Brian Lenihan Jnr (Dublin West, Fianna Fail)

I thank Deputy Rabbitte and the Labour Party for the considerable work that went into drafting the Committees of the Houses of the Oireachtas (Powers of Inquiry) Bill 2010. The Bill was first before this House on 20 January 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 my view, reiterated by my colleague, the Minister of State, Deputy Mansergh, yesterday evening, 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 in order to inform the future management and regulation of the sector and to provide the most ample opportunity for the Oireachtas to have a substantial input at each stage of the inquiry process.

The Government decision states that the appropriate Oireachtas committee will meet the Governor and the independent experts at the outset of their work to be briefed on committee members' priority for investigation. I understand that meeting has been arranged for tomorrow week. The Government decision states that once the reports of the experts are completed, the terms of reference for the commission of investigation will be finalised based on the conclusions of the expert reports and following consultation with the Oireachtas. We are fortunate that we had two such distinguished experts to do the scoping exercise. Under the Commissions of Investigation Act 2004 it is the Government who ultimately sets the terms of reference for any commission of investigation. The report of the commission must be laid before the Oireachtas for further consideration and action by the appropriate Oireachtas committee.

I fully appreciate that the draft Bill is an attempt to address the complex legal issues arising from the Abbeylara judgment. It is the Government's view that these issues require further detailed examination and review. That is why, as the Minister of State outlined last night, the Government is opposing this Bill. It is worth noting that it appears to be established law that neither House can make a finding of criminal or civil liability against any person or make findings as to the personal culpability of an individual not a Member of the Oireachtas so as to impugn his or her good name. Given that this is the position, it is difficult to see how the banking inquiry can proceed other than by way of a commission of investigation. The only alternative open to the Government is a sworn public inquiry under the tribunals of inquiry legislation. We all know how protracted, extensive and expensive such inquiries can be.

Therefore, it was entirely reasonable for the Government, in the context of the banking inquiry, to stipulate that any disputed issues of fact must be determined by a commission of inquiry. That is the quickest way they can be determined. This House is inherently unfitted to make determinations of fact in these matters. I have attended many debates and been rightly held to account in this House in respect of various decisions made in the banking sector. I have heard many references to individuals who might have come before such a committee which clearly indicate a prejudgment on the part of Deputies in regard to any disputed issues of fact about those individuals. It is difficult to see how individuals about whom there are disputes of fact could get a fair hearing in the House from a parliamentary committee.

The same problem developed throughout parliamentary history when we were part of the United Kingdom, which is why we have the 1920 Act. Committees of the House were found to be inadequate to determine issues of fact about their own membership. We can still appoint a committee to determine an issue of fact about our own membership. We can obviously appoint a committee to evaluate Government policy. However, we cannot appoint a committee to make judgments about outsiders. That appears to be the law of the land. In that context, the Government's choice was obvious in regard to the banking inquiry.

It may be, as a result of the scoping exercise, that the issues of fact that are in dispute are quite narrow and that the commission can deal with its business in a speedy way. On conclusion of that, the findings of fact, together with the scoping exercise and the various issues relating to the banking crisis, can be the subject of comprehensive parliamentary discussion and investigation through a committee.

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