Brendan Howlin (Wexford, Labour) | Oireachtas source

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

The Bill establishes a comprehensive statutory framework for the Houses of the Oireachtas to conduct inquiries within the current constitutional framework. It is underpinned by a detailed legal assessment of the scope for Oireachtas inquiries on the basis of the outcome of the Abbeylara case. It is very clear from the Supreme Court's judgment and the views it expressed on that case that the Oireachtas is not empowered, in general, to make findings of facts adverse to the good name of any person who is not either a Member of the Houses, or an officeholder or otherwise directly accountable to the Houses.

In line with the commitment in the programme for Government, the Government sought in 2011 to empower the Oireachtas through a change in the Constitution to carry out full inquiries. The outcome of the autumn 2011 referendum was that the electorate endorsed the status quo whereby the scope for an Oireachtas inquiry to make findings that could damage the reputation of an individual are strictly limited. The extensive analysis carried out since the referendum confirmed there is a broad scope under the Constitution for the Oireachtas to carry out legitimate inquiries into matters of public importance, including where the Oireachtas proposes to examine an issue related to the Oireachtas' fundamental constitutional function to make law.

The main caveat to the scope for such Oireachtas inquiries is that the terms of reference of such inquiries cannot focus on the conduct of individuals, rather, they must relate, for example, to the systems, practices, procedures, policies and the implementation of policy, and the effectiveness of legislative and regulatory systems. There is no constraint on such an inquiry making significant findings on these matters and the performance of those bodies responsible for and governed by statutory frameworks laid down by the Oireachtas provided these findings are fully consistent with the evidence adduced before the inquiry committee.

Such inquiries could represent a very substantial strengthening in the effectiveness and contribution of the legislature to our democratic system by not only helping us learn vital lessons from past events but, through their recommendations, identifying the legislative reforms and policy changes essential to making sure that egregious policy errors are not repeated. The Bill before us, therefore, represents a very important step in the process of clarifying the role of the Houses of the Oireachtas in securing accountability through investigations into matters of significant public importance. The Bill will enhance the effective functioning of our modern parliamentary democracy by facilitating such inquiries. It is our duty as public representatives to use our constitutional powers appropriately and responsibly, and for the benefit of the wider society and the economy. Used effectively, I anticipate that the framework to be established by this Bill will facilitate focused, constructive political discourse that will enhance our parliamentary system.

I have long advocated the need for an effective and legally robust parliamentary banking inquiry into the events that occurred on the night of the bank guarantee and the systems failures that led to our current fiscal crisis. This Bill will facilitate such an inquiry provided the terms of reference of the inquiry are correctly framed. However, the proposed legislation does substantially more than facilitate a banking inquiry; the primary purpose of this legislation is to create a comprehensive legal framework which is of general application.

A critical consideration guiding the development of the detailed provisions of the Bill is that the Houses themselves, pursuant to Article 15.10 of the Constitution, are afforded significant autonomy to regulate their own affairs. This principle has been respected throughout the Bill, with provisions allowing internal matters pertaining to the Houses to be regulated by rules and Standing Orders, where possible. The Bill envisages a central role for the Houses of the Oireachtas in both initiating and conducting a parliamentary inquiry. Under the Bill, responsibility is assigned exclusively to the Houses of the Oireachtas to determine the requirement for a formal inquiry, the terms of reference of that inquiry, the appropriate committee to conduct the inquiry and the procedural and organisational aspects of the inquiry.

It was firmly established by the Supreme Court in the Abbeylara case that an inquiry carried out by the Houses of the Oireachtas must strictly conform with fair procedures consistent with the principles of natural justice. The outcome of the autumn 2011 referendum confirmed that fair procedures in respect of the interaction between the Oireachtas and the ordinary citizen were of paramount concern to the people of Ireland. Respect for the rights of the individual is enshrined in this Bill, and there are extensive provisions in regard to fair procedures for all types of inquiries carried out. The Bill will not impede the important and valuable work that is currently being conducted by Oireachtas committees. The Bill fully replicates and restates the powers available to committees under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities) Act 1997, as well as providing for a simplification of the current process of invoking compellability powers. The 1997 Act will be repealed by this Bill.

Furthermore, in line with the commitment in the programme for Government relating to civil servants giving evidence to Dáil committees, the Bill makes provisions to expand the scope of evidence that civil servants may give. Civil servants will not be restricted from giving evidence for the purpose of establishing facts and giving the committee the full narrative of some series of events. The current prohibition on the Oireachtas committees from asking a public servant to otherwise express an opinion on the merits of policy will be maintained. It is not expected that disclosing policy-specific policy advice should occur other than in exceptional circumstances where it is central to terms of reference of an inquiry. This will be set out in revised guidance to all civil servants once this legislation is enacted.

The programme for Government contained a commitment to address the issue of confidential communications with Members through constitutional change. Following a detailed policy assessment and on the basis of legal analysis, it has now been decided to legislate in regard to this issue. The Bill provides for qualified privilege for confidential communication from members of the public to Members of either House. This will facilitate those who wish to draw wrongdoing to the attention of Members of the Oireachtas without having their identities disclosed. The Bill provides for qualified statutory privilege for private papers of Members and official documents of the Houses. These provisions are intended to apply in all circumstances and are not restricted to inquiries carried out under the Bill.

I would now like to turn to the Bill before the House. This Bill, as I have already indicated, establishes a comprehensive statutory framework for the Houses of the Oireachtas to conduct inquiries, as was recommended in the Abbeylara judgment. I will now go through the Parts of the Bill and give a brief outline of its content.

Part 1 of the Bill contains sections 1 to 5, inclusive, and deals with standard preliminary and general matters, including the Title of the Bill and provisions for its commencement.

Part 2 contains sections 6 to 13, inclusive, and details the types of inquiry that may be conducted in accordance with the Bill. Section 6 provides for an inquire, record and report inquiry. This is a power to undertake inquiries by way of recording and reporting evidence and make findings of uncontested facts. Section 7 provides for a power to undertake inquiries and make findings of fact relating to the legislative functions of the Houses. Section 8 provides for a power to undertake inquiries relating to the removal of certain officeholders as provided for in Articles 12.10, 33.4 or 35 of the Constitution or arising from legislation relating to the removal of other judges or officeholders where a resolution of both Houses is required. Section 9 provides for a power to undertake inquiries in respect of the conduct of a Member of either House in his or her capacity as a Member. Section 10 provides for a power to undertake inquiries to hold the current Government to account pursuant to Article 28.4 of the Constitution and also to hold to account any person who is liable to Dáil scrutiny by virtue of the terms of his or her contract or statutory appointment. Section 11 provides for a parliamentary mechanism whereby a proposal by a committee to conduct an inquiry is assessed by the individual or committee designated by the rules and Standing Orders of the House or Houses concerned. Section 12 makes provision for the passing of a resolution by the House or Houses to establish an inquiry and the setting of terms of reference for a Part 2 inquiry. Section 13 outlines the finding of failure to co-operate with a Part 2 inquiry that a committee is entitled to make.

Part 3 contains sections 14 to 29, inclusive, and provides for a range of fair procedures to be followed by an Oireachtas committee conducting an inquiry pursuant to the Bill. As outlined, the requirement to observe fair procedures applies to all Part 2 inquiries conducted under the Bill. I draw Members' attention to the following sections in this part. Section 15 makes it clear that a witness to an inquiry has the same privileges and immunities as a witness giving evidence to the High Court. Section 16 permits the committee designated by the rules and Standing Orders of the House or Houses to issue a wide range of guidelines, consistent with the Bill, relating to the procedures of Part 2 inquiries. Section 18 prohibits a Member of the Houses from sitting on a committee where a perception of bias might arise in a reasonable person.

Section 19 provides that a witness to an inquiry has the right to be accompanied by his or her legal practitioner while giving evidence if he or she so desires and attend any public session of the inquiry or the giving of evidence by any witness relevant to him or her. Section 21 outlines the rights of a person whose good name is or may be in issue. These rights include the right to be given advance notice of evidence proposed to be given against him or her in so far as that is possible, the right to cross-examine witnesses, the right to give evidence to the inquiry, the right to call witnesses and the right to make a submission at the close of evidence. Sections 23 to 25, inclusive, provide for a notice to issue of a committee's intention to exercise its compellability powers, set out the standard of proof and its duty to inform witnesses of its powers. Section 26 makes it clear that evidence compiled for the purposes of an inquiry will not be admissible in any other proceedings such as criminal and disciplinary proceedings. Section 28 makes provision for the taking of evidence to be conducted in public and states this evidence may be broadcast to the public, unless the Chairman of the committee is satisfied that it would not be in the interests of the inquiry or fair procedures to do so.

Part 4 contains sections 30 to 38, inclusive, and makes provision for interim and final reports of a committee conducting an inquiry. These sections make provision for the form and content of such reports, matters relating to the amendment and publication of reports and the confidentiality of such documents.

Part 5 is divided into five chapters and concerns costs. Again, I will highlight the most significant sections in this part. Chapter 1 contains sections 39 to 42, inclusive. Section 40 requires a committee, prior to commencing an inquiry, to prepare a report containing an estimate of the legal costs and expenses expected to be incurred. Section 41 provides for the appointment of a panel of legal costs accountants willing and able to act as a parliamentary legal costs adjudicator in certain circumstances, while section 42 sets out the powers of the adjudicator.

Chapter 2 contains sections 43 to 49, inclusive, and contains provisions relating to Oireachtas inquiry legal costs. The focus in the Bill is on providing for recoupment of legal costs only in the limited cases where the good name of a person is at issue. Section 43 empowers the Houses of the Oireachtas Commission to issue guidelines in respect of inquiry legal costs. Section 44 provides for the recoupment of third party costs in specified circumstances. Section 45 provides that where a committee conducting an inquiry, or another person, has incurred additional legal costs as a result of the behaviour of a third party, the Houses of the Oireachtas Commission may direct the third party to pay such costs, provided that the grounds for the belief have been confirmed by the High Court.

Chapter 3 contains sections 50 to 52, inclusive, and concerns the payment by the Houses of the Oireachtas Commission of inquiry expenses and the power of the commission to issue guidelines and direct third parties to pay expenses in certain circumstances.

Chapter 4 contains sections 54 to 58, inclusive, and makes provision for legal costs in respect of private bills. These provisions allow for the updating of 19th century and early 20th century legislation in respect of private bill costs to bring it into line with the other costs provisions included in the Bill.

Chapter 5 contains sections 59 to 61, inclusive, and contains miscellaneous provisions in respect of costs.

Parts 6 and 7 largely mirror and update the provisions of the Committee of the Houses of the Oireachtas (Compellability, Privileges and Immunities) Act 1997. Part 6 contains sections 62 to 72, inclusive, and concerns compellability, privileges and immunities and applies only to an Oireachtas committee while it is conducting an inquiry pursuant to the Bill and on which a power to send for persons, papers and records has been conferred by the House. This part outlines the powers of such a committee in obtaining evidence and makes provisions relating to irrelevant and exempt evidence.

Part 7 contains five chapters and concerns compellability, privileges and immunities. This part applies to an Oireachtas committee while it is conducting non-inquiry committee business and on which the power to send for persons, papers and records has been conferred. Chapter 1 contains sections 73 and 74 and relevant definitions in respect of the part. Chapter 2 contains sections 75 to 79, inclusive, and concerns privileges and immunities of witnesses in circumstances where a committee is conducting its ordinary business outside of formal inquiry mode. Chapter 3 contains sections 80 to 87, inclusive, and makes provision for directions that may be given by a committee while it is exercising its compellability powers. Chapter 4 contains section 88 and provides for the payment by the Houses of the Oireachtas Commission of the reasonable expenses of a witness in proceedings before a committee.

Part 8 contains sections 89 and 90. Section 89 provides that a Member of either House shall not be amenable to any court and authority other than the House by which the relevant committee was appointed in respect of any utterance in or before a committee. It also provides that certain documents may be privileged. Section 90 places restrictions on the evidence of certain persons and contains the reformed procedure in respect of the evidence of civil servants which I outlined.

Part 9 contains sections 91 to 100, inclusive, and provides for applications to the High Court in respect of the conduct of an inquiry. Section 91 clearly provides for an application to the High Court for directions in respect of the proceedings of an inquiry where a person is of the opinion that any matter relating to the proceedings is not being inquired into or otherwise dealt with in accordance with the Bill. A committee may apply to the High Court for directions. Section 92 makes provision for such an application when a committee is of the opinion that a report could prejudice criminal proceedings. Section 95 permits a parliamentary legal costs adjudicator to refer a question of law arising in the context of an application for an adjudication of costs for the opinion of the court. Section 96 permits a committee to apply to court where a person fails to comply with a direction of the inquiry.

Section 97 allows for appeal to the court where a direction from a committee could prejudice criminal proceedings which are pending or in progress. Part 10 contains sections 101 to 108 of the Bill. As outlined earlier, this Part provides for a statutory qualified privilege for the private papers of Members and confidential communications from members of the public to Members of the Houses. I will highlight the main provisions of this Part. It is an area with which I am familiar since it affected me directly as a Member of the House. It is important that Members should be able to receive evidence without putting themselves or their informant on a hazard.

Section 101 sets out definitions and also makes clear that the operation of the privilege does not prejudice the power of each House to make rules and standing orders pursuant to Article 15.10 of the Constitution to create a protection for the private papers of Members. Section 102 provides for qualified privilege for the private papers of a Member and confidential communications from members of the public to Members of the Houses and sets out the circumstances in which such papers of confidential communications may be accessed or disclosed. Section 103 permits a person who has communicated with a Member and who is otherwise entitled by law to disclose the fact or content of the communication to make such a disclosure. Section 104 provides for the determination of what constitutes a private paper or confidential communication. Section 105 provides for guidelines to be developed by the Houses of the Oireachtas. Section 106 sets out the arrangements which will apply to the private papers or confidential communications of former or deceased Members of the Houses.

Part 11 contains sections 109 to 113 of the Bill. As I mentioned earlier, it provides for a statutory qualified privilege for the official documents of the Houses of the Oireachtas. Section 109 sets out definitions and also makes clear that the operation of the privilege does not prejudice the power of either House to make rules and standing orders pursuant to Article 15.10 of the Constitution. Section 110 provides for a power for an Oireachtas committee designated for that purpose to make rules designating categories of official documents. Section 111 provides for qualified privilege for official documents of the Houses and sets out the circumstances in which an official document may be accessed or disclosed.

Part 12 contains sections 114 to 116 of the Bill. It governs the power of the Houses of the Oireachtas and any Oireachtas committee to examine witnesses under oath.

Part 13 contains sections 117 to 119 of the Bill. It contains provisions in relation to the laying of documents and allows for the repeal of the Houses of the Oireachtas (Laying of Documents) Act 1966.

Part 14 contains sections 120 to 130 of the Bill. It provides for miscellaneous matters including provision for offences by bodies corporate in section 120, provision for proceedings in court in section 121, matters relating to the prosecution of an offence under the Bill in section 122 and clarification on the status of court proceedings in the event of a discontinuation of an inquiry or the dissolution of either House in section 123. Section 124 contains restrictions on the Freedom of Information Acts 1997 and 2003. Sections 125 to 129 provide for the consequential amendments of other legislation.

The Schedule provides for a repeal of previous Acts relating to the Oireachtas that are either obsolete or are replaced by this Bill. It also provides for part amendment of a small number of Acts.

I am conscious that this is a large and complex Bill and I have dealt with its provisions in summary form. I am happy to expand on any of its provisions during the course of this debate. There will be an opportunity on Committee Stage to examine the Bill in detail. I thank Deputies for their co-operation. This Bill is a long time coming. The heads of the Bill were referred to the Select Sub-Committee on Public Expenditure and Reform which provided advice and did very good work last year and this year. I hope those good advices have been incorporated into the version of the Bill before the House. I look forward to listening to the contributions of Deputies. I hope the House will support the passage of the Bill and assist in securing its early enactment. I commend the Bill to the House.

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