I welcome the Minister to the House. Before calling on him to speak, will the Leader of the House indicate if there is a time limit on speakers?
Tribunals of Inquiry (Evidence) (Amendment) (No. 3) Bill, 1998: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
Acting Chairman
It is proposed to allow 15 minutes for principal spokespersons and ten minutes for all other speakers. Senators may share their time.
Acting Chairman
Is that agreed? Agreed.
This Bill implements the Government's commitment, as indicated by the Taoiseach in the Dáil on 3 June, to introduce as a matter of urgency legislation amending the Tribunals of Inquiry (Evidence) Acts so as to enable the Houses of the Oireachtas to resolve to change the terms of reference of a tribunal subject to the consent of the tribunal. That commitment is linked with the Government's stated intention, also of 3 June, to seek, on enactment of the legislation, the consent of Mr. Justice Flood to amendment of the terms of reference of the tribunal, as then outlined.
Once the Government had decided that the investigation should be carried out by Mr. Justice Flood's tribunal, it was necessary to bring forward this legislation because without the legislation both Houses of the Oireachtas would not be in a position to change the terms of reference of that tribunal. If the Government had decided to propose the establishment of another tribunal to deal with the new situation, this Bill would not, of course, be necessary. However, after careful consideration the Government formed the view that the further investigations would most appropriately be undertaken by Mr. Justice Flood's tribunal so that all matters arising could be dealt with by the one tribunal.
It is only a short while ago in this House that we debated the terms of the 1998 Bill which led to amendment of the Tribunals of Inquiry (Evidence) Act, 1921. That Bill was framed to meet the particular circumstances which had arisen by the request made by Mr. Justice Flood, in his interim report of the Tribunal of Inquiry into certain Planning Matters, for amendment of the terms of reference of his tribunal. The central concern of the Government in bringing forward that Bill was that once a tribunal is established, it should be allowed to proceed with certainty in the knowledge that its terms of reference will not be changed except in certain exceptional circumstances and where it is satisfied that any such amendment would not prejudice the legal rights of any person who had co-operated with or provided information to it under its terms of reference.
The difficulty faced by the Government at the time was that the Act of 1921 did not expressly provide for the circumstance in which it was desired to have a change in the terms of reference of a sitting tribunal and the Act, accordingly, contained no guidelines on the safeguards which should be observed when deciding on any change in the terms upon which a tribunal is established.
The 1998 Act's provisions were not lightly proposed by the Government and they were devised on the basis of legal advice from the Attorney General. The Government was conscious that any provisions which were vague, oppressive or in violation of persons' rights would be open to challenge and could jeopardise the otherwise healthy operation of a sitting tribunal. These, I might add, are also the concerns of the Government in bringing forward the present Bill. The overriding concern is to achieve a balance in what is brought forward, to ensure fair procedures and to uphold the principles of justice.
It is argued by some that the Government should, in the 1998 legislation, have allowed the terms of reference of a tribunal to be amended otherwise than on the basis of a specific request from the tribunal, by allowing the Oireachtas to initiate the change. The difficulty with the wider approach is not one, even now with the benefit of hindsight, that has somehow disappeared. The difficulty is that the process of consultation with a tribunal in trying to establish change in its terms of reference with its consent, could create tension between the Executive, the Oireachtas and a tribunal. Agreement on the amendments of terms of reference must not, and cannot, be expected in all cases. The integrity of the judicial process must be preserved and the onerous task placed on a tribunal needs to be uppermost in our minds in debating those same issues which arise in relation to this Bill.
In the context of the 1998 Bill, following on the request from Mr. Justice Flood, there was simply no need to go further than what was proposed. The best approach, in the Government's view, was to allow for change where a tribunal has itself requested specific change. That was the situation which the Government dealt with in the 1998 legislation. There are now different circumstances and the present Bill recognises that. The Bill, however, retains the central feature of the 1998 Act by requiring that the tribunal is satisfied that a change in its terms of reference will not prejudice the legal rights of any person before the tribunal. In addition, the Bill ensures that the tribunal retains its independence through the inclusion of the principle of consent.
It has been argued also that the Government proceeded with the narrower option in the 1998 legislation because it did not want the terms of reference of the tribunal, under the chairmanship of Mr. Justice Moriarty, changed so as to have the Ansbacher accounts investigated. I want to dispel that myth because the allegations have surfaced again, having been raised in debate on the 1998 Bill. The various layers of investigation of the Ansbacher accounts are as detailed and as broad as can be, consistent with the laws, including revenue and international law in this area. The fact is that the Ansbacher accounts are subject to scrutiny by the Revenue Commissioners, by an authorised officer appointed by the Tánaiste and Minister for Enterprise, Trade and Employment under the Companies Act, 1990, and by the Moriarty tribunal, which has a brief to examine certain aspects of those accounts.
The other myth which has surfaced again is that my Department advised that the 1998 Bill was not necessary on the basis that power already existed under the 1921 Act to amend terms of reference of a tribunal. The reality is that the practice when preparing legislation is to engage in a detailed analysis of the issues involved, to tease out all the legal principles and all the practicalities. In the course of this exercise on the Bill the Department and the parliamentary draftsman raised queries which required to be answered by the legal side of the Attorney General's Office. One of the queries was the necessity for the legislation and the Attorney General's legal advice, which was confirmed by independent counsel, to expressly provide for, in effect, amendment of terms of reference of a tribunal. The present Bill is based on that premise and that is also the premise of the Private Member's Bill that is before the Dáil in the names of Deputies John Bruton, Quinn, De Rossa and Sargent.
I propose now to deal briefly with the details of the Bill. The Bill is concerned with tribunals of inquiry to which the Tribunals of Inquiry (Evidence) Act, 1921, is applied. Section 1 of that Act requires that, prior to the making of an instrument which applies the Act, both Houses must have resolved that it is expedient that a tribunal be established for inquiring into a definite matter of urgent public importance. The provisions contained in the 1921 Act, as amended by Acts of 1979, 1997 and 1998, give to a tribunal certain powers, rights and privileges that are vested in the High Court for evidential purposes. Such a tribunal can enforce the attendance of witnesses, examine the witnesses under oath and compel the production of documents. The 1998 Act inserted a new section 1A into the Tribunals of Inquiry (Evidence) Act, 1921, which provided that an instrument which appoints a tribunal shall be amended, pursuant to a resolution of both Houses of the Oireachtas, where the tribunal has requested the amendment and is satisfied that such amendment would not prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its terms of reference.
Section 1 repeals and re-enacts, with amendment, section 1A of the 1921 Act. New section 1A(1) provides that an instrument to which the new section applies shall be amended by a Minister pursuant to a resolution of both Houses of the Oireachtas, subject to certain conditions which are specified in paragraphs (a) and (b) of the subsection. The conditions are that the tribunal has consented to the proposed amendment following consultation between the tribunal and the Attorney General on behalf of the Minister or the tribunal has requested the amendment.
Paragraph (a) of the subsection represents an additional option to the procedure provided for in section 1A of the 1921 Act as it stands. The effect is to allow the Oireachtas to resolve to change the terms of reference of a tribunal, in the absence of a specific request in the matter from the tribunal itself, whether or not that tribunal was established before or after the passing of the Bill. Paragraph (b), under which the tribunal may request amendment of its terms of reference, is in the law as it stands by virtue of the 1998 legislation.
New section 1A(2) provides that, without prejudice to the generality of subsection (1), a tribunal shall not consent to or request an amendment where it is satisfied that such amendment would prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its terms of reference. It re-enacts the substance of the law contained in this respect in the 1998 legislation.
New subsections (3) and (4) are technical provisions which also re-enact provisions to be found in the 1998 legislation. The effect of subsection (3) is that, where terms of reference of a tribunal are amended, the 1921 Act will apply to those new terms of reference. Subsection (4) makes clear that the conditions in the new section 1A will apply where terms of reference of a tribunal are amended.
The Private Member's Bill is substantially different from the Government's Bill. The Private Member's Bill allows for amendment of the terms of reference of a tribunal on the initiative of the Houses of the Oireachtas but does not expressly provide for amendment on the initiative of the tribunal itself. The Bill would, moreover, allow amendment of terms of reference of a tribunal in circumstances where the tribunal has not consented to the amendment. The Bill merely indicates that the tribunal must inform the Chairman of both Houses that it is satisfied that the amendment proposed by the Oireachtas would not prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its existing terms of reference.
The Government's Bill is specific on these issues. The terms of reference of a tribunal cannot be changed without the consent of the tribunal and the tribunal itself may, as in the case of the Flood Tribunal, request change in its terms of reference. A consultation procedure is also specified in the Government's Bill.
When considering the question of what tribunal might investigate the further matters in question, I confirm that the Government asked the Attorney General to consult both with Mr. Justice Moriarty and Mr. Justice Flood in relation to whether they would be willing to undertake the work in the context of the tribunals they are chairing. Both expressed a willingness to undertake further investigative work on behalf of the Oireachtas and neither felt there would be any prejudice caused to persons by such addition to their terms of reference. As I have indicated, the Government has now formed the view that further investigation would most appropriately be undertaken by Mr. Justice Flood's tribunal.
I understand queries have been raised regarding the appropriateness of the approaches made to the two judges by the Attorney General. Let me make it quite clear that the approach which the Attorney General made was purely to establish whether either would be willing or in a position to accede to an amendment of their terms of reference. The Attorney did not advance any specific proposal to alter the terms of reference of either tribunal.
Both tribunals are impartial and independent. They were established by orders in the terms that were resolved by both Houses and, were the terms of reference of either tribunal of inquiry to be the subject of amendment, this could only be done under existing legislation pursuant to the provisions of section 1A of the 1921 Act. Moreover, any such amendment can only be made at the request of a tribunal. The approach made by the Attorney General to the judges was whether there would be any obstacle to their terms of reference being amended by the Oireachtas if that should be the wish of the Oireachtas. Some Senators will be aware that it is quite normal and proper for the Attorney General to act as a channel of communication in this way and there are precedents. The willingness of either judge to undertake further investigative work on behalf of the Oireachtas is to be greatly welcomed by the House given the heavy work that is already under way by those judges.
The Bill is sensitively framed to expressly provide for the conditions and procedures which must be adhered to where it is determined that the terms of reference of a tribunal, to which the 1921 Act applies, should be amended. I commend the Bill to the House.
It is a poor commentary on the state of politics and public life that we are back here yet again, the third time in six months, to amend the law governing the conduct of tribunals of inquiry. It is an even poorer commentary on the state of politics that two such inquiries are investigating public scandals directly involving a former Taoiseach and two recently disgraced Ministers.
We are now revisiting our tribunals of inquiry legislation because of further scandalous revelations involving Mr. Ray Burke when he was Minister in an all-Fianna Fáil Government in 1989 and a close colleague, friend and confidante of the present Taoiseach. That close friendship with the Taoiseach lasted until Mr. Burke's forced resignation last October. It is safe to assume that the close friendship ended then. However, it is far from safe to assume that the hold Mr. Burke held over the Taoiseach was released. I am convinced that Mr. Ray Burke's hold on the Taoiseach is as potent now as it was when both of them knew all the Byzantine secrets and the murky world which surround the private funding of the Fianna Fáil Party. I will not be surprised if the information Mr. Burke holds on the Taoiseach will be the time bomb which eventually blows away this Government, the 28th Dáil and the 21st Seanad.
We would not be here today discussing this Bill had the Minister accepted in this House the Opposition amendments to the Tribunals of Inquiry (Evidence) (Amendment) Bill, 1997, last December and to the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Bill, 1998, just a few weeks ago. If these amendments had been accepted, the tribunals of inquiry legislation would be wide enough and competent enough to deal with all the things which have happened since we were first forced, towards the end of 1997, to amend the legislation because the lack of co-operation by Mr. Haughey with the McCracken Tribunal led to the question of who should pay the extraordinarily huge costs the tribunal had incurred when a former Member failed to co-operate with that tribunal. Unfortunately, we amended the legislation at that stage in order that the costs could be levied against the person who, by his lack of co-operation, raised these costs against the tribunal, but we were unable to introduce legislation which would levy them retrospectively as should have been the case. Last April we had reason again to revisit the tribunals of inquiry legislation. We would not be back here today had our proposed amendments to that Bill been accepted.
In all the circumstances which gave rise to the need for these House to return to amend the tribunals of inquiry legislation, whether it was the consequences of Mr. Haughey's failure to co-operate with the tribunal or the consequence of Mr. Justice Flood's interim report on the planning tribunal which was published last February, the Minister's response has always been to frustrate the efforts of the Houses of the Oireachtas to give the legislation teeth to get at all the truth. At all times the Minister has acted in a minimalist way and has tried to restrict as far as possible reasonable amendments from the floor of both Houses which would have strengthened the Tribunals of Inquiry (Evidence) Acts in order that the tribunal could get to all the truth. That is one of the reasons we keep returning to this. I fear that we will be returning to this again because of the minimalist and restrictive attitude which has been adopted by the Minister and the Government.
Even in this Bill the Minister continues to ensure that the Oireachtas will have no role in initiating a change in the terms of reference or widening of the powers of a tribunal of inquiry which is under way. That is a disgrace and it was done in the last amending legislation. It is a disgrace that the Oireachtas cannot have a role in initiating, with the agreement of the tribunal and the Government, a change in or broadening of the terms of reference or in giving the tribunal greater powers. I again ask why. I pleaded for an answer to that question on Second and Committee Stages last April but I got no answer from the Minister. Perhaps he will reply this evening.
I hope the Minister will not show the reluctance and downright hostility he showed — he mentioned this again this evening — when the proposal that the notorious Ansbacher accounts be referred to the Moriarty tribunal for full and thorough investigation, which cannot take place through the actions of the Revenue Commissioners or the officers of the Department of Enterprise, Trade and Employment because of constraints in the law. We need only witness the spectacle of the officials of the Department of Enterprise, Trade and Employment these days down at the Four Courts where they are seeking leave of the court to publish the salient details surrounding the NIB offshore insurance investment tax dodge scheme.
I want the Minister to assure the House that there will be no withholding of any information on all the circumstances surrounding Mr. Burke's personal intervention to ensure that all the profitable MMDS franchises were given to one company, Princes Holdings, or companies in which that company held a controlling interest. I want a straightforward direct answer to that question. I want to ensure that all the circumstances, facts and information are made available to the tribunal.
There is something else which needs to be investigated thoroughly. Why did Mr. Burke sign a letter of comfort — written for him by Mr. Joseph Hayes of Independent Newspapers plc — which was an open cheque to that company fulfilling all the terms which it demanded in these strange deals? Let there be no withholding of any information or facts surrounding that extraordinary action by a Minister. All this was done against the expressed opposition of the officials in the Department.
We want to ensure that all the information has been disclosed surrounding the payment of the £30,000 by executors of Rennicks to Mr. Burke on foot, according to the executive of Rennicks, of a demand for this donation from Mr. Burke. We are now told that it was £10,000 from this payment, and not a third of the Bovale contribution, which went directly to Fianna Fáil coffers — the House will remember that the Bovale contribution to Mr. Burke was said to be about £30,000. It is important that this is cleared up fully since the Taoiseach told the other House, following an inside out and upside down search and examination of the Byzantine area of the Fianna Fáil funding, that the £10,000 came from the Bovale donation, but now we are told that it came from the Rennicks/Fitzwilton donation. That is a serious question. We need to know all the facts because here was the Taoiseach effectively misleading the House. We know the punishment in other jurisdictions for somebody, especially a Prime Minister, who misleads Parliament.
I hope the Minister will be able to assure the House that if the tribunal demands the books and accounts of the Fianna Fáil Party for the years 1987-9 or any other relevant year, they will be made available without question or the need for further amendment to the tribunal of inquiry legislation. We have no doubt that the Minister and his party would be reluctant if the tribunal demanded these books for full examination. We do not want to be told that the reason it might not be able to be done is that it might necessitate legislation.
In yesterday's Dáil debate the Minister came under a great deal of pressure to be forthright in relation to Mr. Burke's involvement with the operation of the passports for investments scheme during his period as Minister for Justice — roughly between 1987-9 — and the operation of this scheme from 1987 to its abolition just a few weeks ago.
When Mr. Burke was in charge of this scheme 45 applications for naturalisation were granted. There is substantial evidence that the legal requirements demanded under the operation of this scheme were not met by a large number of people who were granted citizenship by Mr. Burke. It appears that the requirement of major investments in employment creation in the country, one of the primary requirements of being granted naturalisation, was not fulfilled in many of the cases in which Mr. Burke granted certificates. The requirement of a declaration of fidelity to the State and to the nation was not met and the letters of character reference presented by a number of these people were highly questionable. We understand Mr. Burke signed many of these certificates of naturalisation at his home.
This murky area must be examined. Many of the details are difficult to listen to and speak of. They form a sorry commentary on the state of the body politic. We are all affected by the public cynicism about politicians and those who conduct the affairs of the State. This threat to democracy has been brought upon us by a few people in powerful positions. Most people in Government and in these Houses conduct their business with absolute integrity, but a few rotten apples in the barrel have done much to undermine respect for the institutions and for the important work we do.
We welcome this Bill. We have tabled one minor amendment regarding the role of the Oireachtas. This amendment was tabled when related legislation was debated in this House some weeks ago. We will try again to convince the Minister to restore the role of the Oireachtas in relation to broadening the terms of reference and giving Members a meaningful role. Given the experience the Minister has had since last April he may accede to our request on this occasion.
We welcome the Bill although it difficult to welcome legislation of this sort. It is a sorry indication of the pass we have reached.
I welcome the Minister to the House in his customary innovative role of producing significant legislation. I am reluctant to make party political comments in circumstances such as these but I must remind Senator Connor of Fine Gael's fund raising activities, of money given by Ben Dunne to Deputy Bruton and of episodes involving Deputies Noonan, Dukes and Yates. In one of last Sunday's newspapers a columnist wondered by what method Fine Gael had overcome a serious deficit in that party's finances.
We know where that journalist was coming from.
I offer a piece of advice to my colleague. Those in glasshouses should not throw stones.
I agree.
When this trawl by various tribunals has been completed and the nets are hauled I fear for what might befall the Senator's party.
Weep for yourself.
Like Senator Connor, I have nothing to fear but Fine Gael politicians may regret throwing too many stones because they may find they they have broken their own glasshouse.
I welcome this technical, sensitive and necessary Bill. Its main purpose is to amend the Tribunals of Inquiry (Evidence) Act, 1921, and other legislation. I do not accept that amendments proposed in this House in the recent past would have overcome the difficulty which now besets the tribunal.
The first tribunal I remember inquired into the Whiddy Island fire in which 50 people died. There was subsequently a tribunal of inquiry into the Stardust fire. In the recent past we have seen a plethora of tribunals, principally investigating various types of white collar crime. The Government clearly understands that the inquiries must be made and the full truth arrived at. To that end this amending legislation is necessary and has been introduced on foot of the best legal advice in the country.
The Tribunals of Inquiry (Evidence) Act, 1921, provides for the setting up of tribunals of inquiry following a resolution of both Houses of the Oireachtas. Tribunals must not be set up lightly. It is fitting that tribunals should be established from time to time to inquire into matters of urgent public importance. In such cases both Houses of the Oireachtas are consulted. As a result of recent legislation, tribunals have wide powers — to call and examine and cross-examine witnesses, to make orders for discovery — and, in many ways, similar powers to those vested in the High Court. The Bill provides an instrument for amendment by a Minister pursuant to a resolution of both Houses and subject to certain conditions which are very clear and explicit. First, it is necessary that the tribunal requests the amendment and, second, the tribunal must be satisfied that the amendment would not prejudice the legal rights of any person who has co-operated with or provided information to it. The Minister has said that a Private Members' Bill has been tabled by the Leaders of the Opposition parties which is similar to this Bill but which contains certain defects. For instance, it does not allow for a situation where the tribunal finds itself hindered by the narrow parameters of its terms of reference and seeks, of itself, to have its terms expanded or amended. That is a major flaw in the Opposition Bill although its general thrust is similar to that of the Government's Bill.
It is important to note that the tribunal itself must consent to the amendment, albeit after consultation with the Attorney General acting on behalf of the Minister. The principle of consent is very clear in the Bill. If no consent is forthcoming there will be no amendment and the terms of reference of the tribunal will stand. The Bill recognises the independence and impartiality of the tribunal. The tribunal must make the request, perhaps in consultation with the Attorney General. It is recognised that the Attorney General's consultations with Mr. Justice Flood and Mr. Justice Moriarty were essential and proper. Both Houses of the Oireachtas must also be consulted before the terms of reference are broadened. It must be emphasised that the Government is committed to uphold the independence and impartiality of judicial tribunals.
It is all very well with hindsight to say that the 1921 Act is defective. Legislation is a fluid and evolving phenomenon. When the 1921 Act was framed it did not envisage the need for amendment. The amending legislation is a prudent, natural and proper evolution of the laws of the State.
The Bill has in-built clear safeguards, particularly the consent of the tribunal and that there will be no prejudice to the legal rights of a citizen who has co-operated. It is important to note that if the Bill is enacted it will enable the widening of the terms of reference of existing tribunals. As the Minister said, the Bill is an essential piece of amending legislation to ensure the tribunals can get at the full truth and that this Government is co-operating with the tribunals.
The terms of reference of the Flood tribunal suggested an inquiry into events from 1985 to the present with regard to certain allegations about planning matters. Evidence has emerged from the tribunal's inquiries which makes it necessary to go back earlier than 1985. The Government is facilitating the tribunal, at its request, to do that. Without this legislation the narrow parameters of the Flood tribunal might be damaging. Significant matters from 1983, for example, might be unearthed and without the legislation they could not be dealt with by the tribunal. This legislation removes the ball and chain to give tribunals broader terms of reference.
The proposal for an amendment with regard to the taking of evidence is a technical matter. It is unfair to cloud the issue with claims that the subject matter of the Bill could have been dealt with many months ago. I welcome the Bill and commend the Minister and the Government for the action taken. The Bill will give the tribunals greater power and autonomy. It is an indication of the Government's recognition of the impartiality and independence of the tribunals. I commend the Bill to the House.
It is difficult to welcome the Bill because it is necessitated by fresh disasters from north County Dublin. It is unfortunate that further legislation in this regard is necessary. I am sure I am not the only Senator to have faced the phrase "you are all the same". This does not help the public image of politicians. The falling rates of turnout at elections and referenda are an indication of the growing cynicism toward politicians. It is regrettable that events have progressed to the point that we must legislate to widen the terms of a tribunal. It is unwise to pretend that we are doing so for anything other than the most regrettable reasons — regretted as much by members of Fianna Fáil as anyone.
Senator Connor mentioned that, horror of horrors, we might be on the streets canvassing for election. I must rely entirely on financial contributions from myself for my election expenses and I hope we do not face an election. I thank Mr. Justice Flood and Mr. Justice Moriarty for telling the Attorney General that they would be prepared to expand the tribunals. They have been given very onerous tasks and it is laudable of them to take on even more work.
With the changes to the tribunal I hope Mr. Justice Flood will be able to address the transfer of ownership of the title deeds of the land on which Mr. Ray Burke's house was built. Mr. Burke has been distressed by the suggestions in some newspapers that his father, the late Mr. Paddy Burke, used his position in St. Ita's Hospital to further the purchase of the land. It is very hard for the Burke family to face this innuendo and not be in a position to do anything. Perhaps this amendment to the tribunal will allow them to put paid to these suggestions.
I feel strongly about this matter because it is a slur on all members of the medical, nursing and other caring professions who deal with people in mental hospitals. It is not right that they should be so easily accused of having misused their positions unless there is good evidence to show this to be the case. It is one of the most serious actions that can be taken. The Minister will be aware that when one of the nurses who was freed recently having been convicted of murder in Saudi Arabia came home to Scotland one of the first things awaiting her was a charge of misusing the credit card of a seriously ill patient.
It is a very serious matter for a professional person to misuse their influence in any way. It would be useful if the matter were addressed so that not only the late Mr. Paddy Burke's reputation might be shown to have been honourable but that those who work, and worked, with vulnerable people would not feel that they were considered culpable with regard to any transactions which had taken place with a patient who was in any way connected with his or her care.
I am sure the Minister wishes he was not here to present more amending legislation on this issue. The new allegations which came to light in recent weeks about the payment of £30,000 by Rennicks, a subsidiary of Fitzwilton plc, to the former Minister, Mr. Ray Burke, in June 1989 has brought the body politic under scrutiny once again. It is a pity that so soon after the political success of the British-Irish Agreement and the passage of the referenda North and South, our profession should again be shown in such a negative light. The vast majority of those in politics are involved not to line their pockets but to give public service.
The need for this amending legislation stems from the allegations that have been made. This will facilitate the most thoroughgoing inquiry into the matters aired in recent weeks. I accept that this is the third time since the Government was formed that the need has arisen to amend the Tribunals of Inquiry Act, and it is unsatisfactory that a single piece of legislation be visited so often in such a short space of time. However, those changes have been necessitated by extraordinary circumstances. In the wake of the new claims about money paid to Mr. Burke, the Government has made it clear it would seek a comprehensive investigation of these matters. The Tánaiste made it clear that when the allegations were made public all options would be considered. As the Minister said, once the Government decided that the investigation should be carried out by Mr. Justice Flood's Tribunal, it was necessary to bring in this new legislation. Without it both Houses would not have been able to change the terms of reference of the Flood Tribunal. The Government could have opted to establish a new tribunal and eliminate the need for legislative change, but the view was formed that the investigation required would be most appropriately undertaken by the Flood Tribunal. All matters could then be dealt with by that one tribunal.
The Opposition has argued that the Government should have allowed the terms of reference to be amended otherwise than on the basis of a specific request from the tribunal by allowing the Oireachtas to inititate the change in the legislation introduced earlier this year. In bringing in the change now, the Government is concerned that the process of consultation which it seeks to put in place could create tension between the Executive, the Oireachtas and the tribunal. Agreement on the amendment of terms of reference must not and cannot be expected in all cases.
I agree with the Minister when he says the integrity of the judicial process must be preserved. All Members would agree that the most important issue in this matter is establishing the truth. I am satisfied that this legislation will ensure the most exhaustive investigation of these matters. The public deserves to know the full truth and we have a duty to the public to leave no stone unturned in our efforts to establish that truth. I am confident that the various tribunals established to inquire into potentially unethical and corrupt practices will purge our democratic and financial institutions of the taint of wrongdoing. We must all hope that the end product of this in depth investigative process is the banishment once and for all of unsavoury elements which have undermined our democracy for over a generation.
I find the criticism of the Government's approach to these matters quite extraordinary. The Fine Gael spokesman in the Dáil queried the role of the Progressive Democrats in this affair, although the same spokesman expressed vehement opposition to the establishment of the McCracken Tribunal in late 1996. He saw no need for an inquiry in the wake of revelations about Deputy Michael Lowry. I remind Members that it was the Progressive Democrats that first sought the establishment of the McCracken Tribunal by way of a Private Members' Motion supported by Fianna Fáil. Introducing that motion, Deputy Bobby Molloy spoke of the public's right to know and of the need to uphold the integrity of our democratic system. He stated correctly that a tribunal of inquiry was essential in order to get to the truth. That motion was voted down by the three parties then in Government. The attitude of the Rainbow was well summed up by one Democratic Left spokesman, who said that such a tribunal would be:
. a potential disaster, a recipe for prolonged hearings, huge legal bills and a real prospect of journalists ending up in jail, with no guarantee of satisfactory or complete answers at the end of the process.
Some months later the Rainbow Coalition bowed to the inevitable and belatedly took our advice on the need for a tribunal. As we know, the McCracken Tribunal restored the reputation of this means of inquiry. An excellent job was done and every taxpayer owes a debt of gratitude to Mr. Justice McCracken and his team.
This Government has established two tribunals since coming into office, those chaired by Mr. Justice Moriarty and Mr. Justice Flood. There has been no footdragging or equivocation. The Progressive Democrats, like others, want these inquiries to reach a successful conclusion. We will not be found wanting if further action is needed. The Opposition has sought to criticise the Government for not wanting the terms of reference of the Moriarty Tribunal changed to include investigation of the Ansbacher accounts and have gone as far as saying they are not being investigated. That is utter nonsense. Those accounts are subject to scrutiny by the Revenue Commissioners, an authorised officer appointed by the Tánaiste under the Companies Act, 1990, and the Moriarty Tribunal, which has a brief to examine certain aspects of these accounts.
I speak for all Members when I hope that all matters which have come to public notice over the last 12 months are thoroughly and expeditiously investigated. I commend the tribunal for the work it has already done. In time it will be seen to have done us considerable service. This Bill has been carefully framed and outlines the procedures which must be adhered to in deciding whether the terms of reference of a tribunal should be amended. Most importantly, it in no way represents an undue interference in the workings of a tribunal but merely facilitates wider investigation of issues which may arise subsequent to the establishment of an inquiry under the Tribunals of Inquiry (Evidence) Act, 1921. I commend the Minister for bringing forward this legislation and I commend the Bill.
I regret the fact that once again we must debate legislation arising out of the kind of scandal and sleaze that has dogged the political landscape for some years. Senator Keogh referred to the backdrop of events and one can only concur with her wish that we are coming to the end of this episode. However, the dripping disclosure of information has not ended.
I welcome the Bill in principle because the Government is responding to the public's demand that further revelations be included in the terms of reference of the Flood inquiry. The Government has responded speedily to that demand, which is why we are debating all Stages of the Bill at such short notice. We wish to see this legislation passed as soon as possible, but we believe it to be as flawed as the legislation which went before it.
It is flawed because it does not address the central component we attempted to incorporate in the Tribunals of Inquiry (Evidence) (Amendment) (No. 1) Bill, 1998, which was debated here barely six weeks ago. We argued then for the need for the Oireachtas to have some discretion in extending the terms of reference of a tribunal it had set up. I stated then that I could easily envisage a situation where terms of reference of a tribunal of inquiry which had been drawn up initially, had to be extended because of further events taking place at a later stage creating a public demand that the tribunal widen its terms of reference.
That is precisely what happened barely two weeks ago, when further revelations about donations to Mr. Burke became public. In a matter of hours there were huge expressions of concern and Government Ministers trotted out to say that those revelations would have to be included in the terms of reference of the sitting tribunal. It was astonishing to hear at the time that it was merely a matter of the Oireachtas expressing its will to the tribunal in order to extend the terms of reference immediately. The Taoiseach and other Ministers had not read the legislation they had recently passed, which meant that further amending legislation was required. At that time I thought that amending legislation, such as this Bill, would meet the requirement to give the Oireachtas the necessary discretion but it does not do that. For that reason it is flawed. It creates a very unusual situation which should concern Members.
The formula which is being proposed to extend the terms of reference of a tribunal of inquiry is a matter between the Minister and the Attorney General, the Minister presumably acting on behalf of the Government. Yet again, we still have a situation where the Houses of the Oireachtas have no role in amending or extending terms of reference. In other words, our role as public representatives to express and act on issues of major public concern cannot be fulfilled.
As a result of the flaws in this Bill, we will undoubtedly have future Tribunals of Inquiry (Evidence) (Amendment) (No. 4), (No. 5) and (No. 6) Bills to meet eventualities as they arise, until the Houses of the Oireachtas are given a certain discretion to extend the terms of reference of a tribunal to meet eventualities such as those so well illustrated by the current set of events, that is, further revelations.
I am sorry the Government has lost this opportunity and failed in its duty to these Houses to generate the correct legislative framework to enable us to deal with what I suspect will be an ongoing situation of revelations about planning and other issues. On more than one occasion we have referred in this House to living in an era of tribunals. There is no way to know this, but I suspect it will take a number of years to deal with these issues effectively.
Senator Keogh referred to the British-Irish Agreement. It was ironic, and potentially tragic, how the euphoria generated by the success of the referenda on the agreement was so brutally and immediately dashed by the revelations in Magill magazine almost overnight. The good done to politics by the British-Irish Agreement has almost been wiped out. While that is a pity, it is also a fact.
We can hardly be surprised by growing public cynicism at each emerging revelation and how the public views us collectively. We have a major job to do to restore public confidence because while these allegations only refer to a small number of individuals who have mostly left politics, we are all coloured by the stain created by their actions. Senator Henry mentioned that people say we are all the same and that we all in politics for ourselves; we hear that regularly. I do not know how one can rebuild public confidence in the political system because with each revelation we hit a new low. The tribunals have not yet even begun to have public hearings and one can only guess what the future will bring.
I regret the mudslinging element about who did what which creeps into these debates with one side saying "We had Burke but you had Lowry". That does not add to the debate and does nothing to build public confidence in the system.
I am under no illusion that more will be revealed and that the corrosive effect of the drip feeding of information will ultimately undermine this Government so much that it will lead to a general election. That will not happen today or tomorrow but the revelations will have a corrosive effect on the Government——
The Senator might be surprised by how soon it happens.
——and it will have to re-establish its mandate. I do not welcome that.
I welcome the Taoiseach's announcement that he is tabling amendments to strengthen the current ethics legislation. I hope he will not meet resistance to that from quarters within his party which resisted the initial legislation. There cannot be a politician in the country who does not see a need for such legislation now, particularly in relation to how the public views us. Words such as "transparency" have been bandied about and undermined in many ways, but unless we are all prepared to act in an open and accountable fashion we cannot expect the public to have confidence in how we conduct our business.
We will probably have to ban all political donations ultimately and totally fund the political system through the Exchequer. Unless we do that, there will always be a question mark over who is answerable to whom. Only when politicians and the political system are funded solely through the public purse can we argue that we, as public representatives, are only answerable to the public whom we are supposed to serve.
I welcome the Bill and I realise the background to it. The first two or three pages of the Minister's script were a justification of his position. It is a pity that Governments and Departments apparently feel they must cover themselves. All politicians are painted with the same brush, regardless of which party they belong to. Members of the public regard us all as chancers, irrespective of which party is in power. They do not say there was a great sea change in Irish life in 1995 when a different Government came into power because that is not how they see it. Unfortunately, many of the rows in these Houses become big news to the public simply because they are big news in here, although they are not really matters of great moment to the electorate.
There is a crisis of confidence in public representation. We have lost consumer confidence which we must regain. We must recognise that if, for example, the Tánaiste's list of 300 names eventually emerges, even if there are no politicians on that list they will be tied into it in some way and accused of being friends with people on the list. People will be helped to do that by this House because Members will rush to the microphones to say that so-and-so is a friend of Fianna Fáil and so-and-so is a friend of Fine Gael. We will all be eventually sucked in; like lemmings to the slaughter, we can never rush soon enough to a microphone to bury each other.
We need openness, which does not mean there can be no confidentiality. I have said to previous Ministers that the public debate on so-called transparency and accountability has created immense problems. The Minister or one of his colleagues will have to return to this House in about six months' time to amend the Freedom of Information Act. They will have found that, as many of us said at the time, if we are to have freedom of information legislation we must also have privacy legislation. Confidentiality and privacy are as important in a democracy as transparency and accountability. We have lost that balance. Civil servants are now afraid to make notes on a file because someone can ask to see it the following day.
I return to how the activities of politicians can be examined. I wish to make two fundamental points in this regard. In my opinion tribunals will become a fixture of life in Ireland in the future. It is the public's perception that tribunals represent the way to deal with problems such as those which gave rise to the need for this legislation. People believe these problems should not be dealt with by the courts or by politicians but by the third force in the land, namely, tribunals. That is what people want and what journalists have called for; once that call was made it developed its own dynamism and has inevitably and inexorably become a reality.
We must be careful in dealing with this issue. In my opinion the Minister should give serious consideration to establishing some sort of standing tribunal which would remove the need to introduce legislation of the type under discussion and which could deal with the matters that tend to be referred to tribunals. I refer here to issues which do not involve politicians. Matters involving politicians must be dealt with differently. I plead with the Minister to fight against the nonsensical proposal before Cabinet that an ethics committee of outsiders should be established to restore confidence in public representation. Only one group of people can win back that confidence, namely, public representatives themselves. We must be seen to investigate, take action on and clean up the unacceptable parts of our act rather than requesting an outside body to do so.
Self-regulation is by far the best internal discipline that can be practised by any profession. I convinced the Government and its predecessor to introduce self-regulation in teaching and I am confident it will become a reality. I will argue with the same vehemence that politicians, like the members of other professions, should be in control of their profession, they should set, maintain, police and implement standards and they should take disciplinary action where those standards are not complied with. We are the only people who can do this.
It will take courage for the Government to introduce self-regulation because the first response from the media and the cynics among the general public will be that we are looking after ourselves. However, when self-regulation is seen to work and when people realise that we will take action, confidence will be restored because no one knows the tricks in a profession better than those who practice it. A High Court case is currently underway to prevent a professional accountancy body investigating one of its members. Six to seven months ago another High Court action was taken to stop the Irish Medical Council, which was intent on getting into every corner and crevice of hidden knowledge not perceptible to the neutral observer, from investigating matters pertaining to the medical profession.
In my opinion the Houses of the Oireachtas require an internal committee which is not biased in anyone's favour. It should be made up of people elected from the ranks of the Members of both Houses who will have the confidence of their counterparts and who will deal with matters directly so that public confidence can be restored. That would be better than bringing in outsiders to solve our problems. However, it will take courage on the part of the Government to say that we can do the job better than anyone else.
If it is to work, the committee will have to have recourse to force of law. It will not succeed if it is established by means of regulations or internal mechanisms; it must have the powers and functions of a court. Issues such as the compellability of witnesses, proper procedures for taking evidence, natural justice, etc., would come into play. There should be some sort of internal mechanism — namely, the profession itself resolving its problems — to deal with accusations of corruption in politics. Such a mechanism should be based on proper structures which would be acceptable in any other profession. In other words, the co-ordinating body charged with responsibility for self-regulation of our profession should have the power to investigate and take disciplinary action. Beyond that, people could have recourse to the courts when they had exhausted the options available. This represents a better way to deal with internal political issues than the proposal to establish an ethics committee comprised of outsiders.
The only people who can determine the ethics of a profession are those who practice it. When others determine the standards, they retain ownership of those standards. The people who should have ownership of, proprietary influence over and involvement with such standards are those who are part of the profession in the first instance. We should give careful consideration to this issue.
I have no problem with the forms Senators are required to complete and the accounts we are obliged to supply of the funding we receive — I take as much responsibility as anyone else in this regard because I took part in the debates on the relevant legislation when it came before the House and my comments are not intended as a reflection on a particular Government — but I believe they are an unnecessary imposition. In my opinion it would have been better if every Member was required to provide a proper and complete account of the source of their funding and how it was spent after each election campaign. I have been doing so for ten years because, following every election, I send such an account to the key people among my supporters.
During the last election campaign I received funding of almost £10,000 from the INTO. People were aware of that and they were in a position to vote for me or not depending on their preferences. That is much better than merely having the names of Senator Ross and me on a ballot paper without providing further information. People will be better able to decide for whom they wish to vote if they know the source of candidates' support.
We must take a practical approach to this issue. Openness is about access to information; it is not about having no unspoken thoughts or gaining access to everyone's private files. It is concerned with telling people what they need to know, which is different from controlling people by means of funding their election campaigns. These two issues are being discussed together as if they are synonymous but people must realise they are different. This debate began as an investigation into openness because we wanted to discover who was supporting whom, which is fine. That should be our objective and, given that this is a democracy, we should not place further regulation on it. We should accept that every penny invested in an election campaign is accounted for in terms of its source, destination and how it was spent.
I support the Bill and I hope it will fulfil the objectives outlined by the Minister. I suspect it will probably fail to do so because on each occasion we enter uncharted territory new issues arise which must be dealt with in different ways. It is sad that Governments have been placed in a position where they feel they must protect themselves by being slow to take action on issues and that the parties in Opposition believe they must attack Governments for protecting certain elements. This does not make sense to those outside.
I hope the legislation will allow us to reach a level where we can discuss, without party political sniping, the best way to regulate our profession and do our jobs. This can be done by recognising that at any given time the percentage of corrupt politicians is no greater in one part of the House than in the other.
In the course of this evening's debate it has been suggested that the provisions of the Bill should have been included in the Tribunal of Inquiry Act, 1998, and that in the course of the debate on that legislation the Opposition suggested as much. This argument was advanced on the basis that the Opposition had it right at that stage and the Government had it wrong. That accusation does not stand up to close scrutiny.
The reality is that certain circumstances presented themselves when the 1998 Act was being debated in this House. Those circumstances were quite clear. A chairperson of one of the tribunals sought an amendment to the terms of reference. It was clear legislation was required to deal with that and such legislation was introduced, enabling the terms of reference to be amended on the application of the chairperson of the tribunal. I argued at that time that this was the preferred course of action and I still hold that view.
Different circumstances have led to the introduction of this legislation and the Government has responded to those circumstances. During the debate on the 1998 Act, I heard many arguments that a resolution of the Houses of the Oireachtas should be sufficient to enable terms of reference to be amended in order that the Ansbacher accounts could be examined. That of course, is a different matter, albeit an important one. I explained ad nauseam the position in regard to the accounts cogently and credibly.
The 1998 Act was introduced to meet a situation where the chairman of the tribunal sought an amendment to his terms of reference. During that debate the Opposition consistently put forward the view that it did not regard legislation to be necessary. Some Opposition Members changed their minds and are now of the view it is necessary. The Private Members' Bill before the Dáil in the names of Deputies John Bruton, Quinn, De Rossa and Sargent, which I referred to in my introduction to this debate, is testimony to the fact that despite their protestations to the contrary, they also now believe legislation is necessary.
The circumstances surrounding the introduction of the Bill before the House are unprecedented and could not have been foreseen when the earlier legislation was introduced. During the debate in this House on the 1998 Act two amendments were tabled by the Fine Gael Party and the Labour Party which allowed the amendment of the terms of reference of a tribunal where a tribunal had not requested such an amendment. The amendments contradicted each other. One envisaged consent and the other did not. I pointed out that even though the principle of consent was included, the proposed amendment did not provide for any mechanism or procedure whereby the tribunal would be consulted.
In that context the amendments left open the possibility of toing and froing between the Government and the tribunals. Such comings and goings would relate to fundamental matters for the tribunals regarding proposed changes to their terms of reference and the tribunals were already engaged in the inquiries for which they were established. Unlike those amendments, the legislation before the House provides for proper procedures whereby the terms of reference of a tribunal can be amended by a Minister following consultation between the Attorney General and the tribunal on behalf of the Minister. The amendment of the terms of reference will take place on foot of a resolution of both Houses of the Oireachtas, where the proposed amendments will be debated.
An important feature of this legislation is that the tribunal will be consulted prior to the making of the amendment and its consent to the amendment will be required. This requirement preserves the independence of the tribunal. During the debates on the 1998 Act I stressed it was of paramount importance that the tribunal retain its independence. It is undesirable that one should have to approach a tribunal of inquiry to ask if it wishes its terms of reference to be amended. I set out the reason for this opinion on a previous occasion. The current circumstances are exceptional and exceptional legislative measures are being introduced in the Oireachtas to address them.
During the debate on the 1998 Act I cogently made the argument that I did not believe it was appropriate to provide for a member of the Government to go to a judicial personage in charge of a tribunal seeking to change the terms of reference. I also said such a provision would leave the process open to the allegation of interference with the tribunal. It is of the utmost importance that the independence and integrity of the tribunals be maintained. I explained in great detail the terms under which the Attorney General, due to the exceptional circumstances which were presented, went to the chairperson of each tribunal. That consultation was for the sole purpose of determining whether either tribunal would be prepared or be in a position to have its terms of reference amended.
I emphatically reject any suggestion that there has been a conscious attempt by me or the Government to be minimalist in our approach to this legislation. That allegation is simply not true. We introduced legislation to deal with these matters whenever it was required. We have reached a position where the tribunals of inquiry can have their terms of reference amended by a request or in accordance with this legislation. On each occasion we ensured any person who previously gave evidence will not be prejudiced by the fact the terms of reference have changed. The consent of the tribunal is a necessary prerequisite which maintains its independence and a procedure for consultation has been provided for, all of which ensures there is no uncertainty in the matter in so far as that can be achieved.
The Private Members' Bill does not provide for the consent of the tribunal to the amendment of its terms of reference. It simply provides that the only matter with which the tribunal would be concerned is whether an amendment of its terms of reference would prejudice the legal rights of persons who have co-operated with the tribunal. Notwithstanding the comments of some Senators, some Opposition Members consider that the tribunal should have no say in the matter.
The Government wishes to have the fullest possible inquiry into the matters in question. In addition, it wants to ensure there can be no successful challenge to the tribunal's work. The tribunal is best placed to decide whether there should be an amendment to its terms of reference and what the amendment should be. Therefore it cannot come as a surprise that I ensured that if the approach comes from the Minister through the Attorney General, the consent of the tribunal will still be required. To that extent the integrity and independence of the tribunal has been maintained. To foist amendments on a tribunal without its consent would invite a challenge to it which would in all probability be successful.
I am concerned that Senators said there is no role for the Houses of the Oireachtas in the establishment of tribunals where a change in the terms of reference are being discussed. This is a misunderstanding and/or a misrepresentation of the true position.
Will the Minister accept our amendments?
The Houses of the Oireachtas have a central role in such matters because it is only on foot of a resolution of both Houses that a tribunal can be established and it is only following debate in the Houses that its terms of reference will be finally decided. Before such debate, consultation with the chairperson of the tribunal will be necessary for the reasons set out in the Bill. The Houses of the Oireachtas are central to any proposed change.
Arguments by at least one Senator that this legislation is minimalist can be countered by the very cogent argument that some Opposition parties sought during the debate on the 1998 Act to suggest there was no need for legislation. If no legislation had been enacted this would represent a minimalist approach. A minimalist approach such as that, which could have been challenged successfully, could lead to the disruption of the work of the tribunals.
With regard to the question of passports, I do not want to go ploughing in the winds again for Senator Connor or anybody else. However, one should be careful in making allegations of this nature. A tribunal is dealing with this matter and it should be accepted by everybody that the tribunals should be allowed to get on with their work. In this context, if it should be the case that files are required, then obviously they will be made available. I remind Senator Connor that when he speaks of laws being broken, the Constitution not being obeyed and guidelines not being adhered to, he might reflect on the record of the Rainbow Coalition in regard to the issuing of certificates of naturalisation. On 4 September 1996 the Government decided that no further applications would be processed and only those in hand would be considered. This amounted to 19 applications. When it was due to leave office that Administration decided to consider and grant certificates of naturalisation in respect of four other applications which were not included in the 19 applications. If Senator Connor or anybody else wishes to speak about a breach of guidelines——
The Minister lost that argument on radio this morning. I do not wish to repeat it here.
——or a breach of decisions perhaps they might do well to look for the mote in the eye of that Administration rather than the mote in the Government's eye.
Senator O'Meara is of the view that more revelations could be forthcoming which would require further legislation. I hope further legislation is not required. However, in fairness, the Government has demonstrated that where legislation is required it is forthcoming, that matters have been addressed as adequately as possible and that we did what we had to to ensure that the matters giving rise to concern would be fully investigated at the appropriate fora. I hope I have explained the position as comprehensively as possible.
Question put and agreed to.
An Leas-Chathaoirleach
When is it proposed to take Committee Stage?
Now.