Seán Fleming (Laois-Offaly, Fianna Fail) | Oireachtas source

I move amendment No. 3:

In page 16, between lines 35 and 36, to insert the following:

“6.--A committee conducting an inquiry established under this Act shall consist of a minimum of forty per cent of members of the current Government party and a minimum of forty per cent of members of the opposition.”.

I welcome the opportunity to discuss amendments Nos. 3 and 4. These amendments get to the heart of what this legislation is about, namely, the fairness and impartiality of the Oireachtas in carrying out an inquiry. My amendments No. 3 states specifically that the committee conducting the inquiry shall consist of a minimum of 40% of members of the Government and a minimum of 40% of members of the Opposition. The purpose of that is to ensure there is equality across the Chamber. If the Government has a big majority it allows for it to have the majority of members on the committee but at least the Opposition to the Government would have a minimum of 40% of members. On Committee Stage I suggested a 50%-50% membership but that may be too high and therefore I have refined it to a more reasonable percentage, and what I propose in amendment No. 3 is reasonable. If the Government cannot agree to this amendment and allow the Opposition 40% of the membership it is a poor look-out in terms of the way any Oireachtas inquiry would conduct its business. If the Government does not accept this it will lead to what I call institutional bias in terms of any future Oireachtas committee of inquiry.

My amendment No. 4 specifically states: "A chairperson of any committee established under this Act shall be a member of the opposition." That is similar to the long-standing practice of, say, the Committee of Public Accounts or our current Joint Committee on Public Service Oversight and Petitions. That has always been a good practice where the Government has a majority, in this case a big majority. If the Government does not accept amendment No. 3, it is not allowing the Opposition have even 40% of the membership. If the Minister does not accept this amendment the Government will be saying "No. We will want 70% of the membership." If the Minister rejects the amendment on an Opposition chair the Government in effect will be saying that it wants 70% of the membership of this committee and that it wants to chair the committee. It is immediately in the territory of institutional bias at that stage in terms of the Houses of the Oireachtas.

The kernel of the issue that people will appreciate is whether this will be a fair and impartial inquiry. As the Minister is well aware, we are here dealing with this legislation because he proposed a referendum to amend the Constitution to enable the Houses of the Oireachtas undertake full inquiries and overview of the proposed system of Oireachtas inquiry. The Minister put that question in a referendum to the people in November 2011. We will not fight that again but it was lost. It could have been won but the actions of individual members of the Government resulted in it being lost.

On 12 September 2011 the Minister's Department gave us an explanatory note on the reason that referendum was necessary. Obviously, it dealt with the Abbeylara case with which the Minister's Department will be familiar because he drafted it. We are here today confined by the Abbeylara judgment. That is the essence of what is before us. The purpose of the referendum was to broaden the scope of inquiries beyond the Abbeylara judgment. That referendum failed and therefore by definition we are here with plan B to try to work within the Abbeylara judgment.

The briefing the Minister's Department gave us on the Abbeylara judgment referred to the issue of objective bias. We all understand the issue of objective, that is, if individual members of a committee making a determination at the same time make comments in the media which indicate that they had prior strong views or fixed opinions, a situation of objective bias could arise. I would be surprised if there is a Member of this House who has not expressed a prior strong view on the banking situation. In a court of law, and this legislation will end up in the Four Courts before any inquiry proceeds or witnesses are called to give evidence, it will be difficult to find the required number of Members of this Parliament who have not expressed a strong prior view. That is one hurdle this legislation will have to overcome. The Minister's legislation for a banking inquiry is doomed to failure because of the actions of his Government, particularly in the past week or so.

The second aspect of the Abbeylara judgment dealt with bias. I quote from the Minister's explanatory note to us on 12 September 2011 when the Supreme Court referred to the issue of institutional bias. The explanatory note states: "Institutional bias refers, in summary, to a situation where, irrespective of the circumstance of a particular case, it is argued that a specific body [that is, the Oireachtas or the Oireachtas committee] may, of its nature, be inherently biased and cannot, therefore, be relied upon to assess evidence and form judgments in an objective and unbiased fashion." They did say that it is not necessarily the case that the Oireachtas suffers from institutional bias. If that were the case we would not be allowed deal with impeaching a President or a judge, and that was the follow-on note in that document, but the question of institutional bias does arise in regard to committees of inquiry.

I suggest that the statement by the Taoiseach last week on foot of the revelations in the tapes from Anglo Irish Bank executives demonstrated institutional bias on the part of the Head of this Oireachtas. He is the elected Taoiseach and leader of this Oireachtas and he said they had to look into the issues of collusion. Collusion is a fraudulent, illegal, undercover arrangement in place between people. The Taoiseach has come in here and said that in relation to the Anglo Irish Bank affair, those tapes raise the question of fraudulent collusion between individuals in the then Government and Anglo Irish Bank.

This indicates that the head of the Oireachtas has formed a strong prior view that an issue of collusion arises. It was the Taoiseach who raised that issue. I am of the view that the conversation in which we are engaging now will be played out in the courts before an Oireachtas inquiry comes into operation because some witness who does not want to come forward will take a case regarding the bias of this institution. That prospective witness will use the words of An Taoiseach to demonstrate the institutional bias referred to by the Supreme Court in the Abbeylara case.

The matter does not stop there. The main party in Government has been producing and circulating to all its members documents relating to the roles played by Fianna Fáil and the former Anglo Irish Bank. This demonstrates that Fine Gael and, by definition, all of its members - some of whom will serve on the committee of inquiry - have been influenced by the Taoiseach's approach in respect of what he refers to as collusion between Fianna Fáil and the former Anglo Irish Bank. We entirely refute the idea that there was such collusion. The relevant tapes have subsequently shown how furious were the people in the former Anglo Irish Bank with the then Minister for Finance, the late Brian Lenihan Jr. This shows that there was anything but collusion. Since the Taoiseach made his comments, he has sent out his minions to appear on several national media programmes to restate the position that there are charges to be answered by Fianna Fáil. This shows that a bias exists. Inquiries must examine the facts and people are not brought before them, charged with wrongdoing and made to answer for what they have done. Members of the Fine Gael Party recently appeared on national television and indicated that there are charges to answer. They also restated this view in the House in the past day or two.

The actions of the Taoiseach and his party should be a source of concern to the Minister. The Minister for Justice and Equality, Deputy Shatter, contributed to scuppering the referendum on the previous amendment to the Constitution in this regard by his display of arrogance. Now Fine Gael, led by the Taoiseach and supported by his minions, is talking about collusion and the fact that there are charges to be answered. In my opinion this demonstrates not only subjective bias on the part of individual Members but also an institutional bias on the part of the head of this Oireachtas. Whatever chance the Minister had of having an objective inquiry carried out in respect of the banks has been damaged by the Taoiseach and other Fine Gael Ministers. I have not been following everything that has been said by members of the Labour Party on this matter and I accept that I am singling out the Fine Gael Party.

The Minister would, if he could accept these amendments, be in a position to put up some small defence when a case is brought before the courts regarding why this legislation should not be used in respect of the holding of an inquiry into banking. Regardless of what the Taoiseach stated, we are prepared to accept the committee of inquiry being chaired by a member of the Opposition. That is the basis of amendment No. 4. Despite the personal and institutional bias the Taoiseach, as leader of this Parliament, has demonstrated in respect of any future banking inquiry, we are of the view that a minimum of 40% - the Minister could opt for a higher percentage - of the membership of that inquiry should not be from the Government parties. If the Minister were to accept my amendments, he would be showing the courts, the public and those who might be called to give evidence that the proposed inquiry will not be tainted by either institutional or personal bias. As I have already stated, the Taoiseach's comments - which demonstrate personal and institutional bias on the part of Fine Gael and its members - are going to remain on the record. If the Minister cannot accept the amendment to the effect that the inquiry should be chaired by a member of the Opposition and that 40% of its membership should comprise those in opposition, then he will also be demonstrating bias. Not only will he be insisting that the Government should have a huge majority on the inquiry, he will also be insisting that it should control the Chair.

It is not acceptable to state that this is a matter for the Oireachtas to decide upon because the Taoiseach controls the Oireachtas. We witnessed what he did yesterday when members of Fine Gael defied the Whip and voted against the Government. We had not even left the Chamber when e-mails to remove those individuals from Oireachtas committees were issued from the Office of the Government Chief Whip. That is how the Government and the Oireachtas operate at present. If the Minister cannot accept the amendments, this will show an even greater level of institutional bias than that demonstrated by the Taoiseach.

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