Tribunals of Inquiry (Evidence) (Amendment) Bill, 1997: Committee Stage.

Section 1 agreed to.

SECTION 2.

Ms O'Meara

I move amendment No. 1:

In page 3, line 18, after "order" to insert "or request".

This amendment is designed to assist the tribunal in its informal work. All Members of the Oireachtas are aware that the Moriarty tribunal is at the stage of conducting informal work, such as sending out letters seeking information, etc. I understand that before it reaches its public stage a tribunal carries out such informal work. This amendment, which inserts the words "or request", is designed to assist a tribunal in such work. Under the Bill, persons who send or produce documents pursuant to an order of the tribunal are given the same immunity as witnesses before the High Court. We suggest in this amendment that similar immunity should be extended to people who send documents to the tribunal arising from an informal request, presumably by way of a letter, phone call, etc. The letters we received from the Moriarty tribunal in the past weeks would be an example.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

Section 2 provides that a person who produces or sends a document to the tribunal pursuant to an order of the tribunal shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court. It is proposed under Senator O'Meara's amendment that the words "or request" be inserted after "order" so that a person who produces or sends a document to a tribunal pursuant to an order or request of that tribunal shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court. The amendment is only of a drafting nature. All directions by a tribunal to persons to furnish documents are on foot of an order of the tribunal. In those circumstances, inclusion of the words "or request" is unnecessary. I consulted the parliamentary draftsman on this amendment and he agrees it is unnecessary and that what the Senator seeks to do has already been achieved by the wording set out in the legislation. In those circumstances, I am not in a position to accept the amendment.

Amendment, by leave, withdrawn.

Section 2 agreed to.

NEW SECTION.

Mr. Connor

I move amendment No. 2:

In page 3, before section 3, to insert the following new section.

"3.—(1) Section 5 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, is hereby amended by the substitution for section 5 of the following section:

‘Where during the course of a Tribunal of Inquiry evidence is adduced of criminal activity such evidence shall be referred to in the Report of the Chairperson of the Tribunal and subsequently referred to the Director of Public Prosecutions'.".

I tabled this amendment as a continuation of my argument on Second Stage. Evidence can be adduced or can be brought forward at a tribunal of inquiry which reveals criminal activity or a breach of the law. I refer specifically to the beef tribunal where a range of infringements of EU regulations on beef intervention, a range of serious tax offences and a range of serious offences regarding the weight of consignments of beef for intervention or the open market were revealed, were not denied and were clearly proven.

A tribunal of inquiry is not a court of law, but these offences were established as having taken place and the people who committed them were identified. Certain people were clearly responsible, including the head of one of the leading meat processing firms in this country, Mr. Larry Goodman. Not one of these offences could be levelled against him in a court of law because no one had the responsibility to send these files to the Director of Public Prosecutions, to whatever other appropriate public authority might handle further investigations or even to the Garda.

I am attempting by way of this amendment to ensure that, if such evidence is brought forward in any future tribunal and it is clearly proven, it will be placed in the hands of an appropriate authority for further investigation. If someone is guilty of a serious breach of the law, be it EU regulations, planning law or tax law, they should be brought to task and that is what I argue for in this amendment.

The Minister may reply that section 5 of the 1979 Act was inserted to protect people who come forward to give evidence at tribunals of inquiry and that it acts as an incentive to come forward. It is difficult to argue against that. Everyone has a right to protect themselves from self-incrimination. That is a recognised principle of law. However, it is of far greater importance that, where criminality has been exposed, procedures are in place by which that can be pursued. I have no problem if the Minister wishes to protect section 5 of the 1979 Act, but only as long as he can assure me that such revelations of criminality can be reported to the appropriate authority and that someone has the responsibility to do so, even if it means the Minister tabling his own amendment.

Mr. O'Donoghue

The 1921 Act had no provision corresponding to section 5 of the 1979 Act. Senator Connor is correct in pre-empting me by stating I would mention that section. However, I am sure the Senator accepts that, in its absence, a witness would not have to give evidence to a tribunal of inquiry which implicated him or her in a criminal offence. The Senator acknowledged it would seriously hinder a tribunal in its task of uncovering all the relevant facts.

Section 5 effectively removes the possibility of such a serious hindrance by providing that a statement of admission made by a person before the tribunal shall not be admissible in evidence against them in any general proceedings other than those under the 1921 Act for giving false evidence to a tribunal.

One of the reasons I cannot support the Deputy's proposal is that it would seriously prevent a tribunal from carrying out its functions of inquiry.

As regards the new proposed section, the question of whether there is sufficient evidence on which to bring a prosecution against any individual is clearly a matter for the Director of Public Prosecutions who is and must of necessity be independent in the exercise of his functions.

Everyone would accept that it is not the function of a tribunal of inquiry to determine what does or does not constitute criminal activity. Tribunals have always had the power to forward reports to the Director of Public Prosecutions. This has happened on a number of occasions. Deputy Connor is giving the impression that a matter cannot be referred to the DPP because the section is not law. That is not correct. A tribunal is at liberty to refer any report to the DPP. What it may not do is adjudicate on what does or does not constitute criminal activity. It cannot assume any of the independent functions of the DPP. It is a matter for the DPP to examine a report and assemble his own evidence on which to base a prosecution.

The DPP can also examine the findings of any tribunal of inquiry independently, whether or not the tribunal refers it to him. This amendment would compel a tribunal to report to the Director of Public Prosecutions where it finds clear evidence of criminal activity. That is objectionable as it would require the tribunal to take a view as to what constitutes criminal activity. That is not its function under law.

Senator Connor would appreciate that section 1(2) of the Act of 1921, as amended by the Act of 1979, already provides that, if a person by act or omission obstructs or hinders the tribunal in the performance of its functions, that person shall be guilty of an offence. Under those provisions, a tribunal has the power to send papers to the DPP when it considers that circumstances warrant such action. Having regard to the peculiar and separate roles of a tribunal of inquiry and the DPP, and the fact that it is open to the DPP to take action on any tribunal report whether referred to him or not, the amendment is inappropriate and I am not in a position to accept it.

Mr. Connor

I regret the Minister's attitude. He defeats his own arguments. He stated that a tribunal may refer part of its report which refers to wrongdoing, irregularity or criminal activity to the Director of Public Prosecutions if it so wishes. I agree. The Minister also stated that the DPP can take up an issue arising from a tribunal of inquiry of his own volition. However, the Minister did not say so in the Dáil on 31 August 1994, but he will agree that disgraceful behaviour was revealed by the beef tribunal. Huge scandals in meat factories robbed Irish and European taxpayers of millions of pounds. However, no action was taken because the chairman of the tribunal had no legal obligation to report to the Director of Public Prosecutions. The DPP did not bother to take the matter up either.

The public cannot understand and is confused how this kind of wrongdoing was exposed and proven, not in a court of law but in procedures which are akin to a court of law, yet no action was taken. I will do everything to assist the Minister to preserve section 5 of the 1979 Act. However, an obligation in law should be placed on the chairperson of a tribunal or the DPP that if wrongdoing is revealed as a result of a tribunal of inquiry, there is a responsibility to pursue that wrongdoer through the appropriate channels. We are not saying that, because wrongdoing is alleged or revealed, it will necessarily be proven in court. That will be a matter for the courts. This is why I must press this amendment.

Ms O'Meara

Senator Connor makes an important point in relation to my earlier remarks on public accountability. If a tribunal exposes a breach of the law, it is not sufficient for law makers to say that is fine and we let the DPP take care of it. The public wants tribunals to have a facility through which responsibility is clearly and publicly taken for the pursuance of a criminal matter. It is up to us to use our creative minds to draft a proposal in that regard. We must ensure that tribunals have the maximum level of public accountability at their disposal.

Such a procedure must be in place. Nothing disquieted the public more about the beef tribunal report than the fact that wrongdoing was revealed and proven by procedures similar to those used in court, yet the people concerned got off scot free. In addition, the taxpayer was obliged to pay their legal and spin doctors' costs.

Ms O'Meara

That cost £5 million.

Mr. Connor

I am simply expressing the concerns of the public. This legislation is unlikely to come before the House again and I am seeking to put a simple procedure in place to provide that if wrongdoing is exposed it is somebody's responsibility to ensure it is investigated. I am aware a tribunal of inquiry is not a court of law and that nobody can be found guilty by such a tribunal. However, the chairman of each tribunal has been an eminent judge and such a person is well qualified to make an adjudication about what constitutes wrongdoing and whether a matter should be referred to the Garda Síochána or the Director of Public Prosecutions.

There should be no misrepresentation of the content of this amendment. This is an embarrassing issue for the Minister but he can escape his embarrassment by accepting the amendment. We will co-operate in every way to preserve the integrity of section 5 of the 1979 Act, but we also wish to ensure that if wrongdoing of the type exposed in the beef tribunal is ever again exposed, it will not go unpunished.

Amendment put.

The Committee divided: Tá, 18; Níl, 26.

Tá

Burke, Paddy.
Caffrey, Ernie.
Connor, John.
Coogan, Fintan.
Cosgrave, Liam T.
Costello, Joe.
Norris, David.
O'Dowd, Fergus.
O'Meara, Kathleen.
Cregan, Denis (Dino).
Doyle, Joe.
Gallagher, Pat.
Hayes, Tom.
Henry, Mary.
Manning, Maurice.
Ridge, Thére se.
Ryan, Brendan.
Taylor-Quinn, Madeleine.

Níl

Bohan, Eddie.
Bonner, Enda.
Callanan, Peter.
Cassidy, Donie.
Chambers, Frank.
Cox, Margaret.
Dardis, John.
Farrell, Willie.
Finneran, Michael.
Fitzgerald, Liam.
Fitzgerald, Tom.
Fitzpatrick, Dermot.
Glynn, Camillus.
Hayes, Maurice.
Keogh, Helen.
Kiely, Dan.
Kiely, Rory.
Lanigan, Mick.
Lydon, Don.
Mooney, Paschal.
Moylan, Pat.
O'Brien, Francis.
O'Donovan, Denis.
Ó Murchú, Labhrás.
Quill, Mairín.
Walsh, Jim.

Tellers: Tá, Senators Burke and Ridge; Níl, Senators T. Fitzgerald and Keogh.

Amendment declared lost.

Sections 3 and 4 agreed to.

NEW SECTIONS.

Ms O'Meara

I move amendment No. 3:

In page 4, before section 5, to insert the following new section:

"5.— An application to the High Court by a tribunal pursuant to Article 28.4.3 of the Constitution shall be made in a summary manner, on notice to the Attorney General, every person represented before the tribunal pursuant to section 2(b) of the Principal Act appearing to the tribunal to have an interest in the application, and any other person specified by order of the High Court.".

This amendment is designed to set out a procedure which is not provided for in the Bill so that the tribunal can refer to the High Court issues relating to Cabinet confidentiality. The recent amendment to the Constitution relating to Cabinet confidentiality allows a procedure whereby the High Court alone decides whether a tribunal can investigate a matter which would normally be covered by the very strict rules on Cabinet confidentiality. Ironically, that arose from a Supreme Court ruling on a matter raised in the beef tribunal. Now a tribunal can only look at a matter normally covered by Cabinet confidentiality if the High Court allows it to do so. The procedure by which an application can be made to the High Court is not covered in the Bill, and this amendment allows for a simple procedure to be available to a tribunal to apply to the High Court to decide if Cabinet confidentiality could be set aside.

Minister of State at the Department of Public Enterprise (Mr. Jacob)

This amendment refers to the new Article 28.4.3º of the Constitution as accepted by the people in a recent referendum. The Article provides that the confidentiality of discussions at Government meetings shall be respected in all circumstances save only when the High Court determines that disclosure should be made in respect of a particular matter in the interests of the administration of justice by a court or by virtue of an overriding public interest pursuant to an application in that behalf by a tribunal. The tribunal must be one appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.

The tribunals in question are covered by the tribunals of inquiry legislation of 1921 and 1979. This amendment does not attempt to change the law contained in Article 28.4.3º of the Constitution, and could not do so, because the relevant matter is a fundamental provision enshrined in our Constitution. Neither does it attempt to change the substance of the law contained in the 1921 and 1979 Acts. The amendment attempts to prescribe what form the applications from a tribunal should take when a tribunal applies to the High Court for disclosures by the Government of confidential Cabinet material. The effect of the amendment would be to provide that where a tribunal makes such an application to the High Court, it would have to be on foot of a summary summons. It might assist the House to outline the manner in which civil proceedings are commenced in the High Court.

All civil proceedings, with the exception of petitions, commence in the High Court with either a plenary summons or special summons, all of which are provided for in the rules of the superior courts. A plenary summons is used for cases requiring pleadings and oral evidence; a summary summons is used for proceedings to be heard on affidavit without pleadings and may, in certain circumstances, be supplemented by oral evidence. A special summons is used mainly for equity claims such as probate matters or the administration of trusts. A summary summons procedure in the High Court is the exception rather than the rule. Given the fundamental nature of applications from tribunals that would be in question, it would seem wrong in principle and practice to rule absolutely that all applications to the High Court should be made in a summary manner.

The experience may be that a good proportion of applications from tribunals should more appropriately be made on the more particularised basis provided for in the plenary or special summons. However, the range of matters which the Oireachtas may decide need to be inquired into by a tribunal may be quite extensive. It is not possible to determine at any time what issues may be the subject of a tribunal of inquiry or in what circumstances it may be necessary for a tribunal to apply to the High Court for confidential Cabinet material to be disclosed. To specify the form of applications now by way of legislation is not the best way to proceed. The procedure that should apply before the High Court is in question, and legislation already empowers the various court rules committees to make rules in relation to pleadings, practice and procedure before the courts.

The Minister for Justice, Equality and Law Reform must concur in the making of any such rules, and the rules for the purpose of applications to the courts under Article 28.4.3º would, therefore, be a matter for consideration by the superior courts rules committee. Rules are not specially prescribed, allowing for procedure by summary or special summons. Order 1, rule 6 of the rules of the superior court provides that in all proceedings, other than to take a minor into wardship, commenced by originating summons, procedure by plenary summons shall be obligatory. Last week the Minister undertook in the Dáil to write to the superior courts rules committee. He wishes to confirm that he has since asked the committee to consider whether rules of court should be made for the purposes of application under Article 28.4.3º. For those reasons, I am not in favour of the amendment and am unable to support it.

Ms O'Meara

In relation to the Minister for Justice, Equality and Law Reform writing to the rules committee, when that reply is received will it be communicated to the House? I would be interested to know, in relation to this amendment which I do not intend to press, if it will be possible for the Minister to return to the House with his response. Could he communicate his response to us?

Mr. Jacob

I am sure that we could comply with the Senator's request. The Minister's response will be communicated.

Amendment, by leave, withdrawn.

Ms O'Meara

I move amendment No. 4:

In page 4, before section 5, to insert the following new section;

"5.—A person shall not be entitled to refuse to disclose information to a tribunal, pursuant to an order of that tribunal, by reason only of—.

(a) the provisions of section 16 of the Central Bank Act, 1989, relating to disclosure of information or,

(b) any other rule of law or provision of an enactment providing that such information may be required by a court only in connection with criminal proceedings.

This is a very important amendment. It is made even more important by the response of the Minister, during the debate on the Second Stage of this Bill, to the concerns raised be me and other Senators about the operation of the Central Bank's statutory obligations in relation to the Guinness & Mahon bank and specifically the Ansbacher account. The Minister said that the McCracken Tribunal had reported that there was no prima facie evidence of wrongdoing in relation to the Ansbacher account. There is no doubt that a suspicion remains in the public domain and it is not sufficient for the Central Bank simply to wash its hand of its responsibility in relation to the operation of this account. It is certainly not acceptable for the Minister for Finance to say that the matter is over and that is the end of it. This is not the end of the matter.

This amendment is designed to remove Central Bank immunity from disclosure of information. There is public concern because there is a suspicion in the minds of the public that the Ansbacher account has been used for tax evasion or for hiding money for some other reason. Why was £38 million placed in these deposits — a secret account — when it could have been placed in any other bank? The reason is very simple. The money was placed in the Ansbacher account for purposes of secrecy. This raises the question of why did the owners of this money want it kept secret? The obvious answer is that it was done for tax avoidance purposes or because the money was the ill-gotten gains of criminal activity such as drug related activity. This is a matter of public concern.

What is the reason for the ring fencing of this account? My concern is that some people want the Ansbacher accounts to remain secret because they fear that if such accounts are open to scrutiny millions of pounds will leave this country. This raises a very important question. If opening such accounts to scrutiny causes money to leave the country what is such money doing in these accounts in the first place? We are sending a signal that this country is a safe haven for ill-gotten gains or for those who wish to avoid their tax responsibilities on a huge scale. This is the issue around the Ansbacher accounts and that is why the Minister's response to the Second Stage debate was so unsatisfactory.

The Minister is not taking into account the public interest with regard to these accounts, the function of the Central Bank and its statutory responsibility. He seemed to suggest that there was no need to give the Central Bank any additional powers to investigate suspicious activity with regard to this or other accounts. There obviously is a need to give the Central Bank more powers and to give a tribunal power to remove the Central Bank's immunity from disclosure of information.

The issues of large secret deposits, tax avoidance and potential criminal activity have not been raised solely in the context of the McCracken ribunal. They continue to be raised in the context of the Moriarty tribunal. We do not know what disclosures might be made in that regard. The level of information uncovered by the McCracken tribunal was breathtaking. I would urge the Minister, in the public interest, to accept this amendment. Since the publication of the McCracken report it has become more urgent that a tribunal of inquiry would have the power to remove Central Bank immunity from disclosure of information.

Mr. Connor

I support Senator O'Meara. I, too, during the debate on the Second Stage referred to the Central Bank and the outstanding question of the Ansbacher accounts. The Minister read an inadequate, hand washing reply from the Governor of the Central Bank. The letter excused the Central Bank of responsibility and then seemed to say that it did not have the authority to act in certain ways. I have never seen such a handwashing exercise on behalf of the Governor of the Central Bank. I take it that it was he who had written the letter in response to fairly innocent inquiries which the Minister for Finance had made of him. I am not at all satisfied with this reply from the Governor of the Central Bank. The Central Bank has a regulatory and supervisory function with regard to all banks in the country, including Guinness & Mahon. At one time the Ansbacher accounts had £38 million in them although we can only account for the £1.3 million which was used to make a payment to Mr. Charles Haughey by a tortuous and circuitous route. If the Central Bank was carrying out its duties, as it is statutorily bound to do, it would have seen, in the accounts of Guinness & Mahon, the existence of the Ansbacher accounts. They accounted for 35 per cent of the total deposits in the Guinness & Mahon bank. The law states that no depositor may account for more than 15 per cent of a bank's total deposits. In other words, a bank's liability may be no more than 15 per cent to any one depositor. If the Central Bank had been doing its work it would have seen this clear breach of the regulations. The Minister, in his reply, said that the Central Bank would not have seen the report of the auditor. Guinness & Mahon's own auditor drew attention to these accounts in his report in 1989 and expressed his alarm at their existence and their overweening influence on the bank.

I hope the Minister will assure the House that somebody has asked the DPP if it is right for Members and the public to know the hoped for comprehensive response of the Central Bank to these questions on its role with regard to Guinness & Mahon, what it knew about the Ansbacher accounts and what it might have done. The Central Bank reports to the Minister for Finance. Perhaps it reported to the Minister subsequent to 1989. We would like to know.

The Minister's half hearted reply and his failure to assure the House that this information will become public worries me. I support the amendment. If the Minister is unable to accept it then it should be put to a vote.

Mr. Jacob

With regard to Senator O'Meara's opening remarks there are now two of us sorry that the Minister is not in the House. The Central Bank is subject to strict confidentiality requirements. These are set out in section 16 of the Central Bank Act, 1989, and subsequent amendments. Under pain of severe penalties no current or former Governor, director or officer of the bank may disclose information about the business of individual persons or entities to third parties other than in exceptional circumstances which are specified in legislation. The exceptional circumstances, inter alia, allow for the provision of information as required by a court in connection with any criminal proceedings.

Non disclosure requirements which attach to the Central Bank Acts are subject to the rider that disclosure is permissible to enable the bank to carry out its functions under the Central Bank Acts of 1942 and 1989. The exceptional circumstances do not include proceedings before a tribunal because they are not, and cannot under the Constitution be, criminal proceedings.

Irish law on confidentiality and financial supervision implements EU law which requires a high standard of professional secrecy for financial regulation. This standard is set out in Article 12 of the first banking directive which provides that the member states shall provide that all persons working or who have worked for the competent authorities shall be bound by the obligation of professional secrecy. This means that no confidential information which they may receive in the course of their duties may be divulged to any person or authority whatsoever except in summary or collective form such that individual institutions cannot be identified without prejudice to cases covered by criminal law.

Section 16 of the 1989 Act implements the provisions of the first directive and places specific secrecy obligations on the staff of the Central Bank. Subsection (2) provides, in line with the directive, for certain exceptions to the secrecy requirements such as information required by a court in connection with criminal proceedings or the communication of data to other banking supervisors in the EU who are similarly bound by the secrecy requirements of the directive.

Section 16(1) states:

A person who, at the commencement of this section is, or at any time thereafter is appointed, Governor or a Director, officer or servant of the Bank or who is employed by the Bank in any other capacity, shall not disclose, during his term of office of employment or at any time thereafter, any information concerning—.

(a) the business of any person or body (whether corporate or unincorporate) which came to his knowledge by virtue of his office or employment, or

(b) the Bank's activities in respect of the protection of the integrity of the currency or the control of credit,

unless such disclosure is to enable the Bank to carry out its functions under the Central Bank Acts, 1942 to 1989, or under any enactment amending those Acts.

The relevant parts of section 16(2) state:

(2) The provisions as to non-disclosure contained in subsection (1) shall not apply to any disclosure—

(a) required by a court in connection with any criminal proceedings,

(b) made with the consent of the person to whom the information relates and, where not the same person, of the person from whom that information was obtained,

Section 16 further provides that a person who contravenes subsection (1) shall be guilty of an offence and shall be liable:

(a) on summary conviction to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both, or

(b) on conviction on indictment to a fine not exceeding £25,000 or, at the discretion of the court, to imprisonment for a term not exceeding five years, or to both.

Amendment No. 3 purports to amend section 16 of the Central Bank Act, 1989, so as to allow the bank to breach the strict code of confidentiality under which it must operate. Even if the principle or policy of the amendment were acceptable, which it is not, it would have to fail being outside the scope of this Bill which, under its long title, is "An Act to amend the Tribunals of Inquiry (Evidence) Act, 1921 and 1979.". It is not a Bill to amend the Central Bank Act, 1989.

The Department has consulted with the Department of Finance concerning the implications of the proposed amendment for the Central Bank and the Department of Finance has in turn consulted the Office of the Attorney General. The advice available to me is that it would not be possible to comply with paragraph (a) of the proposed amendment as to do so would entail a serious breach of EU law. Article 12 of the first council directive on the co-ordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions requires the State to ensure that the Central Bank maintains strict confidentiality. The directive, while prescribing certain exceptions, does not permit the proceedings of a tribunal to come within the exceptions prescribed.

The high standard of secrecy enshrined in the first directive provides a protection for privacy, balancing the very wide powers of inquiry which the bank must have to carry out its supervisory role. This reflects the concern that the publicity or release of information obtained for prudential supervisory purposes might damage public confidence or inhibit exchanges of information between regulatory authorities.

The amendment also purports to provide in paragraph (b) that a person can be required to disclose information to a tribunal notwithstanding any rule of law or enactment providing that such information may only be disclosed in connection with criminal proceedings. If such a rule of law were to be overridden as suggested it would fly in the face of our EU obligations.

The amendment demonstrates a lack of understanding of the role and function of tribunals and the law in relation to them. A tribunal is an inquisitorial body; it is not a court of law and proceedings before a tribunal are not criminal. Tribunals cannot impose penal sanctions. In order for a tribunal to have a person before it comply with its order it would have to apply to the High Court for enforcement of its orders and where criminal proceedings before the courts are concerned, which arise out of proceedings before a tribunal, it is in those proceedings that disclosure of information by banks may arise.

On the question of banks generally, it should be noted that, in so far as disclosure of information is concerned, banks have no special privilege and, as such, are required to comply with an order of a tribunal to disclose such information. Failure to do so is an offence under the Tribunals of Inquiry Act, 1979. A person found guilty of an offence under that Act is liable to a fine not exceeding £10,000 or imprisonment for two years or both.

Section 4 strengthens the powers of tribunals by providing that where a person disobeys a direction of a tribunal, it may apply to the High

Court which may order the person to comply with the direction of the tribunal. Failure to do so would be a breach of the High Court order, in respect of which breach the person may be sent to prison. Section 4 is a significant advance on the law as it stands and will obviate any delays which might arise in the workings of a tribunal of inquiry.

It is wrong to suggest, as this amendment does, that proceedings before a tribunal are criminal, when clearly they are not. It is wrong to suggest the law can allow disclosure by the Central Bank of an individual's business in tribunal proceedings. The amendment is misconceived and I am not in a position to accept it.

Mr. Costello

The Minister of State's very tortuous and technical response did not cast much light on the core problem we are trying to address. He stated the bank operates under strict confidentiality and can only disclose information under exceptional circumstances. He then went on to indicate the only exceptional circumstance, which is in the context of a criminal investigation. Is there any reason other exceptional circumstances cannot be prescribed? Surely, the substantial public interest would constitute another exceptional circumstance under which the Central Bank could disclose information.

The whole purpose of this tribunal is to establish accountability and to get to the core of matters which gave rise to considerable interference with the law and public disquiet. The core of this matter is a very large sum of money, at least £38 million, in the Ansbacher accounts which it seems we cannot touch. Nobody seems to be responsible for that. The Central Bank seems to have, on the one hand, a monitoring, investigative and regulatory responsibility and, on the other hand, seems to be able to say categorically to the Minister for Finance that it does not have a watchdog role.

What are we to expect when we are told we cannot have an amendment which would enable us to get information in the possession of the Central Bank? Perhaps the Central Bank does not possess this information because it is not carrying out its duty. How are to find out whether it is carrying out its duty? We have heard what its responsibility is but we have no way of assessing whether it is fulfilling out that responsibility because of the rule of strict confidentiality.

The matter at the core of this tribunal is of substantial public interest, which is the definition of "exceptional circumstance". I see no reason the Central Bank cannot fulfil that responsibility and duty to the public. There is no question of a breach of European Union law as long as we define it within the context of exceptional circumstances. I do not think it would be possible for any circumstances to be more exceptional than these.

Ms O'Meara

The Minister of State referred to the need for professional secrecy and our responsibilities in the context of European law. One can understand that any bank requires a certain level of secrecy and confidentiality. However, there is a quid pro quo for that, which is statutory regulation and powers of investigation by the Central Bank so the public can be assured that, while there is a certain confidentiality about the operation of banks, there is a provision whereby the regulatory authority, that is, the Central Bank, is carrying out its duty.

I am very disturbed by the Minister's response on Second Stage. There is obviously a major problem in relation to the operation of the Ansbacher accounts by Guinness & Mahon. The Governor of the Central Bank stated there was no record in the Bank that it was informed of the internal Guinness & Mahon audit. In other words, the Central Bank had no record that when Guinness & Mahon realised it had reason to be concerned about the Ansbacher accounts it conducted its own audit, in so far as it deemed to be proper and necessary in the context of commercial procedures. That alone is a matter of public concern.

We accept the need for some secrecy and confidentiality. However, there must be a quid pro quo for that because the public must be assured the regulatory body has the necessary powers and is carrying out its functions, as given to it by the Oireachtas. There was obviously a difficulty in how the Central Bank carried out its functions in relation to the Ansbacher accounts, which is why there continues to be public concern. That concern will not go away, no matter how much rationalising, handwashing and abdication of responsibility occurs.

This amendment is not misconceived but is in the public interest. It is designed to ensure that what has now emerged as a central issue can be dealt with by a future tribunal, which is why we intend to press it.

Mr. Jacob

The Minister for Justice, Equality and Law Reform has already commented on the Ansbacher accounts——

Mr. Connor

Inadequately.

Mr. Jacob

——and I see little point in my repeating his Second Stage reply. Senator Costello referred to exemptions for tribunals. The exemptions in the law relating to disclosure are prescribed by an EU directive and we are not in a position to deviate in our laws from that directive.

The question was asked whether the Central Bank would make information in relation to exchange control documents available to a tribunal. The Central Bank has given the Moriarty tribunal access to all exchange control documents in its possession.

Amendment put.

The Committee divided: Tá, 17; Níl, 23.

Tá

Burke, Paddy.
Caffrey, Ernie.
Coghlan, Paul.
Connor, John.
Coogan, Fintan.
Costello, Joe.
Cregan, Denis (Dino).
Gallagher, Pat.
Hayes, Tom.
Henry, Mary.
Manning, Maurice.
Norris, David.
O'Dowd, Fergus.
O'Meara, Kathleen.
Ridge, Thére se.
Ryan, Brendan.
Taylor-Quinn, Madeleine.

Níl

Bohan, Eddie.
Bonner, Enda.
Cassidy, Donie.
Chambers, Frank.
Cox, Margaret.
Farrell, Willie.
Finneran, Michael.
Fitzgerald, Liam.
Fitzgerald, Tom.
Fitzpatrick, Dermot.
Gibbons, Jim.
Glynn, Camillus.
Hayes, Maurice.
Keogh, Helen.
Kiely, Dan.
Lanigan, Mick.
Lydon, Don.
Mooney, Paschal.
O'Brien, Francis.
O'Donovan, Denis.
Ó Murchú, Labhrás.
Quill, Mairín.
Walsh, Jim.

Tellers: Tá, Senators Costello and O'Meara; Níl, Senators T. Fitzgerald and Keogh.

Amendment declared lost.

Progress reported; Committee to sit again.

Seanad Éireann debate - Wednesday, 17 Dec 1997

Tribunals of Inquiry (Evidence) (Amendment) Bill, 1997: Committee Stage.

Tá

Níl

Tá

Níl

Seanad Éireann debate -
Wednesday, 17 Dec 1997