Dáil Éireann debate -
Wednesday, 1 Jul 1998

Vol. 493 No. 4

Other Questions. - Flood Tribunal Terms of Reference: Motion.

Minister for the Environment and Local Government (Mr. Dempsey)

I move:

That Dáil Éireann resolves that the terms of reference contained in the resolution passed by Dáil Éireann on the 7th of October, 1997 and by Seanad Éireann on the 8th of October, 1997 under the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 be amended as follows:

1. By the deletion from paragraph A.5 of the words "committed on or after the 20th June, 1985."

2. By the addition of the following paragraphs after paragraph D:

"E The Tribunal shall, in addition to the matters referred to in paragraphs A(1) to A(5) hereof, inquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance:

1. Whether any substantial payments were made or benefits provided, directly or indirectly, to Mr. Raphael Burke which may, in the opinion of the Sole Member of the Tribunal, amount to corruption or involve attempts to influence or compromise the disinterested performance of public duties or were made or provided in circumstances which may give rise to a reasonable inference that the motive for making or receiving such payments was improperly connected with any public office or position held by Mr. Raphael Burke, whether as Minister, Minister of State or elected representative;

2. Whether, in return for or in connection with such payments or benefits, Mr. Raphael Burke did any act or made any decision while holding any such public office or position which was intended to confer any benefit on any person or entity making a payment or provided a benefit referred to in paragraph 1 above, on any other person or entity, or procured or directed any other person to do such an act or make such a decision.

And that the Tribunal be requested to conduct its Inquiries in the following manner to the extent that it may do so consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998:

(i) To carry out such preliminary investigations in private as it thinks fit (using all the powers conferred on it under the Acts), in order to determine whether sufficient evidence exists in relation to any of the matters referred to in paragraphs E1 and E2 above to warrant proceeding to a full public inquiry in relation to such matters;

(ii) To inquire fully into all matters referred to in paragraphs E1 and E2 in relation to which such evidence may be found to exist;

(iii) In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the Tribunal thinks appropriate on the steps taken by the Tribunal to determine what evidence, if any, existed and the Clerk of the Dáil shall thereupon communicate the Tribunal's report in full to the Dáil;

(iv) To report on an interim basis to the Clerk of the Dáil on the following matters:

the number of parties then represented

before the Tribunal;

the progress which has been made in the hearing and the work of the Tribunal;

the likely duration (so far as that may be capable of being estimated at that time) of the Tribunal proceedings;

any other matters which the Tribunal believes should be drawn to the attention of the Clerk of the Dáil at that stage (including any matter relating to the terms of reference);

and to furnish such further interim reports as the Tribunal may consider necessary.

F And that the Sole Member of the Tribunal should be informed that it is the desire of the House that:

(a) the Inquiry into the matters referred to in paragraph E hereof be completed in as economical a manner as possible and at the earliest date consistent with a fair examination of the said matters, and

(b) all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the Inquiry should, so far as is consistent with the interests of justice, be borne by those individuals.

G And that the Clerk of the Dáil shall on receipt of any Report from the Tribunal arrange to have it laid before both Houses of the Oireachtas immediately on its receipt."

Pursuant to resolutions in both Houses of the Oireachtas in October 1997, a tribunal of inquiry, with Mr. Justice Feargus M. Flood of the High Court as its sole member, was set up to inquire into certain planning matters. The motion before the House today amends the terms of reference of that tribunal in two principal respects.

The motion provides for the amendment to the original terms of reference of the tribunal sought by Judge Flood in his interim report to the House of 26 February 1998. It extends the remit of the tribunal to enable it to inquire into all substantial payments made or benefits provided, directly or indirectly for whatever purpose or with whatever motive, to Mr. Raphael Burke, the former Minister, Minister of State, Dáil Deputy and county councillor. This implements fully the commitment of the Government given by the Taoiseach in this House on 3 June 1998.

In accordance with the provisions of the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act, 1998, Mr. Justice Flood has consented to the proposed amendment following consultation with the Attorney General on my behalf. The text of the resolution before the House today is the result of detailed and extensive consultations between Mr. Justice Flood, the Attorney General and their staffs.

The tribunal has given its consent in accordance with the Act. The formal consent has been laid before the House and copies are available for Deputies. In relation to the first amendment, the formal request by the tribunal laid before the House yesterday and referred to in today's Order Paper has been superseded by a later document incorporating a legally technical amendment as agreed between the tribunal and the Attorney General.

The original terms of reference of the Flood tribunal provided for the fullest possible investigation of the propriety from the viewpoint of the planning system of the payment which Mr. Burke himself acknowledged receiving from Mr. Gogarty, and indeed any other payment to him that might have been connected in any way with the operation of the planning system. As soon as the Government had grounds for believing that Mr. Burke had received at least one other large contribution, notwithstanding his statement in this House last September, we determined that this and any other substantial contributions or benefits received by Mr. Burke should also be investigated to establish if there was anything untoward relating to the purpose or motives of the donor in making such a payment or of Mr. Burke in soliciting, receiving or rewarding it. Having determined that an investigation should take place, the options open to the Government were threefold: to set up a new tribunal of inquiry or to request one of the two existing tribunals to take it on.

In the course of considering the most appropriate option, the Attorney General consulted with both the judges in charge of the existing tribunals. It became clear fairly quickly that the best course was to extend the remit of the Flood tribunal as it was already examining at least one payment made to Mr. Burke and that judge was agreeable and satisfied that it did not create undue problems. On behalf of the Government, I formally place on the record our thanks to Mr. Justice Flood for agreeing to widen the remit of the tribunal in the manner proposed, particularly given the already heavy workload of the tribunal and the demanding task with which it has been charged.

It is very important that neither I, in introducing the motion, nor any other Member in speaking on it, should be seen in any way as preempting the work of the tribunal in relation to the matters in question. Therefore, I do not intend to comment directly on the allegations which have led to today's resolution.

That there is general agreement among all parties in this House that Mr. Burke's activities should be judicially investigated shows general concern with ensuring that the integrity of our democratic system, and of the politicians who hold positions of trust under it, is not only upheld but seen to be upheld. I believe that this can be achieved in the present instance by having an independent tribunal inquire thoroughly into the allegations which have been made concerning payments to Mr. Burke. It is also important that Mr. Burke's rights to justice and a fair hearing are protected. The tribunal procedure will ensure that fair procedures are applied and the principles of justice upheld while ensuring that the public interest is served in arriving at the truth of these matters.

Mr. Justice McCracken stated quite clearly in his report on his inquiries into the Dunnes payments that it is unacceptable for any Member of the Oireachtas to receive large personal gifts and went on to refer to the potential for bribery and corruption. Speaking in the context of large sums of money, he also said that if politicians are to give effective service to all their constituents or to all citizens, they must not be under a financial obligation to some constituents or some citizens only. The Taoiseach speaking in this House on 3 June last made it clear he fully subscribes to these views. In doing so he spoke for the whole Fianna Fáil Party.

It is entirely inappropriate for any politician to solicit or accept on a personal basis substantial payments or benefits. Acceptance of such payments is open to the interpretation, however ill-founded this may be in any particular case, that the donor expected or the recipient provided some benefit. This is especially true in the case of an office holder and applies to local elected representatives, whose decisions on development plans can add considerably to the value of land, as much as it does to Ministers or Deputies. For these reasons, it is at least as much in the interests of my party as any other to ensure that the tribunal clears up the circumstances of these payments. I can say categorically that Mr. Justice Flood and his team will continue to have the fullest possible co-operation from the Fianna Fáil Party.

We should also not lose sight of the fact that as a result of consensus and co-operation among all parties we have imposed legislative constraints which should go a long way in guarding against any repetition of the type of activities now being inquired into. Under the Electoral Act, 1997, political parties and members of each House of the Oireachtas and the European Parliament are, since 15 May 1997, required to furnish a donation statement each year indicating whether a donation exceeding the relevant threshold was received during the preceding year and giving particulars of any such donation. Following an election, candidates not elected must furnish a similar statement in relation to donations received by them at the election. The disclosure threshold for a political party is £4,000 and for individual members and candidates it is £500. I think it important to say that this new disclosure regime was supported by all parties in the Oireachtas.

Mr. Howlin

It was the only part of the Act which was — let the Minister remember that.

Mr. Dempsey

I do. It was the most important part of the Act. The new procedures on political donations introduce transparency into the system of funding of political parties and candidates for election. We must be vigilant in ensuring that these procedures operate effectively both in our own interests in defending our integrity as elected representatives and in the wider public interest of safeguarding the integrity of the democratic system.

Another significant step in ensuring high standards in public life and underpinning public confidence is the Government's commitment, already announced by the Taoiseach, to establish a permanent commission on standards in public office. This would have a wide ranging mandate to investigate allegations of misconduct in public office by all elected representatives and officials. Proposals in that regard are being considered by the Government at present and I expect them to be welcomed in this House. While the tribunals currently under way and those which have completed their work are doing and have done commendable work, it is questionable whether setting up ad hoc tribunals is the most effective way of dealing with allegations which are made with increasing regularity and which can have a corrosive effect if not dealt with promptly and decisively. Apart from anything else, it places great demands on the Judiciary at a time when the courts system is at full stretch. The House will have an opportunity to debate this wider issue when my colleague, the Minister for Finance, Deputy McCreevy, brings forward his proposals.

The extended terms of reference before the House are extremely comprehensive in relation to any payments or benefits given to Mr. Burke and show beyond a shadow of a doubt that the Government is determined to have all the allegations in this respect fully investigated and the truth laid bare for all to see. In the first place the tribunal will have to establish whether any substantial payments were made or benefits provided directly or indirectly to Mr. Burke during his political career. If there were such payments, then it will have to decide on the motives of the benefactors — whether they were corrupt or intended to influence matters improperly. Furthermore, it must decide if the payments were made in circumstances which may give rise to a reasonable inference that the motive for making or receiving the payments was inappropriately connected with any public office held by Mr. Burke, not only as a Minister or Minister of State but also as a Dáil Deputy or county councillor. Then, in addition to the foregoing, the tribunal must decide whether, in return for any payments, Mr. Burke did anything directly or indirectly while holding any public office which was intended to benefit the donor or indeed anybody else who may be connected in any way.

I do not think anyone could deny that these terms of reference are quite exhaustive and should enable the tribunal investigate all relevant aspects of the payments that have been mentioned or any others not yet mentioned, if there are any. It is in the interests of every Member of this House that the tribunal be able to report definitively on all matters that have given rise to concern in this case.

At the same time, we are all concerned that the Tribunal should have terms of reference which are well focused and ensure that its time is not wasted on investigating irrelevant matters. The tribunal therefore will have to form a judgment on whether any particular payment or benefit warrants investigation. I am confident this discretion will enable it to carry out its work in an efficient and effective manner.

These are the core provisions of the addition to the terms of reference of the planning tribunal but provision is also made for the way in which the tribunal is to carry out its work. These provisions are similar to those which apply to the tribunal's existing mandate. The tribunal will carry out its preliminary investigations in private in order to determine whether sufficient evidence exists to warrant proceeding to a full public inquiry. Should the tribunal find there is insufficient evidence to warrant proceeding to a fully public inquiry, it must report this to the Clerk of the Dáil.

There is a requirement that the tribunal provide an interim report to the Dáil on the new matters referred to it, indicating in relation to them the number of parties represented, progress to date, the likely duration of the proceedings and any other matters which it believes should be brought to the attention of the Dáil. The latter may include views on the terms of reference. In this respect, I assure the House that, if the tribunal in the course of its deliberations becomes aware of any deficiencies or unintended constraints in the terms of reference, the Government will do whatever is necessary to ensure the inquiry fully achieves its objectives.

The other amendment in today's motion grants in full Mr. Justice Flood's request to enable him to consider matters included in the original terms of reference which had arisen prior to 20 June 1985. This is the date of the local elections held before the making of the payment to Mr. Burke by Mr. Gogarty. It was inserted in the original terms of reference and accepted by all sides of the House as a reasonable timeframe within which the tribunal should operate. It was certainly not intended to limit the effective discharge of the tribunal's work. In his interim report of 26 February 1998, Mr. Justice Flood stated he was advised that evidence in relation to matters which occurred prior to 20 June 1985 is admissible if and in so far as it is relevant to matters which occurred subsequent to that date. However, he stated that the fact that such a date is specified may give rise to a legal challenge which would inevitably delay the proceedings of the tribunal in relation to such matters. Notwithstanding the advice and to avoid any such legal challenge the tribunal sought the deletion of the words "committed on or after the 20 June 1985". When the terms of reference were debated in this House last October, I said in relation to paragraph 5 that if these did not prove effective I would be happy to come back to the House to make the necessary amendments. I am happy, therefore, to return to the House to propose the requested amendment.

As Minister for the Environment and Local Government, I have a particular concern in relation to the integrity of the planning system, which is much too important to tolerate any hint of corruption or impropriety. Great demands are placed on the planning system to support our economic development both in processing planning permission applications and in adopting development plans and zoning land for specific uses. We must be sure that all these decisions are taken on the basis of proper planning and development considerations. Planning decisions can affect the value of land and benefit landowners enormously. On the other hand, ill-considered zoning can lead to increased costs to the taxpayer for infrastructural services and to poor quality living environments where people are cut off from everyday services.

In my year as Minister for the Environment and Local Government, planning policy has been a major priority for me. I have instituted the most comprehensive review of the planning code since it was introduced in 1963. Following extensive public consultation, my Department has reached an advanced stage in developing proposals for reforming and modernising the Planning Acts to meet current and future needs. It is my aim to bring a comprehensive Planning Bill before this House at the earliest possible date.

I am also concerned to increase the effectiveness of the planning system and to ensure that planning decisions are made in good time. In this context, there is a resolution before both Houses of the Oireachtas to enable me to increase the number of board members of An Bord Pleanála by three so that the board can deal more effectively with the continuing strong upward trend in the volume of planning appeals. Last week, the House passed the Urban Renewal Bill, 1998, to provide for the renewal of run down urban areas by means of integrated area plans.

I am very aware that all of this work will be for nought if the public does not have confidence that the planning system operates in a fair and open manner for the overall public good. I believe that the great majority of elected representatives and officials operate the planning system honestly and diligently and deserve to have confidence in the system vindicated. It is to be hoped that the thorough inquiry being carried out by Judge Flood will achieve this result.

While this latter amendment could have been made after the Tribunals of Inquiry (Evidence) (Amendment) Act, 1998, was enacted in May, prudence dictated that it should not be proceeded with until the means of investigating the matter of other payments to Mr. Burke which had by then come into the public domain was decided on. In the event, it was clearly better to avoid making two separate resolutions amending the terms of the reference. I commend the resolution and the amended terms of reference to the House.

Mr. Dukes

It is interesting to note that about a quarter of the Minister's rather bland and low key speech was devoted to matters other than those central to the tribunal and the change in the terms of reference. This motion to amend the terms of reference of the Flood tribunal is the latest incident in a long running saga.

This House adopted the original terms of reference on 7 October last. Those terms of reference were argued over for a week before they came before the House and had been redrafted 12 times. During the debate in the House, the Minister accepted six amendments which I put forward, one of which was in a form slightly modified by him. During a week of argument and twelve drafts of these terms of reference, the Government refused point blank to include the name of Mr. Burke. Now, nine months later, this motion specifically names him.

At various times during those nine months, in connection with this tribunal and the Moriarty tribunal, the Government asserted it was not possible to change the terms of reference of a tribunal once it had been set up. Following a request from the chairman of this tribunal, the Government finally accepted that the terms of reference could and should be changed, but opted for legislation rather than a simpler method. The Government agreed that the terms of reference could be changed at the request of a sole member of the tribunal. It has now agreed that the terms of reference can be changed in a way which was apparently not requested by the chairman of the tribunal, but one with which I agree. There has been a major change in the Government's position following a long, acrimonious argument.

Mr. Howlin

The original position was nonsense.

Mr. Dukes

We could have done all of this last October. There has been comprehensive consultation between the Attorney General and the Flood tribunal on the amendments to the terms of reference. This motion is the outcome of those consultations. At various times in the past nine months, including during the debate on the Tribunals of Inquiry (Evidence)(Amendment) Act, 1998, the Government said it would be wrong for it to hold any consultations with the tribunal chairman as this would infringe the judicial independence of the tribunal, yet we now have an amendment to the terms of reference which has been the subject of comprehensive consultation between the Attorney General and the Flood tribunal.

During the debate on the original terms of reference on 7 October last, I said:

The Government has been hugely damaged by what has happened over recent weeks. It has been damaged by the way the Taoiseach handled this affair and by the hesitation and vacillation shown by the Tánaiste in dealing with it. The forced resignation of a Minister after a lengthy period of controversy can only damage a Government. The Taoiseach's judgment is in question because that period of controversy was lengthened by his failure to take the kind of action demanded and needed some time ago.

Nothing has changed. The Government has learned nothing about handling an affair of this kind. That is not to say that the Government, this House and the public have not learned some interesting facts in the meantime. We have learned that Mr. Burke's statement to this House on 10 September last omitted many facts which were material to the concerns which this tribunal was set up to investigate. We learned that in September, people in the Fianna Fáil Party and at least one Member of this House who is a former treasurer of the party — he has that in common with the Taoiseach — were in a position to know that the picture painted by Mr. Burke in his statement on 10 September was seriously deficient and incomplete. They appear to have said nothing about this until recently.

The Minister made some interesting points in this connection. He said:

As soon as the Government had grounds for believing that Mr. Burke had received at least one other large contribution, notwithstanding his statement in this House last September, we determined that this and any other substantial contributions or benefits received by Mr. Burke should also be investigated..

I take this with a grain of salt as they received that information some time ago, a long time before we saw these proposals for a change to the terms of reference of the tribunal. We have also learned since last October that the Taoiseach was advised in advance to be cautious about the appointment of Mr. Burke to the Cabinet. He did not tell the Tánaiste about this at the time and he revealed certain matters to her only in March of this year.

We have learned that the account given by Mr. Burke to his party and this House of donations he received in 1989 was woefully incomplete. We have learned that people in positions of trust in the Fianna Fáil Party were unhappy in 1989 because they knew, on the basis of discrepancies between what Mr. Burke told them and what they learned from those who had donated money to the party, that something was seriously amiss.

We deduce from what has emerged in the past few months that no substantial action was taken to remedy those concerns or to follow up the discrepancies which appeared. A form of collective amnesia seems to have gripped those in authority in Fianna Fáil until the many questions left unanswered by Mr. Burke were probed and teased out in this House and the media.

The Minister said, "I can say categorically that Judge Flood and his team will continue to have the fullest possible co-operation from the Fianna Fáil Party". Continue from when? Certainly not from last October or last March, which is fairly recent. I welcome their conversion. In my more biblical moments, I recall there is more joy in heaven over one sinner who repents than ten just men who do not need repentance. There must be joy somewhere today. This demonstration of that view by the Minister and the Fianna Fáil Party is long overdue.

We have learned other things since last October. We have learned that the Leader of the Opposition, Deputy John Bruton, was perfectly right, and displayed his customary foresight, in raising questions about donations made to Mr. Burke and the possibility of links between those donations and acts carried out by Mr. Burke in his former ministerial capacity. Those questions raised by Deputy Bruton incurred the wrath of the Independent newspapers group, which indulged in a bout of vituperation of unprecedented ferocity.

Mr. Howlin

They are very good at selecting targets.

Mr. Dukes

The same questions raised by Deputy Bruton are reflected today in paragraphs E (1) and (2) which it is proposed to insert in the terms of reference of this tribunal——

Mr. Dempsey

But not on the basis of an anonymous letter.

Mr. Dukes

——following a comprehensive consultation between the Attorney General and the Flood tribunal. I bet my bottom dollar we will not have a vituperative editorial in the Irish Independent tomorrow morning.

On 7 October last, in connection with Mr. Burke's resignation, the Taoiseach spoke of ". .. the persistent hounding of an honourable man to resign his important position on the basis of innuendo and unproven allegations". He talked about this man having been "harried and hounded". On the same day, during the debate on these terms of reference, the Minister for the Environment and Local Government stated, "What we have seen is an infinitely clever erosion of a reputation based not on upfront accusation and production of evidence but on instalments of venom". He went on to state:

What we have witnessed in the recent weeks is the feeding of prejudice against an individual. At no stage has enough evidence been offered to justify that steady feeding of prejudice.

Later in that debate the Minister spoke of "malicious, unjustified rumours". The matters about which the Minister complained on that day are the reason two paragraphs are now being inserted in the terms of reference of the tribunal which specifically name Mr. Burke, whom the Government refused to name last October——

Mr. Dempsey

That was correct.

Mr. Dukes

——in spite of what had taken place prior to that and in spite of advice given to the Taoiseach by a predecessor.

Perhaps by now the Taoiseach and the Minister for the Environment and Local Government have learned to weigh their words more carefully and to satisfy themselves more fully and more diligently on the basis for statements that they make in this House. They are, after all, the people who have been obliged, on the basis of what has been revealed to them and to the public since then, to insert paragraphs E (1) and (2) into the terms of reference of the Flood tribunal.

I have no difficulty with the substance of the proposed amendment to the terms of reference. I will deal first with a technical point about the form of the amendment. I understand it is proposed to add the new paragraphs E, F and G after paragraph D of the existing terms of reference. Paragraph G in the amendment before us is identical to paragraph D in the original terms of reference. Therefore, we should delete paragraph D of the original terms of reference, and insert new paragraphs D, E and F, corresponding to E, F and G in the present resolution. That would effectively move paragraph D of the current terms of reference to the end of the amended terms of reference, and have the same effect as paragraph G in the proposal before us and paragraph D in the original terms of reference. It is not necessary to include this provision twice in the amended terms of reference.

There are some differences in detail between the drafting of the provisions it is now proposed to insert in the terms of reference and the analogous provisions included in the original terms of reference. The specification contained under paragraph E of the proposed terms of reference on how the tribunal should go about its work does not specifically refer to seeking discovery of documents, files and papers. I am satisfied, however, the provisions already contained in the 1921 Act and in the legislation passed between 1979 and 1998 give the tribunal the powers and instruments necessary to carry out its work.

Paragraph E(1) of the proposed amendment to the terms of reference contains the first explicit reference to Mr. Burke. This is being inserted after the phrase "comprehensive consultation between the Attorney General and the Flood Tribunal". Perhaps the Minister for the Environment and Local Government would now confirm he has changed his mind on the statement which he made in the debate on the original terms of reference on 7 October last. On that day, he stated:

The inclusion by name of the former Minister for Foreign Affairs, former Deputy Burke, in that context would inevitably create guilt by association. This would be grossly unfair and would infringe on the basic rights of such an individual. It would also indicate an abandonment of fair-mindedness on the part of Members of this House.

There was no basis for that statement last October and the Government admits that today. This is a remarkable about-turn by the Government and serves only to underline how badly this affair was mishandled by the Government last year.

The paragraph to which I have referred is very broad in scope. It considers the actions of Mr. Burke in any public office or position, whether as Minister, Minister of State or elected representative. It covers the entire scope of his activities as a county councillor, a Deputy and a Minister. Similar considerations apply to paragraph E(2) in the proposed amendment to the terms of reference.

Paragraph E(1) contains a reference to payments made or benefits provided. It states:

.which may, in the opinion of the sole member of the Tribunal, amount to corruption or involve attempts to influence or compromise the disinterested performance of public duties or were made or provided in circumstances which may give rise to a reasonable inference that the motive for making or receiving such payments was improperly connected with any public office or position held by Mr Raphael Burke, whether as Minister, Minister of State or elected representative;.

It has been represented to me that the insertion of the words "in the opinion of the sole member of the Tribunal" ensures the judge can screen out allegations which have no evidence to back them or which may be frivolous or vexatious. That is fine; I am sure the learned judge needs no lessons in that regard. On the other hand, I am happy that, at my insistence, the current terms of reference and the proposed amendment provide that, where the tribunal finds there is insufficient evidence to warrant proceeding to a full public inquiry, that finding, and the reasons for it, will be reported to the Clerk of the Dáil, that report will include a statement on the steps taken by the tribunal to determine what evidence, if any, existed, and the Clerk of the Dáil shall communicate that report in full to the Dáil. It is essential this House has full access to all the relevant information and considerations. That was not what the Government originally proposed to us last October.

Now that the Government has finally nerved itself to take this step in relation to the Flood tribunal, I wonder if there is any hope of a similar approach to the Moriarty tribunal. Would the Attorney General now engage in comprehensive consultation with the Moriarty tribunal in relation to its present terms of reference? Intensive consultations have been held with the chairman and sole member of the Flood tribunal and the sky has not fallen in, as the Government claimed for some time it might.

I have read and reread all stages of the debate on the Tribunals of Enquiry (Evidence) (Amendment) (No. 2) Act, 1998. Deputy Jim Higgins and other Members of the House repeatedly asked a series of questions during that debate. They asked whether the names of the Ansbacher depositors would be revealed. They asked what mechanism would be used to reveal those names. They asked when we could expect the names to be revealed and if the people who deposited £38 million would be allowed to retain their cloak of anonymity. Those questions were never answered. The Minister for Justice, Equality and Law Reform simply repeated the standard Government mantra on the issue. He said the Revenue Commissioners would keep a close eye on the work of the tribunal and repeated ad nauseam that the Minister for Finance had said that if the Revenue Commissioners felt they required additional powers, they would be facilitated by the Minister for Finance. He said that any issues arising would be issues between individual depositors and the Revenue Commissioners. He failed to answer the question as to how the Revenue Commissioners could even think of approaching individual depositors unless those depositors were named. He failed to answer the question as to how, by what means or when, individual depositors would be named for the Revenue Commissioners, if for nobody else.

In the light of this constant repetition of the Government mantra, I have no confidence whatever that even the Revenue Commissioners can be sure they will get the kind of information they require in order to investigate individual cases to determine whether tax evasion has taken place.

The lessons from these two affairs are very clear. The first is that on every occasion and in every connection in which the Government has been timorous, hesitant and reluctant in its approach to these investigations, the reasons it has given for a softly softly approach have been demonstrated to be without foundation. The very fact that the Minister is proposing this amendment is proof of that. The second lesson is that the clear wish expressed by the Opposition to have a full investigation and to have full information made available to this House has in every case been one which could be followed up. The third lesson is that sooner or later the Government has on every occasion and in every respect been forced finally to agree to the reasonable wishes expressed by the Opposition.

It is now time for the Government to apply these lessons to the work of the Moriarty tribunal in the same way it has been finally obliged to learn them in the case of the Flood tribunal.

Mr. Howlin

It is more than a little amusing to find that what we are seeking to do — indeed, what the Government and the Minister for the Environment and Local Government are inviting us to do — is what the Minister for Justice, Equality and Law Reform and the Minister for Finance told us we could not do, i.e. change the terms of reference of a sitting tribunal of inquiry. Over the last six months this House has been, to borrow a phrase used by the Taoiseach, up every tree and down every avenue in relation to the Tribunals Acts. They have been visited more often in the last six months than in the 60 or 70 years since their original enactment. Thankfully, the Government has finally and belatedly conceded the points that the rest of us have argued all along — that this House must be able to change the terms of reference of a tribunal, which it has framed itself.

My party's position from the beginning has been that the original tribunals legislation allowed the terms of reference of a tribunal to be amended by the Oireachtas. We believe that not only did such a right exist but that such a mechanism was essential if we were to get to the bottom of the events of the last two decades which have sullied the name of politics and caused harm to the political institutions of this State and to the profession to which Members of this House belong.

I have reread the contribution of the Minister for Justice, Equality and Law Reform during the debate on the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Bill, defending the position originally adopted by the Government. To say that the argument is less than convincing would be a gross understatement. Neither can we say we are satisfied with the new legislation introduced by the Government. My party believes that the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act is inferior to the Bill published by the Leaders of the Opposition, supported by Opposition parties and moved by the Leader of the Labour Party, Deputy Quinn.

The motion we are discussing today is possibly unique in the history of this House. Despite the seriousness of the issues involved for the conduct of politics and the body politic, we are not entitled in this debate to amend the proposals before us. I cannot think of any measure that has been debated in this House, either from the Government or Opposition benches, that could not be amended by the other side. That particular scenario could have presented this House and the Government with an extraordinarily serious situation.

I acknowledge that there was consultation between the Government and Opposition Whips on the issue of the terms of reference before they came to the House this evening. I also acknowledge, as spokesman for the Labour Party, that we are broadly satisfied with the amended terms of reference. However, what would have happened had there not been agreement and had the Government decided on terms of reference with which the Opposition had grave difficulties? Would the Government have sought to ram amended terms of reference through the House without Opposition agreement? That is certainly not a fantastical proposition. In fact, over the last year this is the first occasion on which we on this side of the House can say we are broadly in support of a set of terms of reference emanating from the Government in relation to a tribunal of inquiry. As Deputy Dukes said, on every previous occasion we sought to bring about amendments we were not satisfied. However, had we not been satisfied with the measures before the House today we would, in effect, have been denied the right to debate this issue in the normal fashion, to identify our perceived difficulties with the proposed amendments and to seek to amend them.

On this side of the House, we have always recognised that amending the terms of reference of a sitting tribunal would be problematic. Our published Bill clearly recognises that fact. However, we remain of the view — and I think it is an essential view for the maintenance of the authority of the House — that it is the right and responsibility of this House to determine the matters appropriate for inquiry by a tribunal.

We remain dissatisfied that the agreement of the chairperson of a tribunal must be sought prior to a resolution being put to this House. We have consistently argued that the process should be constructed the other way around, that this House should decide what is appropriate first and that the discussion should then take place with the chairperson.

The Bill introduced in the House in recent months was simply to hide the nakedness of the Government in finding that its initial position on the amendability of the terms of reference was not sustainable. The Government has put this difficulty in our basic law and it is one that may well yet come back to haunt it.

Debate adjourned.