Commissions of Investigation Bill 2003: Report and Final Stages.

Before we commence, I remind Senators that they may speak only once on Report Stage, except for the proposer of an amendment who may reply to discussion on the amendment. On Report Stage, each amendment must be seconded.

Amendment No. 1 is in the name of Senator Brian Hayes. Amendments Nos. 2 to 7, inclusive, 10 to 15, inclusive, and 17 to 25, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 1:

In page 6, line 32, to delete "Government" and substitute "Houses of the Oireachtas".

I welcome the Minister of State, Deputy O'Dea, to the House. We had a good discussion on this Bill on Committee Stage yesterday. The only amendments Fine Gael has re-tabled relate to the issue of ownership concerning the commission itself, who it reports to, who staffs it and to whom it is ultimately responsible. There is one net issue in all these amendments which we wish to raise again. I acknowledge there was substantial debate on this issue on Committee and Report Stages in the Lower House and I know the Government's position on these matters. Nonetheless, I wish to make the case, even at this late stage.

There is cross-party consensus on the importance of the Bill and the role it will play in terms of investigating matters of public concern. It is important that the House has not been divided on the matter to date. Possibly one of the few advantages of the tribunals to date is that they have had the imprimatur of both Houses of the Oireachtas. However, that will be severed by the new commission structure in that the establishment, appointment of members, setting of the terms of reference, amending such terms of reference and the issue of reporting will all now come under the direction of the Minister who is launching the investigation under the Bill.

Fine Gael believes that the Government should have held the view that an all-party committee or a committee of both Houses of the Oireachtas should be ultimately accountable for the commission once it is established. For example, if an allegation is made against a Minister on a television programme, he or she will have to face a commission if that is so determined. In such a case, is it appropriate or normal that a commission be established by the Government or the Minister him or herself to investigate what might be grievous allegations against a named politician?

Given the politically sensitive nature of the matters before the current tribunals, Fine Gael believes it is wise that the Houses of the Oireachtas should take onto themselves the responsibility of establishing and staffing the commission and ensuring its reporting. The Minister of State might agree that it is most strange that when a report is published by a commission it will come in the first instance to the Minister rather than the Clerks of both Houses. All the interim reports and reports issued by tribunals since the early 1920s have come to the Clerks of the Houses who place them in the Oireachtas Library for Members. Therefore, the provisions in the Bill are a radical departure from this position.

For the first time ever, a report is to be given to a Minister who will make the matter public in his or her own good time, notwithstanding the provision in the Bill that the report be published "as soon as is practicable". The Government should take a final look at this, although I suspect my limited persuasive techniques will not change its view at this late stage. Nevertheless, the point must be made that this new structure should fall within the remit of the Oireachtas and not the Minister or the Government because matters of public concern are for everyone and not just the Minister of the Government as a whole.

There is also a fundamental question concerning the separation of powers. Our Constitution makes it clear exactly who does what in terms of the courts, the Executive and Oireachtas. Now that we are establishing what is a quasi-judicial institution to examine matters of public concern, Fine Gael believes it would be more consistent for the commission to fall within the remit of the Houses of the Oireachtas. Although the point has already been made, I make a final appeal to the Government to accept these amendments on the basis of cross-party consensus and spirit which has been entered into since the Bill was first launched by the Minister for Justice, Equality and Law Reform. We wish the commission well as well as the separate commissions it will establish.

I acknowledge that the Minister of State is particularly active in the Department of Justice, Equality and Law Reform. Through him, I ask the Government to give consideration to the proposal that the very first commission to be established under this legislation will examine the matter of sexual abuse in the Dublin diocese. The Minister of State knows that when this matter came to public attention some years ago, the Government told the victims of clerical child abuse in the Dublin diocese that when this new structure was established, it would ask the commission to investigate the issue. If it did so, it would be a great sign of intent on the part of the Government to keep its commitment to those people who have been so badly treated by our society to date. Will a commitment be given in the House today or as soon as possible that the first commission to be established will be a commission to inquire into clerical child sex abuse in the Dublin diocese so that the Government can honour its commitment to those victims and, most importantly, that the commission can get on with its work, whose effect we can see?

It may well be the case that at some point we will have to revisit the Act to ensure it is updated and, if certain individuals try to drive a coach and horses through the legislation in the High Court, we may well have to amend it, which is fine. People should not underestimate that possibility.

I second the amendment. I support the group of amendments and Senator Hayes's comments.

There would be more faith in the outcome of the commissions of investigation if they had a mandate from both sides of the House not just through adopting resolutions put by the Government, but by having an input into the terms of reference and the setting up of the commissions.

I wish to make two points in response to Senator Hayes. On the issue of clerical sexual abuse against children in Dublin, I am informed that the television programme which highlighted that issue prompted the Bill. The Senator suggested that this be the first item to be considered by one of the new commissions. I shall convey that to the appropriate people.

On the question of Ministers being the subject of allegations, I am informed that another Minister in the Government may appoint the members of the commission and may establish the commission. This would create distance between the Minister who is accused and the commission.

In regard to the amendments, I have listened carefully to what Senator Hayes said. Everything he said would be correct if we were talking about tribunals or a new form of tribunals. The Bill is not concerned with tribunals; it proposes to establish a totally different mechanism. The procedure is different. It includes taking evidence in private, limited cross-examination and so on. Its purpose is to establish facts, rather than draw conclusions. In the example the Senator has given of a serious allegation against a Minister, if a commission is set up and finds facts which appear to give some substance to that allegation I have no doubt that would be followed by a tribunal which would have to be established by the Oireachtas.

The consequences of establishment of facts by a commission would be different from the conclusions of a tribunal. I argue there is less risk of damage to reputation and so on. The whole idea of setting up the commission, as an alternative to tribunals in some cases or an addition in others, is to establish a procedure that is faster, flexible and more narrowly focused. When one listens to people outside speak about tribunals, all the discussion focuses on the length of time they take, the costs and the alleged enrichment of members of the legal profession, all of which tends to obscure the undoubted good work which they are doing. The reason we have got into this quagmire is that bona fides mistakes were made in the way the tribunals were set up. There are constitutional aspects arising from the Haughey judgment whereby certain procedures have to be followed and people have to be given the right to cross-examine and access to teams of lawyers and so on. In establishing the legislation for the setting up of tribunals the Government could be accused of erring too much on one side. If we err on this occasion I would prefer if it was on the other side because the purpose is different and we are dealing with a different type of procedure.

The Fine Gael amendment seeks to change the roles proposed for the Government and the specified Minister in regard to the establishment of commissions, the setting of terms of reference, the appointment of commissions and receipt of reports. It is proposed that these roles be assigned to the Houses of the Oireachtas. This is a different mechanism from tribunals. It is different in its purpose, its procedures and its consequences. Also it needs to be faster, flexible and more narrowly focused. These matters are being highlighted in the legislation because it is on those grounds that the current arrangements are proving unsuitable. The public would not be impressed if we merely repeated all the mistakes of the past by replicating the procedures and controls that have attracted such criticism and that are causing the public to lose confidence in tribunals as a means of addressing major public concerns and scandals.

The arrangements being proposed for commissions of investigation are not unique. In many respects they are akin to those that apply to investigations carried out under company law. As with company law procedures, the commissions established under the legislation will be required to observe fair procedures and to respect natural justice. Senators will agree that, by and large, company law investigations have been successful and, generally speaking, have delivered clear and precise results. There is one difference between this procedure and the company law procedure, namely, the procedure here is subject to judicial review.

The Oireachtas will also have a substantial input. Following a proposal to establish a commission it has to be debated by both Houses of the Oireachtas. At the conclusion of that debate people will have a good idea of the terms of reference of the commission. In addition, when a commission draws up its findings of fact there is nothing to stop any Member of the Oireachtas from initiating a debate, either by asking that time be taken to debate the report, or having it referred to a committee of the House, as in the case of the Barron report, or by raising it on the Adjournment or asking questions about it.

While I understand the purpose and the thinking behind the amendments, we will maintain the correct balance if we allow the proposals in the legislation to stand. The first commission has not yet been established but I have no doubt when the legislation becomes law commissions will be established quickly and we will see how they operate in practice. We had better err on this side in view of the experience we have had with the tribunals to date.

The Bill is attempting to create a totally new animal. While I accept what the Minister said, the delays in the tribunals to date have not arisen from the involvement of Members of the Oireachtas or in the way in which those reports are given to them. One could argue that the terms of reference put in place by the Members of the Oireachtas initially led to the delays because it led to the tribunals having to go down every cul-de-sac before they could come to a judgment. The latest report from the Mahon tribunal is a cry for help with regard to the terms of reference. Be that as it may, it is not logically incorrect to say that the Members of the Oireachtas could not establish these commissions and ensure they are properly staffed. Some complaints have been made by the tribunals in respect of the staffing and resources given to them by the Government during the past five or six years. The Government would help itself if certain matters were to be diverted to a joint committee of the Oireachtas rather than a Minister having to defend why he did or did not provide the resources the tribunal or commission required.

There are many practical reasons for tabling our amendments but the Government has chosen not to support them. We appreciate this is a new body and wish all the commissions well. The establishment and running of the commissions would have made more sense if they had the mandate and the imprimatur of the Oireachtas rather than of the Minister. While a resolution has to be put to each House it does not give the same sense of ownership. It sometimes grates to hear Ministers, not necessarily the Minister of State, say they established the tribunals. The Oireachtas established them. It is a matter of concern to all Members of the Oireachtas and not exclusively the Government. That should be the case here. The delays to date have not been the fault of the Oireachtas.

Amendment, by leave, withdrawn.
Amendments Nos. 2 to 7, inclusive, not moved.

I move amendment No. 8:

In page 12, line 34, after "evidence" to insert "and, where evidence adverse to the good name of such a person is disclosed under subsection (1), the commission shall not rely on or disclose such evidence in a report unless the person concerned has had an opportunity to challenge such evidence by cross-examination and by presenting contrary evidence whether written or oral”.

We discussed this amendment yesterday and it was debated also in the other House. I have tabled it again to give the Minister of State and the Government an opportunity to reconsider the issue. We feel it would provide for a fairness of procedures which is lacking in the legislation as it stands. The amendment would avoid the possibility of a constitutional challenge on the basis of fairness of procedures.

I second the amendment.

Amendment No. 8 seeks to amend section 12(3), the provisions of which must be considered in the context of the whole section, as must the amendment. Section 12(1) provides that a witness must be informed about any evidence received by a commission which may be relevant to him or her or to the evidence he or she is about to give. Under section 12(2), a commission is not required to reveal the source of the information to another witness but may do so where it is in the interests of fair procedures and the investigation generally. Section 12(3) provides that a person informed under section 12(1) of evidence already available to a commission shall have the right to comment on it, etc.

The amendment refers to evidence adverse to a person. It should be recalled that evidence will generally be taken in private. Section 12 introduces a mechanism whereby a commission can inform a person about whom it has received evidence of this development and give that person the chance to reply in writing or orally. However, throughout the process, the evidence in question will remain private and a commission will not be able to disclose it beyond the requirement of letting the affected person know about it. A person can only be informed to the extent that it is necessary. The emphasis on private hearings ensures that the possibility of damaging anybody's good name is very much reduced.

The primary purpose of the section is to ensure that persons against whom matters have been claimed have an opportunity to answer those claims. We must also take account of the protections against the disclosure of damaging information at any other stage of an investigation. I refer in particular to the disclosure of material in reports which amendment No. 8 also considers. There are already clear requirements that all affected persons are to be given prior notice if they are to be identified in or identifiable from material in a report. Remedies are also being provided by allowing for alterations to be made. These remedies are adequately covered in sections 34 and 35.

Section 34 provides for a person to be informed while section 35 provides two alternative remedies. A person can approach the commission which can refer the matter to the court or, alternatively, the person about whom something has been said can approach the court directly to prevent mention of their name in a report. I am satisfied at the range of safeguards being put in place, particularly those of sections 34 and 35 which give due and proper protection to a person's good name. While I understand the thinking behind the amendment, I will allow the provision to stand.

Amendment, by leave, withdrawn.
Amendments Nos. 9 to 15, inclusive, not moved.

I move amendment No. 16:

In page 25, to delete lines 31 to 36 and substitute the following:

"(a) inform the person that it intends to amend the report, including by omitting any part of the report based on evidence received without observing fair procedures, and give the person an opportunity, if desired, to apply to the Court pursuant to subsection (1)(b),

(b) apply to the Court for directions, or

(c) inform the person that it proposes to submit the report to the specified Minister without making any amendments, and give the person an opportunity, if desired, to apply to the Court under subsection (1)(b).”

I move this amendment to give the Government the opportunity to re-examine the issue. While I said yesterday that I was not sure our wording was the most suitable way to deal with the problem, there is a lack of clarity in the legislation as it stands. If a person is unhappy with the fact that he or she has been mentioned in a report or with its content, he or she has the choice to seek an amendment or go directly to court. Under the legislation, a person will not have a second chance to go to court if he or she is unhappy with the commission's review. If the person goes to court, it may involve a great deal of litigation. We have therefore tried to make it clear that a person will have the opportunity to go to court if he or she is unhappy with the outcome of a request for an amendment to a report. Has the Government reconsidered the proposal?

I second the amendment.

The arrangements in section 35, to which I have just referred, are designed to ensure that fair procedures and natural justice are respected. Persons who are to be named in reports are to be notified and given an opportunity to have changes or corrections made where they believe fair procedures were not respected. Persons may seek an order from the High Court to require changes to or the deletion of certain material. It is important to stress that failure to observe fair procedures is the basis for seeking changes. Changes may not be sought merely because a named person does not like the details of a report even where those details are supported by the evidence. A report may give details about a named person where to do so is in accordance with evidence and where fair procedures are respected.

Section 35 seeks to find a balance between the need to respect fair procedures and the need to ensure that investigations are completed in a timely fashion. As Senator Tuffy said, there are two options. Section 35 seeks to ensure that the publication of reports is not delayed unreasonably by persons who do not like the conclusions reached even where those are justified by the evidence. While section 35 gives a person the right — which we cannot limit in legislation like this where a person's constitutional right to his or her good name may be at stake — to bring a matter before the High Court, we must be careful to remember that in this Bill we are attempting to reduce recourse to legal avenues. Well intentioned though it is, the amendment seeks to introduce a new opportunity to bring a matter to the High Court and creates the potential for further delay and, perhaps, obstruction.

I am sure this is not Senator Tuffy's intention, but the amendment if accepted would serve to tip the balance in favour of those with an interest in delaying the work of a commission and preventing the publication of its report. I am not in a position, therefore, to accept the amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 17 to 25, inclusive, not moved.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank Senators for their valuable contributions and acknowledge the contributions of Deputies in the Lower House also. Despite the fact that I could not accept any amendments today, the final shape of the Bill reflects substantially the contributions made by the Opposition. Many of the amendments suggested by Fine Gael and Labour Party Members have been taken on board, sometimes in their totality or in some form or other by the Minister. There is no doubt that these amendments have improved the Bill.

I thank Members of the Opposition for the valuable input they have had to what will be very important legislation to enable us to get the tribunal process back on track realistically with the support and approval of the public. We must get the public back on side regarding tribunals which are doing work of immense value. Where the mechanism of a commission of investigation leads on to a tribunal, much of the current criticism of the tribunal process will be negated. Again, I thank everybody for their valuable input which has resulted in a better Bill.

I thank the Minister of State and, in particular, his officials for the work they put into the Bill. The legislation that came to the Seanad was better than the Bill initially published. That is as a result of a fair degree of cross-party consensus. As the Minister of State rightly said, amendments from my party and the Labour Party were accepted in the other House which made our work easier in this House. As the Minister of State is aware, one specific amendment concerning the tendering of works to be done by lawyers and barristers in the future was accepted. That will enhance the Bill.

When matters of public concern come to our attention, we all have a responsibility to ensure that a speedy, cost effective and fair procedure is put in place to ensure that those allegations are considered and a resolution reached as soon as possible. The commissions that ultimately will be established under this legislation have the potential to ensure that a great deal of good work is done and to reintroduce fairness for all parties. Too often the immediate knee-jerk response of politicians to date has been to call for a tribunal of inquiry to be established on foot of every allegation. That is simply not tenable, particularly when one considers that currently in excess of €120 million worth of taxpayers' money is funding the tribunals. Four acute hospitals in Dublin could be built for that amount of money.

We have a responsibility to reconstruct an investigative model that is fair, transparent, cost efficient and accountable. This Bill is a better one because of the amendments made to it during its passage through the Oireachtas. It is an important Bill for the future, possibly one of the most important Bills to come before the House this session.

I thank the Minister of State and his officials for dealing with the legislation. It introduces an important measure. I ask the Government to be open to amending the legislation, if necessary, if we find there are problems regarding its implementation down the line.

I also thank the Minister of State and his colleague, the Minister of State, Deputy Roche, for coming to the House yesterday. I also thank his hardworking officials who present matters very well for us.

As other Senators said, this is an important Bill. It will give us the tools we need to ensure a speedy, cost effective process in this regard. It is in everyone's interest and for the good of everyone involved, regardless of from where they are coming.

As the Minister of State said, it might give some credibility to and put the tribunals back on track and raise confidence among members of the public in them, given that they seem to have heard of nothing but tribunals day in and day out. At this stage, the legislation might even give some solace to those people at the Mahon tribunal to whom Senator Brian Hayes alluded yesterday. We will wait and see, but one never knows.

Question put and agreed to.
Sitting suspended at 12.35 p.m. and resumed at 1 p.m.