Brendan Howlin (Wexford, Labour)

The Bill will underpin the proposed constitutional amendment and provide a comprehensive legal framework governing the establishment and operation of the inquiry system. In publishing the draft heads of the Bill, it was important that we had a clear perspective to show the electorate and indeed members of the House how the system is to work. I and my officials have already briefed the Joint Committee on Investigations, Oversight and Petitions on the details of the enabling legislation. I see copies of my speech arriving. Assuming the people vote for it and the Bill is enacted, it will give the committee real powers to make decisions in relation to both the scope of an inquiry - the mere fact it is warranted and should be held - and its terms of reference.

The Bill's primary purpose is to amend section 10 of Article 15 of the Constitution in order to provide for the Houses of the Oireachtas to conduct full inquiries. Section 1 of the Bill provides for the insertion of the text set out in the Schedule. Section 2 contains a standard provision that specifies how the amendment and the Act shall be referred to. The Schedule contains the proposed text of the constitutional amendment in the Irish and English languages. If the electorate expresses approval in the referendum, the three new subsections set out in the Schedule will be inserted into article 15.

Subsection (2) of the Schedule ensures there is absolute legal certainty that the Oireachtas is empowered to hold inquiries into matters of general public importance. The absence of specific and explicit recognition in the Constitution of a role for the Oireachtas in undertaking inquiries in which findings of personal culpability or responsibility could be made could provide grounds for a legal challenge to Oireachtas inquiries on the basis of institutional bias. This is the legal concept that, irrespective of the circumstances of a particular case, a body might be inherently biased on account of its political nature and composition. I reject the contention that, simply by virtue of its political structure, a body cannot make objective decisions. We need to deal with that. However, the wording does not and cannot discharge the members of an Oireachtas committee of inquiry from the requirement not to prejudge the outcome of an inquiry and to behave impartially in respect of any matter that is the subject of an inquiry. The legislative framework governing the operation of the inquiry system requires the setting of clear protocols that minimise the risk of the committee of inquiry not behaving in an impartial manner.

In addition, subsection (2) provides that the inquiry must be into a matter "stated by the House or Houses concerned to be of general public importance". The enabling legislation contains the proposed process to be undertaken and states the evidence to be provided to allow the Houses to make an assessment that a matter is of general public importance. Matters must be of grave public concern and of a magnitude and consequence that require an inquiry. It is intended that such full inquiries will be into issues where the Oireachtas has a clear legislative, oversight or public policy role in making findings and recommendations firmly underpinned by extensive fact-finding. This provides a clear, well-defined context within which such inquiries may take place.

Subsection (2) also provides that the manner in which an inquiry is conducted will be provided for by law. The draft heads of the enabling legislation provide a framework within which the Houses of the Oireachtas can formulate rules and guidelines governing the conduct of inquiries. The published draft heads are extensive, but if Senators have suggestions that would enhance the system, I invite them to provide their ideas before I publish the Bill in advance of the referendum I would very much welcome any submissions that Members wish to provide I have issued the same invitation to the other House.

Subsection (3) of the Schedule to the Bill grants the Oireachtas a power to investigate the conduct of individuals and make findings. In doing so, it addresses two of the major concerns that the Supreme Court identified in the Abbeylara judgment. In order for Oireachtas inquiries to be effective and consistent with the role, function and responsibilities of the Oireachtas, it is considered essential for them to be able to investigate individual conduct. This is particularly true where individual conduct or the conduct of a group of individuals played a significant role in giving rise to the set of circumstances that required the Houses to carry out an inquiry in the first instance. It should be possible to make findings of individual misconduct, wrongdoing or incompetence if such findings are necessary and consistent with the facts adduced. This would be done with the object of making recommendations for change. Such recommendations could relate to legislative or regulatory frameworks or the role, structure, governance and management systems of public bodies. Subsection (3) explicitly provides that an investigation can be carried out into the activities of any person or persons irrespective of whether they are members of either House.

Subsection (4), as amended in the Dáil, makes it clear that an Oireachtas committee of inquiry must strike an appropriate balance between the rights of persons and the public interest, having due regard to the principles of fair procedures. In full parliamentary inquiries, the balance between the rights of persons and the public interest must be consistent with the constitutional principle of fair procedures. There is no doubt about that. Fair procedures and the rules of natural justice must be respected in any inquiry that puts good name or reputation on the hazard. It is important to state that the manner in which the Oireachtas strikes the balance between the rights of persons and the public interest will be reviewable by the courts. That is the strong, clear legal advice the Government has been given. In assessing the issue, the courts must then take into account the responsibility assigned to the Oireachtas to determine this balance. In addition, in reviewing the procedures of any inquiry, the courts will assess the balance the inquiry has sought to strike between natural justice and the public interest.

As I highlighted earlier this week in the Dáil, I have no doubt that there will be practical difficulties for the Committee on Investigations, Oversight and Petitions and the inquiring committee in ensuring that the balance is exercised fairly and objectively and that it is achieved. However, the difficulties can be teased out and they are not a reason to shirk our responsibilities as a parliament. Subsection (4) is necessary if inquiries are to implemented in a pragmatic way and to employ fair procedures in a manner that is balanced against the public interest. It ensures that inquiries will be effective, cost efficient and completed within a reasonable timeframe. Members will not need to be reminded that justice and the people's interest have been thwarted over decades with protracted commissions of inquiry constantly being drawn into court challenges, going on endlessly and costing a fortune. We must have alternatives available and enable the Houses to do the people's business.

Witnesses to Oireachtas inquiries will, of course, have an extensive range of legal rights. However, if Oireachtas committees of inquiry were required to provide in all circumstances the full spectrum of rights normally afforded to witnesses in tribunals of inquiry, the costs and duration of Oireachtas inquiries would be likely to be prohibitive. We would simply be replicating what has happened at the tribunals. The constitutional amendment before us does not disregard the rights of witnesses to fair procedures. I want to say that explicitly. As set out in the draft heads of the underpinning legislation, high hurdles have been set to ensure that fair procedures are adopted and that inquiries are carefully and correctly conducted.

For example, the legislation envisages that all of the primary procedural rights will be available in the proposed new Oireachtas inquiry system. These rights were previously identified as necessary by the courts to ensure that the rules of natural justice are observed. It is intended, however, that it would be a matter for each Oireachtas committee of inquiry to determine how these rights should be afforded to witnesses in any particular instance, having due regard to the principles of fair procedures. This will depend on the specific circumstances that pertain in each individual case and will be governed by rules agreed by the House or Houses concerned. To put it simply, if a witness is merely giving technical evidence, her or she does not need to be accompanied by a lawyer and the State should not have to pay for that, which should be clear enough.

However, if somebody is fundamental to an inquiry and his or her good name is very much at risk, it may well be determined by the committee that the person should be represented by counsel at the inquiry. That is the balance the committee itself must strike in the first instance and ultimately, if the citizen involved feels that the balance is not consistent with fair procedures or natural justice, or is incorrect, of course, he or she will have the right to have the decision reviewed by the courts.

It is my intention over the coming weeks to publish a further revised Bill. This will be done, having reflected upon and considered the debates today, any other points that Members might make in submissions to me. If the referendum is approved by the electorate, this Bill will be formally initiated in both Houses. Discussion of the Bill by the House will provide an opportunity to review the proposed system of inquiry further.

There are significant public policy benefits from the operation of an effective system of parliamentary inquiry. We need to harness these benefits. These included the ability to lead change, to govern effectively, to hold the Executive to account and above all to better serve citizens. I have believed for many years that we need to restore real powers to the Houses of the Oireachtas to do the people's business in a way that is at present absent and is not mirrored in other Parliaments that take parliamentary inquiry as part of its normal business. I believe the people will support this. If it is supported and enacted, it will devolve new onerous responsibilities on the Members of the House, particularly those on the oversight committee in the first instance to make impartial decisions.

Let me refute the suggestion made in a commentary on a television programme that somehow the Executive will be setting the terms of reference of inquiry. The terms of reference will be set by the oversight committee which is chaired by a member of the Opposition and I indicated when I was in discussion with that committee that as a rule, I would regard it as improper to have Whips applied to those making the decisions. I believe it should be done on the basis of objective evidence presented to the committee.