Vol. 1 No. 4
I have apologies from Deputy Monica Barnes and Deputy Theresa Ahearn. I welcome the Minister and his officials, Mr. Tom Lynch and Mr. Michael Gleeson. The first amendment under Section 1 is in the name of Deputy Jim Higgins. Amendments Nos. 2 and 3 are alternatives to No. 1. Amendments Nos. 1, 2, and 3 may be taken together by agreement.
SECTION 1.
I move amendment No. 1:
In page 3, lines 17 to 20, to delete all words from and including "by" in line 17, down to and including "satisfied" in line 20 , and substitute the following:
"where-
(a) (i) the tribunal has requested the amendment, or
(ii) the Government with the consent of the tribunal has requested the amendment, or
(iii) the Oireachtas with the consent of the tribunal has requested the amendment,
and
(b) the tribunal is satisfied".
This Bill is unnecessary. It is superfluous and restrictive. The effect of amendment No. 1 is to provide that the terms of reference of a tribunal of inquiry can be changed as a result of one of three things, first, that the tribunal would request the amendment of the terms of reference. It is too restrictive and ironic that the Oireachtas do not have the power to initiate a move to change the terms of reference. The Government should be empowered, in the light of new evidence, to make a change in the terms of reference if it thinks it desirable or necessary. There would be absolutely no question of imposing change on the tribunal without debate and consultation. The tribunal would have to be satisfied with this change in the terms of reference. The possibility of extending the terms of reference is very limited by this Bill. From now on the initiative must come from the chair of the tribunal or the tribunal itself. That is much too restrictive.
In the course of the second stage debate I asked if anybody had inquired of Judge Moriarty if he felt there was a need to further investigate the Ansbacher accounts. All one has to do is read the report of the tribunal of inquiry into the Dunnes payments to see that it is littered with observations, reservations and anxieties about a whole series of transactions many of them within the Guinness Mahon or the Cayman Islands trust. On that basis, once the tribunal is satisfied that it wants to amend the terms of reference the Government or the Oireachtas should initiate a move towards amending the terms of reference.
I support these amendments as they allow for the investigation of the Ansbacher accounts and it is essential that these accounts are investigated. It seeks to leave the initiative on this matter with the tribunal and all the various parties which are concerned about what has happened with Ansbacher. A great opportunity has been missed in the investigation of what exactly has been going on in the Ansbacher accounts amounting to £38 million. There is very good reason to believe that some of that money is "hurt" money. It has given rise to a great level of public concern. It is a pity it has not been investigated. Resistance to the investigation can only lead to further public concern, dismay, tax avoidance and illegal activities regarding taxation.
There is even more good reason to be concerned especially in the light of the disclosures of the National Irish Bank. If everything is all right let us have that investigated and confirm it There is good reason to be concerned about this matter. It should be investigated because £38 million is a great deal of money. These amendments allow for this and similar items of concern to be investigated in the future.
This reminds me of a game of cricket where those who are batted out want to bat again. The Ansbacher accounts have been well debated in the House and the Oireachtas has decided they will not be included in the terms of reference of the Moriarty tribunal. This Bill is effectively a request from Mr. Justice Flood to extend the terms of the tribunal because he feels it would be beneficial. The Oireachtas is complying with that request as expeditiously as possible.
The Flood and Moriarty tribunals are important. The Flood tribunal must be allowed get on with its work as soon as possible without including the Ansbacher accounts. It is pulled into every debate in Dáil Éireann. At this point it would only be fair to the Flood tribunal to allow it conduct its business. This Bill will allow it to be extended to the extent that Justice Flood requests. It is right and proper that the Bill go through as expeditiously as possible, without complicating matters by tabling this type of amendment.
I disagree with Deputy Ardagh; I think it is quite inappropriate to be talking about games of cricket. We are amending legislation which has direct relevance to the Flood and Moriarty tribunals. However, legislation goes beyond the specifics of these tribunals. This Bill excludes the Oireachtas and the Government in a way I find unacceptable. It does not serve the people well that an amendment can only be considered where the tribunal seeks it. Urgent circumstances could arise that do not fulfil the criteria set out in this Bill and terms of reference could not be amended as a result of the narrow limits of this legislation.
The Ansbacher accounts are an issue and they will not go away, no matter how hard Members of the Government parties try to shove the issue aside. There are outstanding concerns about the issue and a strong belief that this legislation is necessary to deal with the specific request of Mr. Justice Flood. We are now in the process of amending legislation and we have to do the best possible job. In that context, the Minister's proposal is unacceptable. It specifies that the tribunal has to request the amendment. However, the tribunal is fallible and is, of necessity, limited. We represent the Irish people and we must ensure that democratic accountability is respected in the Bill. It is not and there are three amendments which allow for a widening of the Bill's over-restrictive criteria for a change.
It is extraordinary that a party like Fianna Fáil is so determined to close this so tightly. It is as if it is keeping the lid on something it is afraid will explode. This prevents democratic accountability functioning in terms of ensuring that the conditions of any tribunal - as inevitably other scandals and issues will have to be addressed - should be the best we can provide. Any of the three amendments is proposing the same position and they are different to the one proposed by the Minister. I urge him to be less conservative and restrictive in his view to enable the Bill to be amended to meet the need for flexibility and to allow for the function of the Oireachtas.
The Bill provides that an instrument establishing a tribunal which applies the Tribunals of Inquiry (Evidence) Act, 1921, to the tribunal shall be amended pursuant to resolution of both Houses of the Oireachtas, where the tribunal has requested it and is satisfied that such an amendment would not prejudice the rights of any person who has co-operated with, or provided information to, the tribunal under its terms of reference.
I indicated on Second Stage that the policy in the Bill is to ensure that any amendment of the instrument establishing a tribunal of inquiry and incorporating its terms of reference should guard against the possibility of a successful legal challenge to the tribunal. The approach taken in the Bill is the safest one and that the conditions in paragraphs (a) and (b) of the new section 1(a) of the Bill will achieve this.
The first safeguard that the tribunal itself must have requested the amendment ensures that when a tribunal sets about the onerous task of seeking information, considering whether information supplied is within its terms of reference and taking evidence, it will be able to proceed in the knowledge that a change in its terms of reference would be rare and then only on the basis of its own initiative. This approach is supported by the terms of reference of the McCracken tribunal set out in the instrument signed by the then Taoiseach, Deputy Bruton, on 7 February 1997, which comprehends an extension in the terms of reference of that tribunal following a recommendation by the tribunal itself.
Where it is contemplated by a tribunal that a change be made to its terms of reference, the second safeguard of the Bill is that a tribunal must be satisfied that such an amendment would not prejudice the rights of any person who has co-operated with, or provided information to, the tribunal under its original terms of reference. Both safeguards take account of the fact that the tribunal itself is best placed, given the facts already before it, to determine the precise nature of any amendment. This is the more certain way to proceed if we are to guard against challenges to tribunals. To do otherwise would be irresponsible.
It is important to outline to the committee the comments of the 1966 Royal Commission on Tribunals of Inquiry in relation to the terms of reference of tribunals. The commission stated:
In view of the inquisitorial nature of the proceedings of the tribunal the terms of reference require careful consideration and should be drawn as precisely as possible. The Act lays down, rightly in our view, that what is to be inquired into should be a definite matter. The reference should confine the inquiry to the investigation of the definite matter which is causing a crisis of public confidence. On the other hand, it is essential that tribunals should not be fettered by terms of reference which are too narrowly drawn.
The commission was of the view that well defined terms of reference were essential to the effective operation of the tribunal. Nowhere in its report did the commission contemplate any amendment of the terms of reference of a tribunal. The current position is that there is an onus on Government and the Legislature to see to it that proper terms of reference are drawn up when a tribunal is established. Following the interim report on the Flood Tribunal the Government accepts that there may be circumstances where a tribunal with the evidence before it will seek a change in its terms of reference. In these circumstances the tribunal is uniquely placed to make such a request. A reasonable assumption is that such requests from tribunals will be rare.
The effect of amendments Nos. 2 and 3 will be to allow an amendment of terms of reference of a tribunal in circumstances where the tribunal has not requested the amendment or even consented to the amendment. The tribunal will then be charged with establishing whether the proposed amendment would prejudice the legal rights of any person who has co-operated with or provided information to it. That task of establishing whether the proposed amendment would prejudice the rights of any person could be a sizeable one, involving the tribunal in a review of the evidence before it.
If the tribunal were to report that the proposed amendment would prejudice the rights of individuals then it is not beyond the bounds of possibility that the process of consultation with the tribunal and possible redrafts of amendments of terms of reference would begin again. It is not clear what procedure the Oireachtas would follow when consulting the tribunal. The amendment is silent on that issue. These comments apply to paragraphs a(ii) and a(iii) of amendment No. 1 by Deputy Higgins, although that amendment does at least acknowledge that the consent of the tribunal would be a necessary prerequisite to amendment of its terms of reference. Nevertheless, the Deputy's amendment, as in the case of amendments Nos. 2 and 3, leaves open the likelihood of toing and froing between the Government or the Oireachtas with a tribunal and proposed changes in terms of reference that might lead nowhere, and could create tension between the Government and the tribunal at a crucial time when the tribunal had already commenced its work. It is conceivable that the Government, for example, would have to redraft changes in terms of reference following the necessary consultations with a tribunal. The tribunal would, on each occasion, be in a position to veto the proposals for amendment. In cases where the Oireachtas had initiated the change in terms of reference the same problems would arise.
It is not clear what procedure the Oireachtas would be expected to follow when consulting the tribunal. Amendment No. 1 is silent on the issue. It is also silent as to who makes the instrument which amends the instrument establishing the tribunal. Amendment No. 1 deletes the words "By a Minister of the Government" from the new section 1(a) in the Bill.
The amendments are ill-conceived and should be rejected. The Bill as it stands comprehends the current situation of the request from the Flood Tribunal but also takes into account any future requests of a similar nature. The Bill sets out the strict conditions which must be satisfied prior to the initiation of the process under which the terms of reference of a specific tribunal can be amended. The Bill achieves a proper framework on which the law in relation to sitting tribunals can operate without prejudice to parties before these tribunals. For all of those reasons I am not in a position to accept what I regard as unnecessary amendments.
There has been considerable debate today on the Ansbacher accounts and Deputies Higgins and McManus keep harking back to it. I have already dealt with this matter in the Dáil where I gave them a full and comprehensive reply. I will not repeat myself. The Ansbacher accounts are subject to intensive scrutiny by the Revenue Commissioners, the authorised officer appointed by the Tánaiste under the Companies Act, 1990. The Chairman of the Revenue Commissioners, Mr. MacDomhnaill, has stated that the proceedings of the tribunal were monitored closely by them and that appropriate action will be taken. The Minister for Finance, Deputy McCreevy, has also indicated that any additional powers that might be required by the Revenue Commissioner can be provided for in legislation. In addition, the Moriarty Tribunal has a brief to examine certain aspects of the Ansbacher accounts. I explained that in great detail in the course of my Second Stage reply but for some reason Opposition Deputies continue to hark back to this matter.
In relation to Deputy McManus's comments, if a person believes in ghosts then that person will seek out a ghost no matter what and no amount of persuasive argument will get that person to desist. In relation to the request that somebody should telephone Judge Moriarty, who presides over the Moriarty tribunal, about whether he wants to change the terms of reference, Judge Moriarty is capable of requesting a change in the terms of reference if he so wishes. As everyone knows, we immediately responded to Mr. Justice Flood's requests and I resent any suggestion that the Government is trying to shield Ansbacher account holders.
On the passing of this legislation it would be open to Judge Moriarty, if he so wishes, to seek an amendment of the terms of reference. He is the only person in a position to determine, on the basis of the evidence he has before him, whether any change in the terms of reference is required. If Judge Moriarty approaches the Government requesting a change in the terms of reference, then it will be dealt with under the present legislation.
I am naturally a suspicious person. Opposition Deputies keep harking back to the Ansbacher accounts because they are attempting to present a false picture to the general public. I repeat that the Government is not shielding Ansbacher account holders. Opposition Deputies are well aware of this but they want to create a smokescreen so people will believe the opposite. I explained how and by whom these accounts are being examined. I have explained this several times and have gone into great detail. If Judge Moriarty wishes to amend his terms of reference then he can do so under this legislation but he has not indicated to me that he wishes to do so.
If anybody doubts the Government's willingness to co-operate with the tribunals one only has to look at the fact that we immediately responded to Justice Flood's request. Opposition Deputies are correct to raise this issue because this is a democracy but it is unfair to pretend that the situation is other than it actually is.
I thank the Minister for the lecture. The Minister floored our argument on technicalities and on its lack of merit. There is nothing wrong with the technical aspect. The Minister mentioned that my amendment deletes the term "Minister" and would result in toing and froing between the Oireachtas and the Tribunal. He will recall that the initial prima facie examination of accounts by Justice Buchanan was done at the request of the Oireachtas. The Ceann Comhairle and the Cathaoirleach were continually consulted and they were presented with the final report. We agree that there should be a clear linkage between the Oireachtas and the tribunal. In a situation like this the Ceann Comhairle or the Cathaoirleach would seem to be the obvious choice to convey to the tribunal the decision of the Oireachtas. From the point of view of dialogue, consultation and informing the tribunal, it is obvious the Ceann Comhairle is the person who would relay the fact that a motion has been adopted. However, this could not happen without consultation with the tribunal and there would be no question of trying to foist new terms of reference on an individual without the consent of the chairman of the tribunal. Deputy Ardagh stated the Ansbacher accounts were well debated. That may be so but they were not examined. The Minister is aware that as a result of the Finance Act, 1983, the Revenue Commissioners are considerably constrained in regard to what they can do. Until such time as names are presented to them, they cannot carry out the blanket trawl that is necessary.
The appropriate instrument for examining this document and the Ansbacher accounts is a tribunal of inquiry. Mr. Justice McCracken has shown that tribunals, if properly constituted, given specific terms of reference and a clear agenda can deliver, unlike the beef tribunal, an effective and balanced judgment based on its terms of reference.
We are not on moral high horses to be political. The document states in regard to the operation of the Ansbacher accounts:
As the tribunal has not yet had access to the files of Ansbacher Cayman Limited, nor to those of the late Mr. John Furze, it is impossible to detail with certainty the workings of the Ansbacher accounts . . . Mr. Desmond Traynor appears to have acted on behalf of a number of Irish persons who wished to deposit their money off-shore, and this money was deposited in Ansbacher Cayman Limited by Mr. Desmond Traynor on their behalf. It is not clear whether a separate deposit account was opened in Ansbacher Cayman Limited in respect of each of these depositors or whether the money was placed in an account in the name of or under the control of Mr. Desmond Traynor or a combination of both. It is not clear whether all such monies were deposited in Guinness & Mahon (Ireland) Limited or only a part of them. The arrangement was that Ansbacher Cayman Limited paid to the Irish clients interest calculated at one eighth per cent per annum less than the interest which was received from Guinness & Mahon (Ireland) Limited thus generating a small profit for Ansbacher Cayman Limited.
He further reports on the ingenious system whereby Irish investors could have their money offshore with no record of the deposits in Ireland and yet obtain an interest rate which was only 0.8 per cent less than what they would have obtained had they deposited it in an Irish bank. As he rightly states no doubt there were others who deposited the money for other motives. A sum of £38 million was locked up in these accounts which was hidden for a variety of reasons, the main one being tax evasion. The taxpayer is entitled to know who the depositors were, how much tax revenue was lost and to get it back. This should be done through a tribunal of inquiry now.
It is important that the record is set straight because the Minister was not fair. We recognise based on the circumstances that pertain that there are grave deficiencies in our controls in banking and tax evasion and that it is important the public is given the answers for which it asked. Opinion polls showed that, when the issue of Ansbacher accounts was brought into the public arena initially, there was an overwhelming desire on the part of the public to have the matter investigated fully. This highlights the issue of public confidence.
The Minister's view is extraordinary. He said if people believe in ghosts one cannot convince them otherwise. I do not believe in ghosts because there is no evidence of the paranormal but I am beginning to believe there is evidence of ministerial paranoia. There is no conspiracy among the Opposition to cause grief for the Minister or to pursue him in a conspiratorial way in regard to the Ansbacher accounts. The reason it has reared its head again is that the matter remains unresolved.
A man convinced against his will is of the same opinion still. The Moriarty tribunal's terms of reference permit inquiry into the Ansbacher accounts to investigate any payments from those accounts to the benefit or in the name of any person who holds or has held ministerial office and to ascertain whether any holder of public office for whose benefit money was held in the accounts conducted any act in the course of his or her public office and to confer any benefit on any person who was a source of that money or directed any person to do such an act. Any deposit holder discovered by the tribunal to have made payments from the Ansbacher accounts to any of the aforementioned categories of persons will be publicly identified, have their deposits and the amounts paid to the categories of person made known and have any benefit conferred made public. A deposit holder who did not make such arrangements will not be publicly identified.
The question which then arises in regard to the accounts relates to the possibility that the depositors might be evading tax. The tribunal is not required to conduct an investigation into tax evasion as its terms of reference provide for the making of recommendations for the protection of the State's tax base from fraud or evasion through the establishment and maintenance of offshore accounts and to recommend whether changes should be made in tax law to achieve this end. Consequently, to make recommendations the tribunal must investigate offshore accounts to establish how they work, the purpose for which they are established, whether the State's tax base is at risk from the establishment and maintenance of such accounts and if some changes in tax law should be implemented to prevent this.
The extent to which offshore accounts, including the Ansbacher accounts, facilitate tax evasion will be investigated by the tribunal but what will not be investigated is whether individual deposit holders in the Ansbacher accounts were guilty of tax evasion. I stress that that is a matter for the Revenue Commissioners and the individuals concerned. I have made it abundantly clear again and again that if the Revenue Commissioners feel they require additional powers, they will be facilitated by the Minister for Finance who has made his position clear. He said any additional powers that might be required by them can be provided for in legislation. Deputies are saying the terms of reference of the tribunal should be amended to allow the tribunal ascertain whether people were guilty of tax evasion. I have stated that this is a matter between the Revenue Commissioners and the people concerned. However, in the context of proposals that the terms of reference should be amended, if this were to occur by the inclusion of requirements to investigate whether individual deposit holders had or had not been guilty of tax evasion in circumstances where the tribunal may wish to seek information from the Cayman Islands, the work of the tribunal could be seriously compromised. This could be so because the McCracken tribunal was required to go to the Cayman Islands to acquire information as to the identity of deposit holders in the Ansbacher accounts. When the terms of reference were drafted it was believed that the Moriarty tribunal would have to do likewise. That may still be the case. There is a well recognised principle in international law which has been adopted by our domestic courts that the courts of one country will not assist or aid in the enforcement of another state's revenue laws. Since this is the true position, any inquiry in the Cayman Islands would have been refused, thereby jeopardising the primary focus of this tribunal relating to propriety in public life.
Can one imagine the hue and cry which would be heard in Ireland and abroad if it transpired that it was not possible for the Moriarty tribunal to investigate propriety in public life because the terms of reference were amended in the manner which I have outlined. There would be a huge outcry and the Government would be blamed. The situation is as outlined. I cannot go any further. I have put it as best I can and I hope people will accept that.
I am not pursuing this amendment but may I seek the indulgence of the Chair on the technicality of resubmitting these amendments on Report Stage in view of the fact that the deadline has passed?
There is no problem with that.
Amendments Nos. 4 and 5 are out of order.
I am wedded to the idea of having these proceedings accessible to the public. The predominant medium is television and, to a lesser extent, radio. How does one ensure that this is included? I would have thought that this is entirely appropriate.
It is outside Standing Order 117 which states that "amendments must be relevant to the provisions of the Bill" and that is not a provision in the Bill.
Does that apply to this Bill or the original Bill of 1921?
Only to this Bill. This Bill as agreed on Second Stage seeks only to provide for the amendment of an instrument appointing a tribunal of inquiry. Therefore, it is outside——
Since this is amending legislation does it apply only to this Bill?
Yes. Only to this Bill.
Do you have any direction from your great authority as to how one can——
This is a limited Bill and this is why it does not come under it. The content of the Bill that was passed on Second Stage determines what amendments can be discussed.
In accordance with Standing Order 79(b) I propose that the following message be sent to the Clerk of the Dáil: the Select Committee on Justice, Equality and Women's Rights has completed its consideration of the Tribunals of Inquiry (Evidence) (Amendment) Bill, 1998 and has made no amendments thereto.
Report agreed to.
Ordered to report to the Dáil accordingly.
