I draw the attention of Members to the amended Standing Order of this morning. If the Bill reaches a conclusion before 4.45 p.m. and a division is called it will be postponed until immediately after the Order of Business on Tuesday, 31 March 1998.
Tribunal of Inquiries (Evidence) (Amendment) Bill, 1998: Second Stage: Resumed.
Question again proposed: "That the Bill be now read a Second Time. "
Under proceedings currently before the courts it could be argued that the process of altering the terms of reference, to which I referred prior to the adjournment, was flawed or illegal, thereby jeopardising the State's defence of these proceedings.
A lead story in the Sunday Tribune of 15 March 1998 headed “Secret memo contradicts Cabinet tribunal decisions” stated, among other things, that confidential documents revealed that on the eve of Cabinet approval of an amendment to the Tribunals of Inquiry (Evidence) Act, officials of the Department of Justice, Equality and Law Reform and the Attorney General's office believed it was not legally necessary. The document quoted in the article is an internal submission to me of 9 March 1998 from an official in my Department.
It has been suggested that because there was a healthy discourse on the issues between my Department and the Attorney General's office there are irreconcilable differences between the two offices. The reality is that the practice when preparing legislation is to engage in a detailed analysis of all the issues involved to tease out the legal principles and all of the practicalities. In the course of this exercise, the Department and the parliamentary draftsman raised queries which required to be answered by the legal side of the Attorney General's office. This is not an unusual course of events in the drafting of legislation and if everything were as clear as some people would like to pretend where the law is concerned we would not have any more court cases.
There have also been suggestions from some commentators that legislation might not be necessary and these need to be addressed. On Monday evening, 9 March 1998, the Attorney General's office advised my Department in writing that the Attorney General was of the view that primary legislation was necessary to amend section 1 of the Tribunal of Inquiries (Evidence) Act, 1921, to expressly provide for amendment of terms of reference of an instrument appointing a tribunal and applying the Act to the tribunal and that this view had been confirmed by independent senior counsel. Taking into account the Attorney General's advice, the memorandum was submitted to Government seeking its approval to proceed with the legislation before the House. The following new paragraph was inserted in the memorandum for the Government meeting of 10 March.
It has been suggested by some commentators that tribunals are not established, as such, by the Act of 1921, rather that they are established by resolution of both Houses and that the Act of 1921 regarding evidence etc. is merely applied to such tribunals. The Attorney General, however, is of the view that primary legislation is necessary to amend section 1 of the Act of 1921 to expressly provide for amendment of terms of reference of an instrument appointing a tribunal and applying the Act to the tribunal. This view is supported by independent senior counsel. It is in the light of these advices that the Minister seeks approval to proceed with the legislation.
At its meeting of 10 March 1998 — there is nothing sinister about this — the Government approved the text of this Bill.
It has been suggested by Deputy Jim Higgins and others that the Attorney General's advice is wrong. It is also being suggested that I should accept the view of an official as opposed to the view of the first law officer of the land who also sought independent legal advice to analyse the situation further but who had no doubt about the position. I submit I had a clear duty to accept the advice of the Attorney General and I did so in good faith. The Government, acting on my advice, also acted in good faith. It would have been wrong to do otherwise.
Deputy Upton audaciously suggested that the senior counsel who gave advice to the Attorney General in this matter only did so after the Attorney General or the Government had trawled through the Law Library. That is a disgraceful and scurrilous remark. It calls into question the integrity of a senior counsel of considerable expertise, integrity and knowledge of this subject. The Deputy should withdraw the allegation. It is wrong of him or of any other Member to make unfounded allegations of that kind in this House.
The Deputy is not here.
Not only was the senior counsel to whom Deputy Upton referred not here but he does not have the opportunity to attend this House and clear his name. Nor does he have the opportunity to challenge the Deputy on those remarks in court.
Members of the Opposition also suggested that they did not have the same advice when they were in Government.
Members of the Opposition, when in Government, were advised that primary legislation was necessary, by way of amendment of section 1 of the Act of 1921, to expressly provide for amendment of an instrument incorporating terms of reference and appointing a tribunal to which the Act of 1921 is applied. They would now like to deny this. That does not surprise me. However, it is clear from the provisions of the order which the Government made on 7 February 1997 setting up the Dunnes payments tribunal what the true position is. They envisaged the possible necessity for a further resolution of the Dáil and Seanad in the event of any matters arising before that tribunal, and specific provision was made in the original order providing for its amendment. Thus, the order allowed the Dáil and Seanad to make a further resolution that automatically applied to the original tribunal. The provision was inserted by the Government of which Deputy John Bruton, the present leader of Fine Gael, and Deputy Quinn, the present leader of the Labour Party, were members, because there was doubt as to the power to amend the order establishing the tribunal once it had been established.
(Mayo): Will the Minister give way?
Certainly.
(Mayo): Let me reiterate the point I made in my Second Stage speech which is that I spoke in person to the former Attorney General, Mr. Dermot Gleeson, and he never at any stage was asked for or gave general advice to the effect that it was not possible to amend the terms of reference without legislation. He was never asked for, and never gave the opinion, that legislation was necessary to amend the terms of reference. I imagine he would concur with the view that it is not necessary to change the terms of reference by way of legislation, that it could be done by way of simple resolution of this House. Doctors differ and patients die. The Minister can quote one legal expert. I am quoting a legal expert of considerable experience, knowledge and integrity and I do not want his name in any way impugned.
I have stated that the provision was inserted by the Government of which Deputy Higgins was Chief Whip and of which two leaders of the Opposition were members, because there was doubt as to whether there was power to amend the order establishing a tribunal once it had been made. With regard to Deputy Higgins's remarks in relation to the former Attorney General, Mr. Dermot Gleeson, let me say that on the occasion in question Mr. Gleeson had a conflict of interest in that he had formerly acted for a party in the Dunne family litigation and as a result was unable to advise in relation to the setting up of the tribunal. It was not Mr. Gleeson, for whom I have the highest personal and professional regard, who gave the advice. In accordance with normal practice on such occasions, the Government's legal advice in this matter was provided by the senior legal assistant in the Office of the Attorney General. Regardless of who gave the advice, the positive assertions now emanating from the Opposition benches that there is no doubt but that the matter can be dealt with by resolution, is to say the least, strange given the clear evidence that the Opposition had a considerable doubt when in Government and clearly were given precisely the same advice as this Government has been given.
(Mayo): Will the Minister yield?
I have allowed Deputy Higgins to intervene and have replied to him, and I am not going to do so again because I do not have the time.
(Mayo): Will the Minister withdraw the comments made by the Taoiseach and by the Minister for the Environment and Local Government that Mr. Dermot Gleeson gave exactly the same advice? The Minister has acknowledged that he did not, and it should be put on the record that the comments of the Taoiseach and those of the Minister for the Environment and Local Government were wrong.
I am not prepared to withdraw anything. I am dealing with what the advice was in relation to the general question of the Dunnes tribunal. I am dealing with that specific matter as an analogy to establish beyond doubt that the Government of the day had considerable doubt as to how this matter should be proceeded with in the light of advice it had received in relation to the Dunnes tribunal. What advice Mr. Gleeson did or did not give in relation to other matters pertaining to this situation is not something I am prepared to go into at this time because I am not au fait with it in the context of this legislation.
Much has been said about the need to introduce amending legislation in order to amend the instrument incorporating the terms of reference of a tribunal once it has been established.
In my introduction to the debate, I outlined the reasons a change in the law is necessary but, given the comments made in the course of the debate, it is important that I state them clearly again. They are: (1) the legal advice is that primary legislation is necessary to properly deal with the matter by amending section 1 of the Act of 1921 expressly providing for amendment of terms of reference of an instrument appointing a tribunal and applying the act to the tribunal; (2) nowhere does the Act of 1921 provide for the amendment of the instrument which establishes the tribunal, and it is the prudent and legislatively responsible course of action to create an express power to so amend and put the matter beyond doubt; (3) the Government's view has been that once a tribunal is established, the tribunal should be allowed to proceed with certainty in the knowledge that its terms of reference will not be changed. The overriding concern in relation to tribunals is to ensure that appropriate procedures apply to enable justice to be done to parties before those tribunals. Where a change in terms of reference is deemed necessary, such change could jeopardise the operation of a tribunal unless there are sufficient safeguards. The fourth reason I outlined was that while it is argued that the words "any instrument supplemental thereto" bestow a power of amendment of the original instrument, the Government's advice is that what is envisaged in those words is that the original instrument may contain the terms of reference of a tribunal and the appointment of one or more members of the tribunal, but the original instrument would be silent as to the application of the Act of 1921. The purpose of a supplemental instrument is to apply the Act to a tribunal subsequent to its establishment. The fifth reason was: to attempt to amend the terms of reference simply by a resolution of both Houses and without express legislative provision would result in the creation of another tribunal side by side and parallel to the original tribunal. The tribunals would be distinct entities, albeit they would have the same individual as chairperson. This would be clearly absurd.
Following on all the accusations and allegations which have been made in the course of this debate, I cannot put the matter more clearly than I have in relation to the law on this matter. Let me repeat that it has been the consistent view in the Office of the Attorney General over many years that the terms of reference of a tribunal established under the Tribunals of Inquiry (Evidence) Acts, once fixed, could not be changed. To my knowledge no Attorney General has ever expressed any contrary opinion or contrary view. That settled view has found expression on at least two occasions prior to the tenure of the present Attorney General. The first occasion was when the beef tribunal was being established. Advice was given verbally by an official from the Attorney General's office that it would not be possible to change the terms of reference of a tribunal once it was established. This advice was not sought formally, possibly because the terms of reference of the beef tribunal were so comprehensive that it was clear that there would be no subsequent need to amend them.
The Attorney General at the time, Mr. John Murray, Senior Counsel, does not recollect whether he personally advised in relation to the matter but, in any event, he gave no written advice. Advice emanating from the Attorney General's office is deemed to be the advice of the Attorney General, as anybody who has ever served in Government knows. In addition, the McCracken tribunal was established after Judge Gerald Buchanan reported on the payment of money to politicians, but before he reported on whether any payments had been made to public servants.
When the terms of reference of the tribunal were drafted, the senior legal assistant advised that a mechanism should be included which would permit the referral to the tribunal of any evidence which might subsequently become available as a result of a second part of Judge Buchanan's investigation without the need for an amendment to the terms of reference. This mechanism involved a further resolution of the Houses of the Oireachtas but not an amendment to the terms of reference.
This novel and unusual mechanism was deemed necessary because it was considered that the terms of reference of a tribunal established under the 1921 Act could not be amended. If it had been considered that the terms of reference could be amended, there would have been no need for the mechanism. The reason for the insertion of this provision in the terms of reference, namely that it was considered that the terms of reference once fixed could not be changed, was made known by the senior legal assistant in the Office of the Attorney General to the members of the Government at that time. I understand it was also made known to the advisers.
Deputy Upton and others appeared to suggest that somebody should go to Mr. Justice Moriarty and ask him if he wants the terms of reference of his tribunal amended. However, anybody who went to Mr. Justice Moriarty, or any other judge in charge of a tribunal, and asked him if he felt the terms of reference of his tribunal should be amended might be considered by many to be interfering with the judicial independence of the chairperson of the tribunal. If any member of the Government did that, legitimate questions would be asked in the House.
I regret that Members of the House suggested that type of legal mumbo jumbo and tried to pass it off as desirable. I also regret that Members of the House stated blandly as a matter of absolute fact that the advice of the Attorney General is wrong.
(Mayo): It is wrong.
It reminds me of the story of the man who would not agree that a particular horse won the Grand National in 1973. When the history of the event was produced, he said the book was wrong. This type of argument does not have any type of weight. It makes no sense. It was suggested that the Government is covering its tracks regarding the Ansbacher accounts and conjuring up new tricks. These allegations are derived from extremely fertile imaginations. The people who made them and who possess such fertile minds might be better engaged writing ghost stories or mystery novels or something which would keep them more usefully occupied.
They could write for the Sunday Independent.
(Mayo): Methinks the Minister doth protest too much.
Deputy McManus mentioned a ruse and a fig leaf. She also mentioned cynicism, hypocrisy, expediency, lack of political will and other such hardy annuals. I am not surprised to hear such a diatribe and rubbish from Democratic Left. For the sake of everybody, we should try to treat this matter seriously. Some people do not live in the real world all the time, but they should at least pretend that they do for the purpose of this debate.
I have put forward the case to the best of my ability. This matter is being dealt with honestly and within the confines of the law and on the advice of the Attorney General and others. The Government has taken the correct course open to it to ensure that this matter is resolved satisfactorily. No amount of red herrings or white rabbits can change the facts. The legislation is desirable and will work. It will facilitate the tribunal and ensure that its request is met.
Question put.
Deputies
Vótáil.
In accordance with an order of the Dáil of this day, the division shall be postponed until immediately after the Order of Business on 31 March 1998.