Pat Rabbitte (Dublin South West, Labour)

That is the kind of solidarity I appreciate. Thank you very much. I ask the House to give a Second Reading to the Committees of the Houses of the Oireachtas (Powers of Inquiry) Bill 2010, which has been published in my name on behalf of the Labour Party. This Bill seeks to restore inquiry by parliamentary committee. The Labour Party believes that institutional reform - wider than Dáil reform - is necessary, but that must wait another day.

The Labour Party believes that a parliamentary power of inquiry is necessary and intrinsic to the proper functioning of a representative, responsible parliamentary democracy. We believe the State is the poorer - has functioned more poorly - in the absence of a system where those who exercise authority in the State can be called to account for their performance in office.

The Bill goes one step towards meeting the criticism of the effectiveness of the national Parliament. I am aware that very shortly there will be a test arising in this House concerning accountability. I just heard a pathetically self-exculpatory statement from the Minister for Defence, who told us that he acted innocently. Having crawled around Limerick spreading disgraceful rumours about a rival candidate running a brothel, he has the cheek to tell us he forgot it. He has the cheek to come into this House and say it was an innocent misrepresentation. I hope that when this House is given the opportunity in the motion of confidence, that the Minister for the Environment, Heritage and Local Government, Deputy Gormley, will revert to his formerly high moral stance. He will have the opportunity, with the Green Party, to vote in the confidence motion. We will see whether the national Parliament is capable of asserting accountability.

The powers conferred by the Bill will enhance the relevance of Dáil Eireann. It will help distinguish parliament from government and demonstrate the capacity of parliament not only to hold government to account but to seek and get answers on matters of concern to our citizens. It is very damaging to confidence in politics that the perception is abroad that Deputies who are not office holders are without influence and are used merely as lobby fodder to rubber stamp measures brought forward by Government.

As the economic crisis has deepened, so the criticism of Parliament and the practice of politics has grown. Yet the financial and banking crisis has exposed in a dramatic way that when the economic crisis threatens the collapse of economies, the last resort is the State. The nature of State intervention may well be the subject of political dispute but ultimately we rely on governments to lead the reconstruction. Politics does matter and public debate in Ireland at the moment is being steered towards the conclusion that we are in the mess we are in because of inherent failings in the political system. That is a convenient and self-serving conclusion for the party that has dominated Government for the past dozen years. We are in the mess we are in because of traceable actions by successive Governments led by Fianna Fáil and inspired by the neo-liberal politics of the Progressive Democrats. The functioning of the political system is far from perfect and is in need of constant reform but the political system is not responsible for the reckless decision making that has resulted in the Irish recession being worse than is being experienced throughout most of Europe.

Dáil reform is the mantra of the day. Critics inside and outside Parliament each have their own particular aspect of Dáil reform to which they would like to give priority. Others do not know what they mean by Dáil reform but it is a useful weapon to denigrate the political process. Oppositions, it must be said, are generally enthusiastic about radical reform only to see their ardour abate somewhat when they become the Government. Governments work hard to ensure they are not exposed to any greater degree of accountability than that with which they can get away. Some Governments, such as this one, resist reform as a principle of ideological conviction.

It is that power to inquire into public administration that is the focus of the Labour Party Bill. I expect the Government will not obstruct the Bill going to Committee Stage now that the threat of a public inquiry into the banking crisis no longer hangs over the it - or over the bankers. I regret very much - this House will rue the day - that we decided not to have an open, accessible public inquiry into the banking disaster. That, however, is not an argument for failing to address the defect identified by the Supreme Court in legislation governing the powers of the Dáil and Seanad through their committees to conduct inquiries into matters of public concern.

Lest there be any doubt, I acknowledge that Members of the House cannot and should not substitute for the normal process of the rule of law. We are not prosecutors. We are not judges and we are not juries, but we are legislators. Our job is to frame the laws by which the State is governed. We cannot do this in abstract, as if we were blindfolded or as if we knew nothing about the situation in the country. We must make laws on an informed basis and we must know how the laws we make are applied in practice. At the moment these Houses make laws on occasion that are not enforced or are capable of being ignored or that are in practice routinely ignored. That is why the Dáil and Seanad - the two Houses of the national Legislature - must have the power and the duty to acquire and consider information on how the laws we make are administered on a day to day basis. The Dáil of course, has additional duties.

It is the Dáil, under the Constitution, that elects the Government and it is to the Dáil the Government is responsible and accountable. It is the Dáil that must approve every Government proposal to raise revenue and it must approve every proposal to spend revenue. The Dáil has the job of scrutinising the accounts as to how, and how well, every item of public revenue was spent. All of those are reasons, especially the Dáil, must have powers to inquire into public administration, into how well the laws we pass work in practice, how well they are administered, what defects are obvious in our laws, what new laws we pass to change rules that do not work or bring in new rules where no proper rule applied before. All of those are self-evidently compelling arguments for why this House should have the power to inquire into matters of public concern.

Regrettably, the collapse of the Abbeylara inquiry has been treated as an excuse to collapse inquiry by parliamentary committee. That has suited Governments since 2002 whose propaganda machines have put abroad the insinuation that, arising from the Supreme Court decision on the inquiry into Abbeylara, inquiry by parliamentary committee is no longer feasible. Any fair analysis of the judgments given by the Supreme Court in the Abbeylara case would show that this was never intended to be the case. For example, Mr Justice Hardiman made plain that it was not the intention of the Supreme Court to attack the established practices of the Oireachtas when he clarified the scope of the challenge in the Abbeylara case as follows:

There is nothing in the constitution which would prohibit a committee of virtually any kind ... from conducting an inquiry into a matter which it considered worth inquiring into ...To adjudicate, in the sense that the term is used here, on the culpability of citizens in their conduct in my view be equated with the everyday search for knowledge of facts or expert opinions.

Mr Justice Geoghegan in his judgment acknowledged:

A legitimate inquiry by a committee of the Oireachtas which was directed towards a perfectly proper legislative purpose might in some circumstances inevitably and unavoidably lead to implied blame being attached to an individual. That would not necessarily render the inquiry ultra vires...It is also true that a legitimate Oireachtas investigation may inevitably result in a finding of fault in a management system which in some circumstances could involve an implied attachment of blame. That also might be legitimate.

The Chief Justice, Mr Justice Murray said:

I do not see any reason why the Oireachtas cannot conduct inquiries of the nature which they have, for practical purposes traditionally done including inquiries into matters concerning the competency and efficiency in departmental or public administration as well as such matters as those concerning the proper or effective implementation of policy to make findings accordingly. Also [in the case of] (sic.) a particular office holder such as the chief executive of a semi state body, who is by virtue of his appointment, whether by statute or contract, answerable to the Houses different considerations arise ... Furthermore ... it is possible for a parliamentary committee to conduct an in depth investigation of a large police operation and make extensive findings and recommendations of great public and legislative import without the necessity of making findings of personal culpability of individual police officers.

The question of personal culpability was struck down in the Abbeylara case because effectively if there was such a finding against a garda, it could amount to an unlawful killing. That is not appropriate to this House and nobody should argue that it is.

Dr. Gerard Hogan SC is well known to the House and he advises the Joint Committee on the Constitution on constitutional matters on a pro bono basis. He was quoted in The Irish Times on 23 December 2009 as being of the opinion "that Abbeylara, while causing difficulties, did not slam the door shut as many believe". He highlighted the distinction where the Supreme Court held that "it was unconstitutional for the committee to make a finding that a named person committed an act of homicide" and an inquiry, for example, into the banking crisis. The article further stated, "Hogan says an Inquiry into the banking system could comfortably operate provided it was not making findings that somebody engaged in nefarious criminal conduct."

I have taken trouble to refer to these judgments because of noises coming from the Government. The usual ploy by Government when it cannot credibly oppose a Private Members' Bill is to allow it into committee and then bury it. This is what the Government parties successfully did before the 2002 general election with my whistleblowers Bill. They could not risk being seen to oppose it but they could and did kill it off in committee. Independent banking experts have since gone on the record to say that if there had been protection for whistleblowers, the practices in our banks might never have been allowed reach the point where the banks threatened our entire economy but the Government knew best.

The second ploy used to demonstrate that Government is the repository of all wisdom is for a Minister to deride the Private Members' Bill and to promise that he will bring forward his own Bill. This happens every month of the year. For example, when I introduced the Garda surveillance Bill, the Minister for Justice, Equality and Law Reform memorably dismissed it because he said he feared "it would alert the criminal fraternity to Garda investigative techniques". Of course, a year later a similar Garda surveillance Bill was brought forward to demonstrate not just the Minister's determination to fight crime but the originality of his legislative impulse.

The third ploy used by Governments to stymie the Opposition's legislative efforts is to take refuge behind the advisorial skirts of the Attorney General. Successive Attorneys General have regaled many a dinner table as the port was being passed around with stories of how their supposed advices are used by Ministers to deride Opposition legislative initiatives. In this Bill I have sought to anticipate such argument and I have taken care to obtain the advice of constitutional experts. I have frankly been told that there is a degree of confusion among academic lawyers as to where exactly one might find the beginning and end of the implications of the Abbeylara judgment. However, I am assured by the same expert that this legislation brings inquiry by parliamentary committee into compliance with the judgment.

The only way to proceed, I am advised, is to advance curative legislation designed to remedy the defect identified by the Supreme Court. If our legislation works, then governance in this State will be the better for it. If it does not, then we have no choice but to consider alternatives by way of constitutional referendum. According to my advice, once this Bill is in place, a constitutional referendum will not be necessary but there can be little doubt about the outcome of such a referendum if it were necessary.

The order made by the court in the Abbeylara case was "that the conducting by the Joint Oireachtas sub-committee of an inquiry into the fatal shooting at Abbeylara on the 20th day of April 2000 capable of leading to adverse findings of fact and conclusions (including a finding of lawful killing) as to the personal culpability of an individual not a member of the Oireachtas so as to impugn his or her good name is ultra vires in that the holding of such inquiry is not within the inherent powers of the Houses of the Oireachtas".

Two points, therefore, require to be made. Making an adverse finding equivalent to finding a specified person guilty of unlawful killing is not a matter for Members of the Dáil. On mature reflection, I suspect that even the surviving members of that sub-committee would accept that investigating shootings lawful or unlawful is not our business. Second, the order of the court is clear that "the holding of such an inquiry is not within the inherent powers of the Houses of the Oireachtas". This is a reference to the fact that Dáil Éireann has never conferred on itself the power to inquire into matters of public concern.

The Labour Party has studied and taken advice on the Abbeylara judgments in the absence of any concerted effort on the part of Government parties to do so since 2002. The first issue, therefore, that we deal with in our Bill is the question of legal authority on the part of the Houses of the Oireachtas, through their committees, to conduct inquiries. Although the Oireachtas enacted the Committees of the Houses of Oireachtas (Compellability, Privileges and Immunities of Witnesses) Bill in 1997, it wrongly assumed that conferring on committees the power to compel witnesses to attend for the purposes of an Oireachtas inquiry of necessity conferred the prior power to conduct an inquiry. The courts have held otherwise and we must address that defect. Both of these defects have been apparent since the Abbeylara judgment in 2002 but the Government has been satisfied not to address either of them in the eight years since then.

An Oireachtas stripped of power suits the Government but it does not suit the people. Both Houses, but especially the Dáil, are expected to investigate, appraise and criticise the actions of Government as well as to propose alterations. In other words, up to the Abbeylara case, the Dáil had assumed it had the power to inquire but had failed to confer that power on itself through its committees. The second issue we deal with is the question of such an inquiry impugning the good name of any person. It is made clear in our Bill that it is not, and it should never be, the function of an Oireachtas inquiry to conduct any form of Star Chamber witch-hunt. The Bill makes plain that an Oireachtas committee must not consider, and has no power to decide or report upon, findings that could reasonably be seen to attribute civil or criminal liability to any individual. Our only interest in putting forward this Bill is ensuring the Oireachtas is adequately equipped when it comes to policy making as opposed to taking a definitive view on the facts of a controversial issue to identify and "name and shame" an individual.

We recognise there may be times when a careful line must be drawn between an inquiry into policy, as distinct from an inquiry into culpability. The first is foremost properly a function of the Oireachtas, while the latter clearly is not. The judges of the Supreme Court recognised that distinction and, within the normal rules that require the courts to presume that powers conferred on other organs of Government will be exercised in an appropriate and constitutional manner, will afford a space to the Houses in the exercise of functions most appropriate to themselves. The majority of members of the Supreme Court did not exclude the possibility of an Oireachtas inquiry into the conduct of Ministers, who are made responsible by the Constitution; of other entities which are made responsible by statute, contract or otherwise; or of when appraising the performance of Ministers or other principals, bringing into account the conduct of staff operating under their direction.

Mrs. Justice McGuinness pointed to a number of previous parliamentary inquires and said, "These committees have relied on voluntary submissions and willing witnesses but there is in fact no reason why such enquiries should not use the powers of the 1997 Compellability Act to obtain necessary evidence and information". Mr. Justice Geoghegan added that an Oireachtas committee "may necessarily have to probe into management structures and there may consequentially be read into the report implied criticism of persons in existing management roles." The present Chief Justice, Mr. Justice Murray, stated: "I did not see any reason why the Oireachtas cannot conduct inquiries ... into matters concerning the competency and efficiency in departmental or public administration as well as such matters as those concerning the proper or effective implementation of policy, and to make findings accordingly."

In summary, then, there is a need to restore the status of Parliament vis-À-vis the Executive. A parliamentary power of inquiry is necessary and intrinsic to the proper functioning of a representative, responsible parliamentary democracy. This Bill corrects the defect identified by the Supreme Court by conferring a power to inquire. By way of belt and braces, the Bill provides that there should be no finding of civil or criminal liability attached to any individual. It enables a two-stage process in which an appropriate expert may be retained to compile a book of evidence. Section 6 allows for the appointment of a legal assessor to guide the work of the inquiring committee. Only a Government hostile to the proper functioning of Parliament can credibly oppose this Bill.

I have had no communication from the Department of the Minister of State, Deputy Mansergh, about the attitude the Government is taking. There is no amendment on the Order Paper. I sincerely hope the Minister of State will recognise, in the interest of the relevance of Parliament, that this Bill should be nodded into Committee Stage tonight with intent on the part of Government to see it work its way through the House. We have been avoiding the issue for eight years and only in times of tumult, when something like the necessity for a banking inquiry arises, do we resort to this.

The Government has been saying, facilely, that the Abbeylara inquiry has put an end to inquiries by parliamentary committee. That is clearly not the case, as has been testified to by a number of academic constitutional experts. I referred to public coverage in The Irish Times in respect of Dr. Gerard Hogan SC, and there are others. It is a necessary weapon in any Parliament that it has the right to inquire into the quality of public administration. I hope the Minister of State will permit this Bill to proceed to Committee Stage tonight.

I commend the Bill to the House.

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