Martin Mansergh (Tipperary South, Fianna Fail)

Before setting out the Government's response to this Bill I wish to make a few preliminary comments. I have great respect for any Member of either House who produces a substantial Private Members' Bill, as this clearly is, and for which Deputy Rabbitte has made a strong case with his usual eloquence. The success rate of the Private Members' Bills under successive Governments has been relatively limited. I remember when Fianna Fáil was in Opposition under the rainbow Government in 1995-96 it was active in producing Private Members' Bills. The one that made it through, with many Government amendments to it, was the Criminal Assets Bureau Bill providing for the establishment of the bureau and the other major Private Members' legislation originating with the Opposition was Deputy Shatter's Bill. Even if a Bill is not accepted, the drafting of it can help inform subsequent legislation.

I am speaking on behalf of the Minister for Finance, Deputy Brian Lenihan, to articulate the Government's view of the Private Members' Bill, the Committees of the Houses of the Oireachtas (Powers of Inquiry) Bill 2010. I understand the Minister for Finance will speak to the House on this matter tomorrow.

The Government is opposed to this Bill. Notwithstanding this, I want to stress, as I have done, that it is entirely appropriate that proposals for improving the role of the Oireachtas should come from one of the main parties in the House. It is also clear that some thought has gone into considering how this role can be improved through this Bill. However, it is the Government's view that this Bill does not fully consider and address the important matters raised by the Supreme Court in the Abbeylara decision. It is for this and for other reasons, which I will set out for the House, that the Government is opposing this Bill.

It seems that the main purpose of this Bill is to address the legal implications of the findings of the Supreme Court in the Abbeylara case for inquiries undertaken by committees of the Houses of the Oireachtas. As Members of the House may recall, the declaration granted by the Supreme Court in the Abbeylara case states:

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

Several Deputies, including Deputy Rabbitte, have already referred to this.

The terms of the specific order, in the context of the Abbeylara inquiry, prohibited more than a finding of unlawful killing. Findings of personal culpability impugning the good name of a person were also prohibited. The essential basis for the Supreme Court decision was that an inquiry into past events which required establishing the truth of controverted facts and the making of serious findings of culpability was not an inquiry that was authorised by the Constitution. It is possible for an Oireachtas committee to make mere findings of fact as to the policy pursued and recommendations of change of policy and systems. However, even where the Dáil and-or Seanad have an inherent constitutional power to hold an inquiry because the subject matter of the inquiry relates to their constitutional functions, there are still constraints. It is clear that neither House could make a finding of criminal or civil liability against any person.

This Supreme Court ruling had significant implications for the conduct of inquiries by an Oireachtas committee under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997. In an attempt to address these complex issues, the Bill, as tabled by Deputy Rabbitte, seeks to convey legal authority on committees of the Oireachtas to conduct such inquiries and confirms that such committees cannot decide or report on findings or opinions on non-Oireachtas individuals' civil or criminal liability or make findings which could reasonably be seen to attribute civil or criminal liability to any individual. It also provides that such committees can appoint assessors to advise, guide or assist and investigators to carry out preliminary investigations and report these investigations.

I again acknowledge the effort that went into crafting a Bill of this scope and nature and the genuine endeavours by the Labour Party to progress matters on the operation of committees in the wake of the Abbeylara judgment. I also share the concern that the legislative work already done on privilege and compellability and on the development of the parliamentary inquiry model, as evidenced in the DIRT inquiry, should not come to a standstill. However, the Bill has shortcomings and, while it could be used as a starting point regarding some of the issues, further examination and work would be required to address these shortcomings, particularly regarding sections 4 to 9, inclusive.

The Bill allows in section 4(3) for a committee of the Oireachtas not to be inhibited in the performance of its functions by the possibility of liability being inferred. It also provides such a provision in section 8 in regard to the performance of investigators. However, the advice from the Attorney General is that these provisions require further consideration relating to the issue of liability being inferred.

The Bill, as currently drafted, could be open to legal challenge. As Members of the House will appreciate, there are complex legal issues involved which are difficult to resolve and require further detailed examination and review.

There are already considerable powers available to the Oireachtas in order to conduct investigations appropriate to it. The Oireachtas may establish a committee to investigate a matter of significant public importance. It is worth recalling that the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 already contains provision for Oireachtas committees, whose terms of reference so provide, to permit the calling of persons and papers, statutory power to compel the attendance and co-operation of witnesses and the furnishing of documents. The 1997 Act also confers High Court privilege on all persons directed to give evidence or present documents to such committees. This is virtually identical to the absolute privilege enjoyed by Members of Dáil Éireann or Seanad Éireann. These two elements are essential to the legislation; powers to compel the giving of evidence and powers to grant privilege and immunity to those required to testify. The symmetry means that those compelled to answer questions must be given protection from any adverse legal consequences of complete responses.

Under the existing legislation virtually every citizen is compellable - members of the public, the Taoiseach, the Tánaiste, Ministers, Ministers of State and officials. However, in keeping with convention, the President and members of the Judiciary are exempt from the legislation. In addition, the compellability of the Attorney General is limited to the general administration of his office before the Committee of Public Accounts; the Attorney General is not compellable in his roles as legal adviser to the Government or as defender of the public interest. Also the Director of Public Prosecutions is compellable before the Committee of Public Accounts only for the general administration of his office and for statistical data published in a report. A partial restriction also applies to civil servants, gardaí and members of the Defence Forces who may not question or express comments on the merits, or the merits of the objectives, of Government policies.

The existing arrangements are a balance between, on the one hand, the rights of individual citizens to due process and fair procedures and, on the other, the entitlement of the national Parliament to investigate and examine questions of urgent public concern.

Very significant initiatives were taken to improve and strengthen accountability to the Oireachtas through the 1997 legislation. The intended effects of these strengthened accountability frameworks provided in the compellability legislation were to enable quicker, less costly inquiries of immediate public concern to be conducted by the elected Members of the Oireachtas. It now seems that more work is needed on the complementary mechanisms, legislative or otherwise, if we are to take this model further in the context of clarifying the power of the Oireachtas to hold inquiries.

Following on from the practical experience of the DIRT inquiry and the Abbeylara judgment, it is clear that a balance is needed between an arrangement that would allow a committee of the Oireachtas to investigate matters with powers to compel the attendance of witnesses and submission of documents, on the one hand, and the safeguarding of the rights of individual citizens to due process, fair procedures and the protection of their good name and character, on the other. Such a balance was struck in the DIRT inquiry by ensuring that crucial stages of the investigation were carried out by the Comptroller and Auditor General who is a constitutional officer with involvement by the Committee of Public Accounts only when the Comptroller and Auditor General had completed his part of the investigation. It was provided that not all information that came to the attention of the Comptroller and Auditor General in his investigations would be passed on to the Committee of Public Accounts and the public domain. Confidentiality was protected in regard to certain information.

The approach taken in the DIRT inquiry also ensured that the investigation could be completed in a timely fashion, recognising that carrying out such an investigation involved a massive commitment by Deputies to the potential detriment of their other legislative and representational duties. Unfortunately, there is not such a robust process envisaged in the Bill proposed by the Labour Party that would recreate such safeguards.

Let me recall for the House that in his Second Stage speech on the DIRT inquiry legislation in December 1998, the then Minister for Finance, Charlie McCreevy, said that in the past there was "a belief among some Members that entrusting to themselves the kind of investigations which had traditionally been undertaken by tribunals would lead to inquiries being conducted more speedily, more effectively and with a greater awareness of public concern". The Minister noted that the 1997 Act went some way towards this but that in doing so, some Deputies had to be disabused of the idea that "procedures, generous time limits for responding to directions and safeguards on individual rights could be modified". Such safeguards were integral to the procedures used in the DIRT inquiry and subsequent developments clearly showed that the concerns the former Minister for Finance had in moving away from them were justified.

It was also the case that arrangements for the DIRT inquiry were tailor-made to fit a particular investigation necessitating modifications to the provisions contained in the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997. The Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act 1998 was a clear recognition that the precise conduct and terms of reference of inquiries by Oireachtas committees are inevitably dictated by the particular circumstances of the subject of the inquiry. The legislation proposed by the Labour Party would have permanent effect and is likely to be more open to challenge and costly reference to the courts.

The ruling in the Abbeylara case identified certain constraints on the current system and experience has shown that fair procedures and individual rights must be protected. Matters which require inquiries to be conducted tend to be complex and multi-layered and different factors need to be taken into account in deciding on the nature and type of inquiry and the role for the Oireachtas in each case. The process is evolving and it is clear that what may be termed a "one size fits all" approach is not appropriate.

The Private Members' Bill under consideration today was referred to on 20 January this year in the context of the Labour Party's Private Members' motion on an inquiry into the banking crisis and the desire for such an inquiry to be conducted in public by a committee of the Dáil. It is the Minister's view, as clearly set out in the House, that the proposed framework recently established by the Government provides the most effective way of getting to the heart of the issues in the banking crisis to inform the future management and regulation of the sector and also provides the most ample opportunity for the Oireachtas to have a substantial input at each stage of the inquiry process.

As the Minister informed the House at the time of that debate, the Government approved the framework for an investigation into the banking crisis and for its subsequent consideration by the Dáil. To recall the main elements for the benefit of the House, the inquiry will have two stages. First, the Government has commissioned two separate reports, with one from the Governor of the Central Bank on the performance of the functions of the Central Bank and the Financial Regulator and the second from independent international experts Mr Klaus Regling and Mr Max Watson. They will conduct a preliminary investigation into the recent crisis in our banking system and inform the future management and regulation of the sector.

These reports will also consider the international, social and macroeconomic policy environment which provided the context for the recent crisis. Work on both reports has started and it is expected that both reports will be completed by the end of May this year and laid before the Houses shortly thereafter.

The second stage of the inquiry will be the establishment of a statutory commission of investigation, which will be chaired by a recognised expert or experts of high standing and reputation. The terms of reference for the commission of investigation will be informed by the conclusions of the two preliminary reports and consultation with the Oireachtas. The commission of investigation will examine and report on the causes of the systemic failures, such as corporate strategy, governance and risk management in the Irish banking sector. The aim will be for the commission to complete its work by the end of this year, and its report will then be laid before the Oireachtas for further consideration and action by an appropriate Oireachtas committee.

It is important to point out that the terms of reference for the statutory component of this investigation cannot be set until we have the benefit of the preliminary reports from the Governor of the Central Bank and from Mr Regling and Mr Watson, along with the views of the Oireachtas on them. In examining these issues, the commission of investigation will have the powers available to it under the relevant legislation, which the House will be aware are substantial. The mechanism for inquiry contained in the Commissions of Investigation Act 2004 provides a robust framework which has already been tested in the investigation of matters of significant public concern.

Notwithstanding this, an Oireachtas committee will have a vital function in this process by assisting in the formulation of appropriate terms of reference with regard to where the inquiry goes at the conclusion of the scoping exercise and exercising its constitutional role of examining matters of public policy arising from the findings of the statutory inquiry. It is clear therefore that the Oireachtas will be involved at each stage of the planned inquiry process. Members of an appropriate Oireachtas committee - the Joint Committee on Finance and the Public Service probably being the most relevant - will meet with both the Governor and the independent expert at the outset of their work to be briefed on the members' priorities for investigation, and arrangements are being put in place for this to take place shortly. The two preliminary reports, when completed, will be laid before the Houses of the Oireachtas and the Oireachtas committee will be invited to consider the findings of the reports.

The terms of reference and draft Government order to establish the statutory commission of investigation will be laid before the Oireachtas and the report of the commission of investigation will, when completed, be laid before the Oireachtas for further consideration by the committee. It is open to the committee to hold public hearings on the report.

There was extensive debate in both Houses a number of weeks ago on the appropriate role for the Oireachtas in the banking inquiry. For reasons that the Government has already set out, a committee of the Oireachtas is not best equipped to conduct a banking inquiry or investigation given the range and complexities of the issues involved and speciality of expertise required to investigate these issues. I will reiterate the reasons.

Unlike the Committee of Public Accounts DIRT inquiry, the issues in the banking crisis are significantly more complex and will require a greater range of expertise. A crucial feature of the DIRT inquiry was the fact that the PAC itself was able to draw upon a comprehensive investigation into the DIRT issue by the Comptroller and Auditor General. I also point out that the DIRT inquiry essentially involved a single issue, namely why the institutions did not comply with the law and pay DIRT which the Comptroller and Auditor General found should have been paid. In addition, the issues involved in the banking crisis continue to be current rather than issues simply of the recent and more medium past, and Members of these Houses continue to be engaged in debate on them. There could be some mitigation of these effects by confining the remit of the inquiry but this would clearly not satisfy the need for a comprehensive investigation of all of the relevant issues. These are matters in respect of which Members of this House are fully aware.

I have set out the reasons the Government considers the approach provided for in this Bill to be inappropriate to an inquiry into the banking crisis. I am confident that the framework recently announced by the Government is the right way to proceed in this matter. I am also confident that the Houses of the Oireachtas will have a substantial and influential role to play at each stage of the process.

The Minister does not consider it appropriate, necessary or prudent to proceed with a Bill of this nature for the purposes of the banking inquiry. Whereas the Bill goes some way to addressing issues arising from the Abbeylara Supreme Court ruling, it does not provide a complete solution and further consideration needs to be given to the issues involved. There are complex legal issues which need to be the subject of detailed review and examination.

See this speech in context