Seán Kenny (Dublin North East, Labour) | Oireachtas source

I welcome the Minister of State to the House. The purpose of the Bill is to establish a statutory framework for the Oireachtas to conduct inquiries within the current constitutional framework, as set down by the Supreme Court in the Maguire case, also known as the Abbeylara judgment.

The Minister, Deputy Howlin, strongly supports the objective of undertaking an effective and robust parliamentary banking inquiry. This Bill envisages a central role for the Oireachtas in initiating and conducting a parliamentary inquiry. The Bill contains extensive provisions on fair procedures and the conduct of members of committees to avoid any perception of bias. In addition, inquiries conducted under this statutory scheme will be governed by and subject to guidelines that may be issued by the Houses of the Oireachtas.

The constitutional position is that it would not be permissible for the Oireachtas to legislate to create a power for the Houses of the Oireachtas to conduct inquiries that would have implications for the reputations of individuals, unless a specific constitutional authorisation for such a power can be identified. It is, however, constitutional for the Oireachtas to conduct inquiries which have no implications for the reputation of individuals and to hold forward-looking parliamentary inquiries which are geared towards policy and legislative issues.

The Dáil has an implicit constitutional power to conduct inquiries in order to hold the Government responsible, even if this affects the reputation of individuals, but it does not extend to investigating the activities of past Governments, provided that an inquiry is a bona fide attempt to operate within the constitutional constraints. It is not constitutionally problematic that inferences adverse to people's reputations may be drawn.

The Bill would provide legal certainty in this area and would provide the necessary framework for an inquiry operating under proper constitutional authority to carry out its functions. It would address all ancillary powers, procedures and the creation of offences necessary for the conduct of an inquiry. It would also balance the public interest in the investigation of matters of importance, with the protection of the constitutional right of an individual to his or her good name in a manner that would be robust and would withstand possible constitutional challenge.

Of the five separate types of inquiry that can be held under the Bill, I am particularly interested in inquiries related to a legislative function as this is where work of real benefit can be done. This is appropriate where information on past events is believed to be directly relevant to a forward-looking issue, such as the case for new legislation. An inquiry of this nature would have the potential to make findings of fact which could indirectly have an adverse reputational effect for an individual, but would not be permitted to make findings having direct adverse affect on the reputation of an individual.

The final decision on the holding of an inquiry under the Bill is subject to the endorsement of the Dáil and Seanad by way of a resolution.

Full compliance with the provisions regarding fair procedures is a requirement for any inquiry. That is essential, particularly where a person's good name could be adversely affected, even by inference, by the findings of an inquiry. Even where an inquiry has no scope to make findings that could have an adverse effect on the reputation of individuals, absolute procedural fairness must be observed. In addition, access to the courts will be unfettered in respect of all procedural aspects of the inquiry process and remains open at all times. In other words, if individuals feel the need to seek relief in the courts, that route is open to them.

The Bill includes extensive requirements to safeguard the constitutional rights of any person participating in an inquiry, including the right to challenge proceedings where an individual believes the conduct of the investigation is in breach of the Bill. Additional safeguards include the requirement to give advance notice of the evidence proposed to be given against an individual, the ability to cross-examine witnesses for the purpose of challenging an allegation, the capacity to furnish evidence to the inquiry to answer an allegation and the opportunity to argue one's case in closing submissions when the giving of evidence is completed. These provisions are further strengthened by the capacity for individuals to request that the committee direct specified persons to attend before it to give evidence or to direct the committee to send for specified documents.

This is complex and delicate legislation with serious constitutional implications in the area of civil rights and civil liberties. Given that those rights and liberties are of the most profound value in any democracy, we simply must get it right. I am confident that the Minister has got the balance right in terms of upholding the constitutional rights of individuals while also providing for a workable structure of effective inquiries. I support the proposals.

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