Peadar Tóibín (Meath West, Sinn Fein)

Much of the frustration that has been generated in Irish society over the past number of years has been caused by the instances where Irish people have been cheated of justice. Elite individuals and organisations who have done wrong have got off scot-free and have not been held to account. The fate of these elites is in sharp contrast to the fate of average citizens who more often than not undergoes the full rigours of the law if he or she transgresses the law in even a minor way.

With regard to the banking crisis, justice has been denied and those responsible have not been held to account. In other instances, such as the Moriarty, Morris and the Mahon tribunals, justice has been very costly in some cases, with a total of €0.5 billion at the last count. In some cases they have been toothless while others have been very slow in their deliberations.

The Oireachtas has been seen to be ineffectual in the case of Abbeylara. The elected representatives of the day found themselves hamstrung by the Supreme Court findings that the Oireachtas does not have an inherent power to conduct inquiries. During current committees investigations, requests for information are often to no avail, and information volunteered is not always accurate or complete. In such circumstances, the Oireachtas is left without the necessary information it requires to carry out effectively its legislative and accountability function. This situation necessitates a means of compelling disclosure.

The proposal that the Oireachtas should have express constitutional power to undertake in-depth inquiries, exercised through its committee system, is the most significant Oireachtas reform in modern times. The power to require a person to attend before the committee of inquiry to answer questions and the power to compel disclosure of relevant information and production of documents, as necessary, for the purpose of the inquiry, will radically change the balance of rights between the citizens and the State. As such, this constitutional amendment and the associated legislation demands serious and detailed consideration by this Oireachtas and by the people.

As Cathaoirleach of the newly created Joint Committee on Investigations, Oversight and Petitions, I believe that adequate reform in this area can radically improve the democratic function of the Oireachtas. There can be significant benefits to public policy from the operation of an effective system of parliamentary inquiry. This proposal could radically empower the Oireachtas to hold individuals to account. The investigation of strategic and systemic problems can lead to improved legislation in the future. However, in situations where the rights to natural justice of an individual are being rebalanced in order to provide for effective and timely justice for the State, it is of the utmost importance that everything is done in advance to provide the necessary individual safeguards.

Under this legislation, the Committee on Investigations, Oversight and Petitions will play an important role in Oireachtas inquiries if the constitutional amendment is approved by the electorate in the forthcoming referendum. We will have to give careful consideration to such questions as what Oireachtas inquiries are meant for, which type of matters should be inquired into, how the public interest test will be applied and how the constitutional rights of witnesses and others affected by parliamentary inquiries can be safeguarded in the exercise of the new powers.

As with most constitutional issues, the debate revolves around the balance of conflicting rights and the devil is often in the detail. I have misgivings about the fact that the rights which will be afforded to citizens will not be determined by the text of the constitutional amendment but by legislation which could change over time. There is not enough of a brake on the potential erosion of rights contained within the text of the amendment. I understand there is a view that Article 43 of the Constitution will safeguard these rights but we need to copperfasten citizens' rights. I second the amendment proposed by my colleague, Deputy McDonald, to strengthen the constitutional amendment from the perspective of the rights of the individual.

Serious risks are inherent to the proposed process, including the potential loss of a person's right to cross-examine someone who has made allegations concerning him or her, risks of prejudicing subsequent criminal proceedings and risks of the quasi-judicial process being contaminated by political bias. If these issues are not resolved before the amendment is passed, they will lead to multiple High Court challenges and the possibility that the issue will have to be revisited with another constitutional amendment, thereby incurring additional costs and exacerbating the ineffectiveness of the Oireachtas in the interim.

It is important that we consider providing Oireachtas Members with a level of indemnification against the legal costs that may arise in the event of High Court challenges. Certain Deputies have in the past been required to meet legal costs out of their own pockets or else ask their parties to indemnify them.

It is pivotal to the proposed investigation system that it be public by default. Certain investigations, such as the Cloynes inquiry, are undoubtedly best undertaken in private but technical investigations should be held in public where an individual's right to a good name is not under threat. If necessary, the relevant committee could decide to hold its investigation in private but transparency is the default mode to which all democratic functions should aspire.

The legislation envisages establishing the Committee on Investigations, Oversight and Petitions as a clearing house for investigations which does not, however, possess the power to carry out investigations in its own right. This is a mistake. A number of my colleagues from both sides of the House were shocked to learn that the committee would not have a role in investigating itself. The committee should follow the example of the Committee on European Scrutiny. Most investigations could probably be forwarded to relevant committees where the competency exists to deal with the issues arising. However, investigations which are cross-departmental in nature or are of systemic importance to society should be the responsibility of the Committee on Investigation, Oversight and Petitions. I urge the Minister to reconsider this aspect and develop the requisite infrastructure. I acknowledge that he does not believe it is possible under current legislation for the committee to set the criteria for inquiries as well as conduct an investigation, but there are precedents for such a system both internationally and in the Houses of the Oireachtas. Clarification is also needed on the powers given to the new committee to compel other committees to stay within their terms of reference. If another committee operates outside of its terms of reference, a mechanism must be available to compel it to change its behaviour.

The proposed constitutional amendment has the potential to provide radical and valuable reform but it must also respect the rights of citizens. The Houses of the Oireachtas and the people of Ireland need to focus on the latter as their primary concern when they hold debate the proposed measures. No previous constitutional amendment has gone as far in terms of rebalancing citizens' rights and I urge the Government to accept the amendment proposed by Sinn Féin.

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