless, it is satisfied that such amendment would prejudice the legal rights of a person who has co-operated with or provided information to the tribunal under its terms of reference.".

The Bill as drafted envisages that a tribunal may consent to or request a change in its terms of reference. In other words, even if both Houses of the Oireachtas made a request the tribunal might refuse to consent to it. The Bill leaves it completely up to the tribunal to decide the grounds on which it may refuse such a request. Section 1(2) provides that "without prejudice to the generality of subsection (1)" a tribunal should not consent to a change if it would prejudice the legal rights of a third party. The expression "without prejudice to the generality" means that any other argument which happens to appeal to the tribunal as a ground for refusing to consent to changes in its terms of reference is also valid. The amendment seeks to confine the grounds which a tribunal might raise for refusing to agree to a change in its terms of reference solely to the risk of prejudice to the legal rights of parties before it. Perhaps the Minister will let us know if there are other reasons why a tribunal might be justified in refusing to comply with a resolution of both Houses of the Oireachtas.

Mr. O'Donoghue

Under the existing provisions of the Bill a tribunal must not consent to a request to change its terms of reference where it is satisfied that such change would prejudice the legal rights of a person who has co-operated with or provided information to the tribunal under its terms of reference. Deputy Upton's amendment purports to substitute that provision with a provision that would require a tribunal not to request a change in its terms of reference where it is satisfied that such amendment would prejudice the legal rights of a person who has co-operated with and provided information to the tribunal under its terms of reference and to consent to the amendment unless it is satisfied that the legal rights of persons would be prejudiced. The effect of the amendment would be to compel a sitting tribunal to agree to a change in its terms of reference in cases where the rights of persons before it would not be prejudiced.

The amendment is strange and oblivious to the reality that exists in relation to sitting tribunals. The reality is that a tribunal in operation is seized of extremely onerous duties placed on it by existing terms of reference. It may have already published its terms of reference in newspapers, sought information, considered whether information supplied is within its terms of reference, considered requests for representations and taken evidence. If may, for example, have advanced to a crucial point in its deliberations and be nearing completion of its work. Clearly these considerations, amongst others, may lead a tribunal to the conclusion that it should not agree to a change in its terms of reference. It is entirely wrong to impose amended terms of reference on a sitting tribunal without it having a say in the matter. I am satisfied a tribunal in such circumstances is best placed to say whether amended terms of reference are acceptable. The principle of consent is fundamental to the Bill. The amendment seeks to remove this principle and I propose, therefore, to reject it.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendment No. 5, in the name of Deputy Upton, has been ruled out of order as it is outside the scope of the Bill.

Amendment No. 5 not moved.

Section 1, as amended, agreed to.

SECTION 2.

Amendment No. 6 not moved.

Dr. Upton

I move amendment No. 7:

In page 4, after line 9, to insert the following subsection:

"(3) The Tribunals of Inquiry (Evidence) (Amendment) Act, 1998, is hereby repealed.".

This amendment effectively calls on the Minister to accept that this legislation could have been better. The Minister should repeal last month's Bill once this Bill is passed, as effectively nothing will remain of it.

Mr. O'Donoghue

Long ago, bicycle races known as "round the houses" races used to take place. We seem to have returned to our starting point, at least in Deputy Upton's eyes. The Deputy's amendment has obviously been tabled for mischievous reasons as it makes no sense. Amendment No. 7 purports to repeal the 1998 Act. Amendment No. 6, which has been withdrawn, is consequential on acceptance of amendment No. 7. The amendments are not necessary. If they were acceptable, which they are not, a further amendment would be necessary in the case of the collective citation referred to section 2 (2). In any event, Deputy Upton is attempting to convey the impression that the provisions of the 1998 (No. 1) Act are being repealed.

The Bill currently before the House provides for the re-enactment, with amendment, of the provisions of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1998. The 1998 Act inserts a new section 1A into the Tribunals of Inquiry (Evidence) Act, 1921. The new section provides that an instrument which appoints a tribunal shall be amended pursuant to a resolution of both Houses of the Oireachtas, subject to the conditions in which the tribunal has requested the amendment and that it is satisfied such an 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. The Bill before the House extends the provisions inserted in the 1921 Act by the Tribunals of Inquiry (Evidence) (Amendment) Act, 1998, providing additionally that an instrument which appoints a tribunal shall, pursuant to a resolution of both Houses of the Oireachtas, be amended by a Minister of the Government where the tribunal consents to the proposed amendment and following consultation between the tribunal and the Attorney General on behalf of the Minister.

Deputy Upton appeared to have undergone an earlier conversion to the principle that the tribunal would consent to the amendment of the terms of reference. In a later amendment, he appeared to have a sudden reconversion to his original position that the principle of consent should be abandoned. In a final, desperate throw of the dice, the Deputy then decided that the 1998 Act, as enacted, should be repealed in its entirety. The Deputy believes in consent; he does not believe in consent. He believes in the legislation; he does not believe in the legislation. It is very difficult to know precisely where the Deputy stands. In any event, there are no circumstances under which I could accept his amendment.

It is quite clear that if Deputy Upton's amendments were accepted, legislation would exist on the Statute Book which would amount to saying "whatever you're having yourself". That would not make any sense. I cannot accept the amendment.

Amendment, by leave, withdrawn.

Section 2 agreed to.

Title agreed to.

Bill reported, with amendment, and passed.