Dáil debates

Tuesday, 20 September 2011

An Bille um an Tríochadú Leasú ar an mBunreacht (Fiosruithe Thithe an Oireachtais) 2011: Céim an Choiste agus na Céimeanna a bheidh Fágtha / Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011: Committee and Remaining Stages


6:00 pm

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)

I also welcome the opportunity to make a few brief comments on this matter because Members discussed it well on Second Stage and it is a relatively short amendment. The essence of what has been proposed is the inclusion of the phrase, "with due regard to the principles of fair procedures". The amendment is all about fair procedures and I take on board fully the observation made by Deputy McDonald that Members are not debating the enabling Bill's contents. However, I note there will be no opportunity to debate that Bill's contents prior to polling. While I understand the Minister intends to publish the enabling legislation, it cannot be enacted before polling day. It will be in the public arena in order that the public will have an opportunity to examine it and after the referendum which I hope will be passed, the aforementioned legislation will come before the House for detailed discussion. However, one should be clear it will be extremely difficult to change its contents after it has been in the public arena, having formed the basis on which people were reassured as to how they might vote. The issue is it will not be like normal legislation when it returns to the House. Members may wish to table amendments on Committee and Remaining Stages and in normal circumstances, the Minister might be inclined to accept them. However, at that point he will be obliged to be mindful that the legislation has been in the public arena. The people will have been given an opportunity to read, study and digest it to understand how the constitutional amendment would be given effect. Consequently, it will be extremely difficult at that point to unravel legislation which had been placed in the public arena. While normal procedures will be followed in this House for Committee and Report Stage amendments, my impression is an additional barrier will placed against the Government's ability to accept amendments on those Stages. I wish to make clear that point.

The Minister should deal with a couple of aspects of the subject of fair procedure that Members may not have had a full opportunity to explore on Second Stage. I refer specifically to the precise wording under discussion in the Minister's proposed amendment. I can understand the reason he employed the phrase "observe fair procedure" because that phraseology is included in the proposed legislation. I can discern consistency between the proposed legislation the Minister intends to publish - he might provide Members with a publication date at the conclusion of this debate on the amendment - and the wording in the constitutional amendment. The Minister should elaborate on what are the fair procedures. It is important that the people should know this, because if the amendment is passed, it is proposed that the investigator or the inquiry committee will define the powers to establish fair procedures relating to evidence and submission. There will be no requirement in what has been proposed on the Minister to publish these to enable those who are the subject of such an inquiry or investigation to know what are the guidelines for what is being conducted. If one is dealing with the Revenue Commissioners, one is entitled to know what are the procedures being followed in the interests of the public and hidden procedures are not permitted. My point is that a hidden procedure is not a fair procedure.

As for fair procedures with regard to individuals or their conduct being examined or inquired into, there is a wide raft of exemptions pertaining to Government meetings and matters that could be prejudicial to proceedings before the court or in respect of international relations. I note exemptions may be signed in this regard by the Secretary General to the Government. Consequently, a committee might be carrying out an investigation into an issue, only half of which could be examined by way of evidence regarding the conduct of an individual. However, this evidence could be fundamental to what happened at a Government meeting and yet can be exempted. I understand the concept of Cabinet confidentiality, but fair procedure must apply to everyone. A person's fair procedures might be compromised were someone else simply able to send a letter of exemption to the effect the matter was not covered by the inquiry.

Another point concerns the relationship between fair procedures and a person's good name. This is all about the good name and character of those who are being inquired into and I acknowledge it will be an offence to disclose the contents of any reports or drafts thereof before their publication. However, in the interests of fair procedures for those who are being inquired into, it should be an offence to publish any of these documents. In previous tribunals, leaks were provided for the media which published them. I note The Irish Times published such leaks and then shredded the evidence. While I forget the details, no offence had taken place and that newspaper got off the hook, even though it had published the leaked information. It is somewhat akin to it being an offence to sell alcohol to those who are under 18 years but not an offence for them to buy it. My point is that both sides of the equation must be covered and fair procedures must apply if someone is divulging information. However, the person who chooses to publish it also should be covered because he or she can damage a person's character and good name. I ask for fair procedures in this regard. The Minister should expound on the question of leaks which are a feature of life. While they should not take place, they occur and people's names become damaged after which it is difficult for them to clear their names.

I will conclude by stating Fianna Fáil welcomes this proposal. I note the Minister is adopting a belt-and-braces approach in respect of making this explicit. The next time a constitutional amendment is proposed and the point is made that something is implied in the Constitution, the response will be that as matters were made explicit the last time, it must be done again. Be that as it may, it will be a problem for someone else to deal with later, but the Minister is being highly specific. If for no other reason, this may take some heat out of the public argument because people can get caught up in such issues during a debate. The Minister's move to include the issue of fair procedures will give comfort to the public and the many people who have been making this argument. Overall, I support the Minister's amendments.


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