Brendan Howlin (Wexford, Labour)

Some people want to continue that. They can create as many straw men as they wish to show how flawed we are to do the work but, objectively, there are many decisions in the courts that are the law but are not necessarily just. We need to have that debate.

This is a simple proposal. It does not trample on the separation of powers in any way; it simply asks Parliament to function like virtually every other parliament on earth, to hold inquiries and to find facts that impact on policy and legislation and that hold public officials to account. It is not so shattering or awful; it is normal. Many things that are normal elsewhere are not normal in this jurisdiction and we want to reassert that.

Senator O'Brien talked about the impact of the proposal on the Committee of Public Accounts. I went through the structure of this in detail and how it would operate, assuming the people supported it. A committee of the Houses could determine an issue was of such importance it needed to be investigated. It would apply to the Committee on Investigations, Oversight and Petitions and make a case and the Committee on Investigations, Oversight and Petitionswould decide if investigation was merited. If it determined it merited investigation, it would draw up the terms of reference and prescribe a timeframe and make a submission to the Dáil and-or the Seanad and the Houses would then vote on the proposal. If the Committee on Investigations, Oversight and Petitions did not feel investigation was warranted, there would be no further appeal. It has the power over this objectively. The chairman is independent and drawn from the Opposition benches, currently a member of Sinn Féin, and would operate without a Whip in making that decision. That is how a functioning parliament would work. The Committee of Public Accounts would be the same as any other committee; it would simply make an application. This would enhance its powers but it would not be able to determine any more than any other committee that an inquiry should take place, it would be a matter of making a case.

The legislation provides for a mirroring of the procedure carried on in the DIRT inquiry, with a fact finding phase. The first phase would be the gathering of information privately to form the basis of the inquiry. The fact finding could be done by the Comptroller and Auditor General, the Ombudsman or someone completely new where the facts are not adduced in private first, such as a lawyer, an accountant or someone with a specific knowledge of the skills required in a particular area. That would be the basis for making the determination, the same as the Comptroller and Auditor General does for the Committee of Public Accounts.

Would the protocols be subject to court oversight? It is important to be clear on this. From the very beginning, the focus has been on subsection (4) of the Schedule, "where it shall be for the House or Houses concerned to determine with due regard to the principles of fair procedures". I put in "with due regard for the principles of fair procedures" although I was absolutely assured by the Attorney General that of course fair procedures apply under Article 40.3 of the Constitution and would be vindicated and justiciable by the courts. Putting it in explicitly, however, makes it crystal clear that someone must determine with due regard to the principles of fair procedures if it is alleged the Houses have not applied them fairly and of course the courts would do that. The notion that somehow the courts would be timid in asserting that right flies in the face of our experience and all advice I have from the law officers of the State.

Someone might feel aggrieved in the balancing act that the Oireachtas should do. We will deal with that in Senator Mullen's amendment, where he wants to ouster the Oireachtas from the balance. It is a matter of practicality. The line committee, having been authorised by the Committee on Investigations, Oversight and Petitions, is sitting and someone makes an application. The ruling must be there, we cannot trot off somewhere else on a day by day basis for ruling. Practically it should be for the Houses under set norms and protocols to make that determination. If someone feels their constitutional rights, or rights beyond the Constitution in terms of our international obligations or the provisions of the European Union Charter on Fundamental Rights, have been breached, he has the right to have that oversight checked by the courts. It is not an issue.

The notion that Minister's should not make suggestions and questions about the role of Whips arose. Ministers should not be any different from anyone else in having views on this. Many Members suggested there should be an inquiry into the banking system. Am I to be precluded from having an opinion on that? I should not be, I am an elected Member of the Houses and should be allowed a view.

The oversight committee is restricted, it will not conduct the investigation, it will determine the terms of reference; it is the gatekeeper of the investigation. It will determine if the issue is of such importance that it requires investigation and will craft the terms of reference. The line committee or a subcommittee of it will actually conduct the investigation.

In the past, the Executive set the terms of reference for tribunals of inquiry. I have been involved in one or two inquiries; I worked hard to get the Morris tribunal established and its terms of reference, which were voted through the Houses by a majority. My original proposal to establish a tribunal of inquiry into activities in Donegal was defeated by one vote. Amazingly, included in the terms of reference of the Morris tribunal, which people say is the model we should use, was the conduct of Jim Higgins and me as whistleblowers but excluded from the terms of reference was the conduct of the Minister for Justice, Equality and Law Reform. It was an extraordinary set of circumstances because that was the nexus of where decisions were made.