Before Private Members' business, I was saying the reason the amendment seeks to delete "any" and substitute "a director or any other", is that the subsection is vague and it should be made clear that a director is always presumed to have possession of a company's documents and other persons in senior positions should be presumed likewise. It directs attention towards the director as the likely possessor of the documents — this would be the person under law in a corporate entity — as the director is the person who is responsible in the first instance. It would take the vagueness out of the text.
Commissions of Investigation Bill 2003: Report Stage (Resumed) and Final Stage.
The phrase in the Bill is "... in the power of any individual who, because of his or her functions or position within the body corporate or the unincorporated body, as the case may be, can reasonably be expected to have control over the document." Even a mention of director would not mean every director. It would have to be a director who would have control over the document. It does not add anything to the phrase "any individual", to add "a director". If I were to accept the Deputy's amendment, the word "director" would not mean just any director, it would have to be a director or any individual who, because of his or her functions or position within the body corporate or the unincorporated body, could reasonably be expected to have control over the document. It does not add anything. It might be used to narrow the scope of any individual because the phrase "any individual" might be construed as being cognate to director and might narrow the meaning of "any individual". From that point of view, I remain of the opinion that the phrase "any individual" is wide and to insert the reference to a director before it would not achieve the aim of the amendment because a director would still have to be, on the wording of the subsection, somebody who had control, not merely any director but a director who could reasonably be expected to have control over the document. Acceptance of the amendment would not improve the text but would disimprove it.
I am trying to be helpful.
I know that.
If the Minister thinks I am not helpful I will leave it at that.
Amendment No. 3. Amendments Nos. 4 to 6, inclusive, 8, 13, 48, 49 and 53 are related. Amendments Nos. 7, 9, 12, 14, 47 to 56, inclusive, 54 to 58, inclusive, 60, 62 to 64, inclusive, are related and cognate. Amendments Nos. 7 and 8 are alternatives to amendment No. 6 and amendment No. 54 is an alternative to amendment No. 53. Amendments Nos. 3 to 9, inclusive, 12 to 14, inclusive, 47 to 58, inclusive, 60, 62 to 64, inclusive, may be discussed together.
I move amendment No. 3:
In page 6, line 32, to delete "Government" and substitute "Houses of the Oireachtas".
I support the central thrust of the Bill. It has the possibility of being a useful weapon in the tribunal armoury. It has the possibility of providing a relatively inexpensive and relatively quick investigation of matters of public interest. My major reservation is encapsulated in this and the related amendments in that the Bill effectively involves sidelining the Houses of the Oireachtas. That is dangerous, undemocratic and the wrong approach. I had hoped the Minister would give the Houses of the Oireachtas some role, not necessarily in all the situations I have described, but at least involving it to some degree in the proceedings. Effectively, it has no role in respect of a commission of investigation, other than a formal role of passing a positive resolution when the Government of the day or the Minister puts a draft of the proposed order before the House. In all other respects, the powers for dealing with the commission are retained either by the Government or the Minister. Effectively, it is the Minister, with the approval of the Minister for Finance, who establishes the commission by making an order. The Minister has overall responsibility for the working of the commission. The terms of reference are set by the Minister. I see a case for the terms of reference to be drafted by the Minister but the Houses of the Oireachtas should have an opportunity to make an input. The costs and the time frame are determined by the Minister. Any amendment of the terms of reference can be made by the Minister without any reference whatever to the Oireachtas. The members of the commission are appointed by the Minister, again without reference to the Oireachtas.
In regard to the reports, there are provisions in the Bill dealing with interim reports, draft reports and final reports. Everything goes to the Minister. It is the Minister who publishes the report. If the commission is to be terminated, it is the Government, without any reference to the Oireachtas, that does it. That is unwise. I hoped the Minister would see justification for the involvement of the Oireachtas to a greater degree in the operations of the Bill.
It is important if such a commission is set up that there is public confidence in it. There is a danger that there may be queries about the Government of the day or about particular Ministers. Sadly, there have been such queries about particular Ministers and questions raised about them. I am not pointing at the Minister. A Minister sat on that position one time and when I asked him a certain question he nearly blew a gasket at the temerity of suggesting that he might have had an overseas bank account. The only mistake I make was that he had not one but a number of them.
Unfortunately, because of proceedings which have been before the tribunals there is a certain query on the part of the public that would not be satisfied or resolved by a commission of investigation totally set up by the Government of the day, totally reporting to the Ministers of that Government, without any reference to the Oireachtas. There is a danger the public may not have full confidence in the process because of the way the procedure has been designed to exclude the Oireachtas. It is the wrong approach. There should be a greater role for the Oireachtas. We debated this on Committee Stage, including the various possibilities. Given that we are on Report Stage, I am not sure it is possible to have any amendment re-framed and included by the Minister. It remains only to say it will constitute the major defect of the Bill if not one of these amendments is accepted. Deputy Costello and I have placed a full menu of amendments before the Minister, a number of which could be accepted even at this point. From the perspective of improving the Bill and ensuring public confidence in the system being established, I urge the Minister to accept them.
These amendments are at the nub of the changes we would like to see introduced in the legislation. There are two critical points, of which one is the fact that the order to establish a commission can only be made by the Government and cannot be amended by the Houses of the Oireachtas. Second, the terms of reference of a commission are likewise not subject to amendment. The legislation is dictatorial and unilateral and is not amenable to change by the Houses of the Oireachtas. The principle of establishing a commission is positive and we have all supported it and acknowledged the great need for a structure with the general powers provided in the legislation before us. However, the Government is being very jealous of its powers with the mechanism which is being provided for any Minister who should choose to go down this path. The provision takes from the good intentions in establishing a commission and from its democratic nature.
It would be much more preferable for a commission established to conduct an investigation into a matter of public concern to have the blessing of the House. The House should have the power to amend the draft order, initiate the process and play a role in the establishment of a commission in conjunction with the Government. The terms of reference drafted by a Minister should be discussed by the Oireachtas and after due consideration amended appropriately. While that appears to be the proper approach, it is prohibited under the legislation. When the Sub-Committee on the Barron Report discussed proposals for investigations in this jurisdiction which were modelled on the content of this legislation, there was a strong belief among members that any commission would have much greater authority if it were established by the Houses of the Oireachtas rather than an individual Minister. I hoped the Minister would take this on board and that the Houses of the Oireachtas would be ultimately responsible for establishing a commission of investigation rather than a Minister. I hoped also that the final substance of a commission's terms of reference would be decided in conjunction with the Houses after due opportunity to amend any proposals before them.
I cannot understand why the Minister is not prepared to adopt this approach or, at least, provide an option whereby the Oireachtas would be the establishing body given that some of the commissions will be required to investigate matters of great public concern with serious ramifications. I hope the Minister will be able to take these amendments on board when he brings the legislation before the Seanad. To do so would not delay the Bill, but would be extremely appropriate.
As I indicated on Second Stage, Sinn Féin broadly supports the Bill which emerged on foot of recommendations from the Labour Reform Commission. I hope we will see more socially constructive legislation of this type rather than what we have seen up to now. While Sinn Féin has some problems with the Bill, none is so profound that we would oppose its passage. As the amendments under discussion are among those which should be made, it is positive that they were tabled by my colleagues, Fine Gael spokesman Deputy Jim O'Keeffe and Labour spokesman Deputy Costello. I did not duplicate them to save time to allow us to get to later amendments, some of which I tabled. As we will not have time to deal with every amendment, I hope we can return to this at some point in the future.
The amendments under discussion seek to address the need for the legislation to provide powers to the Oireachtas rather than to the Government. It should be the Members of the Houses who set the time frames, costs and remits of commissions of investigations and, if need be, amend and approve their terms of reference. The Minister should provide in advance for the opportunity to be kept informed in opposition of the progress of commissions his Government establishes. Those commissions should be accountable to Members from his party when they are in opposition. The more accountability and transparency we provide, the more the public will buy into what we propose here and support it in opposition to the current system of tribunals which are not nearing any type of end.
It would be useful if the Minister could find it in his heart to accept the series of amendments under discussion. They make sense and would allow the Houses of the Oireachtas, particularly the Dáil, to play a full role in the establishment of commissions. If the Houses of the Oireachtas do not play a full role and commissions are established on foot of Government decisions, there will be continuous opposition to them from Deputies on this side. The amendments tabled by Deputies Jim O'Keeffe and Costello go some way towards ensuring that such commissions will be transparent and accountable to both Houses of the Oireachtas.
The grouped amendments under discussion are fundamental in nature. While I appreciate fully that they are proposed and tabled in good faith, we must work out in our own minds what the fundamental difference between commissions of inquiry and tribunals of inquiry is intended to be.
We are not putting in place "tribunals of inquiry light", if I may use that phrase. This is not just a slightly toned down tribunal of inquiry system. It is something fundamentally different in that the consequences of the establishment of a commission of inquiry are substantially different from those which appertain to the establishment of a tribunal of inquiry. They are different in that in the case of a tribunal of inquiry the reports of that body are apt to reject evidence, condemn behaviour, blame people and hold them up to public criticism — aptly and appropriately one expects.
Strong power is vested in a tribunal of inquiry. The reports, going back to the report of Mr. Justice Flood, that the media expect in the context of a tribunal are strong, condemnatory, rejective of people's testimony and stern. One only has to look at the contrasting manner in which the strong findings of Mr. Justice Flood's report, compared with the findings of Judge Lindsay's report on the blood issues, were treated by the media to understand that when tribunals of inquiry are established, an expectation exists that the report will be strong.
The media were unfair to Judge Lindsay with regard to her report and I said that at the time. The media expected robust stuff from every tribunal following the strong example set by Mr. Justice Flood. Whether strong medicine is, or is not, apt in particular cases is a matter for the judgment of the independent tribunal, rather than a matter for the media to comment on or for public opinion.
We are dealing here with something different. In this case we must remember that a commission of inquiry is not there to reject contested testimony and to come to a view that one person is definitely telling the truth and another definitely lying on an issue. If people are identified in a report of a commission inquiry, it is specifically provided in statute that they must be notified of the proposed report on them and given an opportunity to vindicate their rights in the court with regard to how the proposed report affects them. This huge safeguard is provided because it is appreciated that if we do not tease out conflicts of evidence in public and do not allow the full panoply of the law and the full right to cross examine in public, to rebut and to do all the things thought to flow from thein re Haughey decision, there must be constitutional safeguards provided for people who might be adversely affected by the publication of a report.
We are dealing with something which is essentially different from the tribunal of inquiry process. It is something which is not intended to be deployed as a simple substitute for tribunals of inquiry. This process is not just plan B for a matter of public controversy but something substantially different.
What the Government has in mind for this legislation is a system of inquiry which brings the same powers of compulsion and investigation as an inspector might have under company law when appointed by the courts at the application of the Director of Corporate Enforcement. It brings the same degree of constitutional protection which would apply in that case, even to the point of being entitled to apply to the courts not to have the report published because it is unfair to the person in question. It has that flexibility and at the same time a degree of realism. We are not unleashing scaled down or emasculated tribunals of inquiry on people but are dealing with something else and I would like the House to bear that in mind. The emphasis in the structure of this Bill is to give a substantial degree of flexibility and a degree of efficiency and speed to inquiries which is not available if one goes through the full canonicals and rubrics of tribunals of inquiry.
One of the problems with tribunals of inquiry — anybody involved with them would admit this — is that they are fairly cumbersome brutes once established. It is difficult to haul them back once set in motion. It is difficult to say of any tribunal that the terms of reference were set a little wide and it was turning out differently from what was intended, continuing for longer than intended, or taking roads of inquiry not in mind when established. By definition and structure, tribunals once launched into the public domain are difficult to pull back, control, amend or refocus. They are also difficult to control with regard to time, expense, duration or procedure, because they are so hugely independent.
The public requires something different from tribunals of inquiry. The commissions of inquiry must not simply be different because they lack some of the downsides of tribunals of inquiry, but because a distinction must be drawn between situations where a full-blown tribunal is appropriate and ones where it is unnecessary. One only has to look at the number of current controversies which are the subject of calls for statutory inquiries — I do now wish to become involved in them now — to see that the Government is, under present law, confronted with an all duck or no dinner approach. Currently there is either a tribunal of inquiry established on the one side or there is what is portrayed to the public's imagination as being a wholly inadequate form of inquiry, with no powers of compulsion and very little powers of investigation.
It would be a huge mistake to see this legislation as simply proposing a slightly toned down tribunal of inquiry. What we have in mind is something which is designed to be significantly different while being fair to people and guaranteeing their rights. It is something which is speedier, more adaptable and flexible and less expensive, solemn and ponderous in its proceedings than a full-blown tribunal of inquiry.
Looking back over terms of reference of tribunals of inquiry since I was first elected to this House in 1987, I note that when the great decision to unleash a tribunal has been made, this House and the Seanad have erred generally on the side of liberality in setting the terms of reference, on the side of generosity in the fixing of timeframes and towards a lack of economy in putting in place mechanisms to control costs. The public requires us to establish a different species of inquiry, which is not a full-blown tribunal of inquiry, for different situations because tribunals are considered to be over-elaborate for some purposes.
The purpose of these amendments, effectively, is to put the Houses of the Oireachtas as opposed to the Executive in the driving seat. It should be recalled that a precondition for the establishment of a commission of inquiry is set out in section 3(2), namely, that an order establishing such a commission can only be made if a draft of the proposed order and a statement of the reasons for establishing the commission have been laid before the Houses of the Oireachtas and each House has separately approved the draft which has been put before it.
Neither House can amend it.
The Houses can reject it. In those circumstances, it seems that this measure is more apt for the purposes I have in mind. If in any case, be it the Kilkenny incest case or the swimming inquiry, both of which were non-statutory and both of which succeeded because of the subject matter and the circumstances in which they were established without significant statutory powers, the person conducting the inquiry finds that he or she needs the terms of reference changed, has run into unexpected obstacles or finds that the matter is becoming much more complex than he or she thought, the formula set out in the Bill allows quick and efficient changes to be made in that process. If a problem emerges in June, one would not have to wait for Members of the Houses of the Oireachtas to address their minds to it come the following October or whenever.
God forbid they would have to wait for the House of the Oireachtas to address it.
That is the reality at present. I urge the House to bear in mind that this is a different animal from a tribunal of inquiry. This is intended to be speedy, efficient, flexible and responsive. In those circumstances the best way to bring about speedy and effective outcomes of inquiries is to have Executive rather than ministerial responsibility for the subject matter of these amendments. We always have the guarantee that the reports from commissions of inquiry are not equivalent to tribunal reports. They are not reports which, in general terms, will discredit people or expose them to massive blame in circumstances where they would not have the right to go to court to seek a pre-emptive decision preventing their unfair treatment. This, therefore, is a balanced approach.
If I were proposing the amendment of tribunals of inquiry law to allow Ministers to take all powers in respect of tribunals of inquiry, which are now vested in the Houses of the Oireachtas, and leave the tribunals as powerful and their scope as far-reaching as they are, I could see grave force in Deputy O'Keeffe's amendment and the other amendments. Then I accept it might legitimately be said that the Government is trying to reduce an important and serious power of the Houses of the Oireachtas in a manner which would be open to abuse, but that is not the case in this context. I urge the House to take a view to the contrary.
What are needed are speedy and effective inquiries where those conducting them roll up their sleeves. I do not know who will be appointed to these commissions of inquiry, but they should come back with the goods rapidly because they will be given flexibility. When they run into problems they should report to the Minister and point out that they need their terms of reference altered in this or that respect. The public will expect that it will not be a matter of six months, a year, 18 months, two years or 15 years before these inquiries yield results, but merely a matter of months because they will be smart, apt and flexible inquiries which will be conducted in circumstances that do not give rise to the ponderousness of tribunals.
For these reasons I am against the gravamen of these amendments, although I understand from where they are coming. If I thought for one moment that this was a means whereby the Government could effectively disembowel the system of tribunals of inquiry and achieve exactly the same result in unfair circumstances by manipulating the equivalent of a tribunal by simply directing it through changes of its terms of reference and the like to achieve desired results, I would have some sympathy for the proposal. However, given that the reports of these commissions of inquiry will not be equivalent to the reports of tribunals of inquiry in their scale and effect, I do not believe it is necessary to have such democratic accountability in respect of each and every step taken thereafter. The Executive accountability to this House and the system of approval of the draft order is sufficient for their purpose.
I agree with 95% of what the Minister had to say. I agree we have problems with the system of tribunals. They are cumbersome and expensive. I would like to examine the existing system to ascertain if improvements could be effected thereto. However, that is a separate issue. I agree that in many instances we have unleashed animals that have continued for periods we did not anticipate. We should be cautious about doing anything similar in future, but that is not the point I want to make.
I want to deal with the question of democratic accountability, to which the Minister referred in his last remarks. I agree with the approach in the Bill and the recommendations in this regard of the Law Reform Commission. The Bill seems to be largely modelled on the approach of the Law Reform Commission which suggests a private, low key inquiry where the essence is on speed, cost and getting results. That has nothing to do with democratic accountability. The basic point is that the Oireachtas is being excluded and virtually entirely sidelined from the process. It could be that there would be issues of ministerial involvement directly or indirectly in the matter which is the subject of a commission of investigation. It could be that there would be a vested interest and conflict on the part of the Executive which could be buried by the Executive by establishing a commission and then controlling every single aspect of it. On that basis how can we expect the public to have confidence in this new system? I will think of a simple example to illustrate my point.
The Deputy must conclude. He will have the right to reply to the amendment.
What about section 9, which provides that a commission will be independent?
The point is that the Executive retaining control of a commission from beginning to end, including the report, will not result in democratic accountability. I have seen reports, including reports that might not even be of a sensitive nature, lying on Ministers' desks for many months. A case in point is the report on the implementation of the strategic management initiative in the Garda Síochána, which lay on the desk of the Minister for Justice, Equality and Law Reform since last December.
When it was published there was not much of a furore.
The point is that it lay on the Minister's desk for six months until certain information was released that caused him to rush its publication. If there were sensitive issues involved in the report of a commission of investigation, that report would lie on the Minister's desk, or possibly be locked inside a drawer, and would not be released until after the next general election, at which time the next Minister would take over.
With all due respect to the Minister, he has not addressed the point. We all agree with the new approach adopted but we want democratic accountability. Merely saying it is not apt that an order be laid before the Houses or that it might cause delay because of a summer recess is not an answer. This approach is wrong and I urge the Minister to provide, even at this late stage, at least some role for the Oireachtas in this Bill.
The Minister has referred to the very valuable function of this legislation, namely, that it will be able to deal speedily and effectively with matters of significant public concern. That is absolutely desirable but there are two serious points that must be addressed. The first point is distinct from Deputy Jim O'Keeffe's point on bona fides of Ministers and significant public concern about some people's activities and relates entirely to the procedures for dealing with matters of significant public concern that would require the establishment of a commission of investigation. It is surely important that both Houses of the Oireachtas grant theirimprimatur in a meaningful fashion with regard to a commission with the fairly extensive powers which we are providing under this Bill. These powers include powers of search and seizure.
Even if the Houses of the Oireachtas decide to accept the draft order laid before them by the Minister, it is inappropriate to exclude them from having a say in how the commission will operate. Given that the Minister, looking deeply into his heart, will decide the terms of reference and also appoint the commission, the administrative staff, etc., it is surely important that at least the terms of reference be debated. Everybody would agree on the need to appoint a commission if the reason for its establishment were of considerable public concern.
We have seen throughout the world that individual members of governments, even in democratic states, can be found compromised in certain areas. It might very well be that such individuals would be the persons whose role it would be to establish the commission of investigation. It may not be in the interests of Governments or individual members thereof to establish, in a meaningful fashion, a commission of inquiry that could do damage to them. Therefore, the Oireachtas should have some role if the matter in question is of significant public concern. It should not be left entirely to the Executive or the Minister.
The Minister may be doing a disservice by not giving any role to the Oireachtas. It has no meaningful role whatsoever in the establishment of any commission of investigation under this legislation.
The Minister has not proven his case on this issue. I have still to be persuaded that the specified Minister is a more appropriate person in regard to this issue than the Members of the Houses of the Oireachtas. Other Deputies have pointed out that there is no role for the Houses in setting up the commission and setting its terms of reference.
Sections 31 to 38 deal with the report of such a commission and there is no mention of the Members of the Houses of the Oireachtas other than the specified Minister, despite the Minister's statement that a draft of the proposed order, stating the reason for the establishment of the commission, would be laid before the Houses. We have no role thereafter.
This House needs to ensure that it retains its existing powers. Since I have become a Member we have been giving them away and ceding them to statutory bodies that are less answerable to the House than the Minister. Under this Bill the Minister has all the powers. I hope the current Minister will not be in power all his life. It would be good for him and other members of Government, if they were on this side of the House, to be able to question commissions that Deputy Costello and I will set up and also to query the remit we give thereto.
It is true that the commissions are a different species and we welcome that. Everybody on this side of the House has welcomed the need for speed in dealing with these issues. We have shown ourselves to be capable of amending orders and dealing with legislation in double-quick time if it is urgent, as it has been on some occasions. One such instance concerned a bridge in Waterford and high seas. We can return from holidays early if——
The National Monuments (Amendment) Bill.
That is another Bill that we dealt with in double-quick time. Our ability to pass legislation quickly disproves the argument that the Houses should not have a role so the necessary provisions can be made quickly. If there were a need for speed, this side of the House would not be found wanting. The Minister should accept the amendments tabled by Deputies Costello and Jim O'Keeffe.
Consider sections 5 and 6. Under section 5(1), the terms of reference are not as broad as the general powers of the Oireachtas. Section 5(2) states that a statement containing an estimate of the cost, a timeframe, etc., must be prepared. Section 6(1) states: "The power to set a commission's terms of reference includes the power to amend, at any time before the submission of the commission's final report, those terms with the consent or at the request of the commission for the purpose of clarifying, limiting or extending the scope of its investigation." Section 6(2) states: "A commission may not consent to or request an amendment of its terms of reference if satisfied that the proposed amendment would prejudice the legal rights of any person who has co-operated with or provided information to the commission in the investigation." There are huge circumscribing protections in all of this.
I am amused by Deputy Ó Snodaigh saying I may be on the other side of the House. Maybe I will and maybe I will not at some stage.
The Minister may be demoted in the autumn.
Maybe I will lose my seat and will be spared the pleasure of seeing himself and Deputy Costello establishing these commissions. However, I was attracted by the notion that Deputy Ó Snodaigh saw himself and Deputy Costello as setting these things but there was no reference to Deputy O'Keeffe. I wonder what is going on over there. Maybe this is the new alternative Government of the left coming into being.
I would have thought Deputy Ó Snodaigh would have been thinking of a direct replacement with the Minister.
Exactly. I strongly urge upon the House that I want to establish things that work very quickly and that the track record of the House in setting terms of reference has not been good.
We have never got the chance.
We have always erred on the side of vagueness and have had controversy as a consequence. Let us be focused, tight, efficient, get on with the job and produce different results in future.
We have a very short time and there is another issue I would like to discuss. I fundamentally disagree with the Minister on this issue but he is not for turning. This is an indication of an underlying tendency on the part of the Minister which has been talked about. It is not democratic to do things the way the Minister is insisting on doing it. However, he is insisting and he has the fire power to push it through the lobby. On the basis that we have only a few minutes left to discuss the Bill I will not push the issue to a vote so that we can deal with another issue which should be discussed.
I move amendment No. 4:
In page 6, lines 38 to 43, to delete all words from and including "if—" in line 38 down to and including "House" in line 43 and substitute the following:
"if a resolution approving terms of reference for the proposed commission has been passed by both Houses of the Oireachtas".
Amendments Nos. 15, 36 and 37 are related and may be discussed together.
I move amendment No. 15:
In page 9, between lines 37 and 38, to insert the following:
"(2) The specified Minister may direct that a competitive tendering process be used in selecting persons with relevant qualifications and experience (including barristers and solicitors) for appointment undersubsection (1).
(3) The specified Minister may prepare guidelines that are to be followed if a direction is given to use a competitive tendering process.
(4) Before directing that a competitive tendering process be used, the specified Minister shall consult with the chairperson of the commission concerned or, if the commission consists of only one member, with the sole member.
(5) In considering whether to direct that a competitive tendering process be used, the specified Minister may have regard to——
(a) the subject matter of investigation,
(b) the time frame for the submission of the commission’s final report to the specified Minister,
(c) the qualifications and experience required for appointment,
(d) the functions to be performed by the persons,
(e) the likely costs of the performance of those functions, and
(f) any other relevant factor.”.
This amendment arises out of a discussion on Committee Stage during which Deputy O'Keeffe raised the question of tendering when recruiting persons to provide advice and assistance. The issue of a tendering facility was debated on Committee Stage and this amendment provides the means for recruiting in this way.
Section 8 deals with the recruitment and appointment of staff, for example lawyers and other specialist staff, to advise and assist a commission. The proposed amendment provides that the specified Minister may — not shall — direct, following consultation with the commission, that a competitive tendering process should be used. Discretion is being allowed as tendering may not be appropriate in every case.
The amendment also foresees that tendering may, in certain circumstances, be availed of for the recruitment not only of lawyers but also of other specialists. The proposed amendment provides that in deciding whether or not to use a tendering process the specified Minister will have to have regard to the subject of the investigation. There may be instances where the subject matter is so specialised and specific that the pool of expertise would be so small that a tendering process would not be practicable. The Minister must also have regard to the timeframe for the submission of the final report, the qualifications and experience required for the appointment, the functions to be performed, the likely costs and any other relevant factor. The amendment deals specifically with the staff retained by a commission.
Two other areas which give rise to costs are already provided for. A separate regime is already provided in sections 23 and 24 in respect of cases where a witness seeks to have fees paid by him or her to a lawyer refunded by the commission and the Minister. Section 17 sets up a procedure whereby when someone obstructs a commission or fails to co-operate with it so that other parties or the commissioner incur additional costs, that person can be held liable for those additional costs.
I agree that the tendering process is discretionary but it would be a mistake to make it mandatory in every case. There may be cases where mandatory tendering would impede a commission and create a white elephant.
The Minister has accepted my proposal in principle. I am happy with that. I believe huge savings can be made in payments to barristers, solicitors and other experts by commissions. This precedent can be applied to other tribunals. I am glad the principle has been accepted and will be in legislation.
I was, initially, inclined to question the fact that the Minister will have discretion and will not be required to have a tendering process but this is a small point. The principle has been included in the statute and a statutory precedent has been established. I hope the precedent will be extended throughout the public service for the appointment of highly paid specialists of all kinds, not just lawyers. It is not for me to be totally against lawyers but they should be involved in a competitive process when they are dealing with the State.
On that basis, I accept the formulation now proposed by the Minister and I am prepared not to press my own amendment.
I agree with the amendment originally tabled by Deputy Jim O'Keeffe. The exorbitant fees and the length of time tribunals have been running have given the process a very bad name. Some reasonable procedure needs to be put in place to curtail that. Since we are now establishing commissions of investigation in a new format, it is appropriate that we introduce a tendering process. I would prefer to see it compulsory but we must crawl before we run. This is a most welcome proposal. I hope it has the required effect.
We must also examine the question of fees and how they are computed. The idea that anyone should get a daily fee for work that takes months or years is untenable.
I am now required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, that Fourth Stage is hereby completed and the Bill is hereby passed."