Mary Lou McDonald (Dublin Central, Sinn Fein)

Unlike Deputy Sean Fleming, I do not propose to deal with issues arising from the primary legislation although there are several matters that need to be ironed out. I welcome the Minister's indication that he has a broad mind in taking some of these points on board.

The decision by the Supreme Court that the Oireachtas could not conduct an inquiry which could result in findings of fact and conclusions adverse to the good name and reputation of those who are not Members of the Oireachtas was described by my party at the time as disappointing and negative for obvious reasons. We noted that serious questions needed to be answered, particularly regarding why the Garda had gone to such serious lengths to prevent a Dáil subcommittee from carrying out an inquiry. At the time we said the judgment would have far reaching consequences, and so it has. Prior to the recent election we called for Oireachtas committees to be given investigative powers. To that end we welcome the fact that the Government is moving on the issue.

Holding those to account who work against the public interest is an important principle for the good functioning of democracy and the functioning of the Houses of the Oireachtas. We support the Government's proposition that there are significant public policy benefits from the operation of an effective system of parliamentary inquiry. Putting the proposition to the people is right and proper. My colleague, Deputy Peadar Tóibín, has been appointed Chair of the Joint Committee on Investigations, Oversight and Petitions - the committee that will be responsible for the inquiry process.

Amending the Constitution is a serious business. It is a responsibility of all citizens and it is important that we get it right. Subsection 2o of the proposed constitutional amendment reaffirms the general powers of the Oireachtas to conduct inquiries into matters of public importance. Following the Abbeylara judgment it is necessary to restate those powers so that there can be no question over the validity or right of the Oireachtas to hold such inquiries and to compel a person or persons to appear before the committee.

The new subsection 3o in effect reverses the effect of the Abbeylara judgement and empowers an Oireachtas inquiry to investigate the conduct of a person – whether or not a Member of the Oireachtas – and to permit the Oireachtas to make findings in respect of the conduct of that person in matters of public importance.

The failure of Government, and the Garda and Judiciary, to adequately hold those responsible to account, for instance for the recent banking crisis to which Deputy Fleming referred, will be held up as one example of a concrete reason to empower the Oireachtas to investigate the conduct of a person who it is believed has worked against the common good.

The Nyberg report into the handling of the State's banking crisis, which was considered in the House, was a stark condemnation of the fundamental failings and reckless practices within the banking industry. The report also highlighted the inadequate governance of the authorities. Despite numerous instances where banks did not comply with banking regulations, the Financial Regulator failed to sanction those that did not comply. Mr. Nyberg did not name individuals so the end result was yet another report of an industry - under the watch of the Government of the day - that has brought the State to its knees – but not a single person was held to account for his or her actions against the public interest. That was unacceptable. For that reason alone, the Government's proposal to amend the Constitution will command widespread support.

I am not a defender of the Law Library or those who grace its refined environs but it is important to state that the Oireachtas cannot substitute the courts in the administration of justice. People have a right to ask questions and inquire into the conduct of individuals – be they a bank CEO, Minister, the Financial Regulator or the Governor of the Central Bank. The Oireachtas, as representatives of the people, should be enabled to put questions and in turn to make findings on behalf of the people. However, as legislators we need also to uphold the values and principles of the rules of natural justice and we cannot be seen to undermine the powers of the courts to protect the right to procedural fairness of those who appear before an Oireachtas inquiry.

The Government argues that the proposed subsection 4o is necessary to establish a constitutional imperative that the Houses of the Oireachtas are empowered to determine how fair procedures will be secured in the proceedings of Oireachtas inquiries. I have no doubt that the long, drawn-out costly tribunal experience informs the substance of this subsection. It is an effort to ensure inquiries are carried out in an efficient and cost-effective manner and that such inquiries conclude their work within a reasonable period of time. That is fair enough.

The wording in the proposed subsection 4o has been described as a constitutional signpost. By empowering an Oireachtas inquiry to determine the appropriate balance between the rights of persons and the public interest for the purpose of an effective inquiry, the Government is seeking to set a new path away from the tribunal experience. I understand and welcome that. However, it is my view that the text of subsection 4o is a heavy-handed approach by the Government to address the tribunal experience.

Without the amendment tabled by my party – the addition of a new subsection 5o – the wording as it stands in subsection 4o could potentially recalibrate the separation of powers. In other words, by conferring the power to balance "the rights of the individual with the public interest", the proposed subsection 4o seems to appoint the Oireachtas as custodians of natural justice in its own investigations. With that concern in mind we will seek support from Dáil Deputies for Sinn Féin's additional wording which concludes the constitutional amendment by stating, "The conduct of such inquiries shall be regulated in accordance with the law and principles of natural justice." Amending the Constitution is no light matter and as legislators we must look to every eventuality. Restating the existing and valued right to natural justice is an important addition to the constitutional amendment wording as it contextualises what the Oireachtas seeks to achieve. It is almost like a belt and braces approach. I urge the Government to take it on board.

We want the power to investigate those who have wronged the people. We also want the power to compel such a person to appear before the inquiry – to be cross-examined by an inquiry unhindered – and for the inquiry to make a finding. We want that to happen in an efficient and cost-effective manner but we do not want the situation to arise where the rights of a person brought before an Oireachtas inquiry are not adequately protected. There must be checks and balances within all constitutional and legislative measures that impact on a citizen's right to fair play. As we recall, the herd mentality was much discussed in the Nyberg report. Those holding positions of power have not always done the right thing. Natural justice should not and cannot be taken for granted.

It would be remiss of me not to take the opportunity to remind the Minister of a number of other constitutional and political reforms promised in the programme for Government but yet to be delivered. I refer to the children's referendum and a referendum to protect the right of citizens to communicate in confidence with public representatives. In addition, the Government's commitment to introduce whistleblowers' legislation has yet to be realised. We have had no update on the constitutional convention that is to consider important matters such as the provision for same-sex marriage, greater participation of women in public life and a possible reduction in the voting age. We believe there should be an all-island approach to constitutional change. Representatives must be drawn from both Legislatures on the island, civic society, business and trade unions to discuss and bring forward proposals for constitutional change. Such a forum would involve consultation at grassroots level and ensure what the Minister of State, Deputy Lucinda Creighton, referred to as "deep" democracy.

It is deeply disappointing that this Government, similar to Fianna Fáil before it, has decided to hold this referendum and the presidential election on a Thursday. The Minister is aware that voter participation drops when votes are taken on a Thursday, and this fact was bemoaned by Labour and Fine Gael when they were on the Opposition benches. Elections and referendums should be held at weekends; it is that simple.

I take this opportunity to remark on the upcoming presidential election. The right to vote in that election should be extended to citizens in the Six Counties and to Irish citizens living and working abroad. It should not be in the gift of politicians to nominate presidential candidates and that responsibility should be returned to the people.

For many people our political institutions are considered exclusive and unaccountable, and that is what makes constitutional and political reform all the more urgent. It is in that context that we must view the proposed amendment to the Constitution. The message from Sinn Féin Deputies is that we support the amendment to the Constitution but we ask that the Government accepts an additional subsection (5) to ensure that there should be procedural fairness and that the rights of people are in no way damaged. There should be no public question mark over the integrity and fairness of the inquiry process.

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