Brendan Howlin (Wexford, Labour)

Tairgim: "Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

This Bill is the first important step towards ensuring that the Houses of the Oireachtas can undertake full parliamentary inquiries. It will enable the constitutional amendment to permit the Houses to undertake full inquiries into matters of general public importance in an effective and cost-effective way. As set out in the programme for Government, the proposed constitutional amendment contained in the referendum Bill is a key element of the broader parliamentary reform programme to which the Government is strongly committed. These reforms are underscored by a conviction regarding the potential of our Parliament and its Members on all sides of the House to lead change, govern effectively and hold the Government to account. The successful discharge of these roles by the Houses of the Oireachtas is imperative if we are to restore the trust and confidence of the public in the institutions that serve them.

It is integral to the effective functioning and modernisation of parliamentary democracy that the Houses of the Oireachtas have express legal capacity to initiate and undertake full inquiries into issues of general public importance where the Oireachtas has a clear legislative, oversight or public policy role in making findings and recommendations firmly underpinned by extensive fact-finding. In order to achieve this objective, the legal and constitutional issues identified in the Supreme Court's judgment in the Abbeylara case must be addressed. The constraints and restrictions imposed by the Supreme Court on the ability of the Houses to conduct inquiries will be well known to all Members of the House.

The work of the all-party joint Oireachtas committee leading to the publication of its Fifth Report on Article 15 of the Constitution and the parliamentary power of inquiry in January of this year was particularly valuable, drawing on the advice of external experts and important work of the Law Reform Commission in this area. I pay tribute to the chairmanship of former Deputy Seán Ardagh, whom I was delighted to see this week in good health again. He played a sterling role in steering that committee towards producing its final report. It analysed in some detail the main findings of the judgment and made specific recommendations on how the limits and restrictions created by it could be resolved through constitutional change. The proposed wording of the referendum and the policy approach the Government is adopting is, in fact, closely in line with the recommendations of the all-party committee, which spent almost a year examining these matters.

A vigorously active and independent parliament with powers to investigate into particular matters of general public importance should have the objective of ensuring that the type of systemic failures we have seen take place, for example, in our banking system - as documented in the reports by Regling and Watson, Professor Honohan and the Nyberg commission - will be much less likely to occur in the future. There are significant public policy benefits from the operation of an effective system of parliamentary inquiry. This is evidenced by the broader international experience, and by our own specific national experience in the case of the successful DIRT inquiry carried out by the Committee of Public Accounts. We need to ensure that we, as a parliament, use this power carefully and appropriately and only in circumstances that is clearly warranted in line with the objectives of the constitutional amendment.

In essence, a power of inquiry consistent with the constraints identified in the Abbeylara case would not facilitate meaningful inquiries leading to substantive recommendations and findings where it is essential to inquire into individual conduct and potentially make findings regarding the actions of individuals.

In order to facilitate comprehensive discussion of and inform debate on the issues involved, I published detailed and advanced draft heads of the Houses of the Oireachtas (Powers of Inquiry) Bill earlier this week. As I outlined to the Joint Committee on Investigations, Oversight and Petitions yesterday, this legislation will underpin the proposed constitutional amendment, and will provide a comprehensive governing legal framework for the establishment and operation of an Oireachtas inquiry system. The legislation details the proposed structure and operation of the proposed new system of Oireachtas inquiry. It requires, in particular, the establishment of a framework through rules approved by the Houses to secure procedural fairness. I really want to underscore that. This legislation will be enacted if the proposed constitutional change is approved by the electorate. I welcome any views or suggestions on the legislation to help define the final shape of the system. My mind is not closed on it. If individuals make submissions on the published heads, I will be very happy to incorporate them in the legislation if they contain good ideas. As I stated to the committee yesterday, it will be necessary to tweak the legislation as the committee system undertakes inquiries, provided, as I hope, that the people will support the amendment.

Inherent in this legislation is the constitutional imperative under Article 40.3 of the Constitution that the proposed powers of inquiry of the Houses of the Oireachtas must be used in a manner consistent with the rules of natural justice but also taking into account the public interest in ensuring the Oireachtas inquiries are effective. This is the key balancing exercise to be determined in the design and implementation of the system. This balancing will be governed by rules established under the enabling legislation.

I will outline in detail some of the provisions of the Bill. Section 1 provides for the amendment of Article 15.10 of the Constitution by the insertion of the text set out in the Schedule to the Bill. Section 2 is a standard provision specifying how the amendment and the Act shall be referred to. The Schedule contains the proposed text of the Constitutional amendment, in both Irish and English. The proposed amendment, if approved by the electorate, will insert the three new subsections, as set out in the Schedule, into Article 15 of the Constitution.

The need for an explicit, express and unambiguous statement granting a power of inquiry to the Oireachtas is addressed by subsection 2 contained in the Schedule of the Bill. Its wording reflects the finding of the Joint Committee on the Constitution that a constitutional amendment is required to avoid any doubt that the Oireachtas has an inherent power to inquire into matters of general public importance. It minimises the risk that the Houses of the Oireachtas might be found by the courts to be precluded from carrying out such inquiries on the basis of institutional or structural bias.

Subsection 2 does not and cannot discharge the members of an Oireachtas committee of inquiry from the requirement not to pre-judge the outcome of an inquiry. Members of Oireachtas committees of inquiry would be required to behave impartially in respect of the matters subject to an inquiry. The subsection also provides that the inquiry must be into a matter "stated by the House or Houses concerned to be of general public importance". The draft heads of the Houses of the Oireachtas (Powers of Inquiry) Bill contain the proposed process to be undertaken and the evidence to be provided to allow the Houses to make the assessment that a particular matter is of general public importance and, therefore, warrants an inquiry.

Subsection 2 also provides that the manner in which an inquiry is conducted would be in line with provisions laid down in legislation. The draft heads of the Houses of the Oireachtas (Powers of Inquiry) Bill, as published, provide a framework within which the Houses of the Oireachtas can formulate rules and guidelines governing the conduct of such inquiries.

Subsection 3 of the Schedule to the Bill seeks to address two of the major concerns identified by the Supreme Court in the Abbeylara judgment by granting a power to the Oireachtas to investigate the conduct of individuals and make findings. This would be done in the context and with the objective of making and rationalising recommendations for changes. Such recommendations could, for example, relate to legislative or regulatory frameworks or the role, structure, governance and management systems of any public body.

Subsection 3 of the Schedule ensures that the Oireachtas could not be inhibited by the likelihood of any civil or criminal liability being inferred from its deliberations in regard to its powers of inquiry. This subsection explicitly provides that an investigation can be carried out into the activities of any person or persons, irrespective of whether they are Members of either House.

A key requirement for the proposed new system of Oireachtas inquiry will be adherence to the rules of natural justice consistent with the very well-defined constitutional principles and Ireland's obligations under international law. Subsection 4 in the Schedule to the Bill is designed to meet this requirement. This is a very significant element of the proposed new system of Oireachtas inquiry. I have discussed subsection 4 with some Members already. It is not intended to change the fact that fair procedures and the normal, well-established rules of natural justice must be respected in any form of inquiry that puts good name or reputation at risk.

The proposed approach is consistent with judicial decisions that have noted a tailored approach is appropriate to the rights to fair procedures. The established constitutional rights of particular individuals will vary according to the position in which they are placed; one's rights, such as to one's good name, must be at risk. This has been borne out in the field of tribunals where these matters have already been rehearsed before the courts.

What the proposed constitutional amendment does is reflect the need for the Oireachtas to implement in a pragmatic way fair procedures in its inquiry process, and the need to implement them in a manner that is balanced against the public interest.

This is done to ensure that inquiries are effective, cost-efficient and completed within a reasonable timeframe. It cannot be that the power would not be with the House itself to make judgments on an ongoing basis. Otherwise, every inquiry would be subject to constant interruption as matters are weighed and balanced elsewhere.

The manner in which the Oireachtas strikes this balance must be reviewable by the courts. If the courts believe the balance has not been properly determined, they can overturn the decision made by the inquiry. In assessing this issue, the courts would take account of the proposed constitutional provision that the Oireachtas is empowered to strike this balance.

Under present constitutional arrangements the courts in determining these issues would review exclusively in this context the provision of fair procedures. I do not need to set out for the House how in such circumstances it could be expected that any Oireachtas inquiry would be rendered ineffective and impotent by constant recourse to the courts by parties to an investigation and by the introduction of tribunal-like procedures into the Oireachtas inquiry system which would totally torpedo the purpose this amendment seeks to achieve. It is almost certain that the inquiry process would be ineffective in such circumstances, the public interest would not be served and we would still have an impotent parliament where inquiries are concerned.

However, let me make it clear that the amendment to the Constitution contained in the referendum Bill before us does not disregard the rights of witnesses to fair procedures. Indeed, as set out in the proposed underpinning legislation high hurdles have been set to ensure that fair procedures are adopted, and that inquiries are carefully and correctly conducted.

In making its determination a committee of inquiry would be expected to have regard to certain factors. These could include whether specific facts are in dispute between witnesses and the extent to which the reputation of witnesses becomes or is an issue. An overarching concern for an Oireachtas committee of inquiry would be to ensure the level of rights is commensurate to the risk to an individual's good name against whom allegations may be or have been made. Every citizen in our democracy has a right to his or her good name but this right needs to be balanced with the undeniable public interest that is realised by effective investigation into matters of serious public concern.

It is highly desirable that Oireachtas inquiries should be carried out in an efficient and cost-effective manner and conclude their work within a reasonable period of time. Citizens would expect that the Houses would carry out such inquiries as expeditiously as possible, and it is important that such inquiries are perceived as such. These inquiries need to inspire public confidence in our parliamentary system. People must have confidence again that we can do the people's business and not be frustrated by those with either deep pockets or the capacity to frustrate proper inquiry. It must not be diminished through delay, cost or ineffectiveness.

I ask the House to support and approve the Bill and in doing so provide for the Houses of the Oireachtas the power to conduct full inquiries. The Bill is important in the strengthening of our parliamentary democracy. It provides for a political ethos in which there is a true sense of accountability. I commend the Bill to the House.

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