Houses of the Oireachtas (Inquiries, Privileges and Procedures) Bill 2013: Second Stage

Minister for Public Expenditure and Reform (Deputy Brendan Howlin)

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

The Bill establishes a comprehensive statutory framework for the Houses of the Oireachtas to conduct inquiries within the current constitutional framework. It is underpinned by a detailed legal assessment of the scope for Oireachtas inquiries on the basis of the outcome of the Abbeylara case. It is very clear from the Supreme Court's judgment and the views it expressed on that case that the Oireachtas is not empowered, in general, to make findings of facts adverse to the good name of any person who is not either a Member of the Houses, or an officeholder or otherwise directly accountable to the Houses.

In line with the commitment in the programme for Government, the Government sought in 2011 to empower the Oireachtas through a change in the Constitution to carry out full inquiries. The outcome of the autumn 2011 referendum was that the electorate endorsed the status quo whereby the scope for an Oireachtas inquiry to make findings that could damage the reputation of an individual was strictly limited. The extensive analysis carried out since the referendum has confirmed that there is broad scope under the Constitution for the Oireachtas to carry out legitimate inquiries into matters of public importance, including where the Oireachtas proposes to examine an issue related to the Oireachtas's fundamental constitutional function to make law.

The main caveat to the scope for such Oireachtas inquiries is that the terms of reference of such inquiries cannot focus on the conduct of individuals, rather, they must relate, for example, to the systems, practices, procedures, policies and the implementation of policy, and the effectiveness of legislative and regulatory systems. There is no constraint on such an inquiry making significant findings on these matters and the performance of those bodies responsible for and governed by statutory frameworks laid down by the Oireachtas provided these findings are fully consistent with the evidence adduced before the inquiry committee.

Such inquiries could represent a very substantial strengthening in the effectiveness and contribution of the legislature to our democratic system by not only helping us learn vital lessons from past events but, through their recommendations, identifying the legislative reforms and policy changes essential to making sure that egregious policy errors are not repeated.

The Bill before us, therefore, represents a very important step in the process of clarifying the role of the Houses of the Oireachtas in securing accountability through investigations into matters of significant public importance. The Bill will enhance the effective functioning of our modern parliamentary democracy by facilitating such inquiries. It is our duty as public representatives to use our constitutional powers appropriately and responsibly, and for the benefit of the wider society and the economy. Used effectively, I anticipate that the framework to be established by this Bill will facilitate focused, constructive political discourse that will enhance our parliamentary system.

I have long advocated the need for an effective and legally robust parliamentary banking inquiry into the events that occurred on the night of the bank guarantee and the systems failures that led to our current fiscal crisis. This Bill will facilitate such an inquiry provided the terms of reference of the inquiry are correctly framed. However, the proposed legislation does substantially more than facilitate a banking inquiry; the primary purpose of this legislation is to create a comprehensive legal framework which is of general application.

A critical consideration guiding the development of the detailed provisions of the Bill is that the Houses themselves, pursuant to Article 15.10 of the Constitution, are afforded significant autonomy to regulate their own affairs. This principle has been respected throughout the Bill, with provisions allowing internal matters pertaining to the Houses to be regulated by rules and Standing Orders, where possible. The Bill envisages a central role for the Houses of the Oireachtas in both initiating and conducting a parliamentary inquiry. Under the Bill, responsibility is assigned exclusively to the Houses of the Oireachtas to determine the requirement for a formal inquiry, the terms of reference of that inquiry, the appropriate committee to conduct the inquiry and the procedural and organisational aspects of the inquiry.

It was firmly established by the Supreme Court in the Abbeylara case that an inquiry carried out by the Houses of the Oireachtas must strictly conform with fair procedures consistent with the principles of natural justice. The outcome of the autumn 2011 referendum confirmed that fair procedures in respect of the interaction between the Oireachtas and the ordinary citizen were of paramount concern to the people of Ireland. Respect for the rights of the individual is enshrined in this Bill, and there are extensive provisions in regard to fair procedures for all types of inquiries carried out. The Bill will not impede the important and valuable work that is currently being conducted by Oireachtas committees. The Bill fully replicates and restates the powers available to committees under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities) Act 1997, as well as providing for a simplification of the current process of invoking compellability powers. The 1997 Act will be repealed by this Bill.

Furthermore, in line with the commitment in the programme for Government relating to civil servants giving evidence to Dáil committees, the Bill makes provisions to expand the scope of evidence that civil servants may give. Civil servants will not be restricted from giving evidence for the purpose of establishing facts and giving the committee the full narrative of some series of events. The current prohibition on the Oireachtas committees from asking a public servant to otherwise express an opinion on the merits of policy will be maintained. It is not expected that disclosing policy-specific policy advice should occur other than in exceptional circumstances where it is central to terms of reference of an inquiry. This will be set out in revised guidance to all civil servants once this legislation is enacted.

The programme for Government contained a commitment to address the issue of confidential communications with Members through constitutional change. Following a detailed policy assessment and on the basis of legal analysis, it has now been decided to legislate in regard to this issue. The Bill provides for qualified privilege for confidential communication from members of the public to Members of either House. This will facilitate those who wish to draw wrongdoing to the attention of Members of the Oireachtas without having their identities disclosed. The Bill provides for qualified statutory privilege for private papers of Members and official documents of the Houses. These provisions are intended to apply in all circumstances and are not restricted to inquiries carried out under the Bill.

I would now like to turn to the Bill before the House. This Bill, as I have already indicated, establishes a comprehensive statutory framework for the Houses of the Oireachtas to conduct inquiries, as was recommended in the Abbeylara judgment. I will now go through the Parts of the Bill and give a brief outline of its content.

Part 1 of the Bill contains sections 1 to 5, inclusive, and deals with standard preliminary and general matters, including the Title of the Bill and provisions for its commencement.

Part 2 contains sections 6 to 13, inclusive, and details the types of inquiry that may be conducted in accordance with the Bill. Section 6 provides for an inquire, record and report inquiry. This is a power to undertake inquiries by way of recording and reporting evidence and make findings of uncontested facts. Section 7 provides for a power to undertake inquiries and make findings of fact relating to the legislative functions of the Houses. Section 8 provides for a power to undertake inquiries relating to the removal of certain officeholders as provided for in Articles 12.10, 33.4 or 35 of the Constitution or arising from legislation relating to the removal of other judges or officeholders where a resolution of both Houses is required. Section 9 provides for a power to undertake inquiries in respect of the conduct of a Member of either House in his or her capacity as a Member. Section 10 provides for a power to undertake inquiries to hold the current Government to account pursuant to Article 28.4 of the Constitution and also to hold to account any person who is liable to Dáil scrutiny by virtue of the terms of his or her contract or statutory appointment. Section 11 provides for a parliamentary mechanism whereby a proposal by a committee to conduct an inquiry is assessed by the individual or committee designated by the rules and Standing Orders of the House or Houses concerned. Section 12 makes provision for the passing of a resolution by the House or Houses to establish an inquiry and the setting of terms of reference for a Part 2 inquiry. Section 13 outlines the finding of failure to co-operate with a Part 2 inquiry that a committee is entitled to make.

Part 3 contains sections 14 to 29, inclusive, and provides for a range of fair procedures to be followed by an Oireachtas committee conducting an inquiry pursuant to the Bill. As outlined, the requirement to observe fair procedures applies to all Part 2 inquiries conducted under the Bill. I draw Members' attention to the following sections in this part. Section 15 makes it clear that a witness to an inquiry has the same privileges and immunities as a witness giving evidence to the High Court. Section 16 permits the committee designated by the rules and Standing Orders of the House or Houses to issue a wide range of guidelines, consistent with the Bill, relating to the procedures of Part 2 inquiries. Section 18 prohibits a Member of the Houses from sitting on a committee where a perception of bias might arise in a reasonable person.

Section 19 provides that a witness to an inquiry has the right to be accompanied by his or her legal practitioner while giving evidence if he or she so desires and attend any public session of the inquiry or the giving of evidence by any witness relevant to him or her. Section 21 outlines the rights of a person whose good name is or may be in issue. These rights include the right to be given advance notice of evidence proposed to be given against him or her in so far as that is possible, the right to cross-examine witnesses, the right to give evidence to the inquiry, the right to call witnesses and the right to make a submission at the close of evidence. Sections 23 to 25, inclusive, provide for a notice to issue of a committee's intention to exercise its compellability powers, set out the standard of proof and its duty to inform witnesses of its powers. Section 26 makes it clear that evidence compiled for the purposes of an inquiry will not be admissible in any other proceedings such as criminal and disciplinary proceedings. Section 28 makes provision for the taking of evidence to be conducted in public and states this evidence may be broadcast to the public, unless the Chairman of the committee is satisfied that it would not be in the interests of the inquiry or fair procedures to do so.

Part 4 contains sections 30 to 38, inclusive, and makes provision for interim and final reports of a committee conducting an inquiry. These sections make provision for the form and content of such reports, matters relating to the amendment and publication of reports and the confidentiality of such documents.

Part 5 is divided into five chapters and concerns costs. Again, I will highlight the most significant sections in this part. Chapter 1 contains sections 39 to 42, inclusive. Section 40 requires a committee, prior to commencing an inquiry, to prepare a report containing an estimate of the legal costs and expenses expected to be incurred. Section 41 provides for the appointment of a panel of legal costs accountants willing and able to act as a parliamentary legal costs adjudicator in certain circumstances, while section 42 sets out the powers of the adjudicator.

Chapter 2 contains sections 43 to 49, inclusive, and contains provisions relating to Oireachtas inquiry legal costs. The focus in the Bill is on providing for recoupment of legal costs only in the limited cases where the good name of a person is at issue. Section 43 empowers the Houses of the Oireachtas Commission to issue guidelines in respect of inquiry legal costs. Section 44 provides for the recoupment of third party costs in specified circumstances. Section 45 provides that where a committee conducting an inquiry, or another person, has incurred additional legal costs as a result of the behaviour of a third party, the Houses of the Oireachtas Commission may direct the third party to pay such costs, provided that the grounds for the belief have been confirmed by the High Court.

Chapter 3 contains sections 50 to 52, inclusive, and concerns the payment by the Houses of the Oireachtas Commission of inquiry expenses and the power of the commission to issue guidelines and direct third parties to pay expenses in certain circumstances.

Chapter 4 contains sections 54 to 58, inclusive, and makes provision for legal costs in respect of private bills. These provisions allow for the updating of 19th century and early 20th century legislation in respect of private bill costs to bring it into line with the other costs provisions included in the Bill.

Chapter 5 contains sections 59 to 61, inclusive, and contains miscellaneous provisions in respect of costs.

Parts 6 and 7 largely mirror and update the provisions of the Committee of the Houses of the Oireachtas (Compellability, Privileges and Immunities) Act 1997. Part 6 contains sections 62 to 72, inclusive, and concerns compellability, privileges and immunities and applies only to an Oireachtas committee while it is conducting an inquiry pursuant to the Bill and on which a power to send for persons, papers and records has been conferred by the House. This part outlines the powers of such a committee in obtaining evidence and makes provisions relating to irrelevant and exempt evidence.

Part 7 contains five chapters and concerns compellability, privileges and immunities. This part applies to an Oireachtas committee while it is conducting non-inquiry committee business and on which the power to send for persons, papers and records has been conferred. Chapter 1 contains sections 73 and 74 and relevant definitions in respect of the part. Chapter 2 contains sections 75 to 79, inclusive, and concerns privileges and immunities of witnesses in circumstances where a committee is conducting its ordinary business outside of formal inquiry mode. Chapter 3 contains sections 80 to 87, inclusive, and makes provision for directions that may be given by a committee while it is exercising its compellability powers. Chapter 4 contains section 88 and provides for the payment by the Houses of the Oireachtas Commission of the reasonable expenses of a witness in proceedings before a committee.

Part 8 contains sections 89 and 90. Section 89 provides that a Member of either House shall not be amenable to any court and authority other than the House by which the relevant committee was appointed in respect of any utterance in or before a committee. It also provides that certain documents may be privileged. Section 90 places restrictions on the evidence of certain persons and contains the reformed procedure in respect of the evidence of civil servants which I outlined.

Part 9 contains sections 91 to 100, inclusive, and provides for applications to the High Court in respect of the conduct of an inquiry. Section 91 clearly provides for an application to the High Court for directions in respect of the proceedings of an inquiry where a person is of the opinion that any matter relating to the proceedings is not being inquired into or otherwise dealt with in accordance with the Bill. A committee may apply to the High Court for directions. Section 92 makes provision for such an application when a committee is of the opinion that a report could prejudice criminal proceedings. Section 95 permits a parliamentary legal costs adjudicator to refer a question of law arising in the context of an application for an adjudication of costs for the opinion of the court. Section 96 permits a committee to apply to court where a person fails to comply with a direction of the inquiry.

Section 97 allows for appeal to the court where a direction from a committee could prejudice criminal proceedings which are pending or in progress. Part 10 contains sections 101 to 108 of the Bill. As outlined earlier, this Part provides for a statutory qualified privilege for the private papers of Members and confidential communications from members of the public to Members of the Houses. I will highlight the main provisions of this Part. It is an area with which I am familiar since it affected me directly as a Member of the House. It is important that Members should be able to receive evidence without putting themselves or their informant on a hazard.

Section 101 sets out definitions and also makes clear that the operation of the privilege does not prejudice the power of each House to make rules and standing orders pursuant to Article 15.10 of the Constitution to create a protection for the private papers of Members. Section 102 provides for qualified privilege for the private papers of a Member and confidential communications from members of the public to Members of the Houses and sets out the circumstances in which such papers of confidential communications may be accessed or disclosed. Section 103 permits a person who has communicated with a Member and who is otherwise entitled by law to disclose the fact or content of the communication to make such a disclosure. Section 104 provides for the determination of what constitutes a private paper or confidential communication. Section 105 provides for guidelines to be developed by the Houses of the Oireachtas. Section 106 sets out the arrangements which will apply to the private papers or confidential communications of former or deceased Members of the Houses.

Part 11 contains sections 109 to 113 of the Bill. As I mentioned earlier, it provides for a statutory qualified privilege for the official documents of the Houses of the Oireachtas. Section 109 sets out definitions and also makes clear that the operation of the privilege does not prejudice the power of either House to make rules and standing orders pursuant to Article 15.10 of the Constitution. Section 110 provides for a power for an Oireachtas committee designated for that purpose to make rules designating categories of official documents. Section 111 provides for qualified privilege for official documents of the Houses and sets out the circumstances in which an official document may be accessed or disclosed.

Part 12 contains sections 114 to 116 of the Bill. It governs the power of the Houses of the Oireachtas and any Oireachtas committee to examine witnesses under oath.

Part 13 contains sections 117 to 119 of the Bill. It contains provisions in relation to the laying of documents and allows for the repeal of the Houses of the Oireachtas (Laying of Documents) Act 1966.

Part 14 contains sections 120 to 130 of the Bill. It provides for miscellaneous matters including provision for offences by bodies corporate in section 120, provision for proceedings in court in section 121, matters relating to the prosecution of an offence under the Bill in section 122 and clarification on the status of court proceedings in the event of a discontinuation of an inquiry or the dissolution of either House in section 123. Section 124 contains restrictions on the Freedom of Information Acts 1997 and 2003. Sections 125 to 129 provide for the consequential amendments of other legislation.

The Schedule provides for a repeal of previous Acts relating to the Oireachtas that are either obsolete or are replaced by this Bill. It also provides for part amendment of a small number of Acts.

I am conscious that this is a large and complex Bill and I have dealt with its provisions in summary form. I am happy to expand on any of its provisions during the course of this debate. There will be an opportunity on Committee Stage to examine the Bill in detail. I thank Deputies for their co-operation. This Bill is a long time coming. The heads of the Bill were referred to the Select Sub-Committee on Public Expenditure and Reform which provided advice and did very good work last year and this year. I hope those good advices have been incorporated into the version of the Bill before the House. I look forward to listening to the contributions of Deputies. I hope the House will support the passage of the Bill and assist in securing its early enactment. I commend the Bill to the House.

Deputy Sean Fleming

Fianna Fáil welcomes parliamentary inquiries. The public recognises the value of these inquiries which bring to light important information that otherwise may not be made public. I refer to the recent hearings of the Joint Committee on Health and Children to consider the protection of life during pregnancy Bill. The hearings were very well conducted and have been very informative. They are an example of the good work of committees under the existing regime. Across the water, a House of Commons committee held public hearings last week on various matters while the following day the US congressional hearings were being conducted. Both hearings dealt with the corporation tax rate paid by multinational companies in Ireland. These matters are very relevant to Ireland and were being discussed in other parliaments in other jurisdictions. The public expect that Members of this House should be able to obtain similar information by means of hearing and inquiries. While this is an island we are not isolated and people see these things on television. Many Oireachtas committees, including the Committee of Public Accounts, hold public hearings every week. Important information is made public and the good work of the committees is recognised.

The Bill was published last Friday. It has a great Title but there is very little that is new or of much substance in this legislation. It is an attempt to give a good impression that much is being done but this is not evident when one delves further. The parliamentary inquiries system in Ireland cannot be a vehicle for attributing individual responsibility. Any attempt to do so would cause the inquiry to collapse and would conflict with the decision of the people in October 2011 by way of referendum. The Government put forward the referendum on a proposed change in the existing constitutional provision. Unfortunately, due to the arrogance of certain Ministers - I do not include Deputy Howlin - the proposal was rejected by the people. I refer to the Minister's opening contribution in which he stated, "The outcome of the autumn 2011 referendum was that the electorate endorsed the status quo." This is a very euphemistic way of saying the electorate rejected the Government's proposals. The electorate was not asked to vote on the status quo but on a new proposal which was roundly rejected. I note the good gloss and spin put on events.

I concur with the Minister that the public need to understand what the legislation proposes. I refer to the explanatory memorandum which states:

The purpose of this Bill is to establish a comprehensive statutory framework for the Oireachtas to conduct inquiries within the current constitutional framework as set down by the Supreme Court in Maguire v. Ardagh [2002] 1 IR 385, (the Abbeylara judgment). The Abbeylara case decided that Oireachtas inquiries do not have the power, in general, to make findings of fact adverse to the good name of any person who is not either a Member of the Houses or directly accountable to the Houses. Additionally, there are many legitimate inquiries that the Houses can undertake which would not infringe on the good name of private citizens.

The Bill will establish the legal framework for the House to set up inquiries that do not impact or infringe the good name of people. This is already provided for in the Constitution. The Joint Committee on Health and Children held hearings last January and this week.

In essence, that is the Oireachtas inquiring, recording and reporting. That is what the Joint Committee on Health and Children is doing without this legislation being in effect. The Joint Committee on Finance, Public Expenditure and Reform had public hearings on freedom of information and reported on them to advise on future legislation. That is provided for in the legislation but it is already happening. The Committee of Public Accounts has the power to summon witnesses and report on people who are accountable to it, whether they are Accounting Officers or accountable officers, as some call them, such as chief executive officers of semi-state companies. That has already happened through the PAC. The House conducted an inquiry and moved to remove former Judge Brian Curtin from his office and procedures were in place to facilitate that. The process came to a speedy end at the end of the day but the power to remove an officeholder is enshrined in the Constitution and the House can do it. The Oireachtas has current powers to conduct inquiries into the conduct of its own Members.

The essence of the national Parliament is its function of holding the Government to account. This is the current legal position. I ask, therefore, what is new in the legislation. I look at the short version in the explanatory memorandum, which indicates that the Bill provides specific statutory underpinning for five general types of Oireachtas inquiry ranging from inquiries limited to recording and reporting evidence to inquiries of an adjudicative nature where this flows from the existing constitutional powers of the Oireachtas. The Bill provides for a section 6 inquiry which is an inquiry to record and report, which is what the health committee is doing as we speak. Section 7 provides for inquiries relating to the exercise of a legislative function, including where there is a need for new legislation, which is what the Joint Committee on Finance, Public Expenditure and Reform did recently on freedom of information. Committees regularly hold hearings and make recommendations on future legislation.

We already have a section 7 inquiry in practice, if not by name. Section 8 provides for an inquiry in relation to the removal of certain officeholders. We have already mentioned that in relation to Judge Brian Curtin. The Minister is putting a new title on an existing procedure. Section 9 provides for an inquiry into the conduct of a Member of the Houses of the Oireachtas and it goes without saying that such a power is there already. The only issue is to ensure that Members exercise their powers properly, which they have not always done. It is an issue to be arranged pursuant to the Standing Orders of the House, not legislation.

Section 10 is the big one and gives the Dáil the power to undertake an inquiry into the conduct of a current officeholder, senior civil servant or chief executive officer of a public body who is liable to account to the Dáil by virtue of his or her terms of office. Section 10 has given the Dáil the power to conduct an inquiry into certain officeholders - Ministers. That is what the Dáil is here for; that is what we were set up for when we got our independence. The Dáil is here to hold the Government to account but the Government is now providing to call an inquiry that makes the Dáil hold the Government to account a "section 10 inquiry". Every one of the inquiries provided for already exists and already happens. I accept that they might function better with an improvement to Standing Orders, but they are there already.

The question is what is the purpose of the legislation. The Minister has drafted the legislation to provide for five new types of inquiries but is already unhappy with his own definitions of them. There is already a suggestion that the banking inquiry may be a hybrid section 6 and section 7 inquiry. He is introducing a new form of inquiry as he is not happy with the legislation he has drafted himself.

Looking at the legislation in detail, I find it extraordinary that there are several references to the Houses of the Oireachtas Commission and the new Standing Orders it will be required to implement. The Minister says the legislation does not want to encroach on the Houses of the Oireachtas, but practically everything provided for in the Bill could be done by the Oireachtas improving its own Standing Orders. I have already made it clear that the Oireachtas is not permitted to have new powers because the Abbeylara judgment continues to hold and the referendum was defeated. We are as we were and all we are doing here is asking the Oireachtas to improve its terms of reference on the conduct of inquiries to make them more transparent. What we are doing, I accept, is putting a legal framework on current practice. It is a tidying up exercise but we are not introducing any new powers.

The legislation runs to 130 sections and 96 pages. What is interesting is that no funding is provided for anywhere in the Bill for any of the inquiries set out. No resources or budget is provided for and there is no mechanism to provide for funds or resources to be obtained. There is no mention of where the funding is to come from to pay for all of this. It sends a clear signal about the detail of the legislation.

Perhaps the legislation does some good, but we must ensure it does no harm. On closer examination, it appears that it could do harm. A specific issue to which I want to refer is bias. It is an issue which was raised during the referendum campaign last year and during the public hearings recently. It is dealt with extensively in section 18, which refers to the "reasonable man" standard, which we all accept. I accept also that the bias issue is not as significant now that we will not be making findings in relation to a person's good name. Had the referendum been passed and we were making findings on character and conduct, the issue of bias would be much more important. While we are not allowed to make those findings, the issue of bias is still an important one.

We should be clear that the Oireachtas is full of bias. We would not be here if we did not have a point of view. We should, therefore, get real on the bias issue. People in Fine Gael or the parties whose members sit behind me have diametrically opposed views on many issues and will come to any committee with their particular perspectives. They are elected by the people who vote for them because they have the particular views and biases. In fact, the Oireachtas should be representative of the collective opinions of the public on these matters. I do not have any problem with that. Where there is a problem is with the make up of a committee in terms of bias. The Government has a majority of two to one. That applies in the select committees that deal with the Estimates of the Minister's own Department and right across the Houses. There are nine members on select committees; six from the Government side and three from the Opposition. Before we even start, an overwhelming majority is biased in favour of the Government's point of view. It is an issue which we will not be able to get around no matter how hard we try unless the Government agrees in the interests of fair play to provide for equal representation by Government and Opposition members.

Another significant difficulty with the legislation is that it is aimed to provide for inquiries into Members of the Oireachtas and Ministers or chief executives or other officers who are accountable to it. The tragedy, which there is no getting around, is that if the Dáil dissolves, all work in progress by a committee is lost and gone forever. It cannot be reused because it pertains to a particular Dáil. Some sections of the Bill refer to the "Oireachtas" and "the Houses" and some to "the Dáil". If a committee established on foot of terms of reference has published an interim report, there is provision to protect such a report for the benefit of a future Oireachtas. Any work done before an interim report can be published and any work carried out after such a report has been published will be lost and the subsequent Oireachtas will have to start again. There could be a tremendous waste of time, energy and resources. I ask the Minister to try to square the circle, although I do not know how he can. Obviously, we will table amendments to require committees to present three or six-months interim reports. While they might have to be short, they will protect the work that has been done up to that point. I would hate to see a year's work go down the drain should the Labour Party fall out with its partners in government and a sudden election be called. These things can happen on the night of a budget. It would be a dreadful shame and suggests we need a mechanism to protect the work that has been done. The Bill will require amendment on Committee Stage and provisions in this regard to be included in the terms of reference.

I was confused looking at the Bill and do not like the way it is drafted. It is not tidy, but we are stuck with it now. All good legislation has the definitions at the beginning, but that is not the case here. We have definitions cropping up throughout its pages and new definitions for new provisions.

Some will say legislation covering all parts is included at the beginning but in the case of a reference in Part 10 that is not in any other part, it is impossible to go to page 93 to find a definition of something referred to on page 107. I do not agree with it.

The Minister referred to drafting documents in electronic form and the use of computers. Perhaps the Minister can confirm, on Committee Stage, that information held through cloud computing will be captured within this. I ask for that to be clarified.

A major issue concerns section 10. There is misunderstanding among the public with regard to section 10. The explanatory memorandum states that Dáil Éireann, and interestingly not the Seanad, will have the power to undertake an inquiry into the conduct of a current officeholder. That is fine because the Committee of Public Accounts comprises Deputies only, not Senators, and it is not a joint committee. The Government is answerable to the Dáil and, technically, the Government is not answerable to the Seanad. The explanatory memorandum refers to current officeholders but the legislation on page 21, section 10(2)(c)(I)(i), refers to "an officeholder (or former officeholder)". That gives the impression to the public that findings can be made against former officeholders but that is not the intention of the Minister. I ask him to clarify that by way of amendment on Committee Stage. This concerns an inquiry in respect of officeholders who report to this Dáil and it is intended to capture a Minister who is no longer in government but was in government during the term of the Dáil. Any reasonable person would think the reference to former officeholder refers to former Ministers. It does not and it needs to be clarified. It is confusing and most people are entitled to take the view that it captures former Ministers. There can be no historic inquiries. The Minister says the electorate voted for the status quo but I say they rejected the amendment proposed by the Minister. That must be clarified.

The purpose of the Bill is to provide for inquiries by the Oireachtas into the current Government and key people in key positions at the moment, the accountable people. Any finding cannot deal with former Members. If a member of the Government, or a Member of the House, is subject to inquiry and he sees an unfavourable or adverse finding coming down the tracks, the Member can resign from the House and no adverse findings can be made. This is interesting and we must deal with it on Committee Stage. If there is the possibility of an adverse finding, resigning a Dáil seat means the person is not a Member of the House and, according to the legislation, an adverse finding cannot be made against the person. This is the case even if the person is a Member of the House up until the day before the finding is due to be published. At that point, the finding cannot be made. Many people will think there is an escape hatch for a politician who would like to escape an unfavourable adjudication by a committee. Nothing can be said once the person is not a Member and is in the same position as the former officeholders to whom I referred. I do not know the legal mechanism but it should capture all Members of the Oireachtas, regardless of when they resign. Once they are elected to this Oireachtas, Members should be subject to inquiry by the Oireachtas. The Minister must also deal with the issue of work not being carried forward.

The explanatory memorandum refers to section 11 providing for a parliamentary mechanism whereby a proposal to conduct an inquiry is assessed by the individual or committee. Standing Orders must be drawn up to facilitate that. Practically everything required to be done requires new Standing Orders of the Houses of the Oireachtas. Section 12 provides that, within the commencement of the section of the Act, the Oireachtas must pass the new Standing Orders to deal with an inquiry mechanism by a committee. We return to the Standing Orders of the House. Why does the House not get on with drafting Standing Orders now? In that case, we would not need some of the legislation. Nothing prevents the House doing what will be forced on it by the legislation. Perhaps the House has not been operating as effectively as it might and has not been using the powers it has. We must pass legislation telling the House that, within 50 days after the commencement notice, the House shall make rules and Standing Orders referred to in subsection (1)(a). The House should get on with that and do it now. It does not need to be told by the Minister for Public Expenditure and Reform.

People ask what is going on in the Dáil. Examining the legislation and considering everything that must be done under Standing Orders, the question must be raised why it is not being done through Standing Orders at this stage. The legislation does not make the Oireachtas do it because the Minister is clear he does not want to interfere in Oireachtas proceedings. The Minister is hinting and suggesting and saying that he will give the Oireachtas 50 days.

No one has analysed the following problem in detail. The Minister is setting up a raft of new Oireachtas committees. I am dumbfounded. Section 104 sets up a Part 10 committee. Section 104 deals with a committee deciding on the adjudication on private papers, a topic close to the heart of the Minister. In section 109, it provides for a Part 11 committee being established and people will be interested to know why we need such a committee. Under section 116 we set up a section 16 committee and section 76, on page 64, sets up a section 76 committee. Sections 11 and 12 deal with the Part 11 committee. I count half a dozen committees provided for in the legislation. They may only be set up for a short period but I question why we must set these committees in legislation. There is nothing preventing the Oireachtas doing so through Standing Orders and I query why we include it in legislation.

Section 20, on page 29, deals with witnesses having absolute privilege under the Defamation Act. The Minister is changing how this is dealt with. I was at a committee meeting this afternoon. It was made clear by the Chairman that a person must cease giving evidence on a particular topic when directed to do so by the committee. However, this legislation refers to direction by the Chairman. The current Defamation Act, which is read out at every Oireachtas committee meeting where witnesses give evidence, refers to ceasing to provide evidence on the particular topic if directed by the committee. This legislation refers to the direction of the Chairman and I wonder whether the Chairman has such a right. There is a reason the committee must make the decision for someone to desist rather than a unilateral decision of the Chairman. It is not that there is anything wrong with it but it is unclear and seems slightly different.

Committees can go to the High Court and the Director of Public Prosecutions can take a case to the High Court. Fines of €500,000 and sentences of up to five years in prison can be made if people are in breach of these measures or not co-operating. It must go by way of the Director of Public Prosecutions, to the High Court.

Section 60 is a reference to the Houses of the Oireachtas Commission making Standing Orders. This is a ticking off for the Oireachtas from the Minister. He is saying that the Oireachtas has powers and asks it to pass Standing Orders under these sections to conduct a robust inquiry. The Minister is saying the Oireachtas has the authority to do so but needs a legal statutory framework and that nothing is preventing the Oireachtas doing so.

Section 68 is one of the more serious sections in the legislation. It exempts certain evidence from being heard. Where are we going with this? The Minister said the purpose of this is to set up a banking inquiry.

However, section 68 provides that the committee shall not direct a person to give evidence if it relates to discussions of a meeting of a Government or a committee appointed by the Government. They cannot give evidence to the committee-----

Deputy Brendan Howlin

It is unconstitutional.

Deputy Sean Fleming

Yes. I am just letting the people know. The Minister is setting up an inquiry into what Government Ministers did on a particular night, or that appears to be what he said. However, the legislation provides that no papers relating to discussions in a meeting of the Government or a committee of the Government can be disclosed.

Deputy Brendan Howlin

They cannot.

Deputy Sean Fleming

I am aware of the difficulties, but the impression among the public is that it will be possible to inquire into that night. In addition, the legislation provides that the committee will not even be entitled to ask for papers relating to discussions of a meeting of the Government or of a committee appointed by the Government or relating to discussions at a meeting of a committee appointed by the Government whose membership consists of more than one member of the Government. The committee cannot seek information if the evidence or document could, if given, be expected to prejudice criminal proceedings. People can understand that.

The committee cannot seek evidence if the evidence or document could, and this is very important regarding that night, "reasonably be expected to adversely affect the security of the State or to be prejudicial to the State in its relations with other states". We are in the eurozone. Everything that was done that night affected our relations with other EU or eurozone countries. The Germans had an interest in it. The English Prime Minister and Chancellor of the Exchequer were on the telephone at nine o'clock the following morning. Everything that happened that night had an impact on our relations with member states of the eurozone. However, the Bill provides that the committee cannot ask for information if that information could be "prejudicial to the State in its relations with other states". What happened that night was prejudicial. People talked about how Ulster Bank, banks in the State, banks in Northern Ireland and banks in the UK did not have the guarantee which the covered institutions here had. Everything that was done that night was prejudicial to some countries in the EU, but the Bill provides that the committee cannot even seek that information to discuss it.

I agree with the need for the inquiry but the committee will be unrealistically constrained in terms of what is permitted to be given to it. I am aware that Cabinet confidentiality is an issue. Also, the committee cannot seek information if it would interfere with the prevention, detection or investigation of an offence, nor can it seek information relating to information being kept for the purpose of assessing the liability of a person in respect of tax, duty or other payment payable to the State, local authority or HSE. In respect of the general scheme of taxation, it cannot seek papers if they relate to the collection of taxes. There are many exemptions in the section that are fundamental to many issues people wish to discuss.

Section 69 puts the tin hat on this. It states that if a person is asked to give information or evidence and they are of the opinion they should not do so because it is in breach of some of the matters referred to in the earlier section, they can provide a letter to that effect and "the committee shall, if necessary, adjourn the proceedings concerned in relation to the particular matter for such period as it considers appropriate in the circumstances". We have encountered that in the Committee of Public Accounts. It can be supported with a letter from a Minister and the committee of inquiry will be stopped in its tracks. We have seen that happen in the House previously. The Minister thinks there is good reason for that provision, but the public right to know should supersede it on those issues. That must be dealt with.

That relates to the Part 2 inquiries under sections 6 to 10, inclusive. The Minister has provided for similar powers in sections 83 and 84 with regard to ordinary committees of the House. There is the same exclusion regarding the right of access to information. The Minister has spancelled the committee before it starts. Under section 96, the committee can go to the High Court if somebody is not co-operating.

Finally, adverse findings can only be made against a current Member. Somebody who resigns can get out the door and the committee cannot say anything about him or her. It also cannot say anything about somebody who was a member of a previous Administration. The difficulty is that some of these inquiries could extend beyond the term of a Dáil, so all the work will be lost. If a Member is facing a problem, he or she can hightail it out the door and get off scot free. There is also the issue that was raised in respect of all tribunals of inquiry in the past. Evidence adjudicated in any of these inquiries cannot be used in any further proceedings, even disciplinary proceedings. If somebody is shown to have misbehaved at an inquiry, it cannot be used in disciplinary proceedings thereafter, let alone court proceedings.

I understand the complications, and perhaps the Minister cannot get around them. However, people should be aware that this new legislation that the Minister has trumpeted has plenty of bells and whistles, but no substance.

Deputy Aengus Ó Snodaigh

Ba mhaith liom leithscéal a ghabháil ar son Deputy McDonald, nach bhfuil anseo inniu chun é seo a thógáil. Bhí sí in ainm a bheith ár gcéad chainteoir.

I have an interest in this legislation due to my role as the party Whip and as a member of the Committee on Procedure and Privileges. There are provisions in the Bill, which I will discuss later, that I hope will address an issue that has bedevilled us for many years, the question of privilege in this House. It has never been fully explained. Hopefully, the Bill will address the issue in respect of the private papers of Members which are held by Members in pursuing their work in this House. It was always presumed to exist but in the last number of years we have discovered that the privilege had never been defined as intended through legislation. The issue is being addressed in this Bill and that is welcome.

The other reason I had an interest in speaking on the Bill is that I am a member of a committee that was established when the Government took office and which was originally intended to be an investigations, petitions and oversight committee. The investigation part disappeared when the referendum result slapped Members of the House on the wrist and told us to back off. The reason I mention that committee is that I believe it could play an important role when the Bill is passed, the role originally intended for it.

It is disappointing that we are discussing a Bill that was produced last Friday. We knew it was due to be published because, in fairness to the Minister, he published the heads of the Bill previously and there was a discussion about it. However, the convention or rule is that there should be two weeks between the publication of a Bill and the discussion on Second Stage. There is also supposed to be a two week gap between each Stage, so the Committee Stage debate should take place two weeks after the conclusion of Second Stage and the Report Stage should take place two weeks after that. That has not happened in many cases. A document was produced in 2004 entitled "Regulating Better" and all parties agreed with the principles in it. There was supposed to be a regulatory impact assessment of all legislation but, to my knowledge, only one has been produced in recent years.

I urge Ministers to go back to the usual practice, so Deputies will have sufficient time to peruse legislation and investigate it properly, especially when one is presented with a Bill that has 95 pages. As I said, I had seen the heads and discussed it with my party members and with other parties, so it did not take us by surprise. However, legislation is due to be published today which will be discussed on Tuesday and Wednesday next week. A social welfare Bill was published yesterday and it is intended to discuss it next Thursday. It appears to be a habit of the Government to rush legislation. The reason I raise this, particularly given what we are dealing with in this Bill, is that rushed legislation can be bad legislation. There should have been time to pause on this. It is bad practice. The programme for Government gave a commitment to publish the general scheme of this Bill, after which the committee could discuss it. That did not fully happen.

When the Joint Committee on Finance, Public Expenditure and Reform was dealing with the heads of the Bill, it was given only 13 days in which to do so. The heads are quite extensive, as reflected in the Bill itself. The timeframe meant the committee did not have time to seek the observations of interested groups and individuals. When one considers the background to the legislation, one realises that the public bodies that lobbied against us in the referendum campaign - the referendum legislation had been passed in the House – had a particular view on how this House would conduct inquiries or investigations in the future. It would have been appropriate to ask some of those groups for their views. I refer in particular to those in the legal field, including the Irish Human Rights Commission, that are tasked with the oversight of legislation. I include the Irish Council for Civil Liberties and the Bar Council and Law Society, which have expertise although some might question that. Some bodies advised the public that the inquiry method originally intended by the House should not be proceeded with. A mistake was made at the time in question. When Second Stage of this Bill is completed, I urge the Minister to give us time to receive counsel from those within our party and outside it who have a view on the legislation, which is quite extensive. The timeframe is clearly inadequate to facilitate even the most proficient legal expert in scrutinising it properly.

It is disappointing that the Minister, who has committed himself to the reform of legislative procedures, would seek to rush this legislation. That said, the Joint Committee on Finance, Public Expenditure and Reform had significant responsibilities and should have been given the opportunity to deal more fully with the heads of the Bill, as originally produced.

Professor David Farrell wrote some days after the people had rejected the referendum on Oireachtas inquiries last year that the fall of the Government’s proposition was, at least, a disappointment for the Government. He asked whether it was really all that surprising that the proposition that was put to the people fell as it did not help that the citizens were not given a greater say in the process leading up to defining the referendum question. He stated the rationale for and design of the referendum question was imposed from the top without any effort to engage with citizens in advance. A lesson should have been learned. We made a mistake at the time in question and I hope we are not making one again.

The Bill before us is somewhat controversial because it comes on the back of a referendum that was rejected. For some, it will be seen as a way around that referendum result. I hope this legislation will stand the test of any constitutional challenge, if such a challenge arises. I believe the Houses of the Oireachtas, including its committees, should not be hampered in inquiring into matters of public policy. I am fully behind the principle and intention of this Bill. I want to ensure that what we are to produce will stand up to scrutiny.

The Minister has said this Bill provides for much more than simply a banking inquiry. A banking inquiry would be welcome. The legislation is establishing a comprehensive and detailed framework to enable the Oireachtas to hold inquiries of the kind intended before constitutional parameters were imposed on us by the Abbeylara judgment. Those inquiries are outside the day-to-day workings of the Oireachtas, including its committees. We, as politicians, are undertaking to take on an extra workload. I hope all the Members of this House and future Houses understand the onerous responsibility that will fall on them when they end up on a committee of inquiry.

The legislation replaces the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act and contains certain detailed provisions with regard to legal costs and expenses, privileges with regard to private papers and confidential communications and fair procedures. The legislation is significant and it follows on from the failed referendum.

The proposed constitutional amendment that sought to restore the pre-Abbeylara position whereby an Oireachtas committee could have the same powers of inquiry as any other statutory inquiry was voted down. In many ways, I believe we did not set out our case fully. I will not call for a rerun of the referendum. With hindsight, however, we can all see how we failed in our duty to try to explain to the public our position.

In the Abbeylara case, a joint committee of the Houses of the Oireachtas proposed that a sub-committee inquire into the incident in which Mr. John Carty was gunned down by gardaí who had surrounded his house when a siege developed. The committee issued directions to persons to attend, give evidence and be subject to cross-examination. The members of An Garda Síochána objected and the matter ended up in the courts. The Supreme Court rightly held at that stage that the Oireachtas could not hold such inquiries and it restricted the powers. The court said the Oireachtas could hold inquiries to better direct its purposes but not the type of inquiry envisaged in the Abbeylara case because it would have a significant impact on the rights of those appearing before it. The court found that:

[A]n inquiry cannot be compared to a simple search for knowledge to adjudicate on the culpability of citizens in their conduct and cannot in my view be equated with the everyday search for knowledge of facts. That is a governmental power which it seems to me can only be exercised by virtue of power conferred by the Constitution. That power is conferred by the constitution on the judiciary.

It is a question of the separation of powers. The court found that the Abbeylara committee would have been in conflict with the Judiciary.

While we supported the proposed constitutional amendment to reverse the Supreme Court's Abbeylara judgment, we expressed concern with what we believed was a significant shortfall in the proposition at the time. We stated the initial wording presented by the Government was ambiguous with regard to the position of the Oireachtas in determining natural justice. On that basis, we submitted an additional subsection to the legislation stating: "The conduct of such inquiries shall be regulated in accordance with the law and the principles of natural justice." Following constructive engagement with the Minister for Public Expenditure and Reform by my colleague, Deputy Mary Lou McDonald, and in response to concerns raised by others, including non-Members, the referendum proposition was amended on Report Stage with the inclusion of the words "with due regard to the principles of fair procedure". That is reflected in this Bill. Section 18 states a Member of the House shall not be, or continue to be, a committee member if, by reason of his or her connection or dealings with any matter the subject of the inquiry, a perception of bias might arise in a reasonable person.

It is important to ensure that fair procedure, and all of the other procedures, are outlined. There has to be fair procedure. That is welcome and it is to be hoped it will address any of the concerns of those who opposed the referendum.

It is not uncommon or unprecedented for parliaments to have the powers of inquiry the Abbeylara committee sought. The US, Britain and Australia are some examples of countries where such powers are regarded as an important thread in the fabric of democracy. The Oireachtas is a people's parliament and politicians are democratically elected to serve and represent their interests. We are also elected to hold those who are in government to account and to challenge those who work against the public interest.

The proposed 30th amendment to the Constitution was put to the people in 2011 and was defeated. Whether it was a narrow or large defeat does not make any difference; it was defeated. In rejecting the amendment citizens clearly told the Government, and all of us in this House and the Upper House, that they were not minded to extend such powers to politicians. The Minister has managed to address that in the Bill and it is to be hoped it will withstand a test. It is quite clear from the Bill that we are not taking on powers to which we are not entitled according to the Constitution, the Supreme Court and the people in 2011.

Part of the concern I have is that the Minister told us the Bill has been drafted in close consultation with the Office of the Attorney General in order to ensure that it complies fully with the court judgment and fully respects the constitutional parameters of parliamentary inquiries as set out down in the Abbeylara case. Attorneys General are not infallible. Sometimes it might be useful for the Government to relinquish the hold it has on the advice of Attorneys General and publish it. It would be useful, especially given the context of the Bill. It could be liable to challenge if and when we set up an inquiry. Somebody called before the committee might decide to challenge its constitutionality, given the Abbeylara judgment.

The Attorney General gave advice to the Labour Party before the election to the effect that we could change upward-only rent reviews. However, in office the Labour Party said it could not be done. During the children's rights referendum, the Supreme Court ruled that the Government referendum information booklet and website were flawed and were not fair, equal or impartial, and that extensive passages in the booklets and on the website did not conform to the McKenna principles. Following the judgment, it was confirmed by a spokesperson from the Department that the booklet and website had been thoroughly examined to ensure they were in compliance with the McKenna judgment by the Office of the Attorney General.

I am not casting aspersions on the Attorney General; that is not my intention. The advice of the Attorney General can be wrong and has been found to be so not only in the case of the current officeholder, but others. In the interests of what we are trying to do, it might be useful for committee purposes that the advice be published or at least made available to committee members in order that they can see it can stand up to the test we as politicians can put it to.

The Bill is welcome. While many of the considered concerns of organisations such as the ICCL have been addressed, not least because the Government has had to draft legislation within the confines of the Constitution, some concerns remain. During the 2011 referendum campaign, Dr. Eoin O'Malley of DCU noted only a majority in the Dáil could call an inquiry and that it could not legislate to allow a minority to call an inquiry. Any inquiry is dependent on the support of the Government. We should examine that and consider whether the majority of 50% plus one minimum should remain or whether we can develop another mechanism to allow inquiries in the public interest to take place.

During that campaign some voiced concerns that the constitutional amendment rendered the courts' role in reviewing parliamentary inquiries as negligible. Part 9 of the Bill appears to deal with those concerns, but again time is needed to consider the full details.

Concerns were also expressed regarding the power to investigate individuals other than officeholders. The Bill contains a list outlining into whom an inquiry can be conducted. It includes Oireachtas Members or any person liable to Dáil scrutiny by contract or statutory appointment. The list might need to be extended. For instance, it refers to the CEOs of companies. Often it is not just the CEO that one might want to meet, rather, one might want to meet a person who has a more operational role. We need to question whether we have an exhaustive list or whether under the restrictions in the Bill and those imposed by the Constitution we have the powers to deal with those who are not officeholders and public servants. The matter will be teased out on Committee Stage.

The Joint Committee on the Constitution's fifth report on Article 15 of the constitutional review of the parliamentary power of inquiry was quite clear. In its opinion, to investigate private individuals a constitutional amendment would be required. This will throw up its own challenges when the banking inquiry is held and that is why we need time to ensure that the detail of this Bill gives us the power to hold such an inquiry and that it is meaningful.

We believe consideration should be given to a single investigations committee for the reasons provided in the programme for Government. Such a committee was established. The other committee people have talked about in regard to this Bill which might be suitable to hold a banking inquiry, is the Committee of Public Accounts, one of the most powerful committees of the Oireachtas. It is regarded as important by the citizens. It deals with accounts and the cost of governance. It may not be the appropriate committee to hold a banking inquiry; a different committee might be more suitable.

When the programme for Government delivered the Joint Committee on Public Service Oversight and Petitions, it was originally intended to be a committee of investigation. That might be more suitable. I am not looking for extra work; I have enough work and am on too many committees. As a member of that committee, I know it is the clearing house for ombudsman reports and is building up a degree of expertise. I urge the Minister to consider whether either of those committees could hold a banking inquiry. They could perhaps be a clearing house for such an inquiry and could bring in expertise.

The Bill already provides for safeguards against bias. I mentioned section 18, which is welcome. It states that a Member shall not be a member of a committee conducting an inquiry if reasonable perception of bias might arise. Flexibilities could be provided for committee membership depending on the inquiry taking place.

There is a problem in this regard, however, which should be addressed in the legislation. Anybody who was here when the House sought to set up an inquiry to deal with former judge Brian Curtin will remember the hoops we had to jump through to find somebody who had not commented in any way, publicly or otherwise, on the matter. I was not a member of either committee and had not commented on the matter at the time. This begs a question. In the case of the banking inquiry, for example, where and how will bias be defined? Every Member of this House has made a comment on the issue, whether inside or outside the Chamber, including, in many cases, in the course of election campaigns or in campaign literature. We have all articulated where we perceive the fault to lie and so on. We are on a difficult road because perception of bias is in the eye of the beholder. Whoever is charged with making that determination will have an unenviable task.

Section 6 deals with making findings of fact on these matters. Again, it would be helpful to have sight of the Attorney General's advice in this regard. Concerns will be raised in respect of sections 8 to 10, inclusive. While these provisions simply provide a legislative framework for provisions already within the Constitution, it is our strong view that clarity will be required in the public debate on the Bill and the debate surrounding the establishment of any inquiry.

A previous speaker questioned the progression of the Bill on the basis that it provides enhanced powers for the Seanad to hold inquiries. The position at this time is that the Upper House still exists and, as such, the legislation is obliged to deal with it. However, if it is indeed the intention of the Government to abolish the Seanad, we will be amending this legislation within weeks of its passage. There is always the possibility, of course, that the people will reject the Government's proposition. There was an opportunity for the Government to get off the hook on which it placed itself in terms of the abolition of the Seanad by designating the matter for consideration by the Constitutional Convention. That body could have teased out the issues before making a report, which might have been a more informed strategy than simply indulging in the knee-jerk reaction that is the plan to abolish the Seanad as a cost-saving exercise and to deal with some of the rowdy individuals in that House.

The rushed manner in which this Bill is being dealt with is deeply disappointing. While many of the concerns raised during the referendum debate have been addressed by the Minister and his officials, public scrutiny and debate in respect of the proposals has been sparse. I accept that it is sometimes difficult to get the public and even the commentariat to engage in debate on a complex and abstract issue such as this. We now at least have a concrete framework, in the form of these legislative proposals, on which that discussion can be focused.

Surely, however, if there was any outstanding item of legislation from the Department which absolutely required such urgent attention, it is the Bill on whistleblowers. That should have been the first port of call. It is clearer than ever, in the wake of the public statements by the Minister for Justice and Equality on 15 May, that this long-awaited legislation is urgently needed. The Bill is intended to provide guidance to Ministers and senior public sector officials as to the appropriate manner in which whistleblowers should be treated. Moreover, some of the inquiries that will be set up under the provisions of the Bill we are discussing today could well be dependent on whistleblowers coming forward with information. Bringing that information to bear will be vital in allowing Members to appeal to the Government to establish inquiries as envisaged under this legislation. I look forward, with my colleague, Deputy Mary Lou McDonald, to dealing with the Bill in committee. I hope we will have legislation that can stand the test of time and is in the interests of the public in general.

Deputy Finian McGrath

I propose to share time with Deputy Shane Ross.

Acting Chairman (Deputy Peter Mathews)

That is agreed.

Deputy Finian McGrath

I welcome the opportunity to contribute to the debate on the Bill. It is an important debate as it deals with inquiries relating to the actions of Members of the Oireachtas and those who occupy public office. We must accept that politics in this country has been damaged by the actions of a minority of Members of the Dáil and Seanad. It is important to emphasise that point. All politicians, unfortunately, have been labelled or damaged by the actions of a cohort of corrupt colleagues. It is too easy to dismiss politicians as being all the same. In fact, the vast majority are honoured to be elected to the Oireachtas and do their best for their constituents and their country. That is an important point to make in considering this legislation. Regardless of political differences, most Members are in the profession for the right reason. Regrettably, it is all too easy to be cynical or to play the hurler on the ditch.

Having said that, it is vital that politicians uphold certain standards and behave in such a way as to enhance democracy and public life in this country. Bribery and corruption must be rooted out of politics and I hope this legislation will assist that process. It is in this context that I welcome the Bill. The recent by-election was a wake-up call for us in that 62% of the electorate stayed at home. We must be proactive in setting standards. The past week has been a bad one for politics, with a senior Minister crossing a line and acting as if nothing happened. That is only one example of what we are dealing with here. To take another example, I look forward, as a member of the Oireachtas Committee on Justice, Defence and Equality, to dealing in due course, in a professional, objective and balanced way, with a report on the penalty points issue.

I have major concerns with the way in which whistleblowers are dealt with, but that is a discussion for another day. It is important, however, to acknowledge that issue in this debate.

The Bill aims to develop a comprehensive statutory framework for the Oireachtas to conduct inquiries. The context for the proposals goes back to the Abbeylara judgment, includes the rejected 2011 referendum and the 2012 report by the Committee of Public Accounts on a preliminary framework for an Oireachtas inquiry into the domestic banking crisis, and encompasses the Ivor Callely case, which is awaiting a Supreme Court judgment. The Minister, Deputy Brendan Howlin, stated earlier in the course of his contribution on the Bill:

Such inquiries could represent a very substantial strengthening in the effectiveness and contribution of the Legislature to our democratic system by not only helping us learn vital lessons from past events but, through their recommendations, identifying the legislative reforms and policy changes essential to making sure that egregious policy errors are not repeated.

That is a very welcome statement. We must strengthen the effectiveness of the Legislature. We must learn from the past and from the huge cost to taxpayers of the various tribunals. We also must learn from the disgraceful scandals that emerged in recent years. They must never be forgotten and should be used as an example to clean up Irish politics.

The Minister also said: "The Bill will enhance the effective functioning of our modern parliamentary democracy by facilitating such inquiries." This is a vital aspect of the legislation. As it stands, there are three public inquiry mechanisms, namely, Oireachtas inquiries, tribunals of inquiry and commissions of investigation. Oireachtas inquiries are carried out by Oireachtas committees and, according to the legislation, are set up to investigate internal Oireachtas issues and any issues mandated by legislation. An example of such an investigation is the very successful DIRT inquiry, which brought in a substantial volume of revenue and rooted out corruption within the system. A similar type of investigation has also been undertaken at European level, where the figure for tax evasion is apparently in the region of €1 trillion.

In Ireland, we are chasing householders for a property tax of €200 or €300 while €1 trillion is being scammed across Europe. The European leaders, the Taoiseach and the Minister of State must focus on, and think about, these issues. I mention this in connection with the Oireachtas inquiries. There have also been tribunals of inquiry which were set up by the Oireachtas but carried out independently, usually by a sole member. A tribunal has the powers of the High Court, including to compel attendance and the production of documents. A tribunal is solely inquisitorial. It is set up under the Tribunals of Inquiries Acts, an example being the Tribunal of Inquiry into Payments to Politicians and Related Matters, the Moriarty tribunal. This Government seems to avoid and run away from this process. We must deal with these issues and learn from the examples of the past.

The third type of inquiry is a commission of investigation. This is a body established with specified functions to inquire into a specific and once-off matter under the Commissions of Investigation Act 2004. Evidence is generally taken in private and the commission has the power to compel witnesses and documents, for example, the Commission to Inquire into Child Abuse. They had a very good record and have done fantastic work and are very important. We should not run away from issues that need a commission of investigation, for example, the murder of Fr. Niall Molloy. His family is very concerned as are many members of the media. The family wants a proper investigation of this issue. There was a cover-up and this should be highlighted.

The role of whistleblowers is also important in giving evidence to inquiries. I am deeply saddened by what happened to the two whistleblowers in the recent incident involving Deputy Wallace and penalty points. Those two gardaí were treated very badly and one had to leave the force. I urge the Government to get on with publishing the planned legislation for whistleblowers because if they do not, Deputy Ross has drafted a Bill and the Independent Deputies will bring it in here and deal effectively with it. We must ensure that people who serve this State and expose corruption are protected. I am not talking about cranks. I am talking about genuine people with a good public service ethos.

In Austria, Luxembourg and the Netherlands there is provision qualifying the right by the requirement that it be regulated by law. In a number of countries the power to compel testimony and the production of documents is specifically referred to in the constitution, for example, in Austria, Denmark, Germany and Spain. Italy and Portugal specify that parliamentary committees of inquiry are to have the same powers of investigation and to be subject to the same legal limitations on those powers as the courts. In the cases of Germany and Spain, the constitutions state that the findings of a parliamentary inquiry are not binding on the courts though the findings themselves may not be subject to judicial review.

I am a member of the Oireachtas Joint Committee on Justice, Equality and Defence. We held a very good inquiry into, and investigation of, the Dublin and Monaghan bombings. We did a lot of work, met the victims and the families of those who died and people who were directly and indirectly involved. The Dáil passed a motion supporting the recommendations of the committee which were passed on to the British Government, but it refused to act on them or to facilitate action on them. We need to do something about this because the families of those killed feel very let down. I urge the Government to up its game and raise this issue constantly with the British Government because cover-ups on such matters will not help the peace process. We have heard a lot of talk recently about the peace process and about healing. We need truth and justice for the victims of the conflict.

Part 8 of the Bill, sections 89 to 100, relate to Members of the Oireachtas. The following are only answerable to the Seanad or the Dáil: utterances before a committee, documents, official reports and publications of a committee. Committee documents that are not public cannot be disclosed without written consent from the committee chairman. State employees are barred from expressing an opinion on the merits of governmental and ministerial policy before a committee and the committee cannot request such an opinion. State employees may be called to give factual evidence. The programme for Government 2011 included a commitment to amend this to allow civil servants to comment on policy to reflect the reality of the authority delegated to them and their personal accountability for the way in which it is exercised. This Bill, however, does not include a provision on this policy. That is another example of a Government going back on its word.

Part 2, section 9, provides for a power of inquiry relating to the conduct of a Member of either House of the Oireachtas and section 10 gives the Dáil the power to undertake an inquiry into the conduct of a current officeholder, senior civil servant or CEO of a public body. I welcome those sections. Part 3, section 14, limits the finding of facts that directly impugn a person's good name to certain categories of people. It is important to go through due process when dealing with this area. That is why I was extremely disappointed and angry during the week at the actions of the Minister for Justice and Equality in respect of the Deputy Wallace affair, the breach of privilege and the conduct of that Member. I will leave that to the Data Protection Commissioner and the Standards in Public Office Commission. Everyone, particularly those in public office, is entitled to his or her good name.

I welcome the debate on this Bill. I hope it will go a long way to cleaning up Irish politics. It concerns genuine reform and change. I will support it as that was the mandate we all got at the last election, to bring about change, reform and decency in politics. It is a start but we have a long way to go. If we want to clean up politics and sensible legislation is brought before the House, everybody, regardless of political persuasion, should support it. The day of corruption in Irish politics has to come to an end. It has gone on too long and has destroyed this country. I say the same about people outside politics who are also responsible for bringing this country to its knees. This Bill represents a very big step in the process of clarifying the role of the Houses of the Oireachtas in securing accountability through investigations into matters of significant public importance. We all have the honour and privilege of being elected to serve in this Dáil and we all have a duty to be accountable. When one Member of the Oireachtas is involved in corruption, he or she lets down the Oireachtas, democracy, the country, themselves, their families and the people who voted for them. This Bill is progressive. There are changes that could be made to it but the Government is open to amendments on later Stages. Overall, I welcome the legislation.

Deputy Shane Ross

I see this Bill pretty well exclusively as a response to the referendum in 2011 on Oireachtas inquiries. It is worth reflecting that it was expected throughout the campaign, such as it was, that the referendum would pass very easily because there was a huge impetus and enthusiasm at the time to get to the bottom of the banking crisis and find out what happened.

That was the reason behind the referendum, although the flaws in the Constitution discovered by the Abbeylara judgment had made it very difficult for the Oireachtas to hold an inquiry. The result of this was the Government, responding to that overall desire and genuine enthusiasm among politicians to find out the truth, produced a fairly honourable, decent and genuine attempt to amend the Constitution to facilitate an inquiry by the Oireachtas to find out the truth.

The result of that has been interpreted in this Bill in a way I am not sure that I share. The reason the constitutional referendum was defeated has not yet been recognised. The reason it was defeated was a reflection on us all. Like an express train, the argument was made towards the end of the campaign that Members of the Oireachtas were not the right people to be holding a banking inquiry and, more particularly, inquiries into other events which are related. The detail of that is that Members should not be making findings of fact or, in other words, specifically making judgments on people which are pejorative and unfair. I believe, however, it runs deeper than that. The population was giving a verdict and a message to the Government and to all Members that we are not the right people to be holding our peers and others to account. That is not a welcome message to us but it has a certain merit. It is difficult for us to accept it but giving politicians power to make findings of any sort is dubious. Giving politicians the power to hold inquiries which do not make findings is very close to that because the questions they will ask and the way the agenda is skewed will obviously bias it in one direction or the other.

There is a crying need for a banking inquiry to find out what happened on that night on 29 September 2008 and who made what decisions. I feel uncomfortable, however, as others do, at the idea that politicians should be calling in other politicians to answer questions on their particular activities on that night and elsewhere. By very definition, if the Government sets up this inquiry and Oireachtas Members are appointed to it, the questions will be politically charged and it will be used for political advantage. I have no doubt about this; that is the way politics works. The idea of bringing in the former Taoiseach, Brian Cowen, to be questioned by Fine Gael and Labour Members has no more attraction for me than bringing in the Taoiseach, Deputy Enda Kenny, to be questioned by Fianna Fáil Members about his stewardship. It will lend itself to political charges, political grandstanding and no independent approach. That is the nature of politics.

Should we really be judges and juries not only of our peers, but of anybody in making any findings or holding inquiries? I know, as Deputy Finian McGrath said, our powers of inquiry here are very weak considering those held by parliaments abroad. That is true but that is not necessarily the right argument for the small, compact and, sometimes incestuous, nation that we are. I feel uncomfortable about those of us elected to legislate holding inquiries over the behaviour of our peers and making judgments in political circumstances. I do not trust myself or any other politician to be independent in that situation.

Of course, we must ask if we are not to make these sorts of judgments then who should hold inquiries of this sort. If there is to be, and there must be, a banking inquiry which will make findings of facts, then who should we put on it rather than politicians? That is the difficult question. Normally, people say throw in a few High Court judges as they are of impeccable pedigree which is not true at all as they are all appointed by politicians. We need to be constructive about it. Why could we not hold inquiries where verdicts are delivered by people selected in the same way a jury is selected? What is wrong with having 12 random people, chosen from the population to carry out these inquiries, people who have volunteered and are available? They would only need to have the same basic qualifications as jurors but could be disqualified for the same reasons jurors are disqualified. The Government has already devised a way of selecting people in a random way for the Constitutional Convention which seems to be working adequately. I have not seen any great criticism of the people chosen to make up the majority of the convention. Why can we not have inquiries into these matters of great national importance being held under the auspices of those chosen this way? It would provide a cross-section of people with no political baggage and who would make verdicts on events to which they have an objective and balanced view.

We need to have a banking inquiry but we need to have a credible one. As Deputy Ó Snodaigh said so eloquently, there is not one sinner in the House - I include the Acting Chairman, Deputy Mathews in this - who would have any credibility on a banking inquiry because they have such honourable opinions that they have given already but which are definitive opinions. I wrote a book about the bankers, which makes me completely unsuitable. Other Members have expressed opinions on people who would be appearing before an inquiry, Members who we are asking to give their objective opinion.

There was one stage I thought I would have loved to chair a banking inquiry because I could have let the bankers have it between the eyes. I have changed my mind since. That would have been wrong. We must have people from the start who have not given public opinions which were biased. I hope I know what the verdicts would be. I hope the inquiry would condemn the bankers from a height but we must have an inquiry with credibility. We cannot let the inquiry comprise people who have been part of a chorus of those who have already expressed opinions.

This does not just apply to banking inquiries but to all of them because in this House we have the most opinionated 166 people in Ireland. Everyone here has an opinion on virtually everything. That is what they are paid to have. However, it means their objectivity no longer exists.

Let us not be tied up with the idea that we, as Oireachtas Members, should carry this torch. Why not look further afield and consider people who have a less subjective opinion on what is happening? We have committees to hold hearings and sometimes they are effective. They invite people to appear, ask questions or for their opinions and expose them. That sometimes works. The Committee of Public Accounts has compellability powers. As Deputy Finian McGrath said, that committee had one good hit when it scored on the DIRT inquiry some time ago, but the House has a lamentable record since on tame inquiries without compellability powers. This does not relate only to the Abbeylara inquiry which was a dismal, abject failure because it tried to exceed its powers and was stopped by the Supreme Court, but there were others. There was the mini-CTC case which was eventually abandoned, partly because a general election was called. The Callely inquiry ended up in a fiasco in the Supreme Court because it involved Oireachtas Members sitting in judgment on another Member. Why was that done? Why do we not have a scenario where there is not self-regulation? We are keen in condemning, rightly, self-regulation in the legal, accountancy and stockbroking professions and so on. In many cases, regulation has been reformed, but for some reason we want to sit in judgment on fellow Members. It is difficult to ask Members to do this because politicians have loyalties built up to each other over a long period and tend to vote and make judgments on the basis of party loyalty. It is probably impossible to ask them not to.

I have been in the Oireachtas long enough to be a Member during the inquiry into the fall of the Fianna Fáil Government in 1992 initiated by the incoming Government. It was wrong of that Government to do this. I have no brief for it and I was in Fine Gael when it happened. What is a Government doing setting up an Oireachtas inquiry into the circumstances surrounding the fall of another? That was a kangaroo court and any Government can do this if we get into the habit of setting up such inquiries.

There is a case for an inquiry into what is happening at the top of An Garda Síochána and the mysteries we have witnessed in recent months. A veil has been lifted regarding the force in recent days. There should be an inquiry into the Garda, but the last people who should hold such an inquiry are Oireachtas Members because the Garda Commissioner is appointed by the Minister of the day and is, therefore, a political appointee. Not only that, the current incumbent has been given a two year extension by the Minister. There is a crying need and public demand and hunger for an inquiry into the Garda. There is public discontent about how various incidents happened and how information is passed through the force from top to bottom. Imagine - this is no reflection on any Member - if those who appointed the Commissioner and the others at the top of the force made the appointments to an inquiry. That would be wrong and this legislation, in its devotion to giving Oireachtas Members who have such powers of patronage and such strong opinions and commitments the power to hold inquiries and, therefore, point public opinion in a certain direction, is something we should strongly challenge.

Deputy Paschal Donohoe

I wish to share time with Deputy Jerry Buttimer.

One of the many pleasures of being able to contribute in the House is that by a quirk of good luck I always seem to follow Deputy Shane Ross. This is something I also experienced during the previous Seanad. On hearing his latest eloquent reflection, I was given pause to think there were two Deputy Shane Rosses. The first is the orator, the man who has just made his contribution on the Bill and skilfully laid out the reasons he has such concerns about it, while the second is the man I witness at the Committee of Public Accounts each Thursday and at other committee meetings who is the inquisitor. There could be a third Deputy Shane Ross because he admitted he had changed his mind on something also and that might be Deputy Shane Ross the humble or the wise. What gives me pause for thought following his contribution is the inconsistency between the two. Deputy Shane Ross the orator will powerfully deliver judgments on issues in the House, while the Deputy Shane Ross I see in full flow at the Committee of Public Accounts skilfully and adroitly holds witnesses to account every Thursday. I thought they were one and the same until this afternoon.

Deputy Brian Hayes

Deputy Shane Ross is in the wrong job.

Deputy Paschal Donohoe

The reason they are not is his statement that he does not trust himself. The difficulty with that is while Deputy Shane Ross might not trust himself, his constituents, rightly, do.

Deputy Mattie McGrath

In large numbers.

Deputy Paschal Donohoe

In numbers that are enviously high.

Acting Chairman (Deputy Peter Mathews)

I share the same constituency.

Deputy Paschal Donohoe

The Acting Chairman may share the same envy. Deputy Shane Ross's constituents trust him because of his ability to query individuals and issues in other fora apart from the Oireachtas. If his constituents trust him to perform that role well, why should we not allow such a role to be performed with proper functions and capacities by the Oireachtas? Why should we not allow that role to be performed with the support most other parliaments have available to them? Why should we not allow the Deputy or any other Member to have the ability to inquire into matters on behalf of the people in the way most other parliaments can? One of the reasons there might be a reluctance to do this, which was touched on by him, is the difficulty with politicians making judgments about other politicians. That happens every day of the week in the House during Leaders' Questions and ministerial Question Time, during which politicians form judgments about other politicians on how they discharge their duties in comparison to what happened in the past. If it is appropriate for this to happen in the House during the normal cut and thrust of political debate, why does the Deputy say it is not appropriate for it to happen effectively with legislative underpinning in other branches of the Oireachtas?

The counter charge to that, which I have heard and which Deputy Ross outlined, is that there may be the temptation to grandstand or for political gamesmanship. That temptation could be there but what this Bill will change is the consequences of that kind of behaviour. It will ensure that if members of a committee make statements which cannot be backed up by facts, which are gained in that committee, they will face the consequences of that action. We should give ourselves the capacity to see if we can discharge this function, which is what I believe this Bill will do, rather than assume we cannot because of the political culture. Surely the best way to change a political culture or the levels of commentary here is by giving the Oireachtas the ability to do this job properly, which every other parliament has, and then trust Members to perform that role well. Surely that is the case we should put.

I enjoyed listening to Deputy Ross's worries about people forming judgments or forming reservations in regard to the work they may do. Deputy Ross does that every day of the week. He does it in the House and elsewhere, and he does it well. If he trusts himself to do that well elsewhere, why should he not trust himself not to do so properly in a committee which is supported and well-resourced and has a Bill like this behind it?

If we do not trust ourselves to do this, who should do it? Deputy Ross went through some of the candidates there. I will make two points in this regard. The first point is that if this House was to set up another body to discharge the functions most people think we should discharge, the first criticism laid against this Government, or the Oireachtas, would be that we were setting up another quango and that we should do that work ourselves. I presume that Deputy Ross would be one of the first people to make that charge given his clear expertise in that area.

The second point, which Deputy Ross laid out, is a very interesting idea, namely, that we should adopt a Constitutional Convention model and discharge this particular function to people fair and wise who are randomly chosen. The difficulty with that is the slippery slope it could open up. Let us say we hand over this power to these people for a period of time, what other powers might be worthy of handing over to such a body for other periods of time and for other purposes? What other roles do we think these people could perform?

That is where we get into the sanctity of the role of the Oireachtas and of Parliament. If a body is elected to carry out a particular role and to form judgments, surely we should give it proper legislative underpinning and the scope it needs. That is what this Bill will do. If a committee is formed to do that work, it will be difficult, as will the early days of that committee. There is absolutely no guarantee of success but the lack of guarantee of success should not be a reason not to try. Surely when people cast a vote for their Deputy, they do so in the reasonable expectation that he or she can make a judgment not only formed by political affiliation, but based on his or her own opinions and faculties.

I refer to a related issue, namely, the operation of the party Whip in the future. An area about which we will need to think carefully - this is very apparent to me - is that when such a committee is formed in the future, it should not be whipped by the party structure. If we are saying we want people to reasonably form conclusions in regard to particular events and so on, then it is important that Members of the Oireachtas are allowed to do so entirely devoid of any external pressure, whether the party Whip or otherwise. I strongly believe that it will be very difficult for that judgment to be exercised with the maintenance of that Whip.

The passage of this Bill will allow the glorious reconciliation of Deputy Ross, the orator, and Deputy Ross, the inquisitor, in one function. If people are elected to carry out a particular function, we should see whether they can perform it and putting in place the best possible structure to allow that to happen is important. This Bill will provide the opportunity to do that and if passed, Members will rise to the occasion.

Deputy Jerry Buttimer

I welcome the publication of this Bill. If we were to judge politics and politicians on grandstanding and playing to the gallery and the media, we would have no credibility but, thankfully, we do not all do that. There is a body of work in the Oireachtas which deserves to be analysed and respected. It behoves all politicians to remove the insincerity and not to play to the media and the gallery because it does not do the body politic any good at all.

The Kenneth Starr inquiry into former US President Clinton went on forever and cost money. In the end, it found President Clinton had an affair. It did not require an august principled individual like Kenneth Starr to find that. The political culture dictates that we must be accountable and mature enough to be able to recognise that the body politic has a responsibility and a duty to cast aside vested interests and for people to declare their interests before they can do their job properly in the Oireachtas. That is why it is important that Members of the Oireachtas, as representatives of the people, are able to say that we can do our job and that we trust ourselves.

I understand from where Senator Ross is coming and, in many respects, I would not disagree with some of his comments. What was he was saying was that the body politic did not do itself or the people justice over the years, and he is right. However, it is important that Members of the Oireachtas restore the primacy of the Houses and that we re-establish their credibility.

This Bill is important and I trust politicians of all hues and irrespective of their ideology or beliefs to serve in the interests of the people who elected them. Our track record has been poor but are people really serious when they say they want to go down the road of another tribunal or a Kenneth Starr-type inquiry? The tribunal model is an expensive one as tribunals can go on indefinitely. If one sets a time limit, the chairperson asks for more time.

I believe the majority of Members of Dáil Éireann are characters who will put the national interest first. They will not play to the media to get cheap headlines or be insincere in what they do. I have every confidence in the Members of this House and Seanad Éireann. We must trust ourselves, notwithstanding the criticisms of the past. If we look back all the time, we can never move forward. It is important that any proceedings are free from bias and that fair procedures are always adhered to. I welcome the compellability of witnesses because it is essential. We need to trust our legislators and ourselves. As politicians, we must prove that politics is an honourable profession. We must revisit that point. The majority of us are honourable and decent people. We are involved in politics to serve our people. As Teachtaí Dála, we are not here to get cheap headlines or to act insincerely. The primary purpose of this Bill is to create a legal and logistical framework for Oireachtas inquiries into matters of significant public importance. It can be done. It must be done because the people do not want a repeat of, for example, the 14-year Mahon tribunal, which cost approximately €100 million. That model is done. It is time for a new way of doing business. This can be achieved regardless of ideologies or party political positions.

Deputy Catherine Murphy

I am generally supportive of the extension of the inquiry powers of the Oireachtas as long as we have the correct parameters and safeguards. I was one of those who opposed the inquiries referendum. I made it clear at the time that I was not against inquiries by the Oireachtas. An all-party Oireachtas committee which had considered the question of inquiries in some detail had taken a great deal of time before proposing a wording that might be put forward. Essentially, the Government did not accept its recommendations and decided instead to put its own wording before the people. I felt that the wording recommended by the Government went way too far. I felt it crossed the line into an area that would more properly be dealt with the Judiciary. It was significantly more far-reaching than was necessary or would be in keeping with a democratic state. It is really important for us to retain the separation of powers.

When the citizens of Ireland refused to adopt the Government's proposal on the day of the referendum, I do not think they were saying they had a difficulty with the holding of inquiries by the Oireachtas. I think they were saying they were concerned with what the wording enabled the Oireachtas to do. They might not necessarily have been concerned about the current Oireachtas, but they were conscious of the possibility of corruption of power by a future Oireachtas comprising different people. When people are asked to adopt something and place it in the Constitution, they know it will not be there for a short period. It has to stand the test of time. I regret that this Bill has been brought before the House so soon after its publication. I would have liked a little more time to give greater consideration to it. Unfortunately, this was a feature of the legislation that set up the inquiries referendum as well. We need to learn a lesson from that. We have to take our time over these matters because it is important to get them right.

Questions need to be asked about why this legislation has been published before the Supreme Court has ruled on the Callely case. It is clear that elements of this legislation could and will be framed in that context. When the judgment is delivered, it may well bring about a significant change in what is intended. I ask the Government not to proceed with the Committee Stage debate on this Bill until the Supreme Court has delivered its findings.

If we cannot put forward the Committee Stage changes, having had the benefit of that, we will potentially come back with amending legislation, which I do not consider in anybody's interest.

I support the notion of a banking inquiry. However, there are very few Members of the House who have not compromised themselves in regard to such a banking inquiry when sitting on a committee. I have certainly given my views on the record as to what I thought about the banks. Yet, we are looking to assemble, from this Oireachtas, a group of neutral people who are suitably qualified to prepare a report. They will be difficult to find, certainly among those who were on the finance committee or the Committee of Public Accounts and who have the necessary competence. When one looks at the practicality of this, it will be difficult to achieve.

It is very important that we understand what happened in 2008, in particular with regard to the people who lobbied and all the rest, because if we do understand that, we cannot learn from it. However, this will be no substitute for what should rightfully take place in the courts. It has taken far too long to get to a point where people can be prosecuted through the courts and where the course of action that should happen through that process can happen.

I would like to hear how we can have a banking inquiry, given the safeguards in the Bill. While we have had a lot of debate on this for several years, how we can construct a committee that would be deemed to be not biased in terms of Members having taken a position?

Clearly, there are aspects of the Bill that are safeguards. We all know that perception is reality in terms of somebody's good name. Where there are not findings of fact, there are findings of implication or there is the possibility of that. There will have to be great safeguards as to what exactly will be inquired into, and I know a process is included in the Bill in this regard. One could find that a list of things are deemed to be of public interest but, on examination, they are populist rather than in the public interest. It is important that this section of the Bill is got right, which will require detailed consideration on Committee Stage.

In the absence of the report on the Callely case, we have no idea what sanctions are available to the Oireachtas. This is the kind of issue that will require detailed consideration on Committee Stage and it is why it is essential we do not proceed beyond Second Stage before the Supreme Court has ruled.

I understand there is to be a panel of legal experts and there will be a tendering process, which is good. However, we all know it will require much more in terms of the resourcing of this kind of committee. If we are going to set up a committee, there will have to be a commitment that it will be properly resourced so it will function properly.

In Part 2 of the Bill, section 7 deals with new legislation the committee may suggest is required. One obvious point is that there is an in-built Government majority on all of the committees. That is not very different from what happens at present, where the Government decides what legislation is taken, and pretty much everything that comes from the Opposition, while it might get a hearing on a Friday morning or in Private Members' time, does not get any further along. This needs consideration in terms of how we might get a balance on the committee. A strict reflection of the make-up of the Dáil may not be in order in this case.

During the lifetime of this Government we have seen plenty of evidence of abuse of process. For example, we have seen guillotines being used routinely and legislation being published very late. The Companies Bill was the size of a telephone book, yet we got it one week before it was due to be debated. Next week, we will debate both the social welfare Bill, which is not yet published, and the Croke Park II legislation, which we have not seen yet. When I see that type of abuse of process, and we are conferring on ourselves the right to have inquiries, it does not fill me with confidence. I would like it noted that the behaviour of a very large Government can be an issue of mistrust where power is used to ram business through very quickly. As an example, the promissory note night debate was a cause of great concern.

Part 12 of the Bill deals with the oath. While I may be misreading the Bill, I cannot find a provision for a non-religious oath or its equivalent. I would like to see this included as it is only right and proper that it would be. It is certainly available in the courts and is a more inclusive way to proceed.

The Constitution provides that the Oireachtas can make its own Standing Orders. In reality, however, the only Standing Orders that are changed are the ones the Government wants to change because, again, a majority decision is used. Even very small changes are not acceded to. For example, the Technical Group has been seeking a change in order that a nominated person from our group can speak on the Order of Business. However, unless one is a party leader, that is not provided for, even if no one is available to speak. This is the case even though the Technical Group makes up one third of the Opposition. We are being asked to adopt this in the context of a Government with a very large majority.

I have concerns in regard to section 8, which deals with the power to inquire into the removal of certain officeholders, such as the President, a judge or the Comptroller and Auditor General. Again, this is something we will have to give the gravest of consideration. I am not sure it is a power that should be conferred on this committee because there should be a balance of input from all sides of the House in an equal way.

Those are the main points I wish to make. I do not have a principled objection to the legislation and, while there are problematic issues, some of those can be dealt with on Committee Stage. However, I cannot stress enough the importance of waiting until the Supreme Court rules in the Callely case. I also have concerns about the balance and make-up of the committee.

Acting Chairman (Deputy Peter Mathews)

The next speaker is Deputy Heather Humphreys who is sharing time with Deputies Áine Collins, Peter Fitzpatrick and Frank Feighan. Speakers have five minutes each. I will let Deputy Humphreys know when there is two minutes remaining.

Deputy Heather Humphreys

I thank the Acting Chairman for the opportunity to speak on the Houses of the Oireachtas Inquiries (Privileges and Procedures) Bill 2013. I welcome the Bill because it provides clarity in the area of Oireachtas inquiries and consolidates existing legislation within the constitutional framework as set out in the Abbeylara judgment. It is important to note that this Bill is not attempting to interfere with the outcome of the proposed 13th amendment to the Constitution, which was defeated by the referendum in 2011. Instead, it aims to ensure that Oireachtas inquiries can carry out important work in certain areas such as the proposed and much called for banking inquiry.

I want to focus on section 18 of the Bill. I ask the Minister to consider carefully this section which prohibits a Member of the House from sitting on a committee where a perception of bias might arise in a reasonable person. In a RTE Radio 1 interview, Paul Anthony McDermott highlighted that this section could be a possible source of legal challenge to an inquiry. Section 18 aims to ensure non-bias on the part of the committee of inquiry and provides that a Member of the Oireachtas may not sit on a committee of inquiry where his or her connections or dealings with the subject matter of the inquiry, public utterances on the matter or any other circumstances the House considers relevant mean that a perception of bias might arise in a reasonable person aware of that connection or those dealings or utterances. Mr. McDermott envisaged that there could be legal challenges during the course of a practical application of this section.

Utterances can be defined as the action of saying or expressing something aloud. Who has not made a comment or a public utterance on the banking crisis, particularly in this age of social media? Would a Twitter comment be sufficient for a committee member to be deemed biased? Many politicians have made many comments about banks and the banking crisis and some have made a virtue out of bank bashing. Does that mean that many of us will not be able to sit on an Oireachtas committee of inquiry?

However, I recognise the intent in this section because there are some people who should not sit on Oireachtas committees set up to investigate particular matters. The instance that springs to mind today is the issue relating to the investigation by the Committee of Public Accounts of public funds spend on ministerial offices in light of the €250,000 spend in 2007 on an office fit out and refurbishment for the then Minister of State, Deputy John McGuinness. The Committee of Public Accounts has agreed to look at the fit-out and refurbishment costs of all ministerial offices. When the figure of €250,000 appeared in the public domain, I called for the committee to carry out an investigation of this exorbitant expenditure and I am very pleased that it is now doing so. Deputy McGuinness, the Chairman of the committee, has said that he has nothing to hide and he wants the entire matter investigated and he is to be commended for this. However, this is a very clear example of why a Member of the House shall not be or continue to be a committee member if for any reason, his or her connection or dealing with any matter is the subject of the inquiry. In this particular instance, I am now calling on Deputy McGuinness to step down as Chairman of the Committee of Public Accounts while this investigation is underway.

Section 18 is a very important part of the Bill and will require further examination and consideration. We also need to view this Bill in light of the impending judgment in the Callely case as the decision will no doubt shed further light in this area. Finally, I welcome this Bill and commend the Minister for bringing it forward.

Deputy Áine Collins

I welcome the opportunity to speak on this Bill. We as public representatives are constantly asked by our constituents why people or institutions whose actions damage the welfare of the State are not brought to account. In most other democratic states, the houses of parliament have the power of inquiry. These inquiries in other countries are a very cost-effective way of holding inquiries. They challenge official and public representatives, former politicians and state and semi-state agencies. Their parliamentary committees have the power to summon witnesses, make determinations and call to account any persons accused of wrongdoing.

In the Abbeylara judgment, it quickly became obvious that this could not happen here. The Irish Constitution lacked a specific provision for the holding of parliamentary inquiries. As a result of the Abbeylara judgment, when an issue needs to be examined, it must be dealt with by a sworn public inquiry. These inquiries are hugely expensive for the taxpayer and so legally complex that they seldom produce clear results, as we have learned in the past. This Government considered the huge cost to the taxpayer of such inquiries and their inadequate outcomes. We decided to ask the people in a referendum to give the Houses of the Oireachtas power to carry out such inquiries in a similar way to that done in other countries. However, the people chose not to endorse the Government's attempt to change the Constitution to facilitate such inquiries.

The Government has now looked at introducing this Bill. This Bill will hopefully allow the Government to hold meaningful inquiries within the limits of the Constitution. Inquiries to be held under this Bill are still limited in value. This respects the Supreme Court's decision and the recent decision of the people. There seems to be a contradiction between the people's decision not to change the Constitution and their continuing demand for inquiries. In particular, we hear calls for a banking inquiry. Despite the best intentions of this Government in introducing this Bill, the actions of any inquiry will be subject to challenge under the Constitution. I believe a multiplicity of legal challenges will greatly reduce the effectiveness of this Bill.

We as lawmakers must try to establish the most effective way of dealing with this. The Minister is to be complimented for the way he is dealing with this comprehensive and complicated legislation. Initially, the heads of the Bill were forwarded to the relevant Oireachtas committees for pre-legislative scrutiny. The Oireachtas Joint Committee on Finance, Public Expenditure and Reform was briefed by officials from the Department. The committee decided to invite the public to submit observations. Many submissions were received, which the House must now consider. Fianna Fáil and Sinn Féin have made detailed submissions. The Labour Party as a partner in government has also contributed to this debate. Opinions from all sides are more than welcome.

In order for this Bill to be successful, it must be examined carefully at every stage of its progress through the Dáil and Seanad. It must respect the will of the people and the Constitution. At the same time, it must create a process that will satisfy the unquestionable will of the people. They want to have the issues that seriously affect their daily lives examined. The Irish people want to see the people who destroyed the banking system and caused the loss of our economic independence through their mistakes and incompetence brought to account. We will suffer from this for many years. This legislation should form the basis for a banking inquiry. Any inquiry will be limited due to constitutional restraints and the Supreme Court decision in the Abbeylara case. An inquiry will not be able to attribute blame or guilt to persons before it but calling witnesses, examining the processes used and issuing a detailed report will help. The general public will be able to draw its own conclusions.

If politicians act responsibly in this manner and carry out inquiries effectively, at a later date, the electorate might reconsider its recent decision on the constitutional amendment. This would allow for a more effective system of inquiry as happens in many other countries. This Bill will provide for fairness in the process and clarity. It underpins any of the five proposed inquiry models and provides a set of rules and procedures to ensure they do not fall foul of the Constitution. It is important to note that this legislation does not allow for findings to be made against ordinary members of the public. Only high ranking individuals will be regarded as accountable to the Dáil.

The Bill also introduces rules to limit legal costs. I have no doubt that this will prove difficult. A panel of cost accountants will be in place and there will be an adjudication process to decide if costs are applicable. I have no doubt that outcomes from these inquiries will have various degrees of success or failure, particularly considering the constitutional restrictions the Minister is working under. This Bill goes as far as is legally possible. Hopefully, it will produce the answers the people are demanding. I commend this Bill to the House.

Deputy Peter Fitzpatrick

This Bill aims to develop a comprehensive statutory framework for the conduct of inquiries by the Oireachtas. It arises as a result of the Abbeylara judgment, the rejected 2011 referendum and surrounding commentary, a report by the Committee of Public Accounts on the preliminary framework for the Oireachtas inquiry into the domestic banking crisis, as well as the Callely case which awaits a Supreme Court judgment.

The Bill will replace and update existing legislation to provide a system for the establishment and administration of Oireachtas inquiries together with related matters regarding private parliamentary papers and privileges. It provides for five general types of Oireachtas inquiries, namely, an inquiry to record and report with regard to any specific issue which can make findings of uncontested fact and draw attention to matters in dispute; a legislative inquiry into any matter which could be legislated for by the Oireachtas; an inquiry relating to the removal of an office holder, such as under Article 12.10, impeachment of the President, under Article 33.5, removal of the Comptroller and Auditor General, or under Article 35, a judge of the Supreme Court or the High Court; an inquiry relating to conduct of a Member of the House in his or her capacity as a Member; and an inquiry to hold the Government to account and also to hold to account any person liable to Dáil scrutiny by contract or statutory appointment.

The Government objective is to clarify and consolidate the circumstances under which the Oireachtas may conduct inquiries within the current constitutional framework as set down by the Supreme Court judgment in the Abbeylara case. This extensive and lengthy Bill repeals almost all existing legislation in the area and consolidates these and new provisions into one piece of legislation.

The Bill is divided into Parts, including preliminary and general provisions, types of inquiry, fair procedures of inquiries, reports of inquiries and related confidential documents, legal costs and expenses, compellability, privileges and immunities relating to other Oireachtas committee business, privilege and immunity for Oireachtas Members and committees, restriction of evidence of certain persons, applications to the High Court, privilege relating to private papers and confidential communications concerning Oireachtas Members, privileges relating to official documents, evidence on oath, the laying of documents and miscellaneous provisions.

Most offences under the Bill relate to refusal to co-operate, withholding of evidence and attempt to subvert an inquiry, such as by intimidation and bribery. Offences under the Act are punished as follows: on a summary non-jury conviction of a class A fine, up to €5,000 or imprisonment for up to six months or both; on conviction on indictment to a fine of up to €500,000 or imprisonment for up to five years, or both.

One of the principal challenges in any attempt at reform of the law relating to public inquiries is that while such inquiries are not a court of law, they frequently and very publicly delve into allegations of wrongdoing which, even if not leading to any kind of civil or criminal liability, can irreparably damage the good name of an individual. The Abbeylara inquiry was found to have contravened two constitutional principles of fair procedure.

The Bill provides the necessary detailed legislative framework for the Houses of the Oireachtas to conduct a possible banking inquiry. Therefore, it is important that the Bill passes all Stages before the summer recess.

Deputy Mattie McGrath

I am delighted to contribute to this Second Stage debate. This legislation has been rushed. It has a nice title but there is little else in it. Like other speakers I am concerned. I was a Member of the previous Dáil and I saw the Government when in opposition objecting on a regular basis - often with good reason - to the use of guillotines. However, the Government has excelled itself with guillotines since it came to office.

A referendum on this issue was conducted last year. Many people on this side of the House, especially on the Independent benches, were given no credit by the media when they pointed out that the proposal was flawed and fraught with dangers. It was ultimately rejected by the people and rightly so, in my view, because it was a rushed proposal. This Government has become a little punch-drunk because of the size of its majority. I said this to the Taoiseach. The Government thinks it is infallible: its members have been carried away by the massive mandate from the people.

I am not in favour of tribunals which cost a fortune. I contrast the tribunals with the report on the Magdalen laundries by former Senator Martin McAleese, which cost €11,000, a paltry sum for an excellent job done in quick time with a lot of hard work and engagement. Nothing has happened as a result of the Mahon tribunal and other tribunals. They were only talking shops, making even fatter fat cats out of the barristers from the law courts.

I am in favour of a banking inquiry. It beggars belief that five years on, we have not had such an inquiry. I will not be eligible to sit on the committee because I have been loud in my condemnation of what happened with the bankers, the gangsters, the chancers and also the regulators. Secretaries General and others were sent off to Europe afterwards. I know I should not mention Mr. Cardiff. People had to be sent off because of what they knew. The regulator was asleep at the wheel. These people allowed our country to be plundered and literally destroyed - I could use stronger words - and the problem was put onto the people who have to pay for everything.

I met a group from Permanent TSB before I came to the Chamber. These people took early retirement packages which are now worthless, having been unilaterally cut by between 48% and 58% by the end of this month. This is how the ordinary people are being treated, including the ordinary front-line bank workers who did no harm to anybody. They did their job and they were not responsible. The chief executive officer of that same bank is earning €400,000 and not a penny reduction in salary.

It is time we had some real political accountability. The House needs to treat this issue seriously, not to be like Deputy Heather Humphreys who has read out a statement from the Fine Gael press office attacking Deputy John McGuinness. I would expect Deputy McGuinness to stand aside if there were to be an investigation into aspects of his involvement. He is an honourable man and I would not expect any less from him. He would not have to be told by some of the Fine Gael backbenchers to do that.

I lived through the night of the bank guarantee. We were summoned to Dublin and told if we did not vote for this bank guarantee the roof would fall in on the country and there would be no money in the ATMs and most, if not all, credit unions would go broke. We did not know what to do. We voted for it to avoid the abyss. Foolishly, I voted for it, on the lies that were told to the then Deputy Brian Lenihan and the lies are still being told to this Government, nothing short of lies-----

Acting Chairman (Deputy Peter Mathews)

Deputy, I ask you to withdraw the word "lies".

Deputy Mattie McGrath

No. I am not accusing anyone. They were lies but I will not say who said them. They were total lies. I am sorry, I cannot withdraw it. They are still being perpetrated on a daily basis and the problem is being laid on the backs of ordinary people. I respect the Acting Chairman and I do not like upsetting him but I could not call them anything else. They were damned lies.

Acting Chairman (Deputy Peter Mathews)

Please, Deputy, withdraw the remark.

Deputy Mattie McGrath

Okay. I will not repeat it. I have said it often enough. I lived through it again on the night of the promissory notes. It was the same all-night saga about legislation that had been drafted six months previously. We are being fed and led by official Ireland not respecting the people who were elected democratically. I accept I am only one of those for the time being. We are being said and led by officialdom and by this committee and that committee. I had a discussion this morning with some committee I never heard of. I was accompanied by Deputy Stephen Donnelly who is not here because he is not well. If he were here I could find out about this committee which is in between the Minister for Finance and these banking people. It is a prestigious committee. The former Taoiseach, John Bruton, whom I respect, is chair of this committee and that gives me some confidence. There are too many of these unelected quangos dictating what happens and what happens in here is irrelevant. We are an irrelevant little irritant sometimes. That is why the banking inquiry has not been held because powerful people do not want it to be held. It must be held but I do not know what committee will deal with it. We should take a leaf out of the book of the public accounts committee over the water and the MP - I cannot think of her name - who put Google over the ropes.

Deputy Murphy referred to the Companies Bill which has been in gestation for 20 years. When it was finally published, I did not get a copy because I was told it was too large to print. It has over 1,400 pages and costs €102 to purchase. Who can afford that or would be interested? As I said when I heard, one could buy ten of Deputy Ross's novels for that. If the Acting Chairman, Deputy Mathews, ever writes one, it will not be that expensive and we will all buy it. Who wants to read 1,400 pages? It is only an effort to convolute and keep people confused.

Debate adjourned.

Dáil Éireann debate - Wednesday, 22 May 2013

Houses of the Oireachtas (Inquiries, Privileges and Procedures) Bill 2013: Second Stage

Dáil Éireann debate -
Wednesday, 22 May 2013