Tribunals of Inquiry Bill 2005: Second Stage (Resumed).

The following motion was moved by the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, on Tuesday, 20 November 2007:
That the Bill be now read a Second Time.
Debate resumed on amendment No. 1:
To delete all words after "That" and substitute the following:
Dáil Éireann, having regard to the fact that existing Tribunals of Inquiry established by the Oireachtas have not completed the entirety of their work, declines the second reading of the Tribunals of Inquiry Bill 2005.
—(Deputy Charles Flanagan).

As my colleague, Deputy Ó Snodaigh, indicated, Sinn Féin must oppose the Bill as currently drafted. My party is concerned that the proposed legislation could be used by Governments to prevent public inquiries delivering the truth to members of the public and the families of victims of collusion. Arguably, certain collusion findings which should be made public in the interests of truth and justice may damage the State's relationship with Britain and the European Union, of which both states are members. The Government should not have the broad discretion to suppress findings on these grounds.

Further, it is likely with regard to inquiries into collusion that the Minister for Justice, Equality and Law Reform would be the responsible Minister. Since the establishment of the Free State, some Ministers for Justice acquired a track record in misusing and abusing their powers on purported grounds of State security. This has resulted in harassment of individuals and the destruction of their characters and livelihoods, with consequences for their respective families. In a recent case, a former Minister for Justice, Equality and Law Reform leaked to the press details about a named journalist on the basis that he considered it was in the State's interest to do so. However, in so doing, he effectively destroyed the livelihood of the individual in question.

We have had cases of people being taken before special courts and sentenced to terms of imprisonment on the word of one person, despite denying the allegation being made against them. Power has also been abused, particularly by a previous Minister for Justice, Mr. Paddy Cooney, who stood over the heavy gang without any accountability. We saw the consequences of this and the then Minister's failure to uphold his obligation of office to protect civilians when innocent people were locked up in prison.

The Deputy should be careful about rewriting history, especially given the quarter from which he comes.

I am not the only person who would say this about the Minister for Justice in question.

The Deputy is saying it here.

The events of the time are well documented. The heavy gang operated under the then Minister for Justice, Mr. Paddy Cooney, and we had brutality, seven days' detention and the denial of basic human rights. These are known facts.

Part 4 includes provisions for appointments to tribunals. The absence of a requirement to secure Oireachtas approval gives the Minister too much discretion in the making of appointments. The Bill lacks and would benefit from the inclusion of explicit progressive criteria for suitable appointees and a transparent, merit-based mechanism for identifying and approving the appointment of members of a tribunal.

The Government may dissolve a tribunal with the approval of the Oireachtas. While it must state its reasons for so doing, the Bill, as drafted, does not limit what these reasons may be. The Bill should explicitly provide that a tribunal of inquiry may only be dissolved prior to the submission of its final report for extraordinary and compelling reasons which clearly outweigh the public interest in the tribunal completing its work. On the requirement to secure the approval of the Oireachtas for dissolving a tribunal, we have had many cases of Government Deputies and Ministers rowing in behind a Minister, irrespective of their personal position on an issue. Effectively, therefore, a Government can do as it wishes provided it has a majority in the House.

The Bill would also benefit greatly from the inclusion of provisions allowing for an international dimension to inquiries, in particular where there is a possibility of State collusion in serious human rights abuses.

When the Bill was first published, Deputy Ó Snodaigh wrote to the then Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, outlining Sinn Féin's concerns. The Government has discussed these matters with my party's leadership team. Despite our best efforts to have the Bill withdrawn, the Government seems determined to press ahead. It is an astonishing affront to democracy that the Fianna Fáil Party, with the support of the Green Party and remaining Independent Deputies, is pressing ahead with this legislation. It will not be lost on members of the public that a Government led by Fianna Fáil, the political party most associated with being on the wrong side of tribunal investigations, is seeking power to stifle such processes. Former Ministers who came before tribunals in the recent past were responsible for decisions which were not in the national interest. I refer specifically to the decision to give away our natural resources which should be exploited for the benefit of the people.

Many people inside and outside the House have serious concerns about this legislation. A much better mechanism could be established. Insufficient consideration has been given to the provisions of the Bill and in the interests of justice and truth, I call on the Taoiseach to withdraw it for the reasons outlined.

I thank Deputies for their contributions to the debate. This is a comprehensive reform and modernisation Bill dealing with an important issue.

I make it clear that there is no question that the Government will withdraw the Bill, as requested by Deputies Ó Snodaigh and Ferris. The Bill cannot and should not be construed in any way as compromising the position on calls by the Finucane family and others for an inquiry by the UK Government. The Government has taken a clear stance in support of such an inquiry, as expressed by the then Taoiseach on 8 March 2006. I have been present at many meetings since that date at which the former Taoiseach, Deputy Bertie Ahern, and the current Taoiseach, Deputy Brian Cowen, called on the British authorities to hold an inquiry into the Finucane case in accordance with a previous understanding on which the Governments agreed.

It is inevitable that there will be some similarity between the Bill and the United Kingdom Inquiries Act 2005. This is primarily engendered by the common roots of both the Bill and the Act in the Tribunals of Inquiry (Evidence) Act 1921, which is a UK statute. However, there are significantly different experiences in the usage of the Act in the two jurisdictions. This is especially the case when one has regard to the relevant Irish jurisprudence.

Deputy Ó Snodaigh's concerns regarding section 34 are misplaced. The section imposes a clear statutory obligation on a responsible Minister to publish the tribunal's final report except where, in the Minister's opinion, to do so would prejudice any civil or criminal proceedings that are in progress or pending or would not be in the interests of State security or in the interest of the State's relations with other states or international organisations. In the former instance, where the Minister is of such an opinion, he or she must apply to the High Court for directions concerning the publication of the report. The court may direct that the whole or a part of the report be not published for a specified period or until the court otherwise decides. This provision is in aid of parties to any such proceedings and obliging the Minister to apply to the court is considered to be a necessary and sensible safeguard. In the latter instance, the responsible Minister must give notice of his or her opinion and reasons for that opinion to the Government. Where, having considered the opinion, the Government is satisfied that publication of all or part of a report would not be in the interests of State security or the State's relations with other states or international organisations, it must determine whether the delay in publication of all or part of the report should be for a specified period or until it directs otherwise. The House will appreciate that failure on the part of the Government to take steps to protect State security or international relations would undoubtedly lead to accusations that the Government was in dereliction of its duties.

It is ridiculous to suggest that somehow section 34 is a "charter for cover-ups", as was referred to earlier. This ignores the fact that a tribunal is a public inquiry, except where the chairman determines that a particular session or module should be held in private. Therefore, most if not all sessions of an inquiry will take place in public. In practice, the Government would have to notify the Houses of the Oireachtas of any decision to withhold from publication the whole or part of a report of an inquiry.

The Bill provides for the reform and consolidation of the current legislation relating to tribunals of inquiry, dating from 1921. It will put in place a modern statutory framework governing all aspects of the operation of a tribunal, from the time of its establishment to the publication of its final report. It will, we believe, provide a more efficient and cost-effective method of investigating matters of public concern. The Government, at the time of the passage of the Tribunals of Inquiry (Evidence) (Amendment) Act 2004, committed itself to look at the legislation concerning tribunals in a comprehensive way and to develop proposals to amend and consolidate it. We indicated then that the anticipated final Report of the Law Reform Commission on Public Inquiries would likely have a major influence on our legislative intentions. We have followed through on that indication. The Law Reform Commission report was published in May 2005 and contained over 50 recommendations that would lead to more efficient and effective management of tribunals. The Bill before the House relies heavily on the commission's report.

It is disappointing that, notwithstanding the heavy reliance on the Law Reform Commission report, the Second Stage debate took place against the background of unsubstantiated Opposition claims that the bringing forward of the Bill was a political attempt on the part of the Government to somehow intimidate the Mahon tribunal in advance of the anticipated appearance of the then Taoiseach before that tribunal.

I stress a point made by my predecessor in that debate, that the Government believes it is important that future tribunals should be more efficient and cost-effective. That view is shared by the vast majority of taxpayers, including the vast majority of Members of this House, who have expressed frustration at the mounting cost of tribunals time and again. Now that the Mahon tribunal has completed its public hearings, I hope this Bill can be given the objective consideration it deserves.

I remind the House that tribunals of inquiry are the only statutory form of public inquiry available to the Oireachtas to inquire into any matter of urgent and significant public importance. The main legislative vehicle for the public investigation of such matters is the Tribunals of Inquiry (Evidence) Act 1921, as amended by a sequence of legislative measures enacted between 1979 and 2004.

It may be useful to recall the amendments to the original Act that were found necessary over that period. The need for the amendment usually became apparent in the course of the work of the relevant tribunal so the development of the law in relation to tribunals has been piecemeal to say the least. It really is time for a comprehensive overhaul of this legislation. In this regard the House should consider the following examples.

The Tribunals of Inquiry (Evidence) (Amendment) Act 1979 remedied certain defects that had emerged in the course of establishing the inquiry into the Whiddy Island disaster. That Act created a number of offences for non-co-operation with a tribunal. It provided a statutory basis for the establishment of multi-member tribunals. It also provided for the summoning of witnesses, compelling the production of documents, the issuing of a commission to examine witnesses abroad and, importantly, allowed a tribunal, where there were sufficient reasons rendering it equitable to do so, to make orders for the payment of the costs of a person represented before it.

The Tribunals of Inquiry (Evidence) (Amendment) Act 1997 was a direct response to the McCracken tribunal and included a power for the tribunal to direct that its costs could be paid by a person who had caused them to be incurred through his or her non-co-operation.

The Tribunals of Inquiry (Evidence) (Amendment) Acts, Nos. (1) and (2), 1998 allowed for the changing of a tribunal's terms of reference at the request of the tribunal or following consultation between the tribunal and the Attorney General on behalf of the Minister. The Tribunals of Inquiry (Evidence) (Amendment) Act 2002 included provision to enable additional members to be appointed to a tribunal, as was necessary in the case of the Flood tribunal.

The Tribunals of Inquiry (Evidence) (Amendment) Act 2004 was necessary to ensure that Judge Mahon, as the new chairman of the Tribunal to Inquire into Certain Planning Matters and Payments, previously chaired by Mr. Justice Flood, could make orders regarding applications for costs incurred during the tenure of the preceding chairman. One can therefore see that much of the legislation we have in this area was, as I said earlier, piecemeal. It is fitting we should bring it all together in one consolidated item of legislation, which this is.

Deputy Flanagan, in his Second Stage contribution, referred to the Commissions of Investigation Act 2004 and considered that this Act:

addresses issues that have been highlighted by those who wish to see an end to tribunals in Ireland, namely costs, duration and tight terms of reference. This legislation provides that when issues of significant public concern emerge which heretofore would have necessitated the establishment of a tribunal of inquiry, they can instead be dealt with by a commission of investigation. That more straightforward and efficient approach was deemed appropriate by Members of this House several years ago. Therefore, we are unlikely to see many, or any, new tribunals being established in the future.

A commission of investigation differs from a tribunal of inquiry in one very important respect — it is an investigation in private as opposed to the public nature of a tribunal. The Commissions of Investigation Act 2004 provides the Oireachtas with the possibility to set up a private investigation into any matter considered by the Government of the day to be of significant public concern. It was never the intention that the passing of that Act would obviate the need for any future tribunal of inquiry if the Oireachtas considered such to be merited.

Indeed, in this regard I need only refer to the establishment by the Oireachtas, subsequent to the passing of the Commissions of Investigation Act 2004, of the public inquiry into the fatal killing in 1989 of RUC Chief Superintendent Harry Breen and RUC Superintendent Robert Buchanan under the chairmanship of Judge Smithwick.

The extensive powers of tribunals set up under the tribunals of inquiry legislation have facilitated them in establishing the facts in respect of certain matters of serious public concern. A tribunal of inquiry has a wide range of powers which, as I have said, have been strengthened in successive items of legislation to secure the co-operation of persons with their inquiries and there are significant sanctions for persons who fail or refuse to comply with a direction of a tribunal.

The commitment to bring forward comprehensive legislative reform given at the time of the passage of the Tribunals of Inquiry (Evidence) (Amendment) Act in 2004 has now been fulfilled. We have built on the excellent work of the Law Reform Commission Report of May 2005 and the Bill implements, in large part, the recommendations contained in that report. The Tribunals of Inquiry Bill 2005 marks, I believe, an important milestone in the development of our legislation in relation to tribunals.

The costs regime in the new legislation will provide for greater controls and transparency in relation to costs incurred on foot of tribunals of inquiry. The House may wish to note that the cumulative cost of all tribunals of inquiry and commissions of investigations at 31 August 2008 was almost €355 million. This sum relates to completed and ongoing inquiries. Of this, €96 million related to administration costs, €134 million to tribunal legal costs and almost €125 million to third party legal costs claimed to that date. The latter figure is expected to increase substantially with the completion of almost all of the existing tribunals.

My predecessor, when introducing the Bill, indicated that a number of likely Committee Stage amendments had been agreed with the Office of the Attorney General. I look forward to the Committee Stage debate on the Bill and bringing forward these amendments.

I believe the provisions of the Bill will put in place an efficient and cost-effective inquiry mechanism in regard to public inquiries the main features of which include the process for establishment, suspension and dissolution of a tribunal as set out — a resolution of both Houses of the Oireachtas is required in each instance; the situation with regard to the granting of legal representation before a tribunal is clarified; the chairman is required to conduct the inquiry in a cost-effective and efficient manner; the situation with regard to award of costs by a tribunal is clarified — co-operation with the tribunal remains the key determinant for an award of costs; and regulations, to be made by the Minister with the consent of the Minister for Finance, will set out maximum amounts of legal costs recoverable.

This Bill will provide for a more efficient and cost-effective operation of any future public inquiries which the Oireachtas ordains to be established. I believe it will be in the best interests of justice and public accountability that we move forward with these Bills.

I wish to comment on some of the remarks made by Deputy Durkan. With regard to people criticising me for raising the issue of the Morris tribunal, the more I listen to the comments of others, the more I am reminded of a statement we hear often, that people tend to "shoot the messenger". We cannot come in here and set up a tribunal, ask it to investigate allegations of all sorts and then dump on the chairperson and his recommendations. Deputy Durkan said Mr. Justice Morris had no right to inquire into themodus operandi of Deputies. He most certainly did, as is clear under the terms of reference we gave him. Therefore, while we may not agree with all the recommendations of these tribunals, it is incumbent on us to accept them, given we set them up in the first place.

On the basis that it is some time since we had debate on this issue, I wish to explain the reason I intend to withdraw the amendment. As the Minister quite rightly pointed out, since we debated this previously, the Mahon tribunal has completed its programme of public hearings. As a result of that, I wish to withdraw the amendment as tabled. Also, the Minister mentioned the Government would bring forward Committee Stage amendments. I urge him to ensure they are circulated well in advance of Committee Stage.

Amendment, by leave, withdrawn.
Question put and agreed to.