Tribunals of Inquiry (Evidence) (Amendment) Bill 2003 [Seanad Bill amended by the Dáil]: Report and Final Stages

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For Senators' convenience, I have arranged for the printing and circulation of the amendments. Senators may speak only once on Report Stage.

Question proposed: "That the Bill be received for final consideration."

This Bill passed All Stages in Seanad Éireann on 9 December 2003. The Bill now returns to this House for a report from Dáil Éireann, having been amended in the Dáil where it was passed on 27 April. The Bill has been the subject of short but important amendments in the Dáil. As Senators will recall, the primary purpose of this Bill is to ensure that Judge Mahon, as chairperson of the Tribunal to Inquire into Certain Planning Matters and Payments, previously chaired by Mr. Justice Flood, can make orders on applications for costs incurred during the tenure of the previous chairperson. The issue became apparent following the resignation in June 2003 of Mr. Justice Flood as chairperson of the tribunal.

More specifically, the issue arises in the determination of costs concerned with certain modules dealt with in the already published interim reports of the Flood tribunal. These modules were dealt with at a time when Mr. Justice Flood was the sole member of that tribunal and the reports were accordingly prepared by him. The determination of costs had not been made at the time of Mr. Justice Flood's resignation.

The key provision in the Bill is section 2. This section provides, by way of an amendment of section 6 of the Tribunals of Inquiry Act 1979, as amended by the similarly titled 1997 Act, for the insertion of a new subsection (1A) under which the sole member of a tribunal, or the chairperson, if there is more than one member, may make an order on any costs that were incurred before his or her appointment and that have not already been determined. In exercising this power, the sole member, or chairperson, must have regard to any report of the tribunal relating to its proceedings in the period before his or her appointment. The Bill makes clear that the new provisions will apply to tribunals appointed and costs incurred before or after the passing of the legislation.

Since the Bill was passed by the Seanad on 9 December 2003, it was considered necessary to insert a new subsection in order to ensure that paragraph (b) of subsection (1A) cannot have the result of limiting the effect of the amended section 6(1) on matters which can be taken into account by the chairperson when making determinations on costs. Thus two amendments to section 2 of the Bill were passed by the Dáil. The first amendment was in page 3, subsection (1) line 16, where the word “subsection” was deleted and substituted by “subsections”. This amendment was essentially a drafting point, necessary to be consistent with the proposed second amendment of section 2.

The more critical amendment to section 2 was in page 3, between lines 27 and 28, which inserted the following subsection: " (1B) Paragraph (b) of subsection (1A) shall not be taken to limit the matters to which regard is to be had under subsection (1).”.

This amendment arose following further contact with the Attorney General, and both he and the Minister for Justice, Equality and Law Reform, are of the belief that this amendment will bring an extra degree of certainty to the powers provided to a chairperson of a tribunal under section 2 of the Bill.

I commend the amendments to the House.

I welcome the Minister of State, Deputy Brian Lenihan. I welcomed the Bill when it was first published and welcome its return to the Seanad. I have no difficulty with the amendments outlined today.

At the time of Mr. Justice Flood's resignation, the leader of the Fine Gael Party, Deputy Kenny, asked that this Bill be brought forward. It is regrettable that it took the Government six months to bring it forward and a further five months for its passage through the Oireachtas.

Two very important Bills are being rushed through, the Electoral (Amendment) Bill, dealing with electronic voting and the Twenty-seventh Amendment of the Constitution Bill, dealing with citizenship. When it wants, the Government can ensure a Bill has a speedy passage through the Oireachtas. This Bill, however, was a case of the Government dragging its feet.

This very important Bill has the support of the Opposition. I look forward to the legislation being enacted so that the tribunals will be able to adjudicate on costs and also that separate divisions will be able to investigate certain matters. The tribunal, in investigating allegations of corruption, does very important work. I look forward to seeing the results when the tribunal draws its conclusions. We all suffer from the allegations of corruption in politics and want to see politics cleaned up in the quickest possible time.

I want to see the tribunal continuing its work and this Bill, when enacted, will help it to do that.

I, too, welcome the Minister of State and echo Senator Terry's sentiments that the amendments are clearly designed to give greater certainty to the purpose of the Bill, which is obviously necessary. I echo the sentiments of Senator Terry on the need for the tribunal to complete its work, but obviously that is not in our hands. We have given the members of the tribunal the latitude that is required to explore the modules, but there is public concern and frustration at the length of time it will take to complete the work. Unfortunately, the lengthy process undermines to some extent public confidence in the process. That should not be seen as a criticism of the work, as it is very important that these matters are explored in great detail and reported on. Very good work has been done in putting into the public domain rumours which previously were matters of speculation, talked about behind closed doors. In spite of the fact that this has the effect of undermining constitutional politics, it needs to be done.

Obviously it is important that the issue that became apparent following the resignation of Mr. Justice Flood is clarified and, as Senator Terry said, "let us get on with it.".

I join in welcoming the Minister of State and I welcome these amendments that will bring clarity to the intent of the Bill.

I fully subscribe to everything Senator O'Meara has said, as I think she has put the case very well. The tribunals are inquiring into issues that are matters of public concern and which needed to be inquired into and one looks forward to their ultimate determination. The cost issue, which this Bill addresses, being apportioned among those who may not have fully co-operated with the tribunal, has become a matter of serious public concern. I am not sure if I subscribe fully to the point made by Senator O'Meara, that the Houses of the Oireachtas set up these tribunals and should let them get on with it. I am not sure that what passes for good drama on the "Vincent Browne Show" is the best way of dealing with these issues. While Senator Terry was critical, I welcome the publication of the commissions of inquiry Bill, which will streamline and deal in a more efficient way with these issues.

Legal costs have become a major public concern, one which successive Governments have failed to tackle. Recently a barrister pointed out that the biggest culprit in establishing headline charges per day is the State. In some instances, the tribunals probably agreed under duress, but it is fair to say that the issue of cost should be addressed. In a discussion of some high profile cases on radio this morning, the point was made that access to the court can result a person's financial ruin. That should not be the case. In a republic, the courts should be accessible to the people at large to vindicate their rights and the costs should not be prohibitive so that this becomes the prerogative of the rich. I would like to think the Government might take up this challenge in order to address the unsustainable level of fees charged in the Law Library. I have referred to this matter before. The Law Library and the judicial system generally are open to serious challenge regarding competition. Competition should be ensured within all strata of the economy, yet within the legal sector, the essence and purpose of competition law does not seem to be operating at all. Costs are apportioned but they should be reasonable. If the pursuance of a case in the Circuit Court, the High Court or the Supreme Court leads to inordinate delays, judicial discretion can be exercised for some such costs, even if one indicates they are not to be allowed. In this instance, however, I am not sure what discretion will be applied. Some of the tribunals may well have extended into areas which may have added nothing to determining the issues before them. There is a real issue to be examined in that regard, although it may not be politically correct for us to urge that it should be examined. The operation of the tribunals should be effective and efficient, so there is an onus on us to inject that efficiency if it is lacking.

Some controversial comments have been made about one of the tribunals to the effect that people will have to wait ten or 15 years for a final determination of the issues. That defies all logic and common sense. The Houses of the Oireachtas, rather than the Government, should examine these issues to see where the broad remit of some tribunals could be refocused so the original intention of the Oireachtas to get to the truth in certain instances is pursued much more effectively. In that way, we would not end up in ten or 15 years' time with tribunals still running and their costs escalating. I may have moved away from the Bill in making these comments but the distribution and allocation of costs relate to the overall operation and efficiency of the tribunals.

I thank Senators for their co-operation and assistance in dealing with this legislation which was initiated in this House. Senator Terry mentioned the delay in introducing this measure. Mr. Justice Flood resigned last summer and there is no doubt that an unprecedented situation was created by his resignation. It was necessary for the Government to obtain detailed legal advice on this measure. The Bill once enacted must be a very robust vehicle. In all probability, Judge Mahon, the current chairman of the tribunal, will deal with the matter, but I do not want to pre-empt anything that happens in tribunals — one must be so careful. Whoever decides to deal with the matter, however, will have to make determinations under the terms of the legislation. Of course, his determination can be subject to judicial challenge also. It is well established that the tribunals are subject to the operation of judicial review and this has frequently occurred.

In preparing this legislation, the Government was very conscious that a robust vehicle had to be designed. The fact that the Attorney General came back to us, even after the measure had been given detailed consideration in this House, with further suggestions for improvement in the robust character of the vehicle, brings home the reason for the delay. Although there has been some delay, this House completed its work on the legislation late last year, while the Lower House has now completed its consideration of the matter. Considering the amount of parliamentary time available in Dáil Éireann, the delay does not represent an exceptionally long period for the enactment of legislation. Contrast was made with certain other measures but everybody was well aware of the position relating to electronic voting. Indeed, Senator Terry is well aware of the position since she ran in the last general election in a constituency where electronic voting was in operation.

We now find that there were flaws in it.

We will not go into that now but we were well aware of the position, which was advertised for a long time before this essentially politically-motivated argument began in recent months. Equally, the question of the referendum will be dealt with in the Seanad next week, so I do not want to anticipate the matter and thus pre-empt the Seanad's constitutional role. I am sure the matter will be dealt with in some detail.

Separate divisions of the tribunal will be possible under this legislation. The Government is pleased the Oireachtas will soon enact a clear and simple mechanism, of which the chairperson of a multi-member tribunal may wish to avail, in order for the tribunal to operate in divisions. Of course, the conduct of the Mahon tribunal, or any tribunal for that matter, is solely a matter for the chairperson.

Senator O'Meara referred to the fact that the tribunal had done a great amount of work but on the tribunal's own estimate it has an even greater amount of work still to do. It must be remembered that the bulk of the tribunal's work to date related to just one county, Dublin. That county is now divided into three administrative areas but at the time of the matters into which the tribunal is investigating, it was one administrative area. My understanding is that the tribunal has matters to investigate from every county, so clearly there is still a great volume of work to do. It would be a good thing if the tribunal could establish and put beyond reproach the names of those public figures who are not in any way involved in this or whose names, if they are investigated, remain beyond reproach. However, that concerns the work of the tribunal.

Senator Walsh referred to more general matters relating to legal costs, which is a very big area. The Minister for Finance has already expressed his concerns about that matter. Any assistance or co-operation that Senator Walsh wishes to offer in this respect will be most appreciated. I thank Senators for their assistance.

Question put and agreed to.
Question, "That the Bill do now pass", put and agreed to.