Seán Fleming (Laois-Offaly, Fianna Fail)

Often, to vote in favour of an amendment to introduce a constitutional ban one had to vote "No" to delete a provision. However it is drafted, I ask the Minister to ensure that people voting for the amendment do so by voting "Yes". People will recall the immense confusion caused in the past. I take it that this is under control.

I join the Minister in complimenting the work of the Joint Oireachtas Committee on the Constitution in the previous Dáil, which produced a report prior to the general election under its Chairman, Seán Ardagh. The referendum is necessary to ensure elected representatives of the people have appropriate power to investigate matters of public interest and such inquiries have been prohibited in the past because of the Abbeylara judgment. I support the amendment but I have a number of concerns of which I ask the Minister to take note and deal with because they will lead to doubt during the referendum campaign. If I do not deal with all of my points during the 15 minutes I have to speak, I will put them in a note to the Minister in the coming days.

I welcome the helpful explanatory documentation and other correspondence I received from the Minister during the summer and the briefing from his officials. It is all appreciated and I want to put this on the public record. Much of the background to this amendment emanates from the Abbeylara judgment and I believe the Minister did not deal adequately with what I consider to be a very significant aspect of that judgment.

A question had been raised about institutional bias and that a specific body by its nature might be inherently biased and therefore could not be relied on to assess evidence from judgments in an objective and unbiased fashion. The Supreme Court ruled this was not the case with regard to the Oireachtas and that it is not inherently biased. However, far more important, the Supreme Court dealt with the issue of objective bias but the Minister has not dealt with this. He spoke about procedural fairness, institutional bias and structural bias but he did not deal with objective bias. According to information provided to me by the Department on objective bias and the Abbeylara judgment, the Supreme Court found it was not compatible with constitutional justice for a person to sit in a quasi-judicial capacity as a member of a committee making determinations of fact while at the same time making comments in the media which indicated strong prior views or fixed opinions on the matters being inquired into. Such an approach was found to be incompatible with fair and balanced hearings and assessment of evidence being presented to the inquiry. According to the Department, this means that strong and robust procedures and protocols for the conduct of inquiries need to be put in place by the Houses of the Oireachtas under the proposed new approach to safeguard the inquiry process against the risk of objective bias such as public comments by committee members which are reported in the media.

The commitment has been made to hold an inquiry into banking. If the Minister can find one Member of the Oireachtas who has not made definitive statements in the media or made public comments on his or her views on what happens to Irish banking I will salute him. I would be amazed if anybody got elected to the House without having a view on this matter. Objective bias is the elephant in the room which the Minister ignored. I accept we have fair procedures, that it will be free from structural bias, which I will discuss shortly, and that the institution itself will be free but membership is an issue. If the Minister can show me that the members of any proposed inquiry have not made public comments to indicate their views on the issue involved I will be happy for such people to sit on the inquiry.

This issue will be relevant and let us not beat around the bush; no matter what inquiry the Minister tried to establish on any issue the first thing anybody worth his or her salt would do would be to Google the proposed members and every comment they made on the topic. Despite the Minister's best intentions and our support for the principle of what he is doing, unless this issue is adequately dealt with to the satisfaction of the Supreme Court there may be challenges with regard to the particular people sitting on the inquiry.

The amendment will establish a mechanism for an investigation procedure to take place. With the DIRT inquiry, the Comptroller and Auditor General produced a report. Some people are hung up about the investigation happening in private; I am not as otherwise the investigation would not be completed. The Garda Síochána conducts its investigations in private but the file must be placed in front of a judge in open court which is where the inquiry and the judgment takes place.

I see nothing wrong with the committee assembling its facts in private because they still have to be accepted in the public arena and through public hearings.

The Government will have to deal satisfactorily with the problem of members of such an inquiry dealing with a particular topic on which they have been mute in the past. I envisage many cases in which the Oireachtas could conduct inquiries into general matters and the committee members would be free from bias. For example, the DIRT inquiry concerned a matter of public importance but was an issue on which the majority of Members may not have pontificated before the inquiry. I accept when the DIRT inquiry was established, one member of the committee was discovered to have had an Ansbacher account and had to stand down because he did not disclose it. The issue of public comments by committee members prior to an inquiry must be addressed in detail. Otherwise, it will become an issue during the course of the referendum campaign.

I accept the rules of natural and constitutional justice will apply to Oireachtas inquiries and remain a safeguard for every citizen. Some may claim politicians should not be doing such inquiries as they are a matter for the courts. The Law Library and those on that side of the Liffey will oppose this Bill because they see it as taking some of their potential income earning from future tribunals of inquiry. They are the very reason we are passing this legislation. The legal profession was allowed to conduct several tribunals up to now. It took ten years to conduct inquiries that were in the public interest which the Supreme Court even pointed out were urgent. The failure of the legal profession to conduct these inquiries in time is the specific reason the Oireachtas is taking the powers back to do such inquiries itself. When the Oireachtas wanted an inquiry, it outsourced it to the legal profession. This arrangement did not work, cost a fortune and took too long. It is now being brought back in-house. While some may not appreciate this move, that is the basic position democrats are entitled to take.

There will be no question of a committee making a judgment on criminal culpability or a finding of civil liability which would encroach on the constitutionally protected role of the courts in the administration of justice. Like a tribunal inquiry, files presented to a committee inquiry will not be presentable in a court of law.

It will be important to determine fair procedures. Everybody against whom an allegation is made must have the right to cross-examine. I believe Oireachtas Members in such inquiries will operate a system of natural justice. If persons feel their rights were trampled on by an Oireachtas inquiry, they can go to the Four Courts to have their rights vindicated. It is not necessary for everyone mentioned in the course of an inquiry to have a right to cross-examine everyone else. That can easily become a never-ending circle. While everyone has the right to cross-examine, it will not automatically happen in every case.

The oversight committee will have to be the gatekeeper and give approval to whether an individual committee will carry out an inquiry. There was a misunderstanding that the new oversight and petitions committee would conduct all Oireachtas inquiries. If the finance, health or justice committees find a matter they want to investigate, they only have to get approval for an inquiry from the oversight committee and the Houses of the Oireachtas to declare it is a matter of general public interest. The committees can then go ahead with their inquiries, subject to the administrative procedures of the oversight committee. I was concerned earlier that the powers of many of the good committees would be reduced. However, this will not be the case.

I am happy with the provision for the separate investigation to be done in advance. However, I ask colleagues not to employ a member of the legal profession to do an investigation. While they may be good at presenting cases in courts, when it comes to digging up facts, I would prefer a good retired chief superintendent on the case rather than a judge, barrister or even an accountant like myself.

People are concerned about the powers this committee will have to obtain evidence. If an investigator wants to enter an individual's house, he or she can only do so with a District Court warrant signed by a judge and must be accompanied by a Garda. I always noted in past tribunals that when all the successful businesspeople were asked what they did on such and such a day, they could not recall. They probably had a bit of time to perfect that answer. Some of these committee inquiries will probably move much quicker and find some documentary evidence which could help individuals in their recollection of events. There was collective amnesia at some tribunals in the past. These forms of inquiry will help deal with that issue.

I have some concerns about the make-up of an inquiry. Considering how the Government has already dealt with committee membership, there would be a Government appointed chairperson and then seven appointments to an inquiry, leaving only two positions for Opposition Members. The legislation does not contain any provision to prevent this happening. While I accept two thirds of the House comprise Government parties, the Government has already proved to be unfair when it came to committee membership. Even with the Houses of the Oireachtas Commission, neither the Independents nor Sinn Féin has a Member on it. This legislation must contain a safeguard to ensure the membership of any inquiry will have a fair balance. I suggest the ratio should be 60:40 for Government and Opposition respectively. It will not travel if the Government parties can exclude other parties from such inquiries.

While I welcome the Bill, I hope when the legislation is revised that some of the points of concern I have raised will be incorporated.

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