Tribunals of Inquiry (Evidence) (Amendment) Bill, 2002: Second and Subsequent Stages.

Question proposed: "That the Bill be now read a Second Time."

Senators will be aware of the background to the Bill. The Government approved in principle the setting up of a tribunal of inquiry into allegations of misconduct on the part of certain members of the Garda Síochána in Donegal. The Government also decided to have amending legislation drafted to enable the tribunal to conduct its inquiry without prejudicing various court proceedings which have been instituted relating to the alleged misconduct.

When dealing with parliamentary questions or motions relating to alleged misconduct by gardaí in Donegal, the Minister, Deputy O'Donoghue, consistently made it clear that he was not opposed to the holding of a public inquiry on the issue but that there was a real concern about the danger of prejudice to criminal and civil proceedings. He mentioned this problem specifically to the Dáil on 23 May 2001 and advised Deputies that he was seeking the advice of the Attorney General. His advice confirmed that the holding of such an inquiry at that time could have prejudiced the civil and criminal proceedings which had been instituted as a result of the alleged misconduct and that, on the basis of the information then to hand, the best course was to let the criminal and civil proceedings run their course. If matters were not fully ventilated during those proceedings, then a tribunal of inquiry could be established.

Neither the criminal nor civil proceedings advanced quickly and there was real concern, which the Minister shared, about the length of time it was taking to bring the various inquiries and proceedings to finality. On 13 November 2001, the Minister announced that he was appointing an eminent legal person to examine the matter. Mr. Shane Murphy, senior counsel, was appointed shortly after by the Minister with the following terms of reference:

To conduct an independent review and undertake a thorough examination of the action taken and of relevant papers held by An Garda Síochána and the Department of Justice, Equality and Law Reform relevant to allegations that members of An Garda Síochána in the Donegal Division engaged in criminal, unethical or unprofessional behaviour, particularly in the context of the investigation into the death of Mr. Richard Barron and with regard to the finds of bomb-making equipment;

To advise, taking into account relevant criminal, civil and disciplinary aspects and mindful of the public interest, whether all appropriate steps had been taken with due diligence and expedition;

To advise what further measures, if any, may now be taken to bring those who have engaged in criminal, unethical or unprofessional behaviour to account at the earliest opportunity to address public concerns;

and

In this regard, to submit a Report to the Minister for Justice, Equality and Law Reform as a matter of urgency.

The Minister received Mr. Murphy's report on 30 January 2002. While recognising the need to ensure that civil and criminal proceedings were not compromised, Mr. Murphy endorsed the view that, "A Tribunal of Inquiry represents the only comprehensive method of inquiry to resolve outstanding issues of fundamental public importance."

The enactment of the Bill will allow a tribunal of inquiry to be established to investigate matters in Donegal without prejudice to criminal proceedings. I am pleased that Mr. Frederick Morris, former President of the High Court, has agreed to be the sole member of the tribunal. The Minister is in the process of consulting the Opposition parties on the Government's proposed terms of reference. He will try to facilitate them by taking on board any suggestions of theirs which could help us reach as broad a consensus as possible as well as a satisfactory conclusion to this matter.

A further consideration underlying the legislation is that the sole member of the Tribunal of Inquiry into Certain Planning Matters and Payments asked that the Tribunals of Inquiry (Evidence) Acts be amended to state clearly that a tribunal may comprise more than one member and to provide expressly for a reserve member. Mr. Justice Flood suggested that this was necessary to avoid any possible challenge to the process of the tribunal. He also suggested that it should be provided that, where any of the full members of the tribunal is unable to act for any reason, the tribunal should be able to proceed to hear evidence on the basis of the remaining two members and the reserve member. The Bill responds to Mr Justice Flood's requests.

The timescale for consideration of the Bill in both Houses is regrettably but inevitably short. It passed all Stages in the Dáil on Friday and needs to be passed by the Seanad today. The Bill must be enacted before the Easter recess so that the Dáil can pass the necessary resolution pursuant to it, which will be tabled by my colleague, the Minister for the Environment and Local Government, to provide for the appointment of additional members and a reserve member to the Flood tribunal. For this reason, the House will be asked to pass an earlier signature motion later this afternoon.

The Bill has, as I have indicated, two main purposes. First, it will facilitate the work of the tribunal of inquiry into the Donegal allegations by ensuring that a risk of prejudice to any pending criminal trial will not arise from the tribunal's proceedings. Second, it will provide a clear legal basis for the appointment of additional and reserve members of tribunals, as requested by Mr. Justice Flood. The Bill also provides that a tribunal may appoint investigators to assist it in carrying out its functions.

Section 1 is a standard interpretation provision. Section 2(a) of the Tribunals of Inquiry (Evidence) Act, 1921, provides that a tribunal can exclude the public from its proceedings where, in its opinion, it is in the public interest expedient to do so for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given. Section 2 of the Bill amends this by adding a provision that a tribunal can, in particular, avail of its power to exclude the public if there is a risk of prejudice to criminal proceedings. Thus, it elaborates on the existing power to exclude the public by making clear that one of the circumstances in which this can be done is when there is a risk of prejudice to criminal proceedings. It should be noted that this provision applies to proceedings which are in existence at the time the tribunal is hearing the relevant evidence, not possible future proceedings. The Attorney General's office advises that it would be inappropriate to use the word ‘existing' as this is already implicit in the word ‘proceedings'.

Section 3 deals with the situation which would arise if a tribunal reports at a time when criminal proceedings are pending in respect of a matter connected with the tribunal's inquiries. This is not adverted to at all in the tribunals of inquiry legislation as it stands. Subsection (1) provides that the person to whom the tribunal reports, for example a Minister or the Clerk of the Dáil, may apply to the High Court for directions regarding the publication of the report if he or she considers that publication might prejudice the criminal proceedings.

I emphasise that it is only the person to whom the tribunal is to report, as specified in the instrument establishing it, who can apply to the court under this section for a direction. A person who may be criticised in the report and who, therefore, would like to prevent publication has no standing to bring an application to the court under the section. Clearly, this provision is necessary because there is little point in having the provision for hearing evidence in private under section 2 if the tribunal's report has to be published on completion though criminal proceedings are still in existence. Indeed, I consider that publication of a tribunal's report could have greater potential to prejudice criminal proceedings than evidence heard by a tribunal in public in that the report will include the evidence, or a summary of it, together with the possibly negative findings made by the tribunal, on the basis of the evidence, about the conduct of the person who is the subject of the criminal proceedings.

Subsection (2) provides that, before determining the application, the court may hear the Attorney General, whose duties include representing the public interest before courts and tribunals, the Director of Public Prosecutions and the defendants in the criminal proceedings. Subsection (3) provides that the court may direct that the report or any part of it be not published for a specified period of time or until the court so directs. Subsection (4) provides that the court may, if it considers it appropriate, hear an application under this section otherwise than in public. There would be little point in having a provision to facilitate non-publication of a report because of the risk of prejudice to a criminal trial if the contents of the report were disclosed during the very proceedings the purpose of which is to determine whether publication should take place.

Section 4 deals with membership of tribunals and inserts seven new subsections in section 2 of the Act of 1979. The new subsection (3) provides for the appointment of additional members to tribunals at any time after the tribunal is appointed. The existing section 2(1) of the 1979 Act already provides for the appointment of more than one member when the tribunal is initially established in that it states that a tribunal may consist of one or more than one person. The new subsection (4) provides that, subject to section 6 of the 1979 Act, a decision or determination of a tribunal may be that of a majority of its members and, in the case of an equal division, the chairperson shall decide. The phrase "may be that of a majority of its members", rather than "shall be." is to take account of the possibility that decisions and determinations may be unanimous. The phrase "Subject to section 6." means that decisions on the award of costs are to continue to be made by the chairperson if the tribunal consists of more than one member, as provided for by that section.

Subsection (5) provides for the appointment of a member to replace the chairperson if he or she is unable to continue to act. It also envisages the situation in which the chairperson may step down from the chair but continue as an ordinary member. Subsection (6) provides that the appointment of additional members under subsection (3) and the designation of a new chairperson under subsection (5), shall be done by way of an amendment of the instrument by which the tribunal was appointed in accordance with section 1A of the 1921 Act, which was inserted by the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act, 1998, except that consent of the tribunal to the identity of appointees will not be required.

I think I should explain this in a little more detail. The 1998 (No. 2) Act provides for the amendment of the instrument establishing a tribunal in two situations, first where the tribunal has consented to the proposed amendment following consultation between it and the Attorney General on behalf of the Minister in question and, second, where the tribunal has itself requested the amendment. This provision was, essentially, intended to deal with changes in terms of reference, that is the matters which the tribunal is to investigate. The two circumstances mentioned in the Act arose in relation to the Flood tribunal and, in fact, gave rise to this provision, as Senators will recall. However, while it is appropriate to require the consent of the tribunal to the appointment of additional members and to a change in the list of matters it is to investigate, it would be wrong, in my view, to require its consent to the identity of the new members or new chairperson. Accordingly, subsection (6) provides a procedure for the appointment of new members or a new chairperson by way of a modification of what is provided for in the 1998 (No. 2) Act for the amendment of instruments generally. Most important, from the point of view of this House, is the fact that the amendment of any instrument shall be made pursuant to a resolution of both Houses, and so the Dáil and Seanad will have the opportunity to debate the changes proposed for the tribunal.

Subsection (7) was inserted by a Committee Stage amendment moved by the Minister in the Dáil and provides that an appointment of additional members or a designation of a new chairperson shall not affect decisions, determinations or inquiries made or other actions taken by the tribunal before the appointment or designation. This amendment was suggested by Mr. Justice Flood in a letter to the Attorney General last Thursday and the Attorney General advised the Minister to move it in the Dáil. Mr. Justice Flood fears that, if there is not a saving provision of this kind, decisions which he has taken and orders which he has made may be subject to legal challenge because the tribunal will then consist of three persons rather than a sole member.

Subsection (8) provides that a member of a tribunal who is unable to act shall be deemed not to be a member for the period of that inability. With reference to subsection (9), as I said earlier, one of the points made by Mr. Justice Flood was that it should be provided that, where any of the full members of the tribunal is unable to act for any reason, the tribunal should be able to proceed to hear evidence on the basis of the remaining members and reserve member. Subsection (9) is relevant to this proposal in that it provides that a tribunal may continue to act notwithstanding one or more vacancies if it is satisfied that the legal rights of any person affected would not be unduly prejudiced.

An example of where a tribunal might consider that it should not continue to act because the legal rights of a person would be unduly prejudiced would arise if the original tribunal member has left the tribunal and that person was the sole member when particular evidence was heard, while the additional member or members were not members or reserve members at that time. The tribunal might, in those circumstances, conclude that it would unduly prejudice a person's legal rights were it to make findings on evidence it did not hear and to which it has access, perhaps, only in the form of transcripts. On the other hand, the tribunal might consider that it would not unduly prejudice a person's rights if it made findings in a situation in which a member was not acting as such for a brief period. It will be a matter for the tribunal to decide.

Section 5 deals with reserve members. Subsection (1) provides for the appointment of reserve members by the instrument establishing the tribunal or an instrument amending that instrument. The Minister for the Environment and Local Government will, assuming the appropriate resolutions are passed by both Houses, make an instrument appointing a reserve member to the Flood tribunal and, similarly, one or more reserve members can be appointed by the instrument setting up any future tribunal on any subject.

Subsection (2) sets out the role of a reserve member. He or she may sit with the tribunal during its proceedings, consider oral evidence, examine documents produced or sent in evidence and be present at deliberations of the tribunal. However, he or she may not otherwise participate in the proceedings or deliberations and may not seek to influence the tribunal in its decisions or deliberations. The principle on which this provision is based is that the reserve member, though not a member of the tribunal, will be fully au fait with its work and will be in a position to replace a full member if that becomes necessary. This model for the role of the reserve member is taken exactly – except for drafting changes – from that set out in resolutions of the Dáil and Seanad, passed on 5 July last, in relation to the appointment of a reserve member to the Flood tribunal at a stage when it was proposed to proceed with the appointment of such a member on the basis of the legislation as it stands. Subsection (3) provides for the appointment of a reserve member to be a full member, if a full member is for any reason unable to continue to act as such.

Subsection (4) – again in line with the Dáil and Seanad resolutions of last July – provides that the appointment of a reserve member as a full member may be deemed to be operative from a prior date. This shall not be earlier than the date on which he or she became a reserve member. This provision can be best understood in the context of a tribunal whose work can be divided into two or more modules. The reserve member might be appointed as such during the hearing of evidence part way through the first module and, in the course of the second module, it might be necessary to appoint him or her to be a full member. In that case, it would be appropriate to backdate the appointment as a full member to the beginning of the second module. The appointee would be regarded as a full member for the whole of the second module but it would not be necessary or appropriate to deem him or her to have been a full member during the whole or part of the first module since that might already have been the subject of findings and a report by the tribunal as it was then constituted.

Where the appointment as a full member is backdated, subsection (5) provides that this shall not affect decisions or determinations made before the actual appointment. Were it otherwise, a situation could arise in which a decision of the tribunal, validly taken by a majority at the time, might be later regarded as invalid because it would not be the decision of the majority when the new member's appointment is backdated. As I have already outlined, section 4 provides that a decision of a tribunal consisting of more than one member is to be that of a majority. A Committee Stage amendment, made by the Dáil on the Minister's proposal, in line with the terminology used in section 4(7), inserts the reference to "inquiries made or other actions taken" in section 5(5). This was at the suggestion of Mr. Justice Flood, who considers that this language strengthens the provision.

The final subsection of section 5, subsection (6), provides that the appointment of a reserve member to an existing tribunal, or of a reserve member to be a full member of a tribunal, shall be by the same procedure as I outlined earlier in relation to the appointment of additional members and of a new chairperson, that is, the instrument appointing the tribunal will be appropriately amended pursuant to resolutions of both Houses of the Oireachtas.

Section 6, on investigators, is designed to remedy a defect in the existing legislation in relation to the power to compel a person to co-operate in a tribunal's preliminary investigation. It is well recognised in the case law that has built up over the past decade or so in relation to tribunals of inquiry that the work of such tribunals involves a number of stages, namely, a preliminary investigation of the evidence available; the determination of what is considered to be relevant; the service of such evidence on the persons likely to be affected by it; the public hearing of witnesses in regard to such evidence and the cross-examination of witnesses by or on behalf of the persons affected by their evidence; and the preparation of a report and the making of recommendations based on the facts established at the public hearings.

In 1999, the Supreme Court held in the case of Lawlor v. Flood, 1999 3 IR, that the principal powers of a tribunal under the legislation were to enforce the attendance of witnesses, to provide for their examination before the tribunal and to compel the production of documents and that the examination of witnesses, particularly those who were not willing to co-operate during the initial stages, was not a matter which, in the absence of express statutory authority, could be delegated by a tribunal to any other person or body. In other words, while a person can be compelled to attend before a tribunal itself to answer questions, she or he cannot be compelled to answer questions of the tribunal's legal team in the course of the preliminary investigation. Section 6 deals with this by providing for the appointment of investigators and for their duties and powers.

Under subsection (1), a tribunal may appoint investigators with the approval of the Minister who appointed the tribunal and the consent of the Minister for Finance or the approval of the Government if the Government appointed the tribunal. Subsection (2) provides that the appointment of investigators shall be for such term and subject to such terms and conditions as the tribunal may determine with the approval of the relevant Minister or the Government, as the case may be.

Some have suggested that the requirements for ministerial approval and the consent of the Minister for Finance open the way for the Government to frustrate the work of tribunals by not permitting them to appoint investigators. This is clearly an absurd view as I cannot imagine a Government, accountable as it is to these Houses and to public opinion and subject as it to rigorous scrutiny in the media, attempting to hinder a tribunal by unreasonably and for improper motives withholding approval of the appointment of investigators by a tribunal. This provision is nothing more than one for essential ministerial oversight of the expenditure of voted funds and it is a provision of a type which appears regularly in the Statute Book. For example, the employment equality legislation provides that the members of the Equality Authority hold office and receive remuneration on such terms as the Minister with the consent of the Minister for Finance may determine. It also provides that the Minister may appoint such number of persons to be staff of the authority as may be approved by the Minister, with the consent of the Minister for Finance. Similarly, the legislation provides that staff may be appointed by the Minister, with the consent of the Minister for Finance, to assist the Director of Equality Investigations. I have not heard it argued that the independence of statutory bodies, to which provisions of this kind apply, has been compromised by such provisions which, as I have said, are commonplace in the Acts of the Oireachtas dealing with staff and resources.

Subsection (3) of section 6 specifies what the role of investigators is to be. This is to assist the tribunal in the performance of its functions by carrying out preliminary investigations into matters relevant to the inquiry. In doing this, they are subject to the direction and control of the tribunal.

Subsection (4) of section 6 provides that investigators will have power to require persons to give information, produce documents and answer questions and it imposes a duty on persons to comply with such requirements. Furthermore, under subsection (5), a person's answers may be reduced to writing and the investigator may require the person to sign the document. There are a number of precedents for this type of provision, one example being section 10 of the Companies Act, 1990, in relation to company inspectors.

The most notable characteristic of the powers being given to investigators is that they parallel the powers of the tribunal itself, except that they will be used at the preliminary investigation stage. Accordingly, I do not propose that the investigators should examine persons on oath – that is for the tribunal itself if it decides that the answers given by a person to the investigator merit the calling of that person to give evidence at a public hearing of the tribunal.

Subsection (6) provides that if a person refuses to comply with the requirement of an investigator, the latter may, with the consent of the tribunal, apply to the High Court which may order the person to comply with the requirement, thus making further non-compliance a contempt of court. This method of enforcement of the investigator's requirements is essentially the same as that provided for in relation to tribunals in section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997.

Under subsection (7), a person who is required by an investigator to give information, produce documents or answer questions shall be entitled to the same privileges and immunities as a witness before the High Court. For example, such a person, if sued for defamation as a result of what he or she says to an investigator or what is in a document produced to an investigator, would have the same privilege as if they had given this evidence or produced the document as part of High Court proceedings.

Subsection (8) protects the confidentiality of information obtained by investigators subject to the overall control of the tribunal. It will frequently be the case that the preliminary investigation discloses material that is of no further interest to the tribunal, perhaps because it falls outside its terms of reference. The confidentiality of this material must be respected and subsection (8) so provides. Subsection (9) provides that an investigator shall be furnished with a warrant as evidence of his of her authority to exercise the very significant powers of the office.

Section 7 makes it a summary offence for a person not to comply with the requirement of an investigator or to obstruct or hinder him or her. The penalty for such offences will be a fine not exceeding €3,000 and-or imprisonment for a maximum of 12 months. It should be noted that we are not providing for trial on indictment, which is provided for in the 1979 Act for broadly similar offences in respect of a tribunal. Section 7 and the power to seek a High Court order under section 6(6) represent adequate and proportionate enforcement mechanisms to ensure that investigators will be fully effective in carrying out their functions on behalf of tribunals.

Section 8 provides that a statement or admission made to an investigator cannot be used as evidence against the person making it in any criminal proceedings. This parallels section 5 of the 1979 Act which deals with tribunals themselves and, as such, it is also necessary in respect of investigators.

Section 9 increases the maximum fines for offences relating to failure to co-operate with, or to the obstruction of, a tribunal from £500 to €3,000 on summary conviction and from £10,000 to €300,000 in the case of conviction on indictment. The fine of €3,000 on summary conviction is the maximum appropriate amount according to the advice of the Office of the Attorney General. The increase in the maximum fine on conviction on indictment is more than twentyfold and, even allowing for the length of time since the maximum was set in 1979, it is by any standard a very significant increase. It will show how seriously the Houses of the Oireachtas regard the offences to which the penalty applies. This section applies to offences committed after the passing of the Act, irrespective of whether the tribunal concerned was appointed before or after such passing.

Section 10 deals with the application of the Act, which, except for sections 4, 5 and 9, shall apply to tribunals established after it is passed. The provisions with regard to membership of tribunals, reserve members and increased fines will apply to existing tribunals, while the sections on the exclusion of the public and publication of reports – where this might prejudice criminal proceedings – shall apply to future tribunals. It is not considered necessary to apply these provisions to existing tribunals, which have been functioning satisfactorily under the current law on these matters.

The provisions applying to investigators, which are expressed in section 10(3), will not to apply to existing tribunals unless such application is provided for by an amendment to the instrument appointing the tribunal. In other words, existing tribunals could use investigators, provided their instrument of appointment is amended appropriately under the procedure in the 1998 (No. 2) Act which involves prior resolutions of both Houses.

Section 11 is a standard provision which states that any expenses incurred by Ministers of the Government in the administration of the Act shall be paid out of moneys provided by the Oireachtas.

Section 12 is also a standard provision dealing with the Short Title and collective citation. This measure achieves a number of important objectives in that it ensures the tribunal of inquiry into the Donegal allegations can function properly, having regard to the existence of criminal proceedings. It also provides the legal basis for the planned enlargement of the Flood tribunal. The benefits of the provisions in respect of both these objectives and of the provisions on investigators will be available generally to tribunals in the future. Accordingly, I recommend the Bill to the House.

I welcome the Minister of State to the House. The last speaker on the last item of business before the House, the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Treacy, paid tribute to the Seanad for its role in processing legislation by ensuring it was adequately examined and providing the best possible value in the legislative process. He would not say that if he was here to speak on this Bill.

Sometimes one feels one is taking part in a parliamentary charade in which standing up and speaking will make no difference whatsoever. It might be as easy to tell the Minister of State to take her Bill away with her now because nothing we say here this evening will make the slightest difference. The Minister of State will not accept any changes as the Bill is rushed through all Stages in the space of a couple of hours or less. Most Opposition Senators feel there is little point pretending that the Bill is being examined in detail or that what we say will have any impact. The Bill will be whisked away to the Phoenix Park this evening to be signed and that will be that. I wonder what is our role in all this, but that is the position.

When the history of the last ten years of the last century is written, it will almost certainly be dubbed the decade of the tribunals. Whether that decade becomes an age of tribunals, only time can tell, but we are on the way. We are only barely into the 21st century and already we are being asked to establish a second tribunal. There may be more in the pipeline. While this has been a long Parliament, during its lifetime we have had more motions relating to the establishment of tribunals of inquiry, amending their terms of reference and providing new statutory mechanisms to them than we had over the entire previous history of the State.

The Minister of State said that the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, will send the Government's proposed terms of reference to the Opposition very soon and that he looks forward to consultation on the text of the appropriate resolution. He will try to facilitate the Opposition parties by taking on board any suggestions. Perhaps the Minister of State could elaborate on that and explain to me exactly what that involves. I am confused, but the confusion may be my own fault.

We are now rich in experience of the operation of tribunals and, clearly, it is time to establish a body to take an overall look at them. It should discover what lessons can be learned by going back to the beef tribunal and examining ways in which tribunals could be made more cost effective. The majority of people would like costs reduced because the fees paid to most lay people seem out of all proportion to those paid there. Most lawyers will say that they are making great sacrifices and giving up income by working for tribunals. If there are alternatives to tribunals, they should be investigated. The Committee of Public Accounts was very effective as a tribunal, but it was probably the only parliamentary committee to be so. We need to find out if greater use can be made of committees to carry out investigations, although it is clear from the judgment of the High Court that there are very real problems with that course. We have yet to see the decision of the Supreme Court. There may be alternatives to tribunals that can be found in procedures within existing systems.

As the Minister of State said, there are two immediate reasons for bringing forward the Bill. The first is to appoint additional members to the Flood tribunal and the second is to establish a tribunal to investigate what has become known as the McBrearty affair. In neither case is there an objection to what is proposed, but there is a question about why it has taken so long to do something. In each case the Government had to be goaded and prodded, over a period of months, into taking these actions and we find, in the dying days of this Parliament, that the Bill is being rushed through in matter of hours, leaving us with no way of changing it. It is nine months since Mr. Justice Flood asked for new legislation and additional resources. It is strange that this process has taken so long, given that the Government frequently boasts that it set up these tribunals, although it was the Houses of the Oireachtas that did so after great pressure had been exerted by its Members and the public. Had the Government been serious about expediting this matter, the legislation could have been passed by both Houses many months ago.

The McBrearty case was an issue for a long time but it was due to the persistent efforts of Deputy Jim Higgins and Deputy Howlin that it burst into the Lower House in a sensational fashion. It was one of the more sensational debates in the life of this Oireachtas. That followed a long period of delay and obstruction by the Minister who denied there was a problem and seemed to hope that, if left alone, it would go away. There was certainly no enthusiasm on the part of the Government to address it, even less to set up a tribunal. Eventually the Government gave way, gracelessly and under enormous pressure from the Opposition and the media. There has never been a credible explanation of why it took so long. The Minister made a feeble attempt to explain but that did not cut much ice.

I have no intention of discussing the issues which led to the establishment of the Donegal tribunal. They have been comprehensively ventilated in the Lower House, largely due to the efforts of Deputy Jim Higgins and Deputy Howlin, and have received extensive media coverage and analysis. There is little point in rehearsing them. What we are doing here today is largely pointless. We are being asked to rush all Stages of a Bill through the House in a period of hours. As there is no question of amendments being considered, it would be pointless to propose any. It would merely be a case of going through the motions and pretending some form of serious scrutiny will be given to the Bill by this House. It would mean pretending that the Minister is open minded, will listen to what we say and will carefully consider our amendments. That will not happen and I wonder why we are going through this charade.

The Bill must be rushed through the House this evening. It will then be sent by Army outrider to the Phoenix Park where the President, after eating her boiled egg, will either sign it or refer it to the Supreme Court. After months of inaction and obstruction, the motorcycle is revving up outside to get the parchment to the park for signature.

This Bill was examined in detail in the Lower House and strenuous objections were made to some provisions. Some Members considered it a flawed Bill and the flaws were outlined in detail. I will not insult the intelligence of Members of this House by repeating those points today. I hope that when this Bill is passed it will facilitate a full exposé of what happened in Donegal, allow the facts to be established and provide an opportunity to the Garda Síochána to clear the cloud of suspicion or root out any corruption that may exist.

It is important that the tribunal allows this to happen in a way that is fair and expeditious. We do not want, three or five years hence, to discover the Donegal tribunal is seeking additional powers, extra members or more time. Alternatively, we might find ourselves in a situation where, due to one of the stranger aspects of this legislation – and I understand the need for it – the tribunal has long finished its business but its report still awaits publication. At any rate, we hope to see these matters treated with greater expedition than earlier tribunals were able to achieve.

The Flood tribunal has done great work. It has had to withstand sustained attacks from powerful forces in this country. Indeed, some of those powerful forces were aided and abetted by tame journalists, whose agendas might not withstand close scrutiny and who systematically tried to undermine the standing and work of the tribunal. It is a great tribute to that tribunal that it withstood that sustained and systematic attack. The people who carried it out know who they are and should be ashamed of themselves.

However, from the point of view of the public, the tribunal has been at a virtual standstill for some time. It is true that important work is being done behind the scenes but there is now the hope that there can be some degree of expedition. It is important also to note the point about natural justice made by John McManus in The Irish Times yesterday. He talked about the injustice which attaches itself to people who have been declared to be “under investigation” by the tribunal. These people might find themselves living, for a period of a year or longer, under a cloud of suspicion, in some way guilty by association because they are under investigation. The assumption is that they have done something wrong.

One well-known person, a distinguished former Member of this House, for a long period of time was described as being under investigation when his name appeared in the newspapers. He cleared his name. He was blameless, as anybody who knows him knew he would be. Nonetheless, for a long period he had to engage expensive lawyers and live with that situation. It is probably inevitable that this is part of the process but the tribunal should be aware of the need to move as quickly as possible in the interests of both those who are co-operating and those who are being investigated as they may well be as clear as the driven snow. Sometimes it can take a year or more and this is a serious injustice where people are blameless. I hope the Bill, after it has been whisked to the park and receives the presidential signature, will inject a new sense of energy into the Flood tribunal so that it can continue to do its important work.

I wish to conclude on a personal note. Before Christmas, in the course of a debate in this House, I made a reference to Senator Mooney which was unfair. He had made remarks which I said could be construed as racist. I was wrong to do that. Senator Mooney is, of all things, not a racist; he has a strong record on civil liberties and human rights. I regret it. It was not personal. I had misinterpreted what he said, that there was a degree of substance in it. I apologise to him for that and am happy to withdraw the remarks. I am glad to have the opportunity to do this because the Senator is present in the Chamber. This being holy week, I have no difficulty supporting the Bill.

I welcome the Bill. It is important because it provides for a tribunal of inquiry to be established to inquire into alleged misconduct by gardaí in Donegal. This is necessary. I happened to be an observer in a case where that same group of people tried to accuse innocent people of an offence. I was glad I went with those innocent people to stand by as an observer. I was not enamoured with what happened. But for forensic evidence innocent people would have been in serious trouble as a result of how some of the gardaí conducted an interview which I witnessed. On a couple of occasions I had to intervene. I am delighted, therefore, that this day has come. I had intended to raise the issue at the time but I was too hot under the collar. I have a cooler head now and I am delighted to welcome this Bill as a result of that case alone.

The majority of gardaí are decent, respectable, honourable men and women. They are considerate. When they stop a person on the road they are reasonable if one is reasonable in turn with them. I prefer to meet a garda than a speed camera because the camera does not listen. At least one can make a case to the garda. By and large, they are reasonable.

The small cliques within any organisation should be weeded out. Unfortunately, every section of the community – politicians, gardaí, teachers, priests and accountants – has a few bad apples. That was and will always be the case. One must remember that Our Lord had only to pick 12 men and he picked one bad one who took the little backhander. Human nature has never changed. It is the same today as it was then. Therefore, I welcome the Bill dealing with those acting dishonourably.

I also welcome the fact that the Bill will speed up the introduction of more manpower for the Flood tribunal. As has been said here, while the procedures of tribunals were intended to be informal, speedy and inexpensive, the increased involvement of the legal profession has tended to make the hearings more formal, prolonged and costly and to lead to an overemphasis on legal procedures and technicalities.

When a tribunal was established some years ago a previous Minister, when asked what he thought of it, stated it was a barristers' fattening exercise. The amount of money the legal profession is earning from tribunals is disgraceful. There are people talking about what is being spent on other projects, but the thousands of pounds per hour being paid to legal people is excessive and astonishing.

I would like to see the Committee of Public Accounts handling more of these inquiries. It handled the DIRT inquiry for a fraction of the cost, we got answers and the inquiry paid for itself. One does not need legalese to question people about whether they gave backhanders, bribes or anything else. This has gone too far.

There is a case relating to the Abbeylara inquiry in the courts. I am fully convinced the reason it has gone to court is because the legal profession wants to make sure it keeps its hands on the pot and gets its money. If the Committee of Public Accounts could conduct inquiries like these, the legal profession would get no money out of it.

We will have to devise a system whereby there would be a time limit on tribunals and a cap on legal expenses. I do not understand the need for senior counsel, junior counsel and solicitors representing individuals in a case. This is not done in any other country. As I have often said here, the compensation culture is a classic example of this, where taxpayers are being taken to the cleaners.

While I welcome the Bill and I am happy that it will speed up the work of the tribunals and bring them to a conclusion sooner, I would like to see a time limit put on tribunals in future. There should be greater accountability. They cannot continue indefinitely. There has been a tribunal sitting for two and a half years, but what has come out of it? Millions have been spent and there have been and will be no answers. There will be a report issued in perhaps two years' time, when nobody will know the reason the tribunal was established in the first place.

The second flaw with tribunals is that those who did give bribes are getting away scot-free. There is no word about them at all. If there were no receivers, there would be no thieves. If there were no people to buy stolen goods, there would be no goods stolen. Those who gave the bribes were at the tribunals stating they gave this and that, yet they have not been charged. That is as great a crime as taking it, but the tribunal is established in such a way that the people concerned are exonerated from all blame. If they had got what they wanted, there would have been no inquiry. Therefore, we must do something to provide for a little balance and ensure everybody is treated fairly.

In addition, as Senator Manning said, people can go into a tribunal and make all kinds of allegations. The tribunal has gone on for two years and there are people with that cloud hanging over them. That is wrong. There should be a system whereby they are brought before either the Committee of Public Accounts or a court of law, tried and a decision is given. It would then be black or white, they would be declared guilty or innocent.

Tribunals are not moving as fast or as expeditiously as was intended. For this reason we need to speed up the process. I welcome the Bill because it will provide for more manpower. It would be nice to see a speedy end to the tribunals.

It is amazing how there is so much emphasis on some tribunals, yet there are others dealing with the loss of life, for example, the ongoing tribunal dealing with the Blood Transfusion Service Board, about which nobody is talking. As a result of what happened, many lives were lost. At least there were no lives lost in the bribes scandal. We should also look into how the emphasis is placed on certain tribunals.

I welcome that fact that the Bill will speed up the work of the tribunals and bring them to a speedy conclusion. I hope when they are cleared up the next Minister for Justice, Equality and Law Reform will look at a speedier and better way of conducting tribunals similar to that adopted by the Committee of Public Accounts to deal with all such allegations and inquiries. This would bring them to a speedy and satisfactory conclusion and let the people know the results. By the time we get results, they will be asking what was the tribunal about. They will have forgotten all about it. It has gone on too long.

I welcome the Bill and know that a great deal of work had to be done on it. I congratulate the Minister of State, Deputy Mary Wallace, and the Minister, Deputy O'Donoghue, on bringing it before the House. I hope it will speed up the inquiry and bring it to a final conclusion.

I welcome the Minister of State, Deputy Mary Wallace, and thank her for elucidating the detail of legislation that we had all hoped would not have to come before the House. It is in two parts essentially: one dealing with the McBrearty inquiry and the other with the appointment of extra members of the Judiciary.

Before I make my observations on the Bill, I express my appreciation of the graciousness with which my colleague, Senator Manning, has dealt with the rather unsavoury incident that occurred in the House prior to Chirstmas which had a very deep personal effect on me. One does not like to be referred to as a racist in any forum, certainly not in one of the Houses of Parliament. It would be ungracious of me – I do not feel it within me – not to acknowledge the manner in which Senator Manning took the opportunity to state his regret and withdraw the remarks. There is really little else that one can say about it. It is rather sad that while the remarks will remain on the record of the House, to which I attach a great deal of importance, they will not receive the same publicity that the original allegation received in the national media at the time.

I will not deal with the details surrounding the McBrearty case as this has already happened in the debate, other than to say that those who come from the north west would have been familiar with the case over a long period of time. I knew Frank McBrearty and his family because, wearing another hat, I organised several musical events in The Parting Glass in Raphoe during the years. I am not sure if that is a declaration of interest, but I did know Frank. Perhaps because I knew him, I was aware of the details of the McBrearty case as the family saw them.

While I have no wish to cavil with the remarks of Senator Manning about the fact that it emerged as a result of the investigative powers of two Deputies in the other House, the details of the case were well known. The McBreartys were anxious that the matter should be cleared up and there were several attempts made by politicians to ensure the matter was kept in the public eye, not least by Deputy Blaney, who is a friend of the McBreartys and who I know brought this matter to the attention of the political establishment. The Minister for Justice, Equality and Law Reform was fully aware of the matter and did not need to be prodded into action. It is important to put that on the record. In the world of politics, spin rules supreme. I have no doubt that the two Deputies referred to by Senator Manning will live long on the perception that they were the ones who brought this particular development to the public arena.

In outlining the details of this Bill, the Minister of State has made quite clear the sequence of events that led to this legislation. She stated in very great detail its background from the earliest opportunity that the Minister for Justice, Equality and Law Reform had to address this issue in a judicial fashion. I believe he has done the correct thing – he has moved cautiously. It would be dreadful if both Houses were to rush through legislation purely because of the political football being made out of the issue without taking into account the consequences for the McBreartys themselves if, as has happened, they were to institute criminal proceedings. There was a great deal of sensitivity involved and I applaud the Minister, Deputy O'Donoghue, for the manner in which he discharged his ministerial responsibilities in this regard.

What has now emerged, as the Minister of State, Deputy Mary Wallace, has outlined in the House, is a balanced response in a legislative context to what is a very complex issue. It is an issue that has yet to be resolved, and all of us, in both Houses, look forward to resolving it in the best interests of fairness, justice and equity.

I reiterate the remarks of my colleague, Senator Farrell – the Garda Síochána is a fine body of people and this particular affair and its wider implications have caused great pain to its serving members. One can only look at the implications throughout society where, inevitably, rotten apples have emerged – be it in the church, politics or now, sadly, in the Garda Síochána. It does not reflect well on any of us. It does not reflect well on society and there is a moral responsibility on the Administration, as has happened in this instance, to move swiftly and cautiously to ensure that these matters are brought to a resolution. The framework under which this Bill will operate will ensure that it will go a long way towards doing that.

Let us consider the element of the Bill which relates to the appointment of extra judges to the Flood tribunal. When Justice Flood requested this and when it was pointed out early on that there was a real difficulty in getting suitably qualified personnel to sit on the tribunal – certainly, this emerged very early in the media – I immediately anticipated the members of the Opposition would focus on this and suggest that the Government was dragging its feet. It was a perfect platform from which to snipe at the Government and say it never wanted the tribunal in the first place and ask why it should it be anxious to ensure there would be extra judges appointed at the request of Mr. Justice Flood.

The Minister of State dealt with the aforementioned matter in a different context in her own speech. She referred to subsection (2) in respect of the appointment of investigators. She could have given the same answer to that particular charge. She said:

Some have suggested that the requirements for ministerial approval and the consent of the Minister for Finance open the way for the Government to frustrate the work of tribunals by not permitting them to appoint investigators. This is clearly an absurd view as I cannot imagine a Government, accountable as it is to these Houses and to public opinion and subject as it is to rigorous scrutiny in the media, attempting to hinder a tribunal by unreasonably and for improper motives withholding approval of the appointment of investigators by a tribunal.

That sums up and answers the charges that have been made unfairly and inaccurately. There was, and continued to be, a real problem concerning the appointment of personnel. I understand the Attorney General has had to go down to lower levels in the legal profession to encourage people to take up the appointments, notwithstanding all the money to which Senator Farrell referred.

I hope that the incoming Administration will bring forward the necessary legislation to permit Parliament to investigate these matters. Senator Farrell went into this point in some detail and I will not enlarge on it, but I applaud and put on the record my admiration for Deputy Shatter. He went to the law courts and attempted, using the considerable expertise at his command and all his rhetorical flourishes which we know and love, to point out in the context of the suspension of the two investigative committees – the Abbeylara and the mini-CTC inquiries – that the Judiciary is intruding in the work of Parliament to an increasing degree.

As a strong advocate of the separation of powers, I believe this intrusion is inherently anti-democratic. There is a very real responsibility on Government to ensure that the separation of powers, which we have enjoyed since the foundation of the State, be restored because it has been impacted upon as a result of the Supreme Court judgments. It is now a matter for these Houses to reassert their authority as the representatives of the people. The people are not represented by the Judiciary – they are represented in these Houses. These Houses should have the right to appoint Members to investigate, using all the expertise they can draw on, matters such as those that have come before the two tribunals, which, as Senator Farrell pointed out, seem to be unending.

I share the concerns of those who have pointed out that the media treatment of those who have come before the tribunals is to be deplored. I hold no brief for any of the people who will ultimately find themselves reported on adversely by the tribunals. I have no wish in any way to discuss that matter. However, this is the only opportunity I have had to make the point that the treatment of Deputy Lawlor by certain members of the tabloid press was nothing short of disgraceful. They actually created a photographic montage. I do not think most people would even have known this because it was in a little corner of the paper – one would need to be in the media to understand what it meant. They took a photograph and then inserted two hands with an improper gesture that were not Deputy Lawlor's, put bars in front of his face and said, "This is how Deputy Lawlor looks behind bars."

Have we sunk to a new low of reportage? Is there such inherent hatred and hostility within the media towards somebody who has not yet been proven to be guilty of anything other than contempt of court? It is past time that we, as legislators, should look at that type of treatment. Given the concept that one is innocent until proven guilty, no citizen should be subjected to that sort of outrageous treatment by anybody. I hold no brief for anything relating to Deputy Lawlor – I am talking about the inherent principle. I am grateful to the Acting Chairman for allowing me to extend my extra time. As a good Mayo man, I appreciate it.

I welcome the Minister of State to the House. I guardedly welcome this legislation. It is not before its time. As previous speakers have said, it represents a two-pronged approach. One approach is to set up a tribunal in respect of the McBrearty case, and the second is to appoint additional judges in respect of the Flood tribunal.

The majority of people are wondering why these tribunals are going on for so long. People are at a loss when they consider that the Flood tribunal is nearly five years in situ– it will not be long until this is the case. Are we as far away from its making a decision as we were at the very beginning? People are very annoyed at the cost of those tribunals and there seems to be no haste in regard to them. As representatives of the people, it is our duty to see that they are concluded as quickly as possible, even if that requires additional judicial input. I am delighted that the McBrearty tribunal will be put in place. It is a while since the Lower House decided a tribunal should be established.

I thank Senators for contributing to the debate. Many Members asked about the terms of reference of the Donegal tribunal of inquiry. The Minister, Deputy O'Donoghue, is in the process of consulting with the Opposition parties in relation to the terms of reference. I understand he supplied the proposed terms of reference to the Justice spokespersons in the Dáil this afternoon. He has asked for their views and hopes to be in a position to proceed with a resolution establishing this tribunal on Thursday.

Senator Manning expressed concern about the rushing through of the Bill. I sympathise with this point and I assure the Senator that it is in no sense a slight on the Seanad. The same schedule was, unfortunately, also necessary in the Dáil. The expansion of the Flood tribunal will be provided for pursuant to a resolution of both Houses. We wish to have the resolution passed before the Easter recess. The Bill was prepared very carefully in consultation with the Attorney General, but this was done with as much speed as possible. In so far as the Bill deals with the expansion of the Flood tribunal, this only arose on foot of a request from Mr. Justice Flood in the recent past. The Bill was also drafted in the knowledge that amending legislation was being prepared in any event to deal with the Donegal situation.

Senators Manning, Mooney, Farrell and Burke referred to the experience of the work of tribunals to date, including their cost effectiveness and other issues. It may interest the House to know that the Law Reform Commission has included, as a matter of priority in its current work programme, an examination of the law on tribunals. This will be very worthwhile and I look forward to the publication of a consultation paper in the autumn.

Senator Farrell spoke about the many cases in recent years in which both Houses considered it necessary to pass resolutions providing for the establishment of tribunals and he pointed out that these various scandals and allegations are damaging to national morale. What is most important, however, is that scandals are not allowed to fester, that they are investigated and that the truth of what did or did not happen is brought out.

Senator Mooney and Senator Farrell applauded the Minister's handling of these matters. It is important we recall that, last May, the Minister said clearly that he was not opposed to the holding of a public inquiry, but that there was a particular danger of prejudice to criminal and civil proceedings. He noted at the time that he would seek the advice of the Attorney General and that advice confirmed that the holding of such an inquiry at that time could prejudice criminal and civil proceedings. It is also important to note that neither the criminal nor the civil proceedings advanced very quickly, which was a real concern shared by the Minister. In November, he announced the appointment of Mr. Shane Murphy to examine the issue.

The Bill has to be enacted before the Easter recess so that the Dáil can pass the necessary resolution pursuant to it, which will be tabled by the Minister for the Environment and Local Government to provide for the appointment of the additional members and the reserve member of the Flood tribunal. The Bill has two main purposes. The first is to facilitate the work of the tribunal of inquiry into the Donegal allegations by ensuring that a risk of prejudice to any pending criminal trial will not arise from the tribunal's proceedings. It was important to do that and all this arises from the report of Mr. Shane Murphy in January. The second purpose is to provide the legal basis for the appointment of the additional members and reserve member of the Flood tribunal, as requested by Mr. Justice Flood.

Question put and agreed to.
Bill reported without amendment, received for final consideration and passed.