I welcome the Minister for Public Expenditure and Reform to the House.
Houses of the Oireachtas (Inquiries, Privileges and Procedures) Bill 2013: Second Stage
This Bill establishes a comprehensive statutory framework for the Houses of the Oireachtas to conduct inquiries under the current constitutional framework. The legislation is fully within the parameters laid down by the Supreme Court in the Abbeylara case. It is very clear from the views expressed in the Supreme Court judgment that the Oireachtas is not empowered in general to make findings of fact adverse to the good name of any person who is not either a Member of the Houses or an officeholder or otherwise directly accountable to the Houses. Accordingly there is no scope under the legislation to make findings of individual culpability unless there is a specific constitutional authorisation for such a finding.
Research following the defeat of the Oireachtas inquiries referendum in 2011 has confirmed that while there is a distrust among the public of the political system, in particular in relation to making findings of culpability, there remains broad support for the Oireachtas itself to be able to carry out legitimate inquiries.
This Bill provides the necessary framework for such inquiries and represents a very important step in the process of clarifying the role of the Houses of the Oireachtas in securing accountability through investigations into matters of significant public importance. One of the lessons for parliamentarians from the referendum is that while the public is not innately opposed to granting further powers to the Oireachtas it is clear that public representatives will have to earn the public's trust. Such inquiries could represent a very substantial strengthening in the effectiveness and contribution of the Legislature to our democratic system by not only helping us learn vital lessons from past events but through their recommendations identifying the legislative reforms and policy changes essential to making sure that egregious policy errors are not repeated.
I have long advocated the need for an effective and legally robust parliamentary banking inquiry into the events that occurred on the night of the bank guarantee and the systemic failures that led to our current fiscal position. It seems that the case for a parliamentary inquiry into the banking collapse is a strong one. One of the best reasons to proceed with a parliamentary inquiry at this stage is that none of the other possible models has been successful at meeting the public demand for a full account of this issue, nor are they likely to do so.
The investigations being conducted by the Director of Public Prosecutions for instance are against a number of named individuals and on a number of reasonably narrow grounds. These prosecutions do not hold out the prospect of establishing a narrative around the events that have caused such damage to our State and society. We have already had a commission of inquiry via the Nyberg report, which, while offering a macro analysis of events, has not succeeded in explaining the perspective of the individual participants involved.
Ironically, the time being taken to get prosecutions right is stymying the public's desire to understand and have an account of what happened. Earlier this week it was reported that the Irish Independent had withheld further publication of tapes, at the behest of the Director of Public Prosecutions, for fear of jeopardising prosecutions. As far back as two years ago the Chartered Accountants Regulatory Board was asked to delay public inquiries into the involvement of individual members and accountancy firms in respect of the events which came to light in 2008.
Nobody wants to prejudice inquiries or professional investigations. Nor is it satisfactory that more than five years on from the time these events came into the public domain we remain in the position we are in. Nor have we any guarantee, given the nature of our legal system that the position would be fundamentally altered in the near future.
This Bill will facilitate such an inquiry provided the terms of reference of the inquiry are correctly framed. However, the proposed legislation does substantially more than facilitate a banking inquiry. I want to underscore to the House that the primary purpose of this legislation is to create a comprehensive legal framework which is of general application.
An Oireachtas inquiry can work and successfully deliver essential public accountability providing it follows three key principles. The terms of reference for an Oireachtas inquiry must not seek to specifically investigate the conduct of individuals and make findings of individual culpability. The inquiry itself must be carried out in a manner consistent with the terms of reference. The inquiry respects the legal and constitutional rights of all witnesses called. The secretariat of Oireachtas committees and members have a wide experience on a day-to-day basis of carrying out committee business subject to these requirements. The weakening of trust in our politicians is not a good thing for our democracy. The Oireachtas comprises experienced and capable members motivated to act in the public interest. We need to have faith in them to do their job. The conduct of a banking inquiry will assist in strengthening the effectiveness of the Oireachtas and enhancing trust in the political system. It will require a disciplined approach by Members to ensure that inquiries are fair, balanced and effective. I am confident that the statutory framework provided in the Bill provides assistance in this regard by giving clarity to the Houses on their powers and by setting out guidance in relation to matters such as fair procedures, avoidance of bias and so on.
The Bill contains explicit requirements to observe fair procedures. The extensive fair procedure requirements apply to all types of inquiries conducted under this Bill, notwithstanding that the inquiry may have no scope to make findings that could have a direct adverse effect on the reputation of individuals. Access to the courts for directions in respect of any dispute is provided for in the Bill.
The Bill also contains provisions in relation to the behaviour of Members to avoid any perception of bias. An assessment of whether a perception of bias has arisen will depend firmly on the circumstances of the individual case. It is for the Oireachtas to make an assessment of bias in the first instance. The matter could ultimately be determined by the courts by assessment of the view formed by a "reasonable" person. I would like to emphasise though, that bias provisions will not stifle the healthy debate that we, as politicians, engage in on a day-to-day basis.
Members of the Oireachtas would be expected to have strong views and to have articulated them previously on important matters of public policy that are relevant to their legislative and parliamentary role. This was made clear in the Abbeylara judgment itself. However, a disciplined approach by members of an inquiry committee will be essential, once the inquiry is established. It would not be appropriate for members of an inquiry committee to make public comments both immediately prior to and during the course of an inquiry on the subject matter of the inquiry where its findings had the potential to impact adversely on the reputation of an individual. Furthermore, in line with the commitments in the programme for Government relating to civil servants giving evidence to Oireachtas committees, the Bill makes provisions to expand the scope of evidence that civil servants may give. Civil servants will not be restricted from giving evidence for the purpose of establishing facts and giving the committee the full narrative of a series of events.
This will be the case both in regard to an inquiry conducted under this Bill and also in the context of committees conducting daily business. The current restrictions on the Oireachtas committees from asking a public servant to otherwise express an opinion on the merits of policy will be maintained. It is not expected that disclosing policy-specific policy advice should occur other than in exceptional circumstances where it is essential to terms of reference of an inquiry. This will be set out in revised guidance to all civil servants, which is currently being prepared by my Department and which will be made available once this legislation is enacted.
The Bill respects the principle that the Houses, pursuant to Article 15.10, should be afforded significant autonomy to regulate their own affairs. The legislation envisages a central role for the Houses of the Oireachtas in both initiating and conducting a parliamentary inquiry. There should be no confusion, as the Bill empowers the Oireachtas - and not the Executive - to conduct inquiries. There was a conscious decision to do this as a common critique of Irish politics is that it is dominated by the Executive. Under the Bill, responsibility is assigned exclusively to the Houses of the Oireachtas to determine the requirement for a formal inquiry, the terms of reference of that inquiry, the appropriate committee to conduct the inquiry and the procedural and organisational aspects of the inquiry.
The Bill will not impede the important and valuable work currently being conducted by Oireachtas committees. The Bill fully replicates and restates the powers available to committees contained in the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, as well as providing for a simplification of the current process of invoking compellability. The Bill will therefore repeal the 1997 Act.
The programme for Government contains a commitment to address the issue of confidential communications with Members through constitutional change. Following a detailed policy assessment and on the basis of legal analysis, it has now been decided to legislate in regard to this issue. The Bill provides for qualified privilege for confidential communication from members of the public to Members of either House of the Oireachtas. This will facilitate those who wish to draw wrong-doing to the attention of Members of the Oireachtas without having their identities disclosed. The Bill provides for qualified statutory privilege for private papers of Members and official documents of the Houses. These provisions are intended to apply in all circumstances and are not restricted to inquiries carried out under the Bill.
I would now like to turn to the Bill before the House. This Bill, as I have already indicated, establishes a comprehensive statutory framework for the Houses of the Oireachtas to conduct inquiries. I will now go through the Parts of the Bill and give a brief outline of its content and purpose. Part 1 of the Bill contains sections 1 to 5, inclusive, and deals with standard preliminary and general matters, including the Title of the Bill and provisions for its commencement. Part 2 is divided into two chapters detailing the types of inquiries that may be conducted in accordance with the Bill. Section 6 outlines the scope of chapter 1 and section 7 provides for an inquire, record and report inquiry; this is a power to undertake inquiries by way of recording and reporting evidence and making findings of uncontested facts.
Section 8 provides for a power to undertake inquiries and make findings of fact relating to the legislative functions of the Houses. Section 9 provides for a power to undertake inquiries relating to the removal of certain officeholders as provided for in Article 33.4, relating to the Comptroller and Auditor General, or Article 35, relating to judges of the Supreme and High Court, of the Constitution or arising from legislation relating to the removal of other judges or officeholders where a resolution of both Houses is required. Section 10 provides for a power to undertake inquiries in respect of the conduct of a Member of either House in his or her capacity as a Member. Section 11 provides for a power to undertake inquiries to hold the current Government to account pursuant to Article 28.4 of the Constitution and also to hold to account any person who is liable to Dáil scrutiny by virtue of the terms of his or her contract or statutory appointment. Section 12 provides for a parliamentary mechanism whereby a proposal by a committee to conduct an inquiry is assessed by the individual or committee designated by the rules and Standing Orders of the House or Houses. Section 13 makes provision for the passing of a resolution by the House or Houses to establish an inquiry and the setting of terms of reference for a Part 2 inquiry. Section 14 outlines the finding of failure to co-operate with a Part 2 inquiry that a committee is entitled to make. Chapter 2 contains sections 15 and 16 of the Bill and contains details of an inquiry related to the impeachment of the President under Article 12.10 of the Constitution.
Part 3 contains sections 17 to 32, inclusive, and provides for a range of fair procedures to be followed by an Oireachtas committee conducting an inquiry pursuant to the Bill. As outlined, the requirement to observe fair procedures applies to all Part 2 inquiries conducted under the Bill. I draw Members' attention to the following sections in this part. Section 18 makes it clear that a witness to an inquiry has the same privileges and immunities as a witness giving evidence to the High Court. Section 19 permits the committee designated by the rules and Standing Orders of the House or Houses to issue a wide range of guidelines, consistent with the Bill, relating to the procedures of Part 2 inquiries. Section 21 prohibits a Member of the Houses from sitting on a committee where a perception of bias might arise in a reasonable person.
Section 22 provides that a witness to an inquiry has the right to be accompanied by his or her legal practitioner while giving evidence if he or she so desires and attend any public session of the inquiry or the giving of evidence by any witness relevant to him or her. Section 24 outlines the rights of a person whose good name is or may be in issue. These rights include the right to be given advance notice of evidence proposed to be given against him or her in so far as that is possible, the right to cross-examine witnesses, the right to give evidence to the inquiry, the right to call witnesses and the right to make a submission at the close of evidence. Sections 26 to 28, inclusive, provide for a notice to issue of a committee's intention to exercise its compellability powers, set out the standard of proof and its duty to inform witnesses of its powers. Section 29 makes it clear that evidence compiled for the purposes of an inquiry will not be admissible in any other proceedings such as criminal and disciplinary proceedings. Section 31 makes provision for the taking of evidence to be conducted in public and states this evidence may be broadcast to the public, unless the Chairman of the committee is satisfied that it would not be in the interests of the inquiry or fair procedures to do so.
Part 4 contains sections 33 to 41, inclusive, and makes provision for interim and final reports of a committee conducting an inquiry. These sections make provision for the form and content of such reports, matters relating to the amendment and publication of reports and the confidentiality of such documents.
Part 5 is divided into five chapters and concerns costs. Again, I will highlight the most significant sections in this part. Chapter 1 contains sections 42 to 45, inclusive. Section 43 requires a committee, prior to commencing an inquiry, to prepare a report containing an estimate of the legal costs and expenses expected to be incurred in the conduct of the inquiry. Section 44 provides for the appointment of a panel of legal costs accountants willing and able to act as a parliamentary legal costs adjudicator in certain circumstances, whereas section 45 sets out the powers of the adjudicator.
Chapter 2 contains sections 46 to 52, inclusive, and contains provisions relating to Oireachtas inquiry legal costs. The focus in the Bill is on providing for recoupment of legal costs only in the limited cases where the good name of a person is at issue. Section 46 empowers the Houses of the Oireachtas Commission to issue guidelines in respect of inquiry legal costs. Section 47 provides for the recoupment of third party costs in specified circumstances. Section 48 provides that where a committee conducting an inquiry, or another person, has incurred additional legal costs as a result of the behaviour of a third party, the Houses of the Oireachtas Commission may direct the third party to pay such costs, provided that the grounds for the belief have been confirmed by the High Court.
Chapter 3 contains sections 53 to 55, inclusive, and concerns the payment by the Houses of the Oireachtas Commission of inquiry expenses and the power of the commission to issue guidelines and direct third parties to pay expenses in certain circumstances.
Chapter 4 contains sections 56 to 61, inclusive, and makes provision for legal costs in respect of private bills. These provisions allow for the updating of 19th century and early 20th century legislation in respect of private bill costs to bring it into line with the other costs provisions included in the Bill.
Chapter 5 contains sections 62 to 64 and contains miscellaneous provisions in relation to costs. Parts 6 and 7 largely mirror and update the provisions of the Committee of the Houses of the Oireachtas (Compellability Privileges and Immunities) Act 1997. Part 6 contains sections 65 to 75 and concerns compellability, privileges and immunities and applies only to an Oireachtas committee while it is conducting an inquiry pursuant to the Bill and on which a power to send for persons, papers and records has been conferred by the House. This Part outlines the powers of such a committee in relation to obtaining evidence and makes provisions relating to irrelevant evidence and exempt evidence.
Part 7 contains 5 chapters and concerns compellability privileges and immunities. This Part applies to an Oireachtas committee while it is conducting non-inquiry committee business and on which the power to send for persons, papers and records has been conferred. Chapter 1 contains sections 76 and 77 and contains relevant definitions in relation to the Part. Chapter 2 contains sections 78 to 82 and concerns privileges and immunities of witnesses in circumstances where a committee is conducting its ordinary business, outside of formal inquiry mode. Chapter 3 contains sections 83 to 90 and makes provision for directions that may be given by a committee while it is exercising its compellability powers. Chapter 4 contains section 91 and provides for the payment by the Oireachtas Commission of the reasonable expenses of a witness in proceedings before a committee. Part 8 contains sections 92 to 93. Section 92 provides that a Member of either House shall not be amenable to any court and authority other than the House by which the relevant committee was appointed in respect of any utterance in or before a committee. It also provides that certain documents may be privileged. Section 93 places restrictions on the evidence of certain persons and contains the reformed procedure in relation to the evidence of civil servants which I outlined earlier.
Part 9 contains sections 94 to 103 and provides for applications to the High Court in relation to the conduct of an inquiry. Section 94 clearly provides for an application to the High Court for directions in respect of the proceedings of an inquiry where a person is of the opinion that any matter relating to the proceedings is not being inquired into or otherwise dealt with in accordance with the Act. A committee may itself apply to the High Court for directions and section 95 makes provision for such an application when a committee is of the opinion that a report could prejudice criminal proceedings.
Section 98 permits a parliamentary legal costs adjudicator to refer a question of law arising in the context of an application for an adjudication of costs for the opinion of the court. Section 99 permits a committee to apply to court where a person fails to comply with a direction of the committee or the Chairman. Section 100 allows for appeal to the court where a direction from a committee could prejudice criminal proceedings which are pending or in progress. Part 10 contains Sections 104 to 111 of the Bill. As outlined earlier, this Part provides for a statutory qualified privilege for the private papers of Members and confidential communications from members of the public to Members of the Houses. I will highlight the main provisions of this Part briefly.
Section 104 sets out definitions and also makes clear that the operation of the privilege does not prejudice the power of each House to make rules and standing orders pursuant to Article 15.10 to create a protection for the private papers of Members. Section 105 provides for qualified privilege for the private papers of a Member and confidential communications from members of the public to Members of the Houses and sets out the circumstances in which such papers of confidential communications may be accessed or disclosed. Section 106 permits a person who has communicated with a Member and who is otherwise entitled by law to disclose the fact or content of the communication to make such a disclosure. Section 107 provides for the determination of what constitutes a private paper or confidential communication. Section 108 provides for guidelines to be developed by the Houses of the Oireachtas, while section 109 sets out the arrangements which will apply to the private papers or confidential communications of former or deceased Members of the Houses.
Part 11 contains sections 112 to 116 of the Bill and, as I mentioned earlier, provides for a statutory qualified privilege for the official documents of the Houses of the Oireachtas. Section 112 sets out definitions and also makes clear that the operation of the privilege does not prejudice the power of each House to make rules and standing orders pursuant to Article 15.10 to create a protection for official documents. Section 113 provides for a power for an Oireachtas committee designated for that purpose to make rules designating categories of official documents. Section 114 provides for qualified privilege for official documents of the Houses and sets out the circumstances in which an official document may be accessed or disclosed.
Part 12 contains sections 117 to 119 of the Bill and governs the power of the Houses of the Oireachtas and any Oireachtas committee to examine witnesses and administer oaths. Part 13 contains sections 120 to 122 of the Bill and contains provisions in relation to the laying of documents and allows for the repeal of the 1966 Houses of the Oireachtas (Laying of Documents) Act.
Part 14 contains sections 123 to 133 of the Bill and provides for miscellaneous matters including provision for offences by bodies corporate in section 123, provision for proceedings in court in section 124, matters relating to the prosecution of an offence under the Bill in section 125, clarification on the status of court proceedings in the event of a discontinuation of an inquiry or the dissolution of either House in section 126. Section 127 contains restrictions on the Freedom of Information Acts 1997 and 2003. Sections 128 to 132 provide for the consequential amendments of other legislation.
The Schedule provides for a repeal of previous Acts relating to the Oireachtas that are either obsolete or are replaced by this Bill. It also provides for part amendment of a small number of Acts. I am conscious that this is a large and complex Bill and I have dealt with its provisions in summary form in my contribution to the House today. That will explain why we have taken such great time and care with the Bill. I thank both Houses for the degree of input into the Bill. Having carried out an analysis of the referendum result in 2011 we asked for the views of Oireachtas committees. They looked at the heads in some detail and provided useful debate before we published the final Bill in May. I am happy to expand on any of its provisions during the course of this debate. If Senators wish to raise any particular issues they are welcome to do so. They will have an opportunity on further Stages to examine the Bill in detail. I look forward to hearing the contributions of Senators during this debate. I hope the House will support the passage of the Bill and assist in securing its early enactment because there is a public view that this is a piece of legislation that should be passed by the Houses of the Oireachtas.
I will not oppose the Bill on Second Stage. I agree with the Minister that Committee Stage will provide an opportunity to debate the provision in some detail because it is quite a long and complicated Bill and it is important that we go through each section to tease out exactly what it means. From the outset, it seems that the Bill is really putting together what is already law and setting it out in a relatively accessible statutory format. Inquiries can already take place but the Bill sets out the procedures clearly.
The Government and nobody else bungled the referendum in October 2011. Historians will look back in shock at it because all parties supported the referendum, which in retrospect was an outrageous proposal to put to the people, notwithstanding the fact that we supported it too, in terms of trying to restrict the rights of people going before committees. It gave people no rights or no recourse to the High Court. The Oireachtas was the sole judge of the committee's functions. It was an act of collective political madness by the entire political establishment. I am grateful to those who pointed out the wrongs of the proposal and the people in their wisdom voted against it. That was a power grab by the Oireachtas and the Government but it was rejected by the public. We must tread carefully on the issue.
The main danger seems to be in respect of politicians grandstanding. I must say that this is what politicians do best. They do it all the time and if they are not seen to be doing it, people wonder if they are doing anything at all. There was grandstanding involved in the Abbeylara decision and inquiry. That was referred to in the Supreme Court judgment.
Maybe the Senator should say "we" rather than "they".
I am saying "we".
No, he said "they" three times.
I apologise. I will say "we". It is the third person - the posh way of saying it - but I am including myself in it. We must be wary of that grandstanding because what the public wants at all times is fairness. The public does not want show trials or political investigations. The public wants to know what happened. For all the faults, failings and criticisms of tribunals of inquiry, and there are many, they did come to conclusions on many aspects. They reached conclusions on corruption that could not have been reached here and have not yet been reached in the criminal courts. There are things a tribunal can do. There is a Bill before the Oireachtas to reform tribunals and it might have been wiser to look at that for the banking inquiry and to look at changing the law on tribunals to reign in the costs because they were excessively high. We on this side of the House must take responsibility for that because they were not sufficiently reigned in. I am worried about that in terms of these inquiries.
While it is the case that the Oireachtas has the power to decide in respect of inquiries - the Minister set that out - and this is a significant decision by the Government, the reality is that the Government controls the Oireachtas. Let us not say that somehow an independent Oireachtas is going to make all these decisions. The Government controls the Oireachtas. That is the way it is, always has been and is likely to remain no matter who is in power. The idea that there is some independent body with independent thought making the decisions separate from the Executive is a nonsense. We should not be saying or repeating it because it is not true. The Oireachtas of the day will, 999 times out of 1,000, do what the Government of the day wants it to do.
The Bill provides for the inquire, record and report style of inquiry. That can already happen and has happened, which is fine. It provides for inquiries that are forward-looking and empowered to make findings of fact in the context of investigations relating to our legislative functions here and inquiries relating to the removal of certain office holders like the President or judges. This is very important and the Oireachtas has again fallen short when it is inquiring into office holders and Members of the Houses. It provides for making findings of fact for the purpose of holding the Government to account under Article 28.4. The major difficulty there relates to individuals. There is no difficulty with holding the Government to account but the problem arises when one is making findings of fact against individuals. Reading the text, I see that the Oireachtas can make findings of fact that directly impugn the good name of an office holder or former office holder. The Minister stated on the radio last week that this would not apply to people who are not Members of the Dáil. Certainly it is not my reading of it but I heard the Minister say on the radio last week that former Ministers who are not Members of the Dáil could not have findings of fact made against them. I think this is what the Minister said.
Or former Ministers who are current Members of the Dáil could not have findings of fact made against them in respect of their previous-----
If that is the case-----
That is the legal advice.
It is legal analysis but that is a major flaw. Will findings of fact be made against anybody in an inquiry? Are we wasting our time? I am not suggesting that findings of fact should be made against former Ministers but they have said they will take part in this inquiry. Is the purpose of this Bill really to have televised hearings in the run up to the local elections? We will then find out it does not work. Political charges will be flying around the place, as they have been in the past while. They have been flying around. The Taoiseach started the ball rolling. He started the auction with his remarks about the axis of collusion. He started it and we are then told as the Government rows back "Oh that's merely a political charge."
In this case, the charge will be investigated by those making the charge. That is the wrong way to do business and a breach of fair procedures. If the Government is serious about this issue, it should start from the top. The Taoiseach should not be throwing around these political charges against individuals and members of the last Government. If something has gone wrong, let us have a commission of investigation or a tribunal of inquiry that can actually make these findings. If the charges made by the Taoiseach are correct, they should be properly investigated and if people have done wrong, there should be findings made against them. However, it seems they cannot be found against under this Bill so it seems a waste of time. The theory is abroad that this is will be on television and will be fascinating but will, ultimately, before the next local elections will have been found not to have worked. This is because there will be so many problems because it will be so loose and certain people will not attend. Politicians and former politicians have all said they will attend. They will all be there so the political arguments will-----
They can be compelled.
They do not need to be compelled.
The Senator said they will not come in.
Everyone of them who has ever been asked has said they will come to the Oireachtas. I am confident in saying that there would be no issue of compelling any member of my party. It is a red herring for the Government to bring this up because it has often said over the past number of weeks that they would be compelled to come in. Any time any member of Fianna Fáil has been asked whether he or she would come to an Oireachtas inquiry, they have said "Yes, absolutely. When it is on?" They have been asking that for the past few years.
The Senator was the one who said that people would not come in.
I am saying the politicians will come in.
The Senator should make his mind up.
Let us start with the politicians. They and former politicians will come in but many others will not come in and will not have to come in and the inquiry will not want to bring them in because it might prejudice criminal trials so it will be a political event down in the basement in this House for the next year or so. It will drag down the reputation of the Houses. A major daily newspaper has said that the banking inquiry is already hopelessly prejudiced by virtue of the Taoiseach's comments two weeks ago. I agree with that analysis.
The Senator should not believe everything he reads in the newspapers.
I sometimes enjoy Senator O'Keeffe's columns in newspapers and I do take people on face value. There has been much criticism of the Nyberg, Honohan and Regling and Watson reports, some of it justified. However, I would ask those who criticised those reports to actually read them. There is a huge amount of information in them and findings that are relevant and if people actually took the time to read those reports, they would certainly enlighten themselves about much of what happened. The Anglo Irish Bank tapes shatter the innocence of those of us who felt that those reports were enough and have shown us that more needs to be done but I do not think it will be done in the context of this legislation, necessary though this legislation is.
I welcome the Minister to the House. I must agree with Senator Byrne. The referendum of which all sides were in favour was rejected by the people but, in hindsight, the people would probably prefer if they had not rejected it at the time. I commend the Minister because he has spent a considerable amount of time on this Bill, which structures a framework for the holding of inquiries. Much time has been spent on this and the Minister must be commended for his efforts.
The Bill establishes a comprehensive statutory framework for the Houses of the Oireachtas to conduct inquiries within the current constitutional framework. It represents a very important step in the process of clarifying the role of the Houses of the Oireachtas in securing accountability through investigations into matters of significant public importance. There is a broad scope under the Constitution for the Oireachtas to carry out legitimate inquiries into matters of public importance. I am confident the Bill contains explicit requirements to observe fair procedures and contains provisions in respect of the conduct of Members to avoid any perception of bias.
To that end, I believe the chairman will be most important for any inquiries that will be carried out. I suggest that the chairperson's role should not be permanent, regardless of who the chairperson might be.
For instance, in the banking inquiry it is important that the person would have experience and a background in the matter, and that it would be carried out with due process.
The Bill fully respects the Supreme Court judgment in the Abbeylara case. It is underpinned by extensive legal advice from the Office of the Attorney General and external counsel and is framed to ensure that it fully meets current constitutional requirements, including the right to fair procedures. The Bill contains explicit provisions for full access to the courts. This is overarching legislation which will structure how inquiries are to be conducted by this House and by the other House in the future, including inquiries in regard to the impeachment of judges, the impeachment of the President, should it ever arise, inquiries into legislation and on the gathering and presenting of facts.
I am confident that this legislation will allow for a banking inquiry to be held in public, to lay out all the facts of what happened here in relation to the banking scandal in the past five years. I advocate the need for an effective and legally robust parliamentary banking inquiry into the events that occurred on the night of the bank guarantee and the systems failures that led to our current fiscal crisis, a fiscal crisis that continues to impact on households throughout the country. We continue to pick up the pieces of the previous mismanagement of our economic affairs. The people demand answers as to what happened and we, as legislators, must do everything in our power to ensure that this banking inquiry happens. This Bill will facilitate such an inquiry provided the terms of reference of the inquiry are correctly framed and I believe that will happen. That said, this Bill is about more than a banking inquiry.
The primary purpose of this legislation is to create a comprehensive legal framework which is of general application for any future inquiry. Parliamentary inquiries under this legislation can be cost effective, efficient and resilient to any legal challenge, provided they have focused terms of reference and comply strictly with fair procedures. The Bill provides all of the constitutional safeguards to protect the rights of individuals consistent with the outcome of the referendum on Oireachtas inquiries. This legislation is essential to conducting a parliamentary banking inquiry and I welcome the Bill, and the Minister's efforts on same.
Having read through the Bill, there are one or two queries I want the Minister to address. He dealt comprehensively with costs. As a member of the Commission - I do not want to get into any trouble here - the Minister would be well aware of the large fees sought from the Oireachtas commission following a previous inquiry and the somewhat lesser figure, which was still exorbitant which was paid to the legal team in question. I urge him, in as effective a manner as possible, to ensure that does not happen again but that the fees would be laid out prior to witnesses appearing before the commission. What happens in the case of non-cooperative witnesses? My learned friend on the other side will have spent time in courthouses, thankfully I have not. From watching relevant television viewing, if people take the fifth amendment and refuse to answer direct questions, can the Minister ensure they are dealt with in the Bill? Will the State agree to pay the legal fees of witness who are non-cooperative? What will happen if there is a P. Flynn moment at one of these investigations, whereby a witness divulges information that heretofore had not been in the public domain and it is of an extensive nature that it may lead to a court case? Are safeguards provided for that eventuality in the legislation?
I welcome the Minister to the House with a huge piece of work. It is obvious he has been very busy. I avail of the opportunity to mention some of the other legislation which has been passed, published or pending. They are relevant because they are all part of the reform of the political system which we can say with no exaggeration has seen the near destruction of public confidence in politics, politicians and the democratic system in the past six years. That is the type of destruction that is difficult to repair. It is also difficult to notice it because it is not about directly creating jobs or paying bills and, therefore, it always receives less attention, except when it does get attention that everybody has an opinion. It is the kind of glue which binds the political system together and makes it function in a more organised and accountable fashion. In many ways it does not get headlines in the way it might.
I am speaking about the whistleblowers legislation just published which provides comprehensive safeguards for whistleblowers, an issue in which I would have a personal interest and would welcome. I am aware that in the Department, the Minister is involved in the overhaul of ethics legislation and taking lessons from the Mahon tribunal. There is the reform and strengthening of the freedom of information legislation which, I think, is extended to all bodies and a strengthening of Civil Service accountability, which is very welcome. The reform and enhancement of the Ombudsman's jurisdiction to all public bodies is an issue which did not get a huge amount of notice and yet it is extremely important. We are delighted to see the current Ombudsman step up to the European plate and, no doubt, she will be replaced in due course. It is good that job is being strengthened.
I understand the Bill on the regulation of lobbying should be enacted later in the year. It was promised for a long time and I hope it will see the light of day under this Government because it is an extremely important part of building the public's faith and confidence in the political system. There is now the pending inclusion of the Government in the open Government forum which binds this Government to particular regulations relating to openness on information and performance and to disclosure on the part of politicians and civil servants and also being part of that partnership which was set up only some years ago will provide opportunities for this country to draw on and learn from experiences in other countries. It was set up in response to the public's desire for transparent, effective and accountable government and it will require much knowledge and political leadership. I understand we should take part in that partnership as and from next year. We will join with about 53 other countries, including Costa Rica, Colombia, Armenia, Azerbaijan who have already signed up. Perhaps it is time we did and I welcome that.
I welcome the work that has gone into the preparation of the Bill including all the consultations. It is timely and is a work of great detail. I suppose asking questions and sitting on committees and tabling amendments are part and parcel of what we would recognise as our work as parliamentarians. It is part of the necessary scrutiny of legislation but it is very much the contemporaneous work that we do while legislation is going through the House but a parliamentary inquiry should be just as important a duty for us. The purpose of Parliament is to scrutinise and hold the Government to account after the event, not just at the time of the formulation of laws and policies. While I recognise the limitations of this legislation, because of the so-called Abbeylara judgment, I welcome it. It is there to establish a comprehensive statutory framework for the Oireachtas to conduct inquiries within the current constitutional framework as set down by the Supreme Court in the Abbeylara judgment.
The Bill also aims to provide thorough safeguards to protect the constitutional rights of witnesses, to confirm unfettered access to the courts and to guarantee fair procedures. It offers a variety of different types of inquiry ranging from inquiries limited to recording and reporting evidence to inquiries of an adjudicative nature where this flows from the constitutional powers of the Oireachtas. Ultimately the Bill should clarify the role of the Houses of the Oireachtas in securing accountability in matters of significant public importance and therein lies a question in itself. Who defines matters of significant public importance?
At the moment I know that the banking inquiry is the matter which most people are rightly focused on.
The Oireachtas inquiry, hopefully, can build on the information that has already been provided in the Honohan report, the Regling and Watson report and the Nyberg report. Witnesses that have not spoken can be called and documents can be discovered to provide a somewhat complete picture of the events that led to the banking collapse. Senator Byrne has pointed out that the provision may not work. One thing is certain, if we sit and do nothing then there will be nothing.
Personally, I am in favour of proceeding. A lot of care and attention has been put into the Bill and I do not want to see the void that we have continue.
Equally, the matter of those held for a long period in direct provision accommodation, for example, could be the subject of an inquiry. If we do not act now a future Government will have no choice but to inquire into the way in which men, women and children are being treated by the direct provision system in this country. I cite it as an example of something that is very pertinent and unrelated to banking, and to show that there will be many areas in which the legislation can be used.
Of course there will always be a need for inquiry as organisations of the State fail in their duties of care not deliberately - perhaps sometimes - but not usually. It is generally because humans fail and we need the capability to go back and check on our failings. The public needs to know that elected representatives have a duty to investigate these failings. They also need to know that such inquiries would be prompt, thorough and sufficiently independent of Government so that they can succeed. As the Minister has said, that is on the part of the Oireachtas. Can he tell me what is meant by "prompt"? How would the investigations be brought forward? What is the timeframe?
We learn from our mistakes and inquiries play a valuable role in learning that lesson, but they do more. They can also help to secure accountability, although the legislation is limited in that regard, they can show the country and the world that we are able to go back and examine our own decisions, or lack of them, in a mature and organised way. They can also show that we can hold a light up to our own failings in an organised non-hysterical fashion and not by way of a witch-hunt.
The ability to inquire breathes confidence into Parliament. The public can see that their elected representatives do care about the things that go wrong and have the capability to go back and ask about them. It strengthens the fabric of democracy. Passing this legislation will make it the business of politicians to step up to the plate to take on that responsibility and that all adds to the building of confidence in politics and society. The organs of State will know that there is a level of accountability and, hopefully, it will encourage better practice and enhanced transparency. All such inquiries must be carefully constituted in order to avoid the risk of prejudicing any further criminal proceedings.
The legislation is welcome and has been a long time coming. Since Abbeylara 12 years ago there has been precious little investigation in the Oireachtas. It is almost the equivalent of cutting off an arm of the activity of Parliament, something that was allowed to happen under the previous Government.
The style of inquiry allowed under the Bill will be very particular. It will require Deputies and Senators to come to terms with the limitations of the style but limitations do not spell disaster for the process. On the contrary, it can work to focus the effort on ensuring that information is sought correctly and placed in the public domain.
Allowing for investigation into the heads of public bodies and senior civil servants is also welcome, not because they all need investigation but because it enhances their role and responsibilities if they can be investigated and can give their version of events when asked. Anonymity for civil servants should be passed. Just as some have got away with bad decisions and bad behaviour so some have been conveniently scapegoated for ministerial errors and mistakes. I appreciate that the legislation outlines the way in which civil servants can give their evidence.
The comment is often made that politicians could not carry out this investigative function in an appropriate fashion due to their party bias. First, most politicians are quite capable of suspending their partisanship when required. When asked to do so in a public forum, and under scrutiny themselves, means it will be harder to pursue party politics in that way. I welcome the Minister's observation that Members of the Oireachtas are experienced, capable and motivated to act in the public interest and I found that is true, in the main.
Second, not all politicians are members of a party. Most importantly, the idea that any other form of investigation is truly independent is naive, at the very least. Everyone in every walk of life brings their prejudice, bias and opinion to their work overtly and covertly, consciously and unconsciously. All investigations have a measure of bias yet we pretend that the only people liable to bias are politicians.
My final comment is for the Minister. I am unclear as to who in the Oireachtas will be the investigators. Is it every committee as the matter falls into their remit? Will there be a special investigations committee? What will be the role of the Oireachtas Joint Committee on Public Service Oversight and Petitions, of which I am a member? The committee was originally set up to be the investigations committee but when the referendum failed that part of the job failed with it. We now have jurisdiction over public petitions and oversight through the various ombudsmen. We have the very specific function of oversight of public service delivery "with a particular focus of investigating and identifying improvements in the delivery of such services to the public". I would appreciate if the Minister could comment on where the committee fits into the process?
In the legislation, what is meant by "advice" from the Office of the Attorney General? What are the implications for Cabinet confidentiality? Who ultimately decides what constitutes a matter worthy of inquiry? The Minister has said that it is not the Executive but the Oireachtas. In the absence of a particular committee who will make that decision?
Reforming legislation works only if it is designed and intended to bring reform, not to pay lip service to public demand for transparency and accountability. I welcome the legislation because I believe that it is designed and intended that it would bring reform, particularly in the case of the banking inquiry. The other legislation that I have mentioned will strengthen our democratic system and public trust in the current system which can only be a good thing. I welcome the Bill.
I shall keep my comments as brief as possible because previous Senators have said a lot of what I was going to say and posed my questions.
As the Minister will know from the other House, Sinn Féin supports the Bill based on the principle that the Oireachtas should have the power to conduct inquiries. Clearly, the defeat of the referendum limits the scope of the Bill and that of any subsequent inquiry but the legislation is still valuable. As has been mentioned, a lot of the discussion that took place over the past couple of weeks has been in terms of the banking inquiry. As the Minister and other Members of this House have stated, it is important to remember that the Bill is about much more than that specific inquiry in terms of the framework that it will establish. Future Oireachtas inquiries cannot make adverse findings against individuals. My colleagues and I in the Sinn Féin Party find that provision regrettable but we respect the outcome of the referendum.
I shall touch on the referendum. Given that the people have spoken on the referendum it would be regrettable if the Government chose to rerun the referendum. The people have spoken on the matter and they are not minded, at present, to extend extra powers to politicians and that is due to their distrust of politicians. If we, as politicians, wish to regain their trust then we must respect the outcome of the referendum. As I said, the result has limited the scope of the legislation and that of a future Oireachtas inquiry, probably more than we would like.
Earlier I mentioned the banking inquiry. It will not be able to make adverse findings of fact and cannot interfere with criminal proceedings against any individual. The only forum will be a court of law. I share the frustration felt by many people about the delay in establishing the banking inquiry. That is regrettable. To date, the public's knowledge of what happened or surrounded the events in 2008 has been based on leaked information to national newspapers. The Irish Independent has done us all a great service by putting the information into the public domain but that is no substitute for an open, transparent and detailed public inquiry.
As I said, many of my comments and questions have already been raised but the Sinn Féin Party supports the Bill and the establishment of the banking inquiry. We will table some minor amendments at Committee Stage that will strengthen the objectives that we both share in terms of the legislation.
The Minister is very welcome to the House. It is very welcome to be debating the Bill here and it is particularly timely given the publication of the Anglo tapes. Obviously, the tapes are of great interest and concern to everyone in the country. We have been drip fed the revelations and the so-called humour of bankers has been exposed.
I will deal individually with the points that have been raised. I thank all Senators for their contributions. It is helpful to hear the clear reflection of Members of the House on legislation that is uniquely the creature of the House. Much legislation that comes in here is not exclusively the work of the House itself.
Senator Byrne has a strong view on the referendum, notwithstanding his own position on it.
I included myself in that.
Given some of the utterances in committee by some members, one can understand that there would be a reluctance on the part of the general public to give more powers to the Oireachtas. However, I am a firm believer in the capacity of the Oireachtas to do the people's business. Grandstanding, as Senator Byrne put it, is often a substitute for not having actual power to do things. It happens in local authorities as well. If, however, they are given power to do the business, they do not have to grandstand.
I do not believe that Members of the Oireachtas are any different from British MPs or members of the US Congress, or any other parliaments that do this as a matter of routine. They hold inquiries, make findings and take decisions as part of doing the people's business of scrutiny and accountability. I do not confuse that, as the Senator has, with the robustness of debate on the Order of Business or Taoiseach's Questions. At Westminster, one can have skin and hair flying during Prime Minister's Questions, but that does not negate the possibility of the same people doing a discrete job of work in a committee room, without bias or bringing in those particular issues.
That is important. I do not accept that the tribunal of inquiry model is a better one, certainly not for this purpose.
I do not think anyone does.
Reformed commission proposals are required.
We are always reforming. The only reform we can have is a tightening of the legal representation. People have constitutional rights in these matters. To put it bluntly, there would be a revolution if we were to embark on another tribunal that could take a decade, as some of them did. That was convenient for people. I sat in these Houses during a decade or more of inquiries when personages were still involved at the core of political life but we could not raise the issue in the Oireachtas because it was all going on somewhere else. That would be acceptable if a tribunal sat for a month, six months or even a year but the notion that normal political business has to carry on in a vacuum while somewhere else that sort of inquiry was going on is not fit for purpose. To add insult to injury, we got a bill for enormous sums of money at the end.
The Minister is ignoring the proposals of the Law Reform Commission set out in the Private Members’ Bill I prepared.
I remember all the talk, even during the conduct of those inquiries when the then Attorney General and the then Minister for Justice, Equality and Law Reform were going to do the devil and all in reforming and they did not reform any of it. We need reform because there will be occasions when a tribunal of inquiry will be appropriate again. What we are trying to do is to create another model. The Commissions of Investigation Act will allow for some forms of inquiry that could be conducted behind closed doors where that is appropriate and then produce a finding. For example, the Murphy report was a very good example of that. Most of the focus in today’s debate has been on a future banking inquiry, although as I stressed, this is an overarching Bill. What people want is an inquiry where people would simply be asked the questions everyone wants answered in a public forum under oath.
Senator Byrne is correct; I do not think there would be great reluctance on the part of many participants to attend, answer or to tell the truth. No more than people do not need a newspaper editor to come to conclusions for them, when people have the full evidence they can weigh up their own views on the issues. In a way, it is assistance. I do not wish to sound as if I am not in favour of further powers for the Oireachtas but it is an assistance if it is an inquiry that cannot find culpability because then it can be more probing and less restrictive in the way it operates because it simply wants to set out the truth and let people come to their own conclusions. I do not accept the political charge that because somebody says something on the Order of Business or during Taoiseach’s Questions that we are all disqualified. Otherwise, no parliamentary inquiry would operate in any jurisdiction. One could look at how robust the exchanges are in the Australian Parliament. They make what we say look very sheepish, if that is not to use an Australian phrase in and of itself. We are much more restrained than-----
What the Taoiseach said was disgraceful and outrageous.
-----some of the charges that are put in other parliaments. They are in no way-----
Then we should investigate the charges.
The Minister should be allowed to speak without interruption.
That is what will happen here.
They are in no way used by some as an excuse not to have an inquiry.
We gave the Minister the model in the Leveson inquiry.
I say that in a measured way because many people say that they were in favour of an inquiry in principle but not this one, not yet, not now or not this way.
We gave the Minister the model on how to do it.
Let us get on with the people’s business.
Senator Sheahan referred to bias. That is covered extensively in the Bill. In terms of costs, we have taken a great deal of care to have a determining process for costs that, first, must be scoped out in advance of an inquiry being embarked upon. A formal scoping must be made with a presentation of estimated costs. At the end of the process, for those who are entitled to get legal costs, an independent process, as set out in the Bill, will be used to make that determination.
The Bill contains extensive powers to deal with non-co-operating witnesses. I refer to the offences sections, namely, sections 64, 75 and 90. Section 64 specifies:
64.—(1) A person who—
(a) on examination under oath under section 45, or in any affidavit referred to in that section, gives evidence knowing the evidence to be false or misleading in a material particular or being reckless as to whether it is so false or misleading, or
(b) knowingly gives a document referred to in that section which is false or misleading in a material particular or being reckless as to whether it is so false or misleading,
is guilty of an offence.
On conviction or indictment, such a person could face a fine of €500,000 or five years in prison. That is the penalty for giving false evidence. Section 75 covers other offences. Subsection (1) states:
(1) A person who—
(a) having been directed under paragraph (a) of section 67(1) to attend before a committee and having had tendered to him or her any sum in respect of the expenses of his or her attendance before the committee which a witness summoned to attend before the Court would be entitled to have tendered to him or her, without reasonable excuse, fails to comply with the direction,
(b) being in attendance before a committee pursuant to a direction under paragraph (a) of section 67(1), refuses to take the oath on being required by the committee to do so or refuses to answer any question to which the committee is entitled by law to require an answer,
(c) without reasonable excuse, fails to comply with a direction...
is, again, guilty of an offence. I will not go through all of the sections. There are very robust powers on compellability, answering questions and attending if one is required to so do.
I thank Senator O’Keeffe for her complimentary words on the reform agenda. This should be cited in that. Most of the publicity I get in my job is on the fiscal side, which is important in terms of balancing the books. That is the focus of most attention but the reform side of my Department – the name “reform” - is as important to me. I said publicly that if there is to be a legacy in my Department it will be on the reform side rather than the fiscal side. Getting the books balanced is extremely important if we are to have any future but restoring broken politics or a broken polity would be more important in the longer term. There is a huge agenda of change, much of which is being constructed below the horizon at present in terms of participation in the Open Government Partnership and Open Data so that we almost move beyond freedom of information and that all data will be accessible as a matter of routine. If one adds to that the legislation on lobbyists, whistleblowers and freedom of information, the corpus of work will have a very important impact which, to put it bluntly, has not been seen since we were last in government when we introduced the Freedom of Information Act, the ethics Acts, the electoral Acts and all the reform that has not been advanced very much since.
Senator O’Keeffe asked a number of questions. She referred to the capacity of Members. I have already addressed that. I believe that no more or less than elected Members of Parliament in any other analogous parliament we have the capacity to do the people’s business. We are not particularly infirm in this country because of the good weather or whatever else to do the business any less than British Members of Parliament, US Members of Congress or the French Members of the Assemblée Nationale among others. On the question of who is to investigate, in preparation for this Bill I originally wrote to the Cathaoirleach of the Seanad and to the Ceann Comhairle of the Dáil because I thought they would be the persons to determine in each House if there was a request who should conduct the inquiry and other such matters. In the other House it will be a committee determined by the House itself, most likely to be the Committee on Procedure and Privileges, which will determine whether there is to be an inquiry and its scope. The Cathaoirleach will be involved in this House.
Under the Constitution the Attorney General has two roles. One is to be the legal adviser to the Government and the other is to be the defender of the Constitution. The Attorney General is not the legal adviser to the Parliament and will not be. There needs to be a robust, independent advisory system.
To clarify, my question was whether advices given by an Attorney General would be made available at an investigation. I am sorry if I did not make that clear.
That is not normally the practice. No more than the advice of any lawyer to a client, if one is going to get the advice of the Attorney General to the Government as a client, one would have to open up the advice of all lawyers to their clients in regard to proceedings of this kind. That is something that would not be welcomed by the legal profession in terms of the fundamental principle of client-lawyer confidentiality.
The client can waive the confidentiality.
The client can, but it is very unusual, certainly in the context of inquiries of this sort. In regard to Cabinet confidentiality, subsection (1)(a) provides that the committee shall not direct a person to give evidence or documents relating to the discussions at a meeting of the Government or a committee appointed by the Government whose membership consists of members of the Government. This respects the principle of Cabinet confidentiality. Article 28.4.3o was inserted into the Constitution following the judgment of the Supreme Court in the Attorney General v. Hamilton (No. 1) judgment, deriving a principle of Cabinet confidentiality from the general principle of collective responsibility. The bar on giving any disclosures has been modified in regard to the constitutional amendment that subsequently happened but the principle of Cabinet confidentiality will be respected in this legislation. The Senator is quite right in that regard.
Senator Reilly has welcomed the Bill and I thank her for that. She made an important point that the Bill has general application, although we were all narrowly focused in most of our contributions on one aspect of it and how it will be conducted in terms of a banking inquiry, but a number of potential inquiries are provided for under the Constitution and we set out a process in respect of each case in the Bill. I strongly agree with the Senator that it is important that we, as politicians, regain the trust of the people before we would ask them to give us further authority in terms of strengthening the investigative powers of the Oireachtas to come to conclusions that would adversely impact on the good name or character of people who are not subject to the constitutional oversight of the Houses already. This is a test for us in the Houses to see if we can conduct this in an effective way.
Senator Bacik made a strong point, as she would as a criminal lawyer, in terms of the primacy of the criminal process. I am a little concerned that she would raise the expectations of people that there would be wholesale criminal prosecution because criminality is confined to a narrow range of behaviours. There will be a lot of people who, in some people's minds, would be considered reckless, who they consider did not do their jobs or were careless, and much of that might not amount to a criminal offence that could be prosecuted. Obviously, that process needs to be brought to its normal conclusion. All of us are a little bit frustrated but there is a separation of powers. The prosecution authorities are independent of political interference and that is right and proper. That is there for a good reason. We do not want political prosecutions but we expect prosecutions to come when all the evidence is adduced and the Director of Public Prosecutions is ready to bring prosecutions to the court, but that should not negative our wish to have, to use Senator Bacik's words, the full narrative of what happened seen. We have to look at the oversight of all the principal players, the Department of Finance, the regulator, the Central Bank and the Cabinet, who ultimately made the decisions. Who was imputing, what state of knowledge did they have and how did they come to make those decisions? I think this can be done.
Senator Bacik talked about the conduct of the last referendum and the issue of kangaroo courts, which were words displayed in a discordant poster during the campaign in that referendum. No more than inquiries in any other jurisdiction, parliamentary inquiries are so described and we should not be so weak in the capacity we give our own Parliament that we weaken its hand to have proper oversight, but the decision in that referendum was a decision of the people and we have to accept the decision of the people and build trust. To answer Senator Reilly's question directly, there will be no rush to have a further referendum because we need to get on with this process, within the confines laid down by the people and the courts, of the constitutional demands upon us. This Bill is crafted within those confines. It is a comprehensive Bill and, if implemented effectively in a way that I believe is within the encompass and the capacity of Members of these Houses to do, it will greatly strengthen the people's trust in our capacity to hold people to account.