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.