Brendan Howlin (Wexford, Labour)

Let us consider the role of the Houses of the Oireachtas and the separation of powers. As I said, it will not be a role for the committee to second guess the courts. I accept Senator O'Brien's natural admonition "Bí curamach", but we must be courageous as well. We have to test the waters, if this model is not completely robust, we will tweak it again but the constitutional framework will give us the scope to do that. If the issues are explained properly to the people, they will welcome it. Senator Sheahan alluded to the promised radical reforms; these promises reforms will be delivered. He also spoke positively on the role of the Committee of Public Accounts.

I do not think I should venture into the scope of inquiries. I will allow individual committees to discuss that and come up with suggestions. I do not expect a queue of inquiries. As Members have alluded to, there will be three different mechanisms if this Bill is enacted to look into matters of public concern. We have two at present - the tribunals of inquires mechanism under the 1921 Act, the original Act that has proven fraught; and the more recent mechanism, the Commission of Investigations Act 2004, which has worked but is not completely satisfactory. When a report on an issue such as an accusation against Fr. X or Brother Y, and it is a matter of public policy, people want to see public accountability. There needs to be more than that, in some circumstances. Not everything will be suitable. If we have three different mechanisms to hold inquires, all the better.

As I say, most of the focus has been on subsection (4), the power of the Oireachtas with the specific additionality that I included with due regard to the principles of fair procedures. There can be no doubt that the Oireachtas must have regard to the principles of fair procedures. There was never any doubt in the advice I have, but now it is stated explicitly. I assure Members that where it is believed that the fair procedure is breached, the courts will be there to vindicate people's rights in that regard. It is the intention to insert that balancing in the public interest. In all the discussion, and we can dress it up how we like, on the balancing of fair procedures and the rights of the individual, we must take account of the public good and the rights of the overwhelming majority. The idea is that in the first instance it will be done by the Oireachtas in this process.

Senator van Turnhout raised the Cloyne report, which I mentioned and Senator Bacik raised the need for a robust parliament, which I totally agreed with. She also referrred to balancing the Executive and wondered if the Abbeylara sub-committee selected the right subject matter. The consequence is that what was exposed in the court case was that there was no inherent power to have any inquiry. I must say, and I am entirely biased, that I believe that had the Abbeylara sub-committee been allowed to complete its work, it would have been very efficient and balanced and would have been much less costly than the tribunal of inquiry that took years to conclude its business. That, however, is a matter for debate.

Senator Bacik made the point on paragraph 4 that "it shall be for the Houses to exercise this balance". I have taken a legal opinion on this section. Had it been the intention of the drafters of that subsection that it was an ouster clause for the courts, the words "exclusively" or "solely" would have been used. There were not used deliberately because it is not an ouster clause and is not intended to be.

Senator Sean D. Barrett talked about making parliament relevant, and I entirely agree with him. I noted his phrase " that it not about changing Government alone, but about changing governance". That is important. He also raised ways of avoiding the cadre of lawyers descending upon us.