Amendments Nos. 1 and 3 are related and may be taken together. Is that agreed? Agreed.
Tribunals of Inquiry (Evidence) (Amendment) (No. 3) Bill, 1998: Committee and Remaining Stages.
SECTION 1.
An Leas-Chathaoirleach
I move amendment No. 1:
In page 3, line 19, after "by" to insert "the Government or".
The Bill refers to "the Attorney General on behalf of the Minister" at line 24 and there is reference to "a Minister" at line 19. In the Seventeenth Amendment of the Constitution Act, 1997, commonly referred to as the Cabinet confidentiality amendment, the Schedule, in setting out the exceptions to the specific rule of Cabinet confidentiality, provides that the High Court shall determine that disclosure shall be made, first, in respect of a specific matter in the interests of the administration of justice by courts, etc., and, second, by virtue of an overriding public interest pursuant to an application on that behalf by a tribunal appointed by a Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into matters stated by them to be of public importance. It has been brought to my attention that there is an inconsistency between this and the wording of the Bill. These amendments seek to clarify this by the insertion of the words "the Government or" before the words "a Minister". They are largely technical and allow the Bill to refer to the Government collectively, consistent with the Seventeenth Amendment of the Constitution Act.
The amendments propose the inclusion of the words "Government or" in lines 19 and 24 page three. The amendments, as such, propose that the instrument to which section 1A applies shall be amended pursuant to a resolution of both Houses of the Oireachtas by the Government or a Minister of the Government. Where an amendment is contemplated it would arise in the context of a specific area of Government responsibility, which would come within the remit of the Minister who would be charged with responsibly for carrying out the wishes of the Government. Accordingly, the inclusion of the word "Government" is unnecessary. I hope the Senator understands this clarification and withdraws her amendments.
I am sorry the Minister will not accept the amendment, but I will not press it.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendments Nos. 2 and 4 are related and both may be taken together. Is that agreed? Agreed.
I move amendment No. 2:
In page 3, to delete lines 21 to 25, and substitute the following:
"(a) the tribunal consents to the proposed amendment following consultations between the tribunal and—
(i) the Attorney General on behalf of the Minister, and
(ii) the authorised representatives of any group, recognised for the time being under the Standing Orders of either House of the Oireachtas, which has sought to enter into such consultations with the tribunal on the question as to whether such an amendment should be made.".
This amendment is at the centre of the debate on this legislation. I thank the Minister for his erudite exposition of the legal and constitutional framework of the legislation. However, I am sure he accepts we are entitled to disagree with him.
In this Bill and in previous legislation we have sought to allow public representatives in the Dáil and the Seanad to respond to issues of major public concern. All sides of the Oireachtas, including the Taoiseach and the Tánaiste responded to the revelations about Mr. Ray Burke in Magill by seeking to ensure the truth will come out and on Second Stage I acknowledged the speed with which the Government introduced this legislation. The widespread reaction was to extend the terms of reference of the relevant tribunals. The Minister referred to the fact that the Oireachtas established these tribunals and, therefore, has a role in that regard. In view of this, it is not unreasonable to extend the role in this legislation to amending the terms of reference where required from time to time.
The Minister described the circumstances which gave rise to this legislation as exceptional. I hope he is right. We are seeking to achieve a consistency regarding the role of Members of the Oireachtas acting as public representatives and reflecting the concerns of the public on matters of major public interest. If we were to say we do not have a role and that it was up to the tribunal or the Minister there would be a major outcry.
While the Minister has set out cogent and erudite legal arguments against the thrust of these amendments and has proposed this legislation, which I largely accept, I ask him to listen to what we are seeking to achieve. The amendment seeks to extend the consultation process with regard to any extension of the terms of reference beyond what is envisaged in the Bill. It requires that there should also be consultation with groups in the House recognised under Standing Orders. A tribunal is established by resolution of the entire House and not by an individual party or Minister. There is no reason for secret lines of communication with the tribunal which do not involve all Members of the Dáil.
There would be greater public confidence in the operations of a tribunal, which is what everybody wants to achieve, if all parties and Independent Members were involved. We should be determined to ensure that is the case. An extension of the terms of reference of a tribunal should not be viewed as belonging to an individual or small group. In addition, it should not be perceived to be happening behind closed doors rather than in the public domain where it can be openly debated.
The Bill states that amendments will be made pursuant to a resolution of both Houses by a Minister of the Government where 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. This appears simple but it could be a complex matter. For example, in the current case there was a revelation which was followed by widespread debate in the public domain. Every newspaper, radio and television outlet covered the subject and everybody demanded the extension of the terms of reference.
The legal framework will be that such extensions will happen following consultation between the tribunal and the Attorney General on behalf of the Minister. This a narrow procedure and I wonder about the extent of public reaction if further cases arise in the future and this incident is not exceptional as the Minister envisages and hopes.
The amendment is designed to extend the consultation process. I hope the Minister accepts it was tabled in good faith and with the aim of building confidence in the manner in which the Houses operate, particularly regarding tribunals of inquiry which are so important in terms of public confidence in the political process. I appeal to the Minister to consider the amendment favourably.
I compliment Senator O'Meara on her contribution. I am at risk of repeating a number of the points I made on Committee Stage of the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Bill in April. The Minister said that Members of the Houses of the Oireachtas are an essential part of the formulation of the legislation governing tribunals of inquiry. However, that is true of all legislation. Under the Constitution, both Houses have a role in that regard but the Minister appeared to suggest Members should be satisfied with that position.
Some Senators on the Government side are members of the legal profession and they should consider that the Minister is refusing to allow Members of the Houses of the Oireachtas have a say in requesting, with the agreement of the member or members of a tribunal, a change in or extension of its terms of reference. Why does the Minister want to exclude the Houses of the Oireachtas from that role? If a need is identified by the Oireachtas, I do not understand why any Member of either House cannot request an alteration. There are procedures in both Houses under which such a motion can be passed or defeated.
Public issues are ventilated in the Houses of the Oireachtas. I am open to correction but the previous legislation was silent on this matter. However, in the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Bill the Minister inserted a provision which ensured that the role of Members of the Oireachtas was excluded. Members on the Government side should ask themselves why they should be excluded. This issue does not only affect Opposition Members of either House. This role should be open to all Members of the Oireachtas.
Members of both Houses may wish to raise matters in connection with the terms of reference of a tribunal of inquiry and they should have the democratic freedom to do so. Deputies and Senators are elected representatives in our bicameral system and they should not be excluded. If the Minister cannot accept the amendment, will he explain the reason? Why should Members of the Houses be excluded from this simple role which they have in most other areas?
Senators may trespass on the latitude of the Cathaoirleach during the Order of Business. However, they can raise matters and can have an impact because the issue will have been ventilated in the most important debating forum in the country. This is the important point. It is fundamentally important that Members of the Houses of the Oireachtas retain this right.
The first part of Senator O'Meara's amendment is covered in the Bill where the issue of consent is emphasised. We should not forget once a tribunal is established by both Houses of the Oireachtas it must have a sense of full independence. It must be impartial and this is what the Minister and Government are seeking to ensure.
Tribunals are only established to deal with issues of urgent public importance. Once they are set up they must be independent of both Houses of the Oireachtas. The second part of Senator O'Meara's amendment would create a situation where political parties would have the right to make proposals to the chairman of the tribunal. This would defeat the purpose of tribunals which must be independent and impartial. Although I empathise and agree with the first part of Senator O'Meara's amendment, the second part is wrong.
I appreciate that Senator Connor is sincere but he is incorrect when he says the Houses of the Oireachtas will have no input. Subsection 1A(1)(a) states:
The tribunal has consented to the proposed amendment, following consultation between the tribunal and the Attorney General on behalf of the Minister.
The Attorney General is the top legal adviser in the country.
I do not want that deleted. I want the inclusion of Members of the Oireachtas.
An Leas-Chathaoirleach
Senator O'Donovan without interruption.
Once a tribunal is established there should be no interference by Members of the Oireachtas, members of the Government or political parties. This would be wrong. It would be unconstitutional and these amendments must be rejected. The process of consultation to amend the terms of reference must be initiated by the tribunal or, in cases of significant importance, by the Government and the Minister in question after consultation with the Attorney General, . The thrust of these amendments would take from the independence and impartiality of the tribunal and could do harm which was not intended.
I am not a legal person but I will give the House the following example. Many years ago I was a member of a State board, BIM, but when I became a Senator I had to resign. When I asked why I was told there would be a conflict of interest. Every couple of months we see Bills to set up State boards and all of them exclude Members of both Houses of the Oireachtas because of the potential for a conflict of interest — a Deputy or Senator could be on an Oireachtas committee which was examining the board of which he was a member. This case may be rather different but the same conflict is possible.
Under the Bill as it stands both Houses would be in a position to resolve that the terms of reference of a tribunal be amended where the tribunal has consented to or requested the amendment. Where the tribunal consents to the amendment the Bill stipulates that the consent must follow consultation between the tribunal and the Attorney General on behalf of the Minister. The responsibility of the Minister, in due course, will be to make an order incorporating the new terms of reference and designating the tribunal whose terms of reference have been changed. It is normal and proper for the Attorney General to act as a facilitator or channel of communication in this way and the Bill gives statutory expression to that role in the delicate context of amending the terms of reference of sitting tribunals of inquiry.
Amendment No. 2 seeks to provide, in addition, that the consent of the tribunal must follow consultation with what are described as the authorised representatives of any group recognised for the time being under the Standing Orders of either House of the Oireachtas which has sought to enter into such consultations with the tribunal about whether such amendment should be made. In effect, it seeks to provide, as the condition of a tribunal's consent to any change in its terms of reference, that it must have engaged in consultations with representatives of political groups — including, it would seem, their legal advisers — where those groups have sought to enter into such consultation.
In my view the amendment could lead to a wholly undesirable situation where the tribunal is confronted with opposing views and would, it appears, be expected to arbitrate on them. The appropriate venue for the debate on the issues involved in any proposal to amend the terms of reference of a tribunal is surely the Houses of the Oireachtas and not a tribunal whose functions were never intended to deal with such matters. The amendment would constitute, to say the least, an unwieldy intrusion on the operation of a tribunal and could create considerable confusion. The exercise involved in formulating appropriate terms of reference and having them agreed in both Houses can be quite difficult.
The amendment would permit a multitude of authorised representatives of any group to conduct their own separate and distinct consultations with a tribunal. In some cases this would inevitably lead to conflicts between proposals for amended terms of reference and to delays in agreement on terms of reference and expose the tribunal to possible unending representations and correspondence, all of which would deflect it from its purpose. I am satisfied that the Senator's amendment is ill conceived and unacceptable and I have no basis for supporting it. The consultative process is so open ended and broadly based that the tribunal might never examine the issue for which it was originally set up.
Amendment No. 4 appears to assume that the Bill as it stands does not cater for the circumstances that a proposal for the amendment of the terms of reference of a tribunal might come from the Opposition rather than the Government. Such an assumption is incorrect and Senator O'Donovan is right to say that the role of the Houses of the Oireachtas is central to the amendment of the terms of reference, because the resolution must be passed under this legislation by the Houses.
We accept that, we do not need to be told it.
It is true that the consultative process takes place through the Attorney General on behalf of the Minister but the resolution must be adopted by the Houses, irrespective of whether that is placed before the House by the Government or the Opposition. Once there is a majority in favour of the resolution, it is passed and that must underline the central role which the Legislature plays in the change of terms of reference.
As I indicated on Second Stage 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 a ministerial order which applies to the Act, both Houses must have resolved that it is expedient that a tribunal be established for inquiry into a definite matter of urgent public importance. The Bill provides that the ministerial order shall be amended pursuant to a resolution of both Houses, subject to certain conditions which I have outlined. There is nothing in the Bill or in the Act of 1921 as amended which prohibits the Oireachtas to resolve — for instance, by way of acceptance of the terms of an Opposition motion, where the Government joins in the motion — to amend the terms of reference of a tribunal.
However, the principle of the consent of the tribunal to changes in its terms of reference, the need for which is acknowledged in both amendments, must be borne in mind. Because of the fundamental importance of that consent it is reasonable to assume that the Houses, under their working arrangements, would in suitable cases arrange through the relevant Minister, and ultimately the Attorney General, for the necessary consultations to be engaged in with the tribunal to seek its consent. There are precedents for the Attorney General working in this way and in the circumstances I do not consider there is a need to change the Bill to cover the point at issue. It should also be stressed that if it were the other way around — that is, if the Houses of the Oireachtas decided to pass the resolution before seeking the consent of the tribunal through the Attorney General on behalf of the Minister — the tribunal could refuse its consent, which would mean the Houses would have been wasting their time. In those circumstances I think everyone would agree that what is before the Seanad is reasonable, logical, makes perfect sense, and will be workable, practical and sensible. For all those reasons and others I have specified I cannot accept either amendment.
If the tribunal is not requesting an amendment to the terms of reference — in other words, where the desire for a change comes not from the tribunal but from the political establishment, that is, the Houses — is it not the case that, in the framework proposed in the Bill, the initiative for such an amendment can only come from the Minister? Under this Bill as drafted, it is the case that the initiative can only be taken by the Government of the day. The Opposition cannot take the initiative with regard to moving an amendment to the terms of reference. The initiative must come from the Government of the day.
The approach to the tribunal is that the Minister goes through the Attorney General, that much is true. I indicated there would be nothing to prevent an Opposition party putting forward a view in Private Members' time in regard to how it believes the terms of reference of a tribunal should be altered. If that view was accepted by a majority vote, the process of consultation could take place.
In the final analysis, the Oireachtas must pass the proposal regarding a change to the terms of reference by resolution. If I were to go down the road suggested by Senator O'Meara, the Opposition would be allowed to impose its will on the majority in the Houses of the Oireachtas and insist on the terms of reference of a tribunal being changed. That would not be a desirable road to travel because then the Opposition, although it is in a minority, could act as if it were in Government. Democracies do not work like that. In all circumstances the legislation as it is now presented is reasonable and sufficient for this purpose.
I am astounded that the Minister says that any Member of the House could use Private Members' business to introduce a change in the terms of reference of an ongoing inquiry. Under Standing Orders and the law, the Chair of both Houses would have to say that could not take place. Provision is not made for it in the Act, it is as simple as that.
The Minister then mentions the danger of an Opposition dictating, even if it achieved a majority in the House which could alter the terms of reference of a tribunal. We want to insert "the Houses of the Oireachtas with the consent of the tribunal, having requested the amendment". Members of the Houses of the Oireachtas, whether organised as a party or on an individual basis, could raise the issue in the House and Standing Orders and the law do not prohibit that from happening, as would happen now because the law specifically prohibits Members of the Oireachtas from initiating a change in the terms of reference in the House.
The Minister has closed his mind but I appeal to the Members on the Government Benches to see that they are taking away a power guaranteed by the Constitution. I have a suspicion, having heard the Minister express some fundamentally antidemocratic sentiments, as to why he does not want the participation of Members of the Oireachtas in this area. We do not need a lecture that the terms of reference of any tribunal must be passed by a majority of Members of the Oireachtas. That is the fundamental tenet of the Constitution which guarantees the existence of this House and the role of its Members, the basic principle of any parliament which is even semidemocratic. We do not need to be told that. We are seeking a central role for the Houses of the Oireachtas. We would not seek a change in the terms of reference unless the tribunal itself sought it or agreed it after we suggested it.
What difference would it make if it said in section 1A, "The tribunal has consented to the proposed amendment, following consultation between the tribunal and the Attorney General on behalf of the Minister and the Houses of the Oireachtas with the consent of the tribunal having requested the amendment,"? What would be wrong with that section reading like that? Nothing extraneous is being introduced.
The Minister has confirmed that the Government has a monopoly on asking the Attorney General to approach the sole member of the tribunal to find out his views on any change to the terms of reference. In other words, the Attorney General could not act on behalf of anyone other than the Government. The Attorney General has a role in acting in the public interest. There has been a precedent set before the courts on this. Such tribunals of inquiry as are sitting at the moment are appropriate places for the Attorney General to act in the public interest, on behalf of Members of the Opposition, for example.
Considering that both Houses of the Oireachtas set up the tribunals, to move into a situation where it is not the will of the Oireachtas to initiate any extension of the terms of reference, then extension falls within the gift of the Government of the day. That is antidemocratic.
I know my pleas are falling on deaf ears but it would be in the public interest if this legislation, or any legislation allowing for an extension of the terms of reference, required as much consultation as possible concerning the actions of Members of the Houses. It would increase the level of public confidence in the performance of tribunals. I appeal to the Minister to realise that the extent of the monopoly created by the Government's actions regarding the extension of the terms of reference is against the public interest.
The Senator is correct according to my legal knowledge, although I do not consider myself an expert. In fact, the Attorney General is the legal adviser to the Government. However, the kernel of the issue is being missed in that when a tribunal is established it must be impartial and as far as possible fully independent. Interference by anyone is not possible except by the Government or the Oireachtas in exceptional circumstances. The Bill sets out exceptions that can be made, particularly where the tribunal itself requires it, but these are extreme circumstances. Otherwise, that sense of independence and impartiality must not be interfered with either by the Government — apart from exceptional circumstances — and certainly not by party groups or individuals. This impartial and independent role is not being grasped. It would certainly affect the whole purpose of tribunals.
Everybody would accept that an individual's vote, as exercised by free will, is fundamental to any democracy. The intention of an individual casting a vote at a general election in a democracy is to elect a Government. That is the decision which the individual makes, of his or her own volition. Quite clearly, the party or parties that obtain a majority form a Government, having been mandated to do so by the ultimate and supreme authority — the people.
The Government is then charged with exercising its functions under the 1937 Constitution, pursuant to legislation duly passed by the Houses of the Oireachtas and pursuant in some instances to custom and convention. One of the primary functions which a Government is charged with is the passage of legislation. That does not mean there are not instances and have not been times when a Government has not accepted, for example, Private Members' Bills emanating from the Opposition.
When in Opposition I had the privilege of having some Bills accepted by the then Government. However, that is the decision of the Government of the day. If the Government of the day decides not to accept certain legislation then that is democracy in action. It is the will of the people that the Government should exercise its discretion in that matter.
In the same way there is nothing to prevent a motion being put down by an Opposition party in the Houses of the Oireachtas seeking that a Minister would ask the Attorney General to discuss a motion for an amendment of a tribunal's terms of reference and seeking the consent of the tribunal. In the event of the consent of the tribunal being forthcoming, it could go back to the Houses of the Oireachtas who in turn would be empowered to pass a resolution in accordance with the consent which was obtained.
However, what cannot be countenanced is that the discretion of the Government of the day would be fettered in any way. Majority rule underpins our democratic process and that much has to be accepted. To make a counter argument is, in my view, futile and, anyway, such an argument is facile.
It is, of course, true that the Attorney General is constitutionally charged with the protection of the public interest. However, I submit that in this particular instance the public interest must be expressed by a majority of the Oireachtas, irrespective of whether the motion comes from Opposition or Government. Majority rule has to be respected.
In the circumstances which I have outlined, it will be clear that it is possible for an Opposition party to bring forward a motion to amend terms of reference, but a majority would be required before the Attorney General, on behalf of the Minister, would seek the consent of the tribunal. Ultimately, in any event, a resolution would have to be passed by the Houses of the Oireachtas. All that is quite illustrative of our democratic process and exemplary in so far as one wishes to provide an example of how it should operate in any democracy.
It appears to me that the point being missed at all times is that the Houses of the Oireachtas must pass the resolution.
We have not missed that point.
The process of going to the tribunal to seek its consent can be initiated by any Opposition party or any minority in the Houses of the Oireachtas, with the proviso that there could be no approach to the tribunal by the Attorney General on behalf of the Minister unless a majority of the Dáil agrees that the approach should be made. I cannot see anything wrong with that.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 3 not moved.
I move amendment No. 4:
In page 3, between lines 25 and 26, to insert the following:
"(b) the Houses of the Oireachtas with the consent of the tribunal have requested the amendment, or".
Amendment put and declared lost.
I move amendment No. 5:
In page 3, to delete lines 28 to 35, and substitute the following:
"(2) A tribunal—
(a) shall not request an amendment under subsection (1) where, but
(b) shall consent to an amendment under that subsection unless, it is satisfied that such amendment would prejudice the legal rights of a person who has co-operated with or provided information to the tribunal under its terms of reference.".
The Minister used the word "futile" in relation to the arguments I was making.
No, not in relation to that.
We will carry on. The Bill as currently drafted envisages a situation where a tribunal may consent to or request a change in its terms of reference. This is to be welcomed. However, the tribunal may refuse to consent to a change in its terms of reference. Indeed, on more than one occasion Senator O'Donovan has referred to the fundamental principle of consent contained in this legislation as it refers to tribunals of inquiry. It is fundamental, of course. The Bill leaves it entirely up to the tribunal to make the decision as to the grounds on which it may refuse such a request. This amendment seeks to confine the grounds which a tribunal might raise for refusing to agree to a change in its terms of reference. As the Minister pointed out, that request would come by virtue of a majority vote of the Houses of the Oireachtas.
The amendment confines the grounds solely to the risk of prejudice to the legal rights of parties before the tribunal. If the Minister thinks there are other reasons a tribunal might be justified in refusing to comply with a resolution of both Houses of the Oireachtas, perhaps he would set them out.
Under the Bill as it stands, a tribunal must not consent to a request to a change in its terms of reference where it is satisfied that such change would prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its terms of reference. The amendment purports to substitute that provision with one that would require a tribunal, after a request to change its terms of reference, where it is satisfied that such amendment would prejudice the legal rights of a person who has co-operated with and provided information to the tribunal under its terms of reference, and that would require a tribunal to consent to the amendment unless it is satisfied that the legal rights of persons would be prejudiced. The effect of the amendment would be to compel a sitting tribunal to agree a change in its terms of reference in cases where the rights of persons before the tribunal would not be prejudiced.
I find the amendment to be strange and apparently oblivious of the reality that exists in relation to sitting tribunals. Where a tribunal has been in operation it is seized of extremely onerous duties placed on it by existing terms of reference. It may have already published its terms of reference in newspapers, sought information, considered whether information supplied is within its terms of reference, considered requests for representation and taken evidence. It may, for example, have advanced to the stage where it is at a crucial point in its deliberations and it may be nearing completion of its work. These clearly are considerations, among others, which may lead a tribunal to the conclusion that it should not agree to a change in its terms of reference.
It is entirely wrong to impose amended terms of reference on a sitting tribunal without that tribunal having a say in the matter. I am satisfied that a tribunal in those circumstances is best placed to say whether amended terms of reference are acceptable. The principle of consent is, in my view, fundamental to the Bill. The amendment seeks to remove that principle from the Bill and in those circumstances I propose to reject the amendment.
The whole concept or principle of consent and maintaining the independence and integrity of the tribunal is the essential plank of this legislation in as much as it was a central plank of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1998. I am sure Senators will agree that is of considerable importance and must be retained to underpin the legislation. Failure to do so will result in badly flawed legislation.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendment No. 6 is out of order as it is outside the scope of the Bill as read a Second Time.
Amendment No. 6 not moved.
Section 1 agreed to.
Section 2 agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.