Olwyn Enright (Laois-Offaly, Fine Gael)

I am broadly supportive of the establishment of commissions of inquiry. It must be accepted that the facility to hold tribunals or commissions of investigation is still needed. I understand concerns as regards the rising costs of holding such investigations and the vocal public disquiet, the legal fees paid and the length of time it is taking to reach conclusions. Unfortunately, it seems that we emphatically need such tribunals or commissions at this point.

Basic issues of natural justice are at play in this debate. The serious errors of the past — some distant and others more recent — require examination. The abdication of responsibility by those in control at different intervals also needs to be investigated. Most importantly, the failure to protect the most vulnerable people in this State when they needed such protection cannot go unchallenged, I will focus in particular on the Commission to Inquire into Child Abuse in which I have a particular interest. It was established on 23 May 2000 following an apology by the Taoiseach to the victims of past abuse. It was rightly acknowledged at the time that these victims deserved to have their stories heard. In the past they were forgotten by our society and abandoned in a shameful manner. The remit of this commission was to hear their stories, investigate the abuse of children in institutions and publish findings and recommendations on dealing with the effects of this abuse.

Many of the victims of past abuse and neglect have had shocking and distressing experiences. It was right and proper they be given the opportunity to tell their stories and show how society failed them in the past so that we can try to ensure this does not happen in the future. Many of these victims of abuse are approaching old age. The commission should now be at work hearing their cases. These people have much to teach us and future generations about the kind of State-sponsored barbarity that can exist in a society that fails to be vigilant and to protect the vulnerable. We need to hear their stories so this is not forgotten.

It is an indictment of the Minister for Education and Science and the Government that the Commission to Inquire into Child Abuse has heard so few cases since it was established and has been unable to progress further since last September. That is why this type of legislation is particularly welcome. The resignation of Ms Justice Laffoy, as she said, was a direct result of the failure of the Department of Education and Science to engage with her commission in a proper manner. It was the lowest point in the history of commissions of inquiry since their establishment. I make that point to illustrate the importance of our having the power to establish commissions or tribunals of inquiry or investigation. A society that fails to examine painful issues from the past such as those from the Commission to Inquire into Child Abuse is failing in its responsibility.

There are a few different issues regarding the proposed legislation that I would like to raise. I am concerned at the attempt in this legislation effectively to sideline the Houses of the Oireachtas, although the Minister would probably disagree. Under section 3, a Minister, with the approval of the Minister for Finance, can establish a commission of investigation by order. That order must then be laid before the Houses of the Oireachtas and requires the acceptance of each House before it comes into effect. Under section 4, the order establishing the commission may allow the Minister to set the terms of reference of the investigation without consulting either House of the Oireachtas. That is a significant and unwelcome aspect of the proposed legislation. It is clear that any commission of investigation must be independent of the Government. Not only must it be independent, it must be seen to be so.

To command the confidence of the public, especially taxpayers, a commission of investigation must be at arm's length from the Government. In that way it can fulfil its role without fear. The public must see that any commission is given the necessary independence and autonomy to fulfil its investigative role with no question mark over any future commission's impartiality. It is possible that such a commission could be investigating those who are part of or associated with the political world. Such a commission must be independent and seen to be so by the public. Unfortunately, sections 3 and 4 will not have that effect.

Fine Gael believes that the role of the Houses of the Oireachtas in bodies of this type must be reinstated. We believe that commissions of investigation should not only be established by the Houses of the Oireachtas but have their terms of reference set by them. Those terms of reference are critical to the workings of any investigative commission or inquiry. When set correctly, they can greatly assist the work of the investigation and the speed with which such an investigation can reach a conclusion. Terms of reference should not be set by the Minister.

In addition, Fine Gael believes that the chairman of each commission of investigation should be required to be answerable to the Houses of the Oireachtas or a committee of the Houses. It would be a positive step for the chairperson of a commission to meet and report to a committee of the House. Those meetings would allow the chairperson of a commission to answer questions on the investigative process but not on the content or detail of its investigations. Had Ms Justice Laffoy had that opportunity, rather than spending two years writing to Ministers and the Department, she might have had some of her very legitimate concerns dealt with at that stage. Recently we have seen the great difficulties that were encountered by her commission, established to investigate matters of grave importance, when dealing with a Department. Ms Justice Laffoy, the former chairperson of the Commission to Inquire into Child Abuse, was left with little option but to resign following the unhelpful manner in which requests from her were dealt with by the Department of Education and Science.

It is also clear that there is an inherent conflict in having the Department of Education and Science as the sponsoring Department for this commission, as well as being under active investigation by it. That inherent conflict has been highlighted to an even greater extent in the third interim report of Ms Justice Laffoy. In her most trenchant criticism of the Department, Ms Justice Laffoy states:

The Committee is not satisfied that, since its establishment, it has received the level of co-operation which it is entitled to expect to receive from the Department of State which is its statutory sponsor. Moreover, it has experienced difficulty in securing compliance with its statutory requests and directions by the Department in its role as Respondent.

Ms Justice Laffoy was keenly aware of the conflict that existed in the dual role assumed by the Department of Education and Science. On the one hand, the Department was the sponsor for the work of the commission, involved in detail in setting it up and financing its work. On the other hand, the Department was the focus of the commission's investigative attention. That was a clear conflict of interest about which Ms Justice Laffoy was visibly concerned, especially as time went on and the obstruction of the Department became more and more evident to her and her inquiry.

On 29 January 2003, Ms Justice Laffoy wrote a paper to the Attorney General, entitled Position of Commission in relation to Government Review. The purpose of that paper was to set forth the considered position of the commission regarding the review announced by the Government into the remit of the inquiry. One of the key recommendations made by the commission to the Attorney General related to its independence. Ms Justice Laffoy wrote:

The Commission is concerned about public perception of the appropriateness of the Commission being reliant on the Department of Education and Science for its resources and that Department being the Commission's communication channel to Government given that:

The Department's conduct over the past 60 years is being investigated by the Commission, and

The Department has a contractual arrangement with the religious orders which managed residential institutions in the past, which might be perceived as not being conducive to support for the Commission's investigation of the conduct of those orders, which the Commission is mandated to conduct.

Ms Justice Laffoy continued to suggest that the Government consider that the functions resting in the Department of Education and Science regarding the commission instead be given to another Department, with the exception, for similar reasons, of the Department of Health and Children or the Department of Justice, Equality and Law Reform.

Given those difficulties, it is hard to see how allowing a Minister to set the terms of reference for a commission is wise or welcome. Clearly, the Minister for Education and Science has political responsibility for his Department and the allocation of resources. From even a cursory reading of the third interim report of Ms Justice Laffoy, it is apparent that neither he nor his predecessor resourced the commission properly or enabled his own Department to respond to the commission's requests in a manner which indicated that he understood or appreciated the importance of the commission's work. I find it difficult to accept that the Department of Education and Science, or any other Department, should be in the position of setting the terms of reference for any future commission with responsibility to examine matters directly relating to that Department. It is a contradiction and, if we really want to get to the truth and this legislation is to have any teeth, we must ensure that that is not the case.

The Department of Education and Science was always going to be critical to the success or failure of the commission. Ms Justice Laffoy acknowledges from the outset that, for the commission to carry out its work in a "fair, proper, efficient and cost-effective" manner, it required the full engagement of the Department of Education and Science. However, that engagement was not forthcoming. Ms Justice Laffoy lists several specific concerns regarding the co-operation of the Department of Education and Science with the commission:

The Committee's principal area of concern ... relates to the manner in which the Department has complied with directions for discovery and production of documents.

She went on to say:

The Department, despite clear indications from the Committee that the prescribed form should be followed, has unilaterally omitted those averments from an affidavit of discovery sworn pursuant to a direction. This is not a state of affairs which the Committee finds acceptable.

Those are serious criticisms in which a commission established by the Government, with a senior member of the Judiciary as its chairperson, showed that it was being hampered and hindered in its investigation by a Department. It is difficult to think of a more serious charge being made against a Department. Those critical difficulties have meant that the Commission to Inquire into Child Abuse has heard only a fraction of the cases that it had hoped to deal with. The victims of past abuse are left with questions unanswered and their cases unheard.

The difficulties encountered by the Commission to Inquire into Child Abuse when dealing with the Department of Education and Science should serve as a caution to us when considering the Bill. Is it really appropriate to allow a Minister to set the terms of reference of future commissions of investigation rather than this House having the power to do so?

I also have concerns with regard to section 6(2) which effectively states that the terms of reference of a commission cannot be amended where to do so would prejudice the rights of any person who has co-operated or provided further information to it. That seems effectively to grant immunity from further and deeper investigation to those who assist a tribunal or commission, irrespective of what negative detail of their role later becomes available. To tie the hands of a commission in that way seems most peculiar.

Section 9(2)(b) is also unusual. It imposes a mandatory obligation on a commission to seek the voluntary co-operation of persons whose evidence is desired, and the commission must facilitate such co-operation. That section also warrants careful consideration. The practicality is again evident. We saw to it that Ms Justice Laffoy was given the powers that we thought necessary, yet a Department, as well as other people appearing before the commission, failed to facilitate it and grant such co-operation. To state that the commission can facilitate that is not as clear as it would at first appear. In practice, that section could turn out to be unduly onerous for the commission. An example would be whether the commission might be obliged to travel overseas to facilitate witnesses. If that were the case, the progress of future commissions could be impeded. That is the direct opposite of what the Minister is genuinely trying to achieve through the new legislation.

The costs of inquiries and commissions of investigation are frequently matters of public comment and criticism. In this legislation, the requirement that an estimated cost for any commission be prepared is an important step in curbing excessive costs and reducing the burden on the taxpayer. Commissions of inquiry will always place a cost on the taxpayer, but that should be managed effectively to minimise costs where possible. It is strange that the first time the Government became really exercised over this issue was when it was investigating the treatment of people by the State and various religious institutions, and it became exercised about the attendant cost of that rather than the issue in general.

It was reported last Sunday that lawyers have received more than €100 million in fees from tribunals to date. Understandably, there is considerable public disquiet about this, a point made yesterday by my colleague, Deputy Jim O'Keeffe. In other areas projects must be advertised and tenders must be received and evaluated under the dual criteria of getting component work done for the State in a manner that is not wasteful of State resources. Perhaps the Minister would give consideration to adopting this type of methodology in this case.

I broadly support the legislation. When does the Minister intend to introduce legislation to reform all tribunals of inquiry legislation, which dates from the 1920s? Deputy Kelleher and Deputy Ryan spoke about the public's interest and wondered if it had waned. I believe it has waned and that is not surprising. The phrase "tribunal fatigue" is regularly used and that is understandable. However, people's interest will revive when the final reports are published. There have been leaks and a great deal of reporting on the tribunals and, in some ways, people have tried to manage information before the tribunals in such a way as to create tribunal fatigue before the tribunals report. That has an obvious effect in that people are familiar with the information before the judge makes recommendations.

The issues for the public, however, are the length of time and the huge costs. It appears to take us a long time to make a decision to hold a tribunal. Compare that with the Hutton inquiry in England. It was set up quickly and reported within a short time. If the same situation arose in this country, there would probably be a year or two of discussions before getting around to having an inquiry. That is a pity. If matters were dealt with speedily from the beginning, it would save time and money. There seems to be an assumption that the Bill will provide a solution to the problems of time delays and costs. I hope that will be the case but I am not convinced at this stage. If it is the solution, it will be helpful in terms of public perception.

The Bill deals with the conduct of commissions of investigation. There will be a chairperson and other members on the commission of investigation. In her report, Ms Justice Laffoy was strongly of the opinion that if her commission was allowed to operate through separate committees to investigate different areas — I believe she suggested four — it would speed matters considerably. She believed she would then be able to complete her work within two years. Mr. Justice Ryan, in his report to the Attorney General, was of the opinion that this would not be a good idea because it was possible that the four different committees might come to different conclusions, which would not be appropriate. He said there should be one group of people in charge of investigating all areas. This issue is not dealt with sufficiently in the legislation. It must be decided upon. There has to be a definite position on whether this will be done through various committees or if there will always be just one committee. The same rules will have to apply to all commissions of investigation.

Section 31 deals with reports and section 32 deals with the right of a Minister to request interim reports. Consideration should be given to the issue of interim reports. Perhaps they should be obligatory after a certain period of time or after particular modules. It is envisaged that these commissions will not take as long as tribunals but if they are taking a long time, other people as well as the Minister, particularly Members of the Oireachtas, should be able to seek an interim report.

See this speech in context