Gerard Murphy (Cork North West, Fine Gael)

I agree. What I said is that the legislation confers responsibility on a Minister and if an inquiry falls within his or her jurisdiction he or she has total power to initiate, monitor, change its terms of reference or abolish it if it does not go entirely his or her way. An article by Raymond Bradley in The Irish Times of 17 October 2003 states:

After years of inquiries and tribunals, Irish people are still waiting for a proper, impartial and effective investigation process to ensure that terrible events of the past are not relived in the future. Many of these events arose from the failure of State institutions to safeguard citizens' personal rights.

As the Laffoy episode has shown, Governments and their Departments often have different agendas for public investigations, usually financial considerations. The Department of Education and Science had a role in the Laffoy Commission and was under investigation.

The fact that the Department was then involved in altering the investigative process after the Commission had started would have resulted in a report that would certainly have been fatally flawed, and possibly subject to a legal challenge.

Miss Justice Laffoy's regrettable resignation was hardly surprising. The Government's intention to alter her mandate after the Commission had already begun its work, left Justice Laffoy with no alternative but toresign.

The truth of the matter is that Government Departments can have a vested interest in the comprehensiveness and effectiveness of the investigative process because in many instances it is these entities who are the subject of the investigation.

And the reality in Ireland is that the establishment of all investigative processes, including the Laffoy Commission, requires the victims to negotiate the terms of reference for their inquiry with a Government Department, which in turn becomes the subject of the investigation itself.

These negotiations are never a meeting of equals. The victims very often represent the most afflicted groups in society, such as those affected by institutional or clerical abuse.

These people have little or no direct experience of Departmental procedures, and find it difficult to adequately represent their own interests.

Some groups also do not possess the political knowledge or force required to achieve proper investigative entitlements.

As a result these victims are highly disadvantaged during negotiations with State entities and the dice are loaded against them.

In order to achieve a proper investigative forum for each of the numerous, major catastrophes affecting Irish citizens, the main principle must be to achieve equality of bargaining power, and respect for the position of persons afflicted.

This will never be achieved when the victims are negotiating with a vested interest, such as the Department or Minister that may be investigated. The article also states: "The appearance of impartiality must be maintained in all investigative-type forums."

The provisions in this Bill, which take powers from the Oireachtas and give them to the Minister, are a recipe for a repeat of the Laffoy episode. Section 3 allows the Minister, with the approval of the Minister for Finance, to establish an investigative committee solely by order. Section 4 allows the Minister to set the terms of reference without consulting the Oireachtas. Therefore, everything is in the hands of the Minister. This is no way to gain public confidence or support from the Opposition. The Oireachtas must establish the commission of investigation and set out its terms of reference, and the chairman of the commission must be answerable to a committee of the House.

The Bill could be improved greatly by transferring the powers given to the Minister back to the Oireachtas. Fine Gael appreciates the difficulty the Minister had in other areas: the balancing act between trying to devise an effective and cost-efficient system and, at the same time, protecting the rights of individuals as guaranteed by the Constitution. These considerations mean the Minister has had to give rights of attendance, representation and cross-examination.

Section 10 states that the commission must sit in public when a witness makes such a request or where fair procedures would require this. This is unfortunate because it could reintroduce into the process the public aspect to the inquiry, and this could result in the reintroduction of legal teams again at huge cost.

The right of a person, as protected in the Constitution, may prevent this system from being as effective as the Minister and the public would wish. The public accept and know from experience that the only successful public inquiry was the DIRT inquiry, which was carried out by an Oireachtas committee. Subsequent to this, the Committee on Justice, Equality, Defence and Women's Rights began an inquiry into the Abbeylara incident, but the courts put an end to it because of constitutional restraints.

Most inquiries should be held by Oireachtas committees where possible and the parliamentary system should be set up to deal with this. There is much precedent for this in other jurisdictions. In this context, the Committee on the Constitution should consider this matter to see if changes can be made to the Constitution that would respect the rights of the individual while bearing in mind the good of the community and address the concerns of many citizens who want proper investigations and commissions that do not cost the taxpayer a fortune.

Despite the good intentions of this Bill, it is unlikely, because of the constitutional restraints, to be successful in establishing a system of inquiry that would equal a parliamentary one. This may be the best available option without a constitutional review but to make it the best available the Minister must accept amendments that restore the balance in favour of the Oireachtas. Having said this, the best solution is to avoid, if at all possible, the need for inquiries or commissions. It was constantly said that if questions were answered properly in the Dáil there would have been no need for the infamous beef tribunal. Every effort must be made to reform the Oireachtas to allow as much probing power as possible. The role of the committees must be expanded.

The question of setting up independent boards that save Ministers being questioned on a varying and increasing range of issues must be addressed. A Minister must be answerable to the Dáil for the actions of a board he has set up and to which he has made appointments. There is no doubt that if these changes were made the need for inquiries or commissions would be lessened.

Continuous scrutiny and early detection of problems would deal with many issues that would otherwise end up in a commission. Having said this, the general aim of the Bill must be welcomed, if only as an interim step in trying to find the correct formula for carrying out inquiries.

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