Aengus Ó Snodaigh (Dublin South Central, Sinn Fein) | Oireachtas source

Ba mhaith liom leithscéal a ghabháil ar son Deputy McDonald, nach bhfuil anseo inniu chun é seo a thógaint. Bhí sí in ainm a bheith ár gcéad cainteoir.

I have an interest in this legislation due to my role as the party Whip and as a member of the Committee on Procedure and Privileges. There are provisions in the Bill, which I will discuss later, that I hope will address an issue that has bedevilled us for many years, the question of privilege in this House. It has never been fully explained. Hopefully, the Bill will address the issue in respect of the private papers of Members which are held by Members in pursuing their work in this House. It was always presumed to exist but in the last number of years we have discovered that the privilege had never been defined as intended through legislation. The issue is being addressed in this Bill and that is welcome.

The other reason I had an interest in speaking on the Bill is that I am a member of a committee that was established when the Government took office and which was originally intended to be an investigations, petitions and oversight committee. The investigation part disappeared when the referendum result slapped Members of the House on the wrist and told us to back off. The reason I mention that committee is that I believe it could play an important role when the Bill is passed, the role originally intended for it.

It is disappointing that we are discussing a Bill that was produced last Friday. We knew it was due to be published because, in fairness to the Minister, he published the heads of the Bill previously and there was a discussion about it. However, the convention or rule is that there should be two weeks between the publication of a Bill and the discussion on Second Stage. There is also supposed to be a two week gap between each Stage, so the Committee Stage debate should take place two weeks after the conclusion of Second Stage and the Report Stage should take place two weeks after that. That has not happened in many cases. A document was produced in 2004 entitled "Regulating Better" and all parties agreed with the principles in it. There was supposed to be a regulatory impact assessment of all legislation but, to my knowledge, only one has been produced in recent years.

I urge Ministers to go back to the usual practice, so Deputies will have sufficient time to peruse legislation and investigate it properly, especially when one is presented with a Bill that has 95 pages. As I said, I had seen the heads and discussed it with my party members and with other parties, so it did not take us by surprise. However, legislation is due to be published today which will be discussed on Tuesday and Wednesday next week. A social welfare Bill was published yesterday and it is intended to discuss it next Thursday. It appears to be a habit of the Government to rush legislation. The reason I raise this, particularly given what we are dealing with in this Bill, is that rushed legislation can be bad legislation. There should have been time to pause on this. It is bad practice. The programme for Government gave a commitment to publish the general scheme of this Bill, after which the committee could discuss it. That did not fully happen.

When the Joint Committee on Finance, Public Expenditure and Reform was dealing with the heads of the Bill, it was given only 13 days in which to do so. The heads are quite extensive, as reflected in the Bill itself. The timeframe meant the committee did not have time to seek the observations of interested groups and individuals. When one considers the background to the legislation, one realises that the public bodies that lobbied against us in the referendum campaign - the referendum legislation had been passed in the House - had a particular view on how this House would conduct inquiries or investigations in the future. It would have been appropriate to ask some of those groups for their views. I refer in particular to those in the legal field, including the Irish Human Rights Commission, that are tasked with the oversight of legislation. I include the Irish Council for Civil Liberties and the Bar Council and Law Society, which have expertise although some might question that. Some bodies advised the public that the inquiry method originally intended by the House should not be proceeded with. A mistake was made at the time in question. When Second Stage of this Bill is completed, I urge the Minister to give us time to receive counsel from those within our party and outside it who have a view on the legislation, which is quite extensive. The timeframe is clearly inadequate to facilitate even the most proficient legal expert in scrutinising it properly.

It is disappointing that the Minister, who has committed himself to the reform of legislative procedures, would seek to rush this legislation. That said, the Joint Committee on Finance, Public Expenditure and Reform had significant responsibilities and should have been given the opportunity to deal more fully with the heads of the Bill, as originally produced.

Professor David Farrell wrote some days after the people had rejected the referendum on Oireachtas inquiries last year that the fall of the Government's proposition was, at least, a disappointment for the Government. He asked whether it was really all that surprising that the proposition that was put to the people fell as it did not help that the citizens were not given a greater say in the process leading up to defining the referendum question. He stated the rationale for and design of the referendum question was imposed from the top without any effort to engage with citizens in advance. A lesson should have been learned. We made a mistake at the time in question and I hope we are not making one again.

The Bill before us is somewhat controversial because it comes on the back of a referendum that was rejected. For some, it will be seen as a way around that referendum result. I hope this legislation will stand the test of any constitutional challenge, if such a challenge arises. I believe the Houses of the Oireachtas, including its committees, should not be hampered in inquiring into matters of public policy. I am fully behind the principle and intention of this Bill. I want to ensure that what we are to produce will stand up to scrutiny.

The Minister has said this Bill provides for much more than simply a banking inquiry. A banking inquiry would be welcome. The legislation is establishing a comprehensive and detailed framework to enable the Oireachtas to hold inquiries of the kind intended before constitutional parameters were imposed on us by the Abbeylara judgment. Those inquiries are outside the day-to-day workings of the Oireachtas, including its committees. We, as politicians, are undertaking to take on an extra workload. I hope all the Members of this House and future Houses understand the onerous responsibility that will fall on them when they end up on a committee of inquiry.

The legislation replaces the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act and contains certain detailed provisions with regard to legal costs and expenses, privileges with regard to private papers and confidential communications and fair procedures. The legislation is significant and it follows on from the failed referendum.

The proposed constitutional amendment that sought to restore the pre-Abbeylara position whereby an Oireachtas committee could have the same powers of inquiry as any other statutory inquiry was voted down. In many ways, I believe we did not set out our case fully. I will not call for a rerun of the referendum. With hindsight, however, we can all see how we failed in our duty to try to explain to the public our position.

In the Abbeylara case, a joint committee of the Houses of the Oireachtas proposed that a sub-committee inquire into the incident in which Mr. John Carty was gunned down by gardaí who had surrounded his house when a siege developed. The committee issued directions to persons to attend, give evidence and be subject to cross-examination. The members of An Garda Síochána objected and the matter ended up in the courts. The Supreme Court rightly held at that stage that the Oireachtas could not hold such inquiries and it restricted the powers. The court said the Oireachtas could hold inquiries to better direct its purposes but not the type of inquiry envisaged in the Abbeylara case because it would have a significant impact on the rights of those appearing before it. The court found that:

[A]n inquiry cannot be compared to a simple search for knowledge to adjudicate on the culpability of citizens in their conduct and cannot in my view be equated with the everyday search for knowledge of facts. That is a governmental power which it seems to me can only be exercised by virtue of power conferred by the Constitution. That power is conferred by the constitution on the judiciary.

It is a question of the separation of powers. The court found that the Abbeylara committee would have been in conflict with the Judiciary.

While we supported the proposed constitutional amendment to reverse the Supreme Court's Abbeylara judgment, we expressed concern with what we believed was a significant shortfall in the proposition at the time. We stated the initial wording presented by the Government was ambiguous with regard to the position of the Oireachtas in determining natural justice. On that basis, we submitted an additional subsection to the legislation stating: "The conduct of such inquiries shall be regulated in accordance with the law and the principles of natural justice." Following constructive engagement with the Minister for Public Expenditure and Reform by my colleague, Deputy Mary Lou McDonald, and in response to concerns raised by others, including non-Members, the referendum proposition was amended on Report Stage with the inclusion of the words "with due regard to the principles of fair procedure". That is reflected in this Bill. Section 18 states a Member of the House shall not be, or continue to be, a committee member if, by reason of his or her connection or dealings with any matter the subject of the inquiry, a perception of bias might arise in a reasonable person.

It is important to ensure that fair procedure, and all of the other procedures, are outlined. There has to be fair procedure. That is welcome and it is to be hoped it will address any of the concerns of those who opposed the referendum.

It is not uncommon or unprecedented for parliaments to have the powers of inquiry the Abbeylara committee sought. The US, Britain and Australia are some examples of countries where such powers are regarded as an important thread in the fabric of democracy. The Oireachtas is a people's parliament and politicians are democratically elected to serve and represent their interests. We are also elected to hold those who are in government to account and to challenge those who work against the public interest.

The proposed 30th amendment to the Constitution was put to the people in 2011 and was defeated. Whether it was a narrow or large defeat does not make any difference; it was defeated. In rejecting the amendment citizens clearly told the Government, and all of us in this House and the Upper House, that they were not minded to extend such powers to politicians. The Minister has managed to address that in the Bill and it is to be hoped it will withstand a test. It is quite clear from the Bill that we are not taking on powers to which we are not entitled according to the Constitution, the Supreme Court and the people in 2011.

Part of the concern I have is that the Minister told us the Bill has been drafted in close consultation with the Office of the Attorney General in order to ensure that it complies fully with the court judgment and fully respects the constitutional parameters of parliamentary inquiries as set out down in the Abbeylara case. Attorneys General are not infallible. Sometimes it might be useful for the Government to relinquish the hold it has on the advice of Attorneys General and publish it. It would be useful, especially given the context of the Bill. It could be liable to challenge if and when we set up an inquiry. Somebody called before the committee might decide to challenge its constitutionality, given the Abbeylara judgment.

The Attorney General gave advice to the Labour Party before the election to the effect that we could change upward-only rent reviews. However, in office the Labour Party said it could not be done. During the children's rights referendum, the Supreme Court ruled that the Government referendum information booklet and website were flawed and were not fair, equal or impartial, and that extensive passages in the booklets and on the website did not conform to the McKenna principles. Following the judgment, it was confirmed by a spokesperson from the Department that the booklet and website had been thoroughly examined to ensure they were in compliance with the McKenna judgment by the Office of the Attorney General.

I am not casting aspersions on the Attorney General; that is not my intention. The advice of the Attorney General can be wrong and has been found to be so not only in the case of the current officeholder, but others. In the interests of what we are trying to do, it might be useful for committee purposes that the advice be published or at least made available to committee members in order that they can see it can stand up to the test we as politicians can put it to.

The Bill is welcome. While much of the considered concerns of organisations such as the ICCL have been addressed, not least because the Government has had to draft legislation within the confines of the Constitution, some concerns remain. During the 2011 referendum campaign, Dr. Eoin O'Malley of DCU noted only a majority in the Dáil could call an inquiry and that it could not legislate to allow a minority to call an inquiry. Any inquiry is dependent on the support of the Government. We should examine that and consider whether the majority of 50% plus one minimum should remain or whether we can develop another mechanism to allow inquiries in the public interest to take place.

During that campaign some voiced concerns that the constitutional amendment rendered the courts' role in reviewing parliamentary inquiries as negligible. Part 9 of the Bill appears to deal with those concerns, but again time is needed to consider the full details.

Concerns were also expressed regarding the power to investigate individuals other than officeholders. The Bill contains a list outlining into whom an inquiry can be conducted. It includes Oireachtas Members or any person liable to Dáil scrutiny by contract or statutory appointment. The list might need to be extended. For instance, it refers to the CEOs of companies. Often it is not just the CEO that one might want to meet, rather, one might want to meet a person who has a more operational role. We need to question whether we have an exhaustive list or whether under the restrictions in the Bill and those imposed by the Constitution we have the powers to deal with those who are not officeholders and public servants. The matter will be teased out on Committee Stage.

The Joint Committee on the Constitution's fifth report on Article 15 of the constitutional review of the parliamentary power of inquiry was quite clear. In its opinion, to investigate private individuals a constitutional amendment would be required. This will throw up its own challenges when the banking inquiry is held and that is why we need time to ensure that the detail of this Bill gives us the power to hold such an inquiry and that it is meaningful.

We believe consideration should be given to a single investigations committee for the reasons provided in the programme for Government. Such a committee was established. The other committee people have talked about in regard to this Bill which might be suitable to hold a banking inquiry, is the Committee of Public Accounts, one of the most powerful committees of the Oireachtas. It is regarded as important by the citizens. It deals with accounts and the cost of governance. It may not be the appropriate committee to hold a banking inquiry; a different committee might be more suitable.

When the programme for Government delivered the Joint Committee on Public Service Oversight and Petitions, it was originally intended to be a committee of investigation. That might be more suitable. I am not looking for extra work; I have enough work and am on too many committees. As a member of that committee, I know it is the clearing house for ombudsman reports and is building up a degree of expertise. I urge the Minister to consider whether either of those committees could hold a banking inquiry. They could perhaps be a clearing house for such an inquiry and could bring in expertise.

The Bill already provides for safeguards against bias. I mentioned section 18, which is welcome. It states that a Member shall not be a member of a committee conducting an inquiry if reasonable perception of bias might arise. Flexibilities could be provided for committee membership depending on the inquiry taking place.

There is a problem in this regard, however, which should be addressed in the legislation. Anybody who was here when the House sought to set up an inquiry to deal with former judge Brian Curtin will remember the hoops we had to jump through to find somebody who had not commented in any way, publicly or otherwise, on the matter. I was not a member of either committee and had not commented on the matter at the time. This begs a question. In the case of the banking inquiry, for example, where and how will bias be defined? Every Member of this House has made a comment on the issue, whether inside or outside the Chamber, including, in many cases, in the course of election campaigns or in campaign literature. We have all articulated where we perceive the fault to lie and so on. We are on a difficult road because perception of bias is in the eye of the beholder. Whoever is charged with making that determination will have an unenviable task.

Section 6 deals with making findings of fact on these matters. Again, it would be helpful to have sight of the Attorney General's advice in this regard. Concerns will be raised in respect of sections 8 to 10, inclusive. While these provisions simply provide a legislative framework for provisions already within the Constitution, it is our strong view that clarity will be required in the public debate on the Bill and the debate surrounding the establishment of any inquiry.

A previous speaker questioned the progression of the Bill on the basis that it provides enhanced powers for the Seanad to hold inquiries. The position at this time is that the Upper House still exists and, as such, the legislation is obliged to deal with it. However, if it is indeed the intention of the Government to abolish the Seanad, we will be amending this legislation within weeks of its passage. There is always the possibility, of course, that the people will reject the Government's proposition. There was an opportunity for the Government to get off the hook on which it placed itself in terms of the abolition of the Seanad by designating the matter for consideration by the Constitutional Convention. That body could have teased out the issues before making a report, which might have been a more informed strategy than simply indulging in the knee-jerk reaction that is the plan to abolish the Seanad as a cost-saving exercise and to deal with some of the rowdy individuals in that House.

The rushed manner in which this Bill is being dealt with is deeply disappointing. While many of the concerns raised during the referendum debate have been addressed by the Minister and his officials, public scrutiny and debate in respect of the proposals has been sparse. I accept that it is sometimes difficult to get the public and even the commentariat to engage in debate on a complex and abstract issue such as this. We now at least have a concrete framework, in the form of these legislative proposals, on which that discussion can be focused.

Surely, however, if there was any outstanding item of legislation from the Department which absolutely required such urgent attention, it is the Bill on whistleblowers. That should have been the first port of call. It is clearer than ever, in the wake of the public statements by the Minister for Justice and Equality on 15 May, that this long-awaited legislation is urgently needed. The Bill is intended to provide guidance to Ministers and senior public sector officials as to the appropriate manner in which whistleblowers should be treated. Moreover, some of the inquiries that will be set up under the provisions of the Bill we are discussing today could well be dependent on whistleblowers coming forward with information. Bringing that information to bear will be vital in allowing Members to appeal to the Government to establish inquiries as envisaged under this legislation. I look forward, with my colleague, Deputy Mary Lou McDonald, to dealing with the Bill in committee. I hope we will have legislation that can stand the test of time and is in the interests of the public in general.

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