Seán Fleming (Laois-Offaly, Fianna Fail) | Oireachtas source

Fianna Fáil welcomes parliamentary inquiries. The public recognises the value of these inquiries which bring to light important information that otherwise may not be made public. I refer to the recent hearings of the Joint Committee on Health and Children to consider the protection of life during pregnancy Bill. The hearings were very well conducted and have been very informative. They are an example of the good work of committees under the existing regime. Across the water, a House of Commons committee held public hearings last week on various matters while the following day the US congressional hearings were being conducted. Both hearings dealt with the corporation tax rate paid by multinational companies in Ireland. These matters are very relevant to Ireland and were being discussed in other parliaments in other jurisdictions. The public expect that Members of this House should be able to obtain similar information by means of hearing and inquiries. While this is an island we are not isolated and people see these things on television. Many Oireachtas committees, including the Committee of Public Accounts, hold public hearings every week. Important information is made public and the good work of the committees is recognised.

The Bill was published last Friday. It has a great Title but there is very little that is new or of much substance in this legislation. It is an attempt to give a good impression that much is being done but this is not evident when one delves further. The parliamentary inquiries system in Ireland cannot be a vehicle for attributing individual responsibility. Any attempt to do so would cause the inquiry to collapse and would conflict with the decision of the people in October 2011 by way of referendum. The Government put forward the referendum on a proposed change in the existing constitutional provision. Unfortunately, due to the arrogance of certain Ministers - I do not include Deputy Howlin - the proposal was rejected by the people. I refer to the Minister's opening contribution in which he stated, "The outcome of the autumn 2011 referendum was that the electorate endorsed the status quo." This is a very euphemistic way of saying the electorate rejected the Government's proposals. The electorate was not asked to vote on the status quo but on a new proposal which was roundly rejected. I note the good gloss and spin put on events.

I concur with the Minister that the public need to understand what the legislation proposes. I refer to the explanatory memorandum which states:

The purpose of this Bill is to establish a comprehensive statutory framework for the Oireachtas to conduct inquiries within the current constitutional framework as set down by the Supreme Court in Maguire v. Ardagh[2002] 1 IR 385, (the Abbeylara judgment). The Abbeylara case decided that Oireachtas inquiries do not have the power, in general, to make findings of fact adverse to the good name of any person who is not either a Member of the Houses or directly accountable to the Houses. Additionally, there are many legitimate inquiries that the Houses can undertake which would not infringe on the good name of private citizens.

The Bill will establish the legal framework for the House to set up inquiries that do not impact or infringe the good name of people. This is already provided for in the Constitution. The Joint Committee on Health and Children held hearings last January and this week.

In essence, that is the Oireachtas inquiring, recording and reporting. That is what the Joint Committee on Health and Children is doing without this legislation being in effect. The Joint Committee on Finance, Public Expenditure and Reform had public hearings on freedom of information and reported on them to advise on future legislation. That is provided for in the legislation but it is already happening. The Committee of Public Accounts has the power to summon witnesses and report on people who are accountable to it whether they are accounting officers or accountable officers, as some call them, such as chief executive officers of semi-State companies. That has already happened through the PAC. The House conducted an inquiry and moved to remove former Judge Brian Curtin from his office and procedures were in place to facilitate that. The process came to a speedy end at the end of the day but the power to remove an officeholder is enshrined in the Constitution and the House can do it. The Oireachtas has current powers to conduct inquiries into the conduct of its own Members.

The essence of the national parliament is to hold the Government to account. This is the current legal position. I ask, therefore, what is new in the legislation. I look at the short version in the explanatory memorandum, which indicates that the Bill provides specific statutory underpinning for five general types of Oireachtas inquiry ranging from inquiries limited to recording and reporting evidence to inquiries of an adjudicative nature where this flows from the existing constitutional powers of the Oireachtas. The Bill provides for a section 6 inquiry which is an inquiry to record and report, which is what the health committee is doing as we speak. Section 7 provides for inquiries relating to the exercise of a legislative function, including where there is a need for new legislation, which is what the Joint Committee on Finance, Public Expenditure and Reform did recently on freedom of information. Committees regularly hold hearings and make recommendations on future legislation.

We already have a section 7 inquiry in practice, if not by name. Section 8 provides for an inquiry in relation to the removal of certain officeholders. We have already mentioned that in relation to Judge Brian Curtin. The Minister is putting a new title on an existing procedure. Section 9 provides for an inquiry into the conduct of a Member of the Houses of the Oireachtas and it goes without saying that such a power is there already. The only issue is to ensure that Members exercise their powers properly, which they have not always done. It is an issue to be arranged pursuant to the Standing Orders of the House, not legislation.

Section 10 is the big one and gives the Dáil the power to undertake an inquiry into the conduct of a current officeholder, senior civil servant or chief executive officer of a public body who is liable to account to the Dáil by virtue of his or her terms of office. Section 10 has given the Dáil the power to conduct an inquiry into certain officeholders - Ministers. That is what the Dáil is here for; that is what we were set up for when we got our independence. The Dáil is here to hold the Government to account but the Government is now providing to call an inquiry that makes the Dáil hold the Government to account a "section 10 inquiry". Every one of the inquiries provided for already exists and already happens. I accept that they might function better with an improvement to Standing Orders, but they are there already.

The question is what is the purpose of the legislation. The Minister has drafted the legislation to provide for five new types of inquiries but is already unhappy with his own definitions of them. There is already a suggestion that the banking inquiry may be a hybrid section 6 and section 7 inquiry. He is introducing a new form of inquiry as he is not happy with the legislation he has drafted himself.

Looking at the legislation in detail, I find it extraordinary that there are several references to the Houses of the Oireachtas Commission and the new Standing Orders it will be required to implement. The Minister says the legislation does not want to encroach on the Houses of the Oireachtas, but practically everything provided for in the Bill could be done by the Oireachtas improving its own Standing Orders. I have already made it clear that the Oireachtas is not permitted to have new powers because the Abbeylara judgment continues to hold and the referendum was defeated. We are as we were and all we are doing here is asking the Oireachtas to improve its terms of reference on the conduct of inquiries to make them more transparent. What we are doing, I accept, is putting a legal framework on current practice. It is a tidying up exercise but we are not introducing any new powers.

The legislation runs to 130 sections and 96 pages. What is interesting is that no funding is provided for anywhere in the Bill for any of the inquiries set out. No resources or budget is provided for and there is no mechanism to provide for funds or resources to be obtained. There is no mention of where the funding is to come from to pay for all of this. It sends a clear signal about the detail of the legislation.

Perhaps the legislation does some good, but we must ensure it does no harm. On closer examination, it appears that it could do harm. A specific issue to which I want to refer is bias. It is an issue which was raised during the referendum campaign last year and during the public hearings recently. It is dealt with extensively in section 18, which refers to the "reasonable man" standard, which we all accept. I accept also that the bias issue is not as significant now that we will not be making findings in relation to a person's good name. Had the referendum been passed and we were making findings on character and conduct, the issue of bias would be much more important. While we are not allowed to make those findings, the issue of bias is still an important one.

We should be clear that the Oireachtas is full of bias. We would not be here if we did not have a point of view. We should, therefore, get real on the bias issue. People in Fine Gael or the parties whose members sit behind me have diametrically opposed views on many issues and will come to any committee with their particular perspectives. They are elected by the people who vote for them because they have the particular views and biases they hold. In fact, the Oireachtas should be representative of the collective opinions of the public on these matters. I do not have any problem with that. Where there is a problem is with the make up of a committee in terms of bias. The Government has a majority of two to one. That applies in the select committees that deal with the Estimates of the Minister's own Department and right across the Houses. There are nine members on select committees; six from the Government side and three from the Opposition. Before we even start, an overwhelming majority is biased in favour of the Government's point of view. It is an issue which we will not be able to get around no matter how hard we try unless the Government agrees in the interests of fair play to provide for equal representation by Government and Opposition members.

Another significant difficulty with the legislation is that it is aimed to provide for inquiries into Members of the Oireachtas and Ministers or chief executives or other officers who are accountable to it. The tragedy, which there is no getting around, is that if the Dáil dissolves, all work in progress by a committee is lost and gone forever. It cannot be reused because it pertains to a particular Dáil. Some sections of the Bill refer to the "Oireachtas" and "the Houses" and some to "the Dáil". If a committee established on foot of terms of reference has published an interim report, there is provision to protect such a report for the benefit of a future Oireachtas. Any work done before an interim report can be published and any work carried out after such a report has been published will be lost and the subsequent Oireachtas will have to start again. There could be a tremendous waste of time, energy and resources. I ask the Minister to try to square the circle, although I do not know how he can. Obviously, we will table amendments to require committees to present three or six-months interim reports. While they might have to be short, they will protect the work that has been done up to that point. I would hate to see a year's work go down the drain should the Labour Party fall out with its partners in Government and a sudden election be called. These things can happen on the night of a budget. It would be a dreadful shame and suggests we need a mechanism to protect the work that has been done. The Bill will require amendment on Committee Stage and provisions in this regard to be included in the terms of reference.

I was confused looking at the Bill and do not like the way it is drafted. It is not tidy, but we are stuck with it now. All good legislation has the definitions at the beginning, but that is not the case here. We have definitions cropping up throughout its pages and new definitions for new provisions.

Some will say legislation covering all parts is included at the beginning but in the case of a reference in Part 10 that is not in any other part, it is impossible to go to page 93 to find a definition of something referred to on page 107. I do not agree with it.

The Minister referred to drafting documents in electronic form and the use of computers. Perhaps the Minister can confirm, on Committee Stage, that information held through cloud computing will be captured within this. I ask for that to be clarified.

A major issue concerns section 10. There is misunderstanding among the public with regard to section 10. The explanatory memorandum states that Dáil Éireann, and interestingly not the Seanad, will have the power to undertake an inquiry into the conduct of a current officeholder. That is fine because the Committee of Public Accounts comprises Deputies only, not Senators, and it is not a joint committee. The Government is answerable to the Dáil and, technically, the Government is not answerable to the Seanad. The explanatory memorandum refers to current officeholders but the legislation on page 21, section 10(2)(c)(I)(i), refers to "an officeholder (or former officeholder)". That gives the impression to the public that findings can be made against former officeholders but that is not the intention of the Minister. I ask him to clarify that by way of amendment on Committee Stage. This concerns an inquiry in respect of officeholders who report to this Dáil and it is intended to capture a Minister who is no longer in government but was in government during the term of the Dáil. Any reasonable person would think the reference to former officeholder refers to former Ministers. It does not and it needs to be clarified. It is confusing and most people are entitled to take the view that it captures former Ministers. There can be no historic inquiries. The Minister says the electorate voted for the status quobut I say they rejected the amendment proposed by the Minister. That must be clarified.

The essence of the Bill is to provide for inquiries by the Oireachtas into the current Government and key people in key positions at the moment, the accountable people. Any findings cannot deal with former Members. If a member of the Government, or a Member of the House, is subject to inquiry and he sees an unfavourable or adverse finding coming down the tracks, the Member can resign from the House and no adverse findings can be made. This is interesting and we must deal with it on Committee Stage. If there is the possibility of an adverse finding, resigning a Dáil seat means the person is not a Member of the House and, according to the legislation, an adverse finding cannot be made against the person. This is the case even if the person is a Member of the House up until the day before the finding is due to be published. At that point, the finding cannot be made. Many people will think there is an escape hatch for a politician who would like to escape an unfavourable adjudication by a committee. Nothing can be said once the person is not a Member and is in the same position as the former officeholders to whom I referred. I do not know the legal mechanism but it should capture all Members of the Oireachtas, regardless of when they resign. Once they are elected to this Oireachtas, Members should be subject to inquiry by the Oireachtas. The Minister must also deal with the issue of work not being carried forward.

The explanatory memorandum refers to section 11 providing for a parliamentary mechanism whereby a proposal to conduct an inquiry is assessed by the individual or committee. Standing Orders must be drawn up to facilitate that. Practically everything required to be done requires new Standing Orders of the Houses of the Oireachtas. Section 12 provides that, within the commencement of the section of the Act, the Oireachtas must pass the new Standing Orders to deal with an inquiry mechanism by a committee. We return to the Standing Orders of the House. Why does the House not get on with drafting Standing Orders now? In that case, we would not need some of the legislation. Nothing prevents the House doing what will be forced on it by the legislation. Perhaps the House has not been operating as effectively as it might and has not been using the powers it has. We must pass legislation telling the House that, within 50 days after the commencement notice, the House shall make rules and Standing Orders referred to in subsection (1)(a). The House should get on with that and do it now. It does not need to be told by the Minister for Public Expenditure and Reform.

People ask what is going on in the Dáil. Examining the legislation and considering everything that must be done under Standing Orders, the question must be raised why it is not being done through Standing Orders at this stage. The legislation does not make the Oireachtas do it because the Minister is clear he does not want to interfere in Oireachtas proceedings. The Minister is hinting and suggesting and saying that he will give the Oireachtas 50 days.

No one has analysed the following problem in detail. The Minister is setting up a raft of new Oireachtas committees. I am dumbfounded. Section 104 sets up a Part 10 committee. Section 104 deals with a committee deciding on the adjudication on private papers, a topic close to the heart of the Minister. In section 109, it provides for a Part 11 committee being established and people will be interested to know why we need such a committee. Under section 116 we set up a section 16 committee and section 76, on page 64, sets up a section 76 committee. Sections 11 and 12 deal with the Part 11 committee. I count half a dozen committees provided for in the legislation. They may only be set up for a short period but I question why we must set these committees in legislation. There is nothing preventing the Oireachtas doing so through Standing Orders and I query why we include it in legislation.

Section 20, on page 29, deals with witnesses having absolute privilege under the Defamation Act. The Minister is changing how this is dealt with. I was at a committee meeting this afternoon. It was made clear by the Chairman that a person must cease giving evidence on a particular topic when directed to do so by the committee. However, this legislation refers to direction by the Chairman. The current Defamation Act, which is read out at every Oireachtas committee meeting where witnesses give evidence, refers to ceasing to provide evidence on the particular topic if directed by the committee. This legislation refers to the direction of the Chairman and I wonder whether the Chairman has such a right. There is a reason the committee must make the decision for someone to desist rather than a unilateral decision of the Chairman. It is not that there is anything wrong with it but it is unclear and seems slightly different.

Committees can go to the High Court and the Director of Public Prosecutions can take a case to the High Court. Fines of €500,000 and sentences of up to five years in prison can be made if people are in breach of these measures or not co-operating. It must go by way of the Director of Public Prosecutions, to the High Court.

Section 60 is a reference to the Houses of the Oireachtas Commission making Standing Orders. This is a ticking off for the Oireachtas from the Minister. He is saying that the Oireachtas has powers and asks it to pass Standing Orders under these sections to conduct a robust inquiry. The Minister is saying the Oireachtas has the authority to do so but needs a legal statutory framework and that nothing is preventing the Oireachtas doing so.

Section 68 is one of the more serious sections in the legislation. It exempts certain evidence from being heard. Where are we going with this? The Minister said the purpose of this is to set up a banking inquiry.

However, section 68 provides that the committee shall not direct a person to give evidence if it relates to discussions of a meeting of a Government or a committee appointed by the Government. They cannot give evidence to the committee-----

See this speech in context