JOINT COMMITTEE ON INVESTIGATIONS, OVERSIGHT AND PETITIONS debate -
Wednesday, 14 Sep 2011

Orders of Reference of Joint Committee: Discussion

Chairman

Fáiltím romhaibh ar ais, a chomhaltaí, tar éis na laethanta saoire. Tá súil agam go raibh sos maith agaibh agus go bhfuil ocras oraibh anois chun obair iontach a dhéanamh.

As mobile phones have a negative effect on the recording system, even if they are in silent mode, I ask everyone, including those in the Visitors Gallery, to turn off their phones fully. Apologies have been received from Deputy Alan Farrell.

I am pleased to welcome the Minister for Public Expenditure and Reform and officials from his Department. I thank him for circulating his paper in advance. Members have had only a short time to read it, but we are looking forward to have a good discussion about it. The committee is working to draw up permanent orders of reference. We have a broad remit. To date, we have met the Ombudsman to discuss a formal process of engagement that will enhance Oireachtas oversight in the area of public accountability. We hope to have a representative of the European Parliament present at our next meeting to discuss the European petitions system and how we in the Houses of the Oireachtas can learn from it.

At today's meeting we are particularly interested to hear the Minister's views on how the committee's role should develop with regard to the programme, the specific functions he envisages the committee will be given in relation to Oireachtas inquiries, and how the proposed constitutional amendment will affect the process if passed in the forthcoming referendum. We have circulated the wording to everyone, with the draft implementing legislation to be enacted if the amendment is passed. Go raibh míle maith agat, a Aire, as bheith anseo inniu. I ask the Minister to make his presentation to the committee.

Minister for Public Expenditure and Reform (Deputy Brendan Howlin)

Go raibh maith agat, a Chathaoirligh, agus comhghairdeas leat as a bheith tofa mar Chathaoirleach. As you say, the committee is engaged in a process to draw up its permanent orders of reference to fulfil its new remit as effectively as possible. I sought a committee of this type for a long time from the Opposition benches and I am delighted that it has now taken shape. There will be an evolution process as the committee asserts its authority, works out how it is to operate and, in particular, deals with the legislation about which I want to talk to it. I want to work with it and provide information on the role the Government parties envisaged for it in drawing up the programme for Government under the new system for Oireachtas inquiries we are putting in place.

The establishment of the new inquiry system is subject to the electorate's approval of the constitutional amendment that was published on Monday. The matter will be put to the people in a referendum on 27 October in conjunction with the presidential election. The committee will be aware that the amendment responds to the issues raised in the Supreme Court judgment in the so-called Abbeylara case and is designed to enable the Houses of the Oireachtas to undertake full and effective inquiries. In a way, the Oireachtas has recently operated at less than full capacity. The actual or perceived infirmity to hold any meaningful inquiry was a brake on the Dáil and the Seanad in recent times, since the Supreme Court judgment. It is important for a functioning parliament to have the power, which we have seen operating in Britain and other places recently, to hold people to account, respond to the public will and hold meaningful inquiries.

The new inquiry system will require the enactment of enabling legislation to underpin the constitutional amendment and lead to full implementation of the system envisaged. In this regard, I have also published advanced draft heads of the Houses of the Oireachtas (powers of inquiry) Bill 2011 which all members will have received. It sets out the governing legislative framework for the inquiry system referenced in the wording of the constitutional amendment. I deliberately published the supporting legislation on a draft heads basis because we are open to amendments and suggestions. Although I would like to have the finished product in place before the people are asked to vote, we have a number of weeks in which to hear the views of committee members and others on how the system should work. I am happy to hear suggestions if there are improvements to be made. It is essential to inform and advise the public before the referendum date of the proposals we have developed for Oireachtas inquiries. Some important questions arise from the proposed wording, but the draft legislation can help to answer them. I hope this will help to persuade the electorate of the value and benefits of putting in place an effective and efficient parliamentary system of inquiry.

The international evidence is that parliamentary inquiries can play a significant role in enhancing the effectiveness and relevance of the Legislature. Our experience in the DIRT inquiry confirms that assessment. In overall terms, the design of the inquiry system that we propose seeks to build on the successful template of the DIRT inquiry by ensuring inquiries are firmly underpinned by an investigation to determine the facts relevant to the inquiry. The inquiry phase will, therefore, be able to concentrate on examining and assessing the implications of the facts and the conclusions, findings and recommendations will be prepared on that basis.

Turning to the specific role of this committee, in the draft heads, the Investigations, Oversight and Petitions Committee is known as the oversight committee. As its name suggests, the oversight committee will have a pivotal role in the new inquiry process, particularly in initiating the inquiry, making rules and guidelines governing its conduct, and overseeing any changes in the terms of reference following the investigatory phase. How will an inquiry begin its journey? The process will be initiated when an Oireachtas committee or sub-committee which the legislation calls the requesting committee which is conferred with a power to send for papers, persons or records makes an application to the oversight committee to hold an inquiry into a matter the committee considers to be of general public importance. Say the finance, public expenditure and reform committee of the Dáil determines to hold an inquiry on some subject matter. It will make an application to this committee. It will become the requesting committee and this committee, the oversight committee. The requesting committee must set out in its application the reason it considers the matter is of general public importance and the reason an inquiry should be held.

The requesting committee will also bring to the oversight committee's attention any pre-existing report on the matter and state whether it believes an investigation or further investigation into the matter is required. The oversight committee will be required to consider the application and any report the requesting committee submits. Having consulted the requesting committee and any other party the oversight committee believes appropriate, it will either consent to the application, subject to the approval of the Dáil or the Seanad, or refuse the application. It will be entirely in the hands of this committee to determine whether a request for an inquiry should proceed or be denied. If consent is withheld, the committee will be required to provide reasons for the refusal, but that will be the end of it. There will be no appeal to the Dáil. The committee will be the gatekeeper and decision maker in the matter. The oversight committee will, therefore, play a key filtering or gateway role in the inquiry process. It is expected that, in time, it will develop particular expertise and authority in assessing applications and advising the Houses as to when it is appropriate to conduct an inquiry, and also in determining when it is not appropriate to do so. This will be a significant process in and of itself.

We will not be encouraging every committee to say it will establish a formal inquiry, so it will fall on this committee to set the ground rules to ensure that real issues of significant importance concerning the public are addressed. Clearly, this will be a sensitive and challenging role but one which is essential to the credible operation of the new inquiry system. If consenting to an inquiry, this committee, again consulting with the requesting committee and any other person, will set the terms of reference for the inquiry, including the appointment of an investigator and the terms on which the investigation phase should be carried out.

The template we have used is basically that of the DIRT inquiry. Then the Comptroller and Auditor General did all the groundwork, all the behind-the-scenes investigation, and presented a report to the DIRT committee, which used that as a basis of evidence to establish the inquiry and determine the witnesses to call. That basically is the structure.

Controlling the cost of Oireachtas inquiries in contrast to the unacceptable costs of tribunals of inquiry in recent years will be an important element of the new inquiry system. The terms of reference must be formulated in precise terms. One of the problems we have seen with tribunals of inquiry in the past is that the terms were so broad and open-ended that they went on for a decade and more because there was no end to the add-ons that could be inquired into. Inquiries must be carried out as effectively as practicable specifying the events, activities, circumstances, systems and practices or procedures to be inquired into.

This committee is also required to prepare an accompanying statement with an estimate of costs, including legal costs, the timeframe for the submission of the investigator's report and the time for the submission of the final report to the Houses. If an initial investigative phase is to be completed then this committee will give a timeline for that and a timeline for a conclusion of the inquiry. The oversight committee must secure the approval of the Houses to the draft terms of reference; the draft of the accompanying statement; and the draft of the appointment of the investigator. In addition, it must secure approval for a statement prepared by it setting out its assessment of why the matter is of general public importance; why it warrants an inquiry; and why an investigation should be undertaken.

As is appropriate, once the inquiry is under way the oversight committee will stand back from the inquiry process. It is not the investigator. It is the regulator of the investigator. It has no direct role in the investigation or inquiry once it has been approved by the Houses. That is appropriate as there should be no lack of clarity regarding where responsibility and accountability reside in regard to the actual conduct of an inquiry, including the investigative fact-finding element, which will rest with the committee that initiated the inquiry in the first instance.

The oversight committee does, however, have two further important consultative roles as the inquiry proceeds. These arise in circumstances where the inquiry committee seeks approval for an amendment to the terms of reference, cost or timeframe of an inquiry. If, in the course of an investigation, the Joint Committee on Finance, Public Expenditure and Reform or the Joint Committee on Health and Children, for example, determines that an inquiry will not be completed within the timelines given by the oversight committee or that the cost will be greater, it must come back to the oversight committee to seek sanction for an extension. The need to extend or limit the inquiry may arise from, for example, the facts established in the investigator's report but that can only be done if the inquiry committee is satisfied that the proposed amendment to the terms of reference would not prejudice the legal rights of any person who has co-operated with the inquiry or if the committee of inquiry considers that the publication of a report might prejudice criminal proceedings.

As reflected in the wording of the final subsection of the proposed constitutional amendment the balancing of individual rights with the public interest in ensuring that the inquiry system is effective is critical to the credibility of the inquiry process and its robustness against what are inevitable legal challenges. That will probably be the most controversial section of the amendment. I spent a year on the All-Party Oireachtas Committee on the Constitution looking at these very difficult issues. How do we balance rights without giving carte blanche to those with deep pockets and endless access to the law to frustrate indefinitely any type of inquiry?

We need to strike a balance and it will be up to this committee to strike that balance but not in an open-ended way. Clearly, the courts have determined very clear rights for citizens. Notwithstanding this section of the proposed amendment, anyone can have recourse to the courts. In exercising the balance it must be done in a way that is consistent with the norms of the Constitution in terms of individual rights and our international requirements under the European convention and other international treaties.

A further key role of the oversight committee is, therefore, in setting rules establishing a framework that ensures that the conduct of inquiries meets the rules of natural and constitutional justice, and in terms of fair procedures secure the appropriate balancing of individual rights with the public interest in ensuring effective inquiries. In view of the significance of these rules they are subject to approval by the Houses. The constitutional amendment proposal outlines that it is not a matter for this committee but for the Houses to adopt those rules that balance the rights of individuals and the public good.

The oversight committee will also prepare and issue guidelines on the payment to witnesses of legal costs necessarily incurred in connection with an inquiry. In view of the important objective of controlling legal costs, these guidelines may restrict the type of legal services or fees for which payment may be made. What does that mean? In essence, it means that if an inquiry is entirely a technical one and the witnesses are giving expert or technical evidence there can be no justification for lawyers to be present. This committee will determine those general guidelines so that there is not an artificial expansion of costs. This committee can limit, including by specifying maximum amounts, the extent to which legal costs may be paid. In other words the committee can set a daily ceiling on fees that may be paid where lawyers are involved and provide that prior to authorising any legal representation the inquiry committee shall give an opinion on the amount of legal representation that is appropriate for specific persons and on the parts of proceedings where in its view legal representation is required.

Beyond the specific role and responsibilities of the oversight committee I would like to outline briefly to the committee some of the key features of the inquiry system which are important to obtaining a fuller picture of how inquiries and their prior investigations are intended to operate. Investigations will normally be held in private but their procedures will be subject to the oversight committee's rules. Investigators have powers to enter premises and to examine and secure documents and information relevant to their investigations. Private dwellings may only be entered on the authority of a warrant issued by a District Court judge.

Investigators or committees of inquiry can direct any person to attend, to give evidence and to produce any document. A person who knowingly or recklessly provides false or misleading information that is material to the inquiry shall also be guilty of an offence. Investigators or committees of inquiry will not take evidence that could prejudice matters before a court, adversely affect the security of the State or prejudice or impair the prevention, detection, investigation or prosecution of offences. That will be the process in determining how each of those is set out. Any reports or documents issued or prepared by the committee are not admissible in any criminal or other proceedings that may take place subsequent to the inquiry.

On conclusion of the inquiry a written report will be produced setting out the facts established based on the evidence received. If the facts relating to a particular issue have not been established then the report shall identify the issue and may indicate its opinion as to the quality and weight of any evidence relating to the issue. Information that may be omitted from the report includes information that might prejudice any criminal proceedings that may be in progress.

Members of the committee may wish to note that an overview of the inquiry system is included in the explanatory note issued by my Department on the constitutional amendment, along with the draft heads of the Bill I have circulated. As this committee will play a key role in the inquiry process I would welcome the committee's views on the proposed design and operation of the process. In publishing the draft heads of the Bill my Department invited interested parties to submit views and observations that might assist in finalising the prospective legislative framework.

It is important to make the point that proposals for this change in the Constitution are based on the findings and recommendations contained in the Fifth Report of the all-party Joint Oireachtas Committee on the Constitution, one of the last documents published in the outgoing Oireachtas in January of this year. The measure clearly embodies the potential to make a strong contribution to the overall programme of parliamentary reform by putting in place an Oireachtas inquiry system that is conducted in a manner that respects fair procedures; works under well-defined and tightly defined terms of reference; is effective and cost-efficient; and proceeds and is concluded in a responsive and expeditious way.

I do not know whether members of this committee have had a chance to read the Fifth Report of the Oireachtas Joint Committee on the Constitution but it is worth reading. I say that as a former member of the committee. Many experts were called over the best part of a year during which time the committee took evidence. It was a careful, balanced and unanimous cross-party recommendation that forms the basis of this amendment.

I thank the committee for facilitating me in providing what has been a somewhat longer opening statement than is the norm. I hope it has been helpful for members to receive a detailed overview of the role of this committee and that they might engage and consider how it will pan out. I would be happy to answer any questions members might have but as I said to the Chairman, this will be an evolutionary process. I do not believe we will get it perfectly right in the beginning. Once we start using the process and establishing inquiries we will have to tweak the legislation, and we will do it on that basis.

Uniquely, this is in the hands of the Oireachtas as opposed to Government. In the past most legislative proposals were the creatures of the Executive. More and more will come from the Oireachtas proper but this in particular is important legislation which will give significant powers to this committee and to every other designated committee of the House to ensure that the business of the public is done in an open and transparent way.

Chairman

Go raibh míle maith agat a Aire as an chur i láthair chuimsitheach sin. Osclóimid an díospóireacht le cupla ceist. Iarraim ar an Teachta Calleary.

Deputy Dara Calleary

Gabhaim fáilte roimh an Aire. I welcome the Minister. It is appropriate that this committee would acknowledge that in many of his previous political lives the Minister has prepared much of the groundwork for this committee to exist, at great personal and political cost to him, in various clashes with the Garda. The constitutional committee is probably the easiest one to manage but it would be appropriate for us also to acknowledge the work of that committee under the chairmanship of former Deputy, Mr. Seán Ardagh.

I have a number of questions. Until now the super committee in this House has been the Committee of Public Accounts. It has the right to initiate investigations in its area. Is it now to become a requesting committee and will any work it does in future have to come through this committee?

Second, what will be the role of the Oireachtas Commission in regard to this committee? It is normal that the financing of committees comes under the commission and we have a reporting relationship into the commission but from my understanding it seems this committee will get budgetary responsibility for inquiries without having a budget or the budget experience. What will be the working relationship with the commission?

Can the committee ever be a requesting committee? Can we as members ask this committee to hold an investigation? It might be to do with an issue the Ombudsman raises, and we have some issues on the agenda later today. If we are to be a requesting committee, what checks and balances are in place to ensure we monitor ourselves properly?

On the broader issue, a committee may decide at some stage on the basis of a report to launch an investigation into an aspect of Government policy or the running of previous Government policies. Given that any Government has a majority in the House, there is nothing to stop purely partisan inquires taking place. What checks and balances has the Minister in place in that regard? Every investigation this committee sanctions must get the approval of the House but given that the House will also have a Government majority, what checks and balances are in place regarding that?

One of the provisions is that an inquiry cannot take evidence "that could prejudice matters before a court". Who makes the call on what prejudices a matter before a court? That is an area that is open to major legal challenge.

I welcome the fact that the Minister has brought forward the legislation quickly in advance of the October referendum. I have difficulty with the fact that referendum legislation - it also applies to the judges' pay referendum - is being brought through the House so quickly. If the Members of the Oireachtas do not have respect for Bunreacht na hÉireann, it is unfair to ask our citizens to have respect for it, although I appreciate the issue here is about timing.

Deputy Brendan Howlin

I thank Deputy Calleary for his kind personal comments. I feel somewhat battle-scarred from issues here. I have been through both the High Court and the Supreme Court on two of the matters here. I understand that often there is a meeting of the responsibilities in the separation of powers between the Oireachtas and the Judiciary. To speak frankly on a personal basis, I felt that for the past few decades the directly elected Parliament of the people has been in retreat and that we have often left it to the courts to do business that is proper to ourselves. We need to reclaim some of that area. It will be difficult and it is demanding for members involved in inquires into the future. They will make mistakes. As I said to the Cathaoirleach, members may be spending the odd day in the Four Courts once we get up and running but that will be an important part of the process as it is bedded down.

In terms of the specifics, I should have made mention also of former Deputy, Mr. Seán Ardagh who did sterling work in all of this area. I had the pleasure of meeting him yesterday and I was delighted to see him in such good health again. In specific terms we needed to establish a clear legislative framework and the legislative framework we are suggesting is that we need one clearing house, one over-arching committee that will make the determination, and that is this committee. All committees, therefore, including the Committee of Public Accounts or any other committee, would be making requests to this committee. No committee will be a super committee that will be able to operate because we must have clarity in terms of how this will function. The Committee of Public Accounts will continue to be the principal forum for the detailed examination of public expenditure, and it may well be initiating its own inquires and so on but it will have to go through the procedures as laid down here.

On the role of the Oireachtas Commission, somebody has to make a determination in regard to costs but determining the costs does not mean that the costs have to be borne. It will be up to the full House to say "Yes" or "No" to a proposal. I imagine if this committee determines that a requesting committee should be given permission, and determines the scope and potential cost of that, the commission will have something to say about it at that stage, and then the House will ultimately make the determination.

Deputy Michael McCarthy

I welcome the Minister and thank him for his thoughtful comments. It is good to see the materialisation of this proposal, which was an important point in the programme for Government, so early in the Administration. No doubt the Minister is drawing largely on his knowledge of the Abbeylara experience, which has coloured the thinking of this committee on its approach.

When the draft heads of the Bill were published earlier in the week, the Minister said this measure could very well result in a banking inquiry in which bankers would be brought before the committee. What are the Minister's thoughts on this? Irrespective of the debate on political reform, the public has in recent years been left without accountability regarding the financial crisis and the roles of various bankers and financial institutions. I refer to those who have gone abroad or refuse to participate in Garda inquiries. This has frustrated people's sense of democracy and has hindered the principle of accountability that public representatives are rightly and all too often called upon to honour.

The Minister referred to the oversight committee and the consideration of applications or reports submitted therewith. He stated, "either consents to the application subject to the approval of the Dail or Seanad". Another part of his speech refers to both Houses. Is it one or both?

Who does the Minister believe the investigator will be? What kind of expertise or background is required? Should he have a track record in investigations or be a former civil servant? Will the Minister expand on this?

Let us consider the issue of compellability. There have been individuals who have completely refused to acknowledge the correspondence of committees. They have had no respect for the Parliament or members of the committees in question. Will these people realise they are required to appear before an Oireachtas committee? What timeline does the Minister envisage will apply to the oversight committee and the requesting committees? Does the Minister know the cost? Our experience of tribunals has shown us that a small number of people made a huge amount of money out of the process. The process was unworkable, went on for years and resulted in very high expenditure on the part of the State.

The Minister stated investigators will have the power to enter premises and examine or secure documents.

Deputy Brendan Howlin

Subject to a court order.

Deputy Michael McCarthy

Correct. What mechanisms must be exhausted to arrive at that juncture?

My final question is related to that of compellability. What happens if a witness refuses point blank to entertain a request to appear before an inquiry? Will there be a legislative provision to allow for the sanctioning of that individual or to force him to attend? If he persists in refusing to appear before the inquiry, what sanctions can be applied to him?

Deputy Brendan Howlin

On the question as to whether banking will be the first subject of inquiry, I referred to my belief that it seems like a fairly obvious candidate. I am thankful that will not be my concern; it will be for the relevant committees of the Houses to determine whether an inquiry into any matter should be requested. It is ultimately a matter for this committee to determine whether it should proceed. I should not offer personal thoughts beyond that on what should be investigated first.

With regard to whether approval should be given by the Dáil, Seanad or both Houses, the Government is committed under the programme for Government to a referendum next year on the abolition of the Seanad. Some thought was given to confining the power of approval to the Dáil. That was debated internally but it would not be right or proper to pre-empt the view of the Oireachtas or the people on this matter.

Under the provisions we have laid out, an inquiry can be initiated by a committee of the Dáil, in which case the sanction will go before the Dáil; a committee of the Seanad, in which case the Seanad will be the appropriate authority; or a joint committee, in which case both Houses will be responsible. I envisage that the recommendation will be made by a joint committee in virtually every case and cannot envisage a case in which it would not. However, I am providing for a recommendation being made by a committee of either House. The oversight committee of the relevant House would make the determination.

The investigator should be an appropriate person determined by the committee. If the matter in question were an accountancy matter, the investigator might be a forensic accountant. I met the Ombudsman yesterday. In many instances, the Ombudsmen might conduct an investigation and present it to a committee. That investigation might be sufficient to comply with the investigator element of the committee's work. The investigator could be whatever suitable person is determined by the committee as best able to produce the facts that would best inform a proper inquiry.

With regard to compellability, the Deputy will be familiar with the 1997 Act, which provides for the Houses to give the power of compellability to existing committees. This was done very sparingly in the past. Where power is devolved under the 1997 Act, there is a sanction for those who do not comply with it. This would be envisaged to apply in this case also.

Draft head 21 refers to powers relating to witnesses and documents. It lists the powers available to require people to appear, produce papers and so on, and it refers to the sanction that would apply if people did not do as requested. We need to have teeth in an inquiry system and cannot have people simply ignoring it.

We felt entering an individual's dwelling, to seize his papers or computer, for example, is fairly intrusive. This would require a warrant from the District Court. The penalty for breaching the compellability rules would be analogous to contempt of court. It is analogous to the old British offence of contempt of Parliament.

The timeframe and costs are a matter for this committee to determine.

Chairman

This process is very important in that it very much empowers the Oireachtas to hold people to account, identify systemic problems in society and raise them for resolution in the Oireachtas. My own misgivings concern the balance of rights the Minister discussed. There may be a possibility that individuals' rights could be eroded. I understand that if we want an efficient system, time and cost are very important, but we must balance these with individuals' human rights. Section 4 seems to imply individuals' rights will defer to a law that could change over time. Therefore, people are being asked to vote on a constitutional amendment that defers to a law that could be changed over time.

The default arrangement is that investigations would be held in private. I understand this and that individuals have stated the Cloyne report is an example of the importance of holding investigations in private. Would it not be better, however, if investigations were, by default, held in public? The committee could decide to hold them in private if there were reasons for doing so. At the initiation stage, we should try to have as public a system as possible. It would be more transparent as a result.

Deputy Brendan Howlin

The first point the Chairman made is the most difficult to address and explain to people. Baldly, the constitutional amendment appears to give significant rights to the Oireachtas to rebalance the rights of citizens. We need to be very clear about that. We must be clear in our own minds about this to be able to explain it to people, because we will be asking them to support it. Article 40.3 of the Constitution protects the rights to a person's good name and fair procedures and the rules of natural justice. They all must be respected in any form of inquiry that puts under scrutiny a person's reputation or good name. Consequently, an existing section of the Constitution has been carefully explained by the courts over time. The balancing test is governed by law and the enabling legislation and proceedings carried out thereunder are reviewable by the courts. In essence, whatever decisions are taken here in respect of the balance will be subject to overall court balancing. Up to now, the courts could review the provision of appropriate fair procedures and in every previous inquiry or other matter that was carried out by these Houses, were an individual citizen to challenge the action of a committee of the House or the House itself, the test would be fair procedures. However, by inserting this new clause into the Constitution, the courts are being asked to consider a new balance, that is, the balance of the public good or whether a matter is of general public importance.

The advice taken from lawyers throughout the process last year and from the Attorney General's office more recently is this does not in any way weaken the rights of individuals but inserts a new balancing mechanism whereby the common good or the investigation of a matter of general public importance is put into the weighing scales in a much more clear and defined fashion. This is the advice I have to hand and we must overcome the blockage that has existed to proper investigation in all inquiries in the past. Again, this matter will become more clear once an inquiry has been put in place, a balancing mechanism has been established, the procedures have been laid out and, no doubt, once the courts test it. It may be necessary to tweak it again but we need to give people confidence they can vote for this measure without ensuring the establishment of a Star Chamber or anything else.

One point made by Deputy Calleary to which I did not respond concerned the issue of prejudice. There will be huge responsibility on this committee, which is the reason the Government decided it should be chaired by an Opposition Member in the same manner as the Committee of Public Accounts. This will provide a signal that members must act with absolute probity in the manner in which the joint committee determines such matters. Moreover, when involved in the inquiry itself, the requesting committee will be obliged to exercise an extraordinary discipline that has not always been the hallmark of these Houses in the past. Public utterances that would prejudice the final outcome would be entirely unacceptable and this must be laid out in the governing rules of conduct for inquiries. However, I believe both the constitutional amendment itself and the legislation set out by the Government comprise a reasonable, fair balance between the rights of individual citizens, which are well laid out in various clauses of the Constitution, and the less clear right of the public to have its business properly investigated in a clear and open fashion where public moneys or anything else requires protection.

On the Chairman's final question in respect of fact-finding and whether it should be done in public, the view strongly held by the all-party Joint Committee on the Constitution in the past was that one cannot do the fact-finding in a public forum because one then gets into the investigation. Many things that might be alleged during the fact-finding process might be highly damaging to people and might be entirely untrue. Consequently, one must do all that and must come to some conclusion after which one can present a file to the committee, which then will hold its inquiry on the basis of a reasonable gathering of the facts. The committee can hold its inquiry in public once that preliminary gathering of facts and weighing up of evidence is determined. This must be done if this process is to be carried out in any way efficiently or in any way that is fair to people. One feature of the tribunals in the past was that people made allegations against others but years might elapse before the latter had a chance to rebut those allegations. They stood on the public record for a long time and I am unsure whether that is the way to go.

Deputy Michelle Mulherin

While many of the questions I may have had have been answered, I welcome in particular the prospect of a referendum on this issue next October. Sometimes, when one talks about matters that affect the legal system, it goes over the heads of many ordinary people because they may be more inclined to look at the nuts and bolts. This measure undoubtedly is a highly significant step in the development of the people's Constitution in recalibrating the separation of powers arising from the Abbeylara case going back to 2002. This is an issue of long standing and there have been tribunals of inquiry that cost taxpayers tens of millions of euro that have been a waste of money because basically, they were set up to investigate white-collar crime. My opinion at the time and as matters progressed was that it would have been better to allow the Garda and the Revenue Commissioners to investigate and to allow people be prosecuted without having a process whereby such a circus went on. I mean no disrespect but ultimately results were needed which required invoking the criminal justice system, which again required the Garda and so on to prosecute. As this entailed going twice to the State and has cost a lot more, this development is highly significant for the ordinary citizen. It is good that members, as people who represent the ordinary citizen, can be empowered to make inquiries in the proper fashion and this of course will be the key to this measure's success. At one of the joint committee's initial meetings, I had occasion to note one did not need to go too far to see how inquiries can go the wrong way and I referred to the inquiry held by colleagues into the conduct of the then Senator Callely. It did nothing for the idea that inquiries could be conducted in a right fashion.

I wish to sum up by making two points. First, it will be important that members will receive some form of training in respect of the principles of natural justice and the idea of impartiality. Members are all politicians and ultimately one must ask whether a question will be about political point scoring or about getting the facts. This point will apply to the committee in the future. As for impartiality, members must have the utmost respect for anyone's reputation and must be one step removed. Moreover, there must be fair procedures and members who conduct such inquiries under this new power must so do in a fair fashion in order that people can have respect for the business the Oireachtas will conduct via these committees. As I noted, training should be provided if one bears in mind that findings of fact that could have legal implications normally are in the realm of the courts and of people who are highly trained. I do not suggest people must be lawyers or anything like that but many principles in natural justice accord with people's sense of fair play and when they are pointed out, they can be observed.

The other issue relates to the end result, the findings of fact and the issue that reports or documents are not admissible in criminal or civil proceedings. Can these facts cause another procedure to be invoked involving the Garda or the Revenue Commissioners? I note they cannot use the documents on which members will have spent a great deal of time working. Such facts also can feed into the Oireachtas's policy as Members develop policies as a Legislature and they can learn from mistakes if corrections must be made in that realm. I presume there is a legal basis in this regard. While the Minister will refer to individuals and I acknowledge members cannot administer justice because we are not judges and so on - that would be a constitutional matter - does he envisage there will be much duplication because documents, findings and the report cannot be used?

Deputy Brendan Howlin

I thank the Deputy for her incisive comments and I will begin with a general point. This is a ground-breaking Oireachtas from a number of perspectives. One is that the Government has an enormous majority. We have to be responsive to that and certainly not use the majority in any oppressive way. It does, however, give an opportunity to the Oireachtas to work as a parliament in a way that is not simply adversarial with point-scoring between parties.

Under the chairmanship of Seán Ardagh, the justice committee examined Abbeylara. The sub-committee that was going to investigate the Abbeylara incident would have come to very fair conclusions much quicker and at a tiny fraction of the cost of the subsequent tribunal of inquiry that was necessitated by the court action. I think we would have done it fairly and efficiently. Once we get into this, members will engage in a very fair way and will ensure that due procedures are properly adhered to.

In terms of the legal implications, the findings cannot be used but a report will be published. If there is a clear case for the investigative authorities, An Garda Síochána, to make an investigation, I think they will do that and, similarly, if there are any other matters for the Revenue Commissioners or anybody else.

I see there is a vote in the Dáil so this will be my final point. We should not focus exclusively on individuals. We are not going to be investigating individuals. The vast bulk of inquiries will be about system failures and will not necessarily hit individuals.

Chairman

Tá brón orm. Cathfaidh mé an seisiún seo a chur ar ceall agus tiocfaimid ar ais díreach tar éis an vótáil. We will suspend the sitting now and I ask members to return to the committee directly after the vote.

Sitting suspended at 3.52 p.m and resumed at 4.10 p.m.

Chairman

Táimid ar ais i seisiún poiblí arís. Bhí an Teachta Ó Snodaigh chun ceist a chur ar an Aire.

Deputy Aengus Ó Snodaigh

Cuirim fáilte roimh an chinneadh atá á dhéanamh maidir leis an reachtaíocht nua agus an reifreann. I congratulate the Minister on being in a position to give effect to many of the proposed solutions which emerged when the shortfalls in our system were exposed in recent decades. Hopefully, the Dáil will be given the ability to carry out inquiries properly.

I have a number of concerns on which I seek clarifications. I sat on the Joint Committee on Justice, Equality, Defence and Women's Rights in the past Dáil and the one previously, although I was not a member, and I remember well the Judge Curtin case. One of the procedures for members of the sub-committee to investigate Judge Curtin was that they had not spoken in public prior to the sub-committee being formed and would not speak thereafter. The Minister spoke of the public utterance and rights of fair procedure. If the same yardstick that was in the Judge Curtain case is used, the difficulty is that with most of the inquiries I presume this body will be either rubber-stamping or initiating, somebody along the way will have made comment, and we do not want to exclude members. How will it be possible to ensure we also have a right to fair comment prior to initiating an investigation?

The other concern is a practical one. What happens to an investigation which has been completed when the Dáil dissolves? A new Dáil need not continue with any of the work of a previous Dáil. While there could be much good work done by that Dáil, because of changes in the political helmsmen after an election, an inquiry would merely die in the water. Is there any provision to ensure work can continue to the conclusion of an investigation?

Another practical concern for the committee was hinted at earlier. Given the onus that has been put on committee members here to take a decision which is in some ways quasi-legal, will there be increased legal resources to help members and the committee so that they can reach a decision having taken on board or rejected legal advice when they are initiating investigations, but also in the event of a legal challenge? I heard the Minister comment that perhaps the Chair would be before the High Court or Supreme Court on a few occasions, but that would be also true of all of the members who took part. Will the Dáil and Seanad Members be indemnified or protected? Outside of that protection, which is in some ways secondary, will they have the legal supports to defend the decision they have taken in committee?

My final concern for now - there are other issues and we will tease them out when the legislation is before us - relates to bodies such as the Defence Forces and An Garda Síochána. These have in the main remained protected from external inquiry other than by the Garda Ombudsman Commission which has a specific role and the Defence Forces Ombudsman has an internal role in it. For instance, could this committee initiate an inquiry or investigation into a matter of Defence Forces policy upon receipt of a request from the Joint Committee on Justice, Defence and Equality? For instance, in the Garda Síochána's case, there was the Dean Lyons case and there have been other such cases. Will it be open to the committee to put in the investigator or will that merely go to the Garda Ombudsman Commission? Some of the work here will cut across work of other ombudsmen. Sin é go fóill.

Deputy Brendan Howlin

The first point Deputy Ó Snodaigh makes is valid in terms of the experience on the Curtin case. The determination of the Supreme Court in the Abbeylara judgment hinged on a number of fundamental principles. One of the most interesting from my perspective was its determination of objective bias and institutional bias. I thought it was an odd view in terms of individual bias. I instance the case, for example, where it is not unknown for distinguished counsel to be involved in cases and then find themselves on the bench subsequently adjudicating matters that touch upon those cases. Often, if they are closely related or if they were directly involved, they would resign from it. Certainly, there is a presumption in the courts that as soon as one becomes bewigged, all one's previous utterances and involvements, political or otherwise, are of no consequence, and that one is purified. I am afraid they did not give the same views to Members of the Oireachtas. There was a determination on the issue of individual bias that those who are involved here are so political they could not be objective. I do not believe that is the case but that has to be proven. It will be a tall order because all of these matters will be subject to external oversight by the courts.

I suppose more interesting was their view of international bias - whether, intrinsically, Parliament by its very nature could be unbiased. Since every other parliament I have looked at across the world is able to hold inquiries on a non-partisan basis, I presume this Parliament has in the past measured up, and will in the future. It is part of the balancing that is implicit in both the wording of the proposed constitutional amendment and in the legislative supporting heads we have drafted.

In terms of timeframe and the Dáil falling, there is nothing we can do about that. Everything falls once the Dáil falls. If the 31st Dáil fell tomorrow, all committee work and everything else would fall by the wayside and would need to be picked up again, if it is to be picked up, by the successive Dáil and Seanad.

Resourcing will be a matter for the negotiation with the Oireachtas Commission. We all must live within the timeframes. The idea is to save money in the overall, to do the public's business in a more cost-efficient way. Once we get the ground rules established, that will be the pattern.

I have not considered the issue of indemnification. When I was involved in litigation for the Morris tribunal, I ended up in the Supreme Court with a potential legal bill of €500,000. I eventually persuaded my party to indemnify me, which it did. Ultimately, the Oireachtas determined that both Jim Higgins and I should have our costs met. The court signalled that this would be the appropriate action. It is a vulnerable position for people in which to find themselves and some thought must be given to it.

The Morris tribunal examined the Garda Síochána, one of the few areas of public life that has been specifically investigated by a tribunal of inquiry. It is open to any line committee to make applications for the type of inquiry to which Deputy Ó Snodaigh referred. Overlap will happen, but Parliament can determine what it considers appropriate to investigate, notwithstanding what anyone else does. That is an important consideration.

Deputy Derek Nolan

I welcome the Minister and congratulate him on his good work in publishing the wording of the amendment so soon.

Will this committee have an appeals function? If one member believes, for instance, that an investigative committee is breaching its terms of reference, can he or she appeal this to the Chairman of the committee? Will it be a matter for the courts instead to decide? What will happen if there is a conflict between the oversight committee and the investigative committee over, say, the interpretation of the terms of reference?

The term "public interest" is referred to in the amendment. In other areas of law the term "public interest" has changed because of court decisions. Is there a stable definition of the term? Why was it chosen rather than a term such as "public good"?

Regarding the investigators committees will use, one argument in favour of the Committee of Public Accounts is that it works well because the Office of the Comptroller and Auditor General has constitutional standing. Accordingly, its investigations have legal and constitutional standing. The Ombudsman has argued that her office should be given constitutional recognition and protection in case her office's investigations are challenged. I note this constitutional amendment does not refer to the role of the investigator but merely mentions that the Houses of the Oireachtas should have that authority. Are we leaving it open to the possibility that the courts will prevent an investigation? Should it have been included in the amendment?

Deputy Brendan Howlin

With regard to investigations, I have outlined the role of this committee. Any line committee of either House will make a submission to this committee to establish an inquiry. The committee, in turn, will determine the matter through the procedures I have outlined.

Deputy Dara Calleary

To clarify, does the Minister see any role for this committee as an investigating committee?

Deputy Brendan Howlin

No, that is not envisaged. If it is a health matter, it will be pursued by the health committee, and a justice matter by the justice committee. It is difficult to envisage how the committee could apply for an inquiry to be established and make an objective determination on it. Once an investigation has been established, the investigative committee or sub-committee thereof will be a self-contained unit. It will determine how the investigation will proceed and comes to its own conclusions. There will be no appeal to the oversight committee. This committee's role will be as an overall controller which will determine whether an issue is worthy of proper investigation, that the terms of reference are tight and clear, that it is cost-effective, and its timeframe. This committee will present this to the Dáil which, in turn, will make the determination. If there is an issue such as stopping an investigation, it needs more time or resources, it will be up to the committee involved to make its case to this committee in order that it can make a determination on it. That is the only appeals mechanism.

Deputy Derek Nolan

If an investigating committee is perceived to be breaking its terms of reference, will this committee have a role in determining that matter?

Deputy Brendan Howlin

No. The issue might be raised in the House because it will determine the terms of reference. If the Deputy believes this provision needs to be tighter or more clearly drawn, I would welcome his suggestions on how to address them.

The public interest refers to the public interest in effectively investigating a matter. We can lay this out and balance it with individual rights in a way that is robust and will not lead to serious challenges. The whole idea of this constitutional amendment is to dislodge the imbalance that has prohibited the proper investigation of matters in this jurisdiction for two decades. It is not in any way to trammel individual rights which are vindicated by existing constitutional provision and enunciated law.

I met the Ombudsman yesterday and she made some of the points made by Deputy Derek Nolan. The programme for Government includes a commitment to introduce new legislation to broaden the Ombudsman's remit. The views on providing a constitutional role for her office will be taken on board and debated in due course.

Deputy Derek Nolan

An investigative committee, therefore, will have no legal protection in this constitutional amendment.

Deputy Brendan Howlin

They will not be constitutionally protected. Investigative committees will be conducting a preliminary process for the Houses and produce a document which will be proper to the Houses. All papers of the Houses are protected under the Constitution.

Deputy Michael McCarthy

Does the Minister envisage a Whip being applied to members of this committee?

Deputy Brendan Howlin

It would be entirely and wholly inappropriate to have any Whip or party consolidated view applied to the matters that will come before this committee.

Deputy Charlie McConalogue

To return to a point made by Deputy Calleary, what checks and balances between the Government and this committee will there be to ensure the Government will not decide what matters should be investigated?

Deputy Brendan Howlin

The Deputy has asked a very political question. There are no checks and balances as such, only the good sense of the individual Members elected directly by the people. My experience of major issues at committee level has been that party allegiances often do not come into play. People are interested in the issue. A glaring issue arose during the last Dáil when a report of the Ombudsman was not acted upon and a committee voted on a party basis. That was inappropriate and I hope it will not recur. It is a test for Parliament to ensure public affairs are not conducted on a party political basis. The reverse is also true, that is, mischievous issues can be raised against the Government. While it is a test for the Government to ensure proper issues that might embarrass it get through the gateway, there is a similar onus on the Opposition not simply to make mischief in order that it might embarrass the Government with an issue that would not merit a proper inquiry. These factors will be teased out. The public will watch and come to its own view where partisan politics are being played.

Deputy John Paul Phelan

I welcome the Minister and his officials and join others in complimenting them on their swift work in drafting the amendment. Giving the outline of the enabling legislation in order that the Oireachtas can have an input into it is a welcome initiative.

I will ask a couple of questions, the first of which the Minister touched on in his final comments. If a matter has been investigated, as was the case with the report issued by the Ombudsman to which the Minister referred, and another Oireachtas committee suggests a further investigation is required, will this committee be able to determine that something has not been sufficiently investigated and that a new inquiry should be opened?

I might be missing the obvious answer to my second question, but will there be a role for tribunals of inquiry in the light of the function the constitutional amendment, if passed, will return to the Oireachtas? What effect will it have on the operation of existing tribunals? I presume there will be none. Some of these inquiries should have been carried out by the Oireachtas instead. Is there a provision for returning them to the control of the Oireachtas?

Deputy Brendan Howlin

Deputy Phelan's first question was related to committees. Any committee can determine to make an application to this committee in respect of any issue, even if it has been investigated previously. If a new committee of the Houses determines that something that was in the purview of a previous investigation or report of the Ombudsman merits further investigation, it will be perfectly entitled to present that petition and this committee will be perfectly entitled to accede to that request once the legislation has been enacted and the Constitution amended.

Anything we do at this committee will not affect existing tribunals, nor will it negate the prospect of further tribunals being established. No doubt some matter will be proper to a tribunal of inquiry external to the Houses of the Oireachtas. I cannot envisage instantly what that might be, but there will be such issues, whereas others will be proper to the Oireachtas. By and large, committees will seek inquiries into systemic failures of public administration, the sort of failure at which people used to shrug their shoulders, to try to ensure lessons are learned, there is accountability and they do not recur. This is the relatively short, focused inquiry that should be facilitated by the enactment of the legislation.

Deputy John Paul Phelan

If there have been a number of inquiries and investigations into the banking sector and the finance committee petitions us in the morning to have a new inquiry established, we will judge the application on its merits, regardless of what has occurred heretofore.

Deputy Brendan Howlin

If the legislation is enacted, it would be improper of me to advise because it would be a matter exclusively for the committee.

Chairman

Tá beirt urlabhraí fágtha againn. Ar dtús Teachta Healy-Rae agus ansin Seanadóir Ó Clochartaigh.

Deputy Michael Healy-Rae

I welcome the Minister and his officials. I readily acknowledge and appreciate the Minister's interest and work in laying the foundations that allowed this committee to be formed. Like other members, I am delighted to be a member, as we will be enabled to carry out important work.

We have no business looking backwards, only forwards all of the time, but the people are rightly outraged by the colossal sums of money wasted by poor structures. Tribunals of investigation have been allowed to continue for five, ten or 15 years. This should not be allowed to recur. Irrespective of what will be outside the remit of this and other committees working in conjunction with one another, there should never again be a situation in which any investigation should cost as much or take as much time. I hope we can look forward with a spring in our step to carrying out our work in a proper, speedy and cost efficient fashion. This is what the people want, expect and deserve. I thank the Minister for attending and wish him well.

Senator Trevor Ó Clochartaigh

Cuirim céad fáilte roimh an Aire. Is deas an rud é deis a fháil chun an t-ábhar seo a phlé leis.

I have a couple of questions on the committee's role and the possibility of it instigating its own cases. The petitions committee of the European Union is open to individuals and organisations. Can someone make a petition to this committee regarding an issue of health, finance or something he or she views as a systemic failure, or must it come via another committee for us to have it investigated?

There will be no shortage of issues and we will not want for a caseload. Some systemic failures are colossal and have far-reaching effects. A number might not be important in terms of the national interest, but they might be to the individuals concerned. Will we receive guidance on how to handle our caseload? Five or six small cases that are important to the individuals in question could be handled expeditiously by the committee. For example, the right to the provision of health care, etc. might need to be addressed if there was a systemic failure. An investigation into the banking crisis might be a more onerous task for the committee. How should we manage our caseload when we are dividing up the work to be done? If, for example, the committee must decide on the fees to be paid to senior counsel, will it agree by way of a simple majority vote?

Deputy Brendan Howlin

Yes. That is democracy. The Senator has made the important point that the joint committee will have a role and that in hearing petitions from the general public issues might arise. It is not sustainable that the committee could be a judge in its own court. One cannot set the framework for one's own petition. For example, if the matter in respect of which the committee was hearing a petition was health related and the committee was to find that the case had merit, it would have to refer it to the health committee which would then undertake a preliminary investigation and come back to this committee if it determined it would be invidious for it as gatekeeper to also mind itself.

On the volume of work and how it will be regulated, I do not believe formal powers of inquiry would be required for every matter. The joint committee could prepare reports. In the previous Dáil every committee had a rapporteur to gather information. The joint committee would not need the legal structure of the inquiry system we are establishing in order to do that work. It would not require legal authority in every case to send for papers, compel witnesses to attend, seize documents, enter homes and so on. It would be only be with great exception that these powers would be used. It is hoped there will not be an avalanche of such issues. Part of the joint committee's responsibility will be to have that discernment. If every committee wishes to make presentations to the Joint Committee on Investigations, Oversight and Petitions, it will have to explain to the chairpersons and relevant members of such committees the number of submissions before it and that they will each have to make a compelling case to enable this committee to make a judgment call on the issue raised.

Chairman

Táimid fíor-bhuíoch as an cur i láthair cuimsitheach sin agus beimid i dteagmháil libh go luath.

The joint committee went into private session at 4.45 p.m. and adjourned at 4.55 p.m. until 4 p.m. on Wednesday, 21 September 2011.