Paul Kehoe (Wexford, Fine Gael) | Oireachtas source

I move:

That, notwithstanding anything in Standing Orders, the following amendments be made to the Standing Orders of Dáil Éireann relative to Public Business:(a) Replacement of Chairman of theInquiry Committee

In Standing Order 90, the insertion of the following paragraph after paragraph (3):

'(4) Where the Chairman of a Committee which is conducting a Part 2 inquiry ceases to be a member of that Committee, the Dáil shall, by Resolution, appoint a Chairman from amongst the remaining Committee members.';

(b) Perception of bias

By the adoption of the following additional Standing Orders:

'Perception of bias – responsibility of member

97A. (1) If a member is a member of a Committee which is conducting or which is to conduct a Part 2 inquiry, or is appointed to a Committee which is conducting or which is to conduct a Part 2 inquiry, and that member is aware of anything in his or her own behalf which might lead to a perception of bias arising in a reasonable person in relation to that member's participation in that inquiry, then that member shall recuse himself or herself from participating in that inquiry.

(2) A member may apply to the Committee on Procedure and Privileges for an opinion as to whether a perception of bias might arise in a reasonable person in relation to that member's participation in a Part 2 inquiry. The opinion sought shall result in a motion in relation to whether that member shall be a member of the inquiry Committee, in accordance with Standing Order 97C(4).

(3) In these Standing Orders, where reference is made to a perception of bias which might arise in a reasonable person, this means a perception of bias which might arise in relation to—

(a) a member's connection or dealings with any matter the subject of a Part 2 inquiry, where that connection or those dealings might lead to a perception of bias in a reasonable person;

(b) a member's utterances on the matter or matters the subject of the inquiry; or

(c) any other relevant circumstances.

Removal from inquiry Committee in relation to perception of bias

97B. Where a member has recused himself or herself from a Part 2 inquiry, on the grounds that a perception of bias might arise in a reasonable person in relation to that member's participation in the inquiry, the Dáil shall resolve, as soon as is practicable, that the member be removed from the inquiry Committee.

Procedures re. perception of bias

97C. (1)(a) Any person may make a submission to the Committee on Procedure and Privileges claiming that a perception of bias might arise in a reasonable person in relation to a member appointed to take part in a Part 2 inquiry. Such submission shall be in writing and shall include evidence in support of the claim.

Provided that where the submission does not fulfil these conditions, the Committee on Procedure and Privileges shall inform the person of such, and afford them the opportunity to make the submission in the correct manner.

(b) The Committee on Procedure and Privileges shall, as soon as is practicable, consider the submission under paragraph (a), and give the member in question the opportunity to make a submission to the Committee in defence of his or her position, in such form as the Committee sees fit.

(2)(a) A member who seeks an opinion under Standing Order 97A(2) on whether a perception of bias might arise in a reasonable person in relation to that member's participation in a Part 2 inquiry, shall make the request to the Committee on Procedure and Privileges in writing, with a reason or reasons why the opinion is being sought.

(b) The Committee on Procedure and Privileges shall, as soon as is practicable, consider the opinion

sought under paragraph (a).

(3) Where the Committee on Procedure and Privileges has considered either a submission under paragraph (1), or an opinion sought under paragraph (2), it shall, as soon as is practicable, and if the member in question has not recused himself or herself from the Part 2 inquiry, make a report in relation to the participation of the member in the Part 2 inquiry, with a recommendation that, on balance—

(a) a perception of bias might arise in a reasonable person in relation to the member, or

(b) a perception of bias might not arise in a reasonable person in relation to the member.

(4) As soon as is practicable after its adoption of a report under paragraph (3), the Committee on Procedure and Privileges shall lay such report before the Dáil, and shall nominate one of its members to table a motion, as soon as is practicable, which—

(a) takes note of the recommendation in the report, and

(b) proposes that either—

(i) the member in question be confirmed as a member of the inquiry Committee, or

(ii) the member in question be removed from the inquiry Committee.

(5) The Dáil shall consider the motion under paragraph (4) as soon as is practicable.';

(c) Committee on Procedure and Privileges

In Standing Order 99—

(a) the insertion of the following subparagraphs after paragraph (1)(c):

'(d) receive a relevant proposal from a Committee which proposes to conduct a Part 2 inquiry,

(e) from time to time consider and issue such guidelines as it considers appropriate in relation to—

(i) Part 2 inquiries, and

(ii) other Committee business where a power to send for persons, papers and records has been conferred,

in accordance with sections 19 and 79 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, and

(f) as part of its responsibility for overseeing procedure in Committees, consider matters relating to perception of bias in respect of a Part 2 inquiry, for the purpose of preserving the integrity of the Part 2 inquiry as it is being conducted by the inquiry Committee.',

(b) the insertion of the following subparagraph after paragraph (2)(e):

'(f) power to give consent in writing to the giving of a direction or directions in relation to persons, papers and records for Committee business, other than Part 2 inquiries.',

and

(c) the deletion of paragraph (4);

and

(d) Part 2 inquiries

By the adoption of the following additional Standing Orders:

'Part 2 inquiries

107A. (1) The Dáil shall approve the conducting of Part 2 inquiries in accordance with these Standing Orders.

(2) A Committee which proposes to conduct a Part 2 inquiry shall make a relevant proposal in that regard, under Standing Order 107B, to a Committee designated by the Dáil under these Standing Orders to receive such proposals.

(3) The Committee designated to receive relevant proposals shall cause those proposals to be evaluated and shall make a relevant report on those relevant proposals.

(4) The terms of reference for a Part 2 inquiry must be approved by the Dáil, in accordance with Standing Order 107E, and no Terms of Reference Resolution shall be passed, or be declined to be passed, by the Dáil, prior to the consideration of the report prepared under paragraph (3).

(5) The publication of final or interim reports of a Committee conducting a Part 2 inquiry shall be approved by the Dáil in accordance with Standing Order 107G.

CPP to receive notice of relevant proposal

107B. (1) The Committee on Procedure and Privileges shall be the designated Committee under Standing Order 107A(2) to receive notice of a relevant proposal from any Committee which proposes to conduct a Part 2 inquiry.

(2) The Committee on Procedure and Privileges shall from time to time devise and lay before the Dáil rules and procedures relating to evaluation of relevant proposals, including rules and procedures relating to any consultation on and method of assessment of relevant proposals.

(3) For the purposes of these Standing Orders, except where otherwise indicated, “Part 2 inquiry" means an inquiry under Chapter 1 of Part 2 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.

(4) For the purposes of these Standing Orders, except where otherwise indicated, interim and final reports in relation to Part 2 inquiries shall mean interim and final reports under sections 33(1) and 34(1) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.

Relevant proposal

107C. A relevant proposal under Standing Order 107A(2) shall address or contain, insofar as is practicable—

(a) the type of Part 2 inquiry proposed pursuant to sections 7 to 11, inclusive, of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013;

(b) the matter or matters the subject of the proposed inquiry, to specify, as far as is practicable, the conduct, events, activities, circumstances, systems, practices or procedures to be inquired into, including—

(i) the dates on which, or the periods during which, the conduct or events occurred, the activities were undertaken, the circumstances arose, or the systems, practices or procedures were in operation,

(ii) the location or area where the conduct or events occurred, the activities were undertaken, the circumstances arose, or the systems, practices or procedures were in operation, and

(iii) the persons to whom that conduct or those events, activities or circumstances relate, or whose activities, systems, practices or procedures are to be inquired into;

(c) whether the matter or matters relate to a function of the Dáil;

(d) the reason the matter or matters ought to be the subject of a Part 2 inquiry, rather than being examined through other forms of parliamentary investigation;

(e) in relation to the Committee proposing to conduct the inquiry—

(i) the reason that it, further to its existing orders of reference, considers that it ought to conduct the inquiry, or

(ii) the changes, if any, to its existing orders of reference, which are, in its opinion, necessary for it to conduct the inquiry;

(f) the anticipated time schedule for the proposed inquiry, including whether it is proposed to conduct the proposed inquiry in a single period or in phases;

(g) the changes, if any, to statute law, which are, in the opinion of the Committee proposing to conduct the inquiry, necessary to conduct the inquiry;

(h) a draft Terms of Reference Resolution, which shall state, inter alia, whether the Committee proposing to conduct the inquiry, in conducting it—

(i) proposes to make findings of fact, including findings of fact that may impugn the good name of a person (depending on the type of inquiry proposed), or in relation to relevant misbehaviour,

(ii) proposes to make recommendations arising from—

(I) its findings of fact, or

(II) the findings of fact made by another Committee in conducting another Part 2 inquiry if the terms of reference for that other Part 2 inquiry expressly state that its findings of fact may be used in other Part 2 inquiries,

(iii) proposes that its findings of fact, if any, may be used by another Committee in conducting another Part 2 inquiry,

(iv) has or is to have the power to send for persons, papers or records;

and

(i) such other matters in relation to the proposed inquiry as the Committee on Procedure and Privileges considers appropriate.

CPP consideration of relevant proposal

107D. When considering a relevant proposal made pursuant to Standing Orders 107A(2) and 107C, the Committee on Procedure and Privileges shall consider—

(a) whether a proposed Part 2 inquiry should be conducted;

(b) if it should not be conducted, whether an alternative course of action should be considered;

(c) if the inquiry should be conducted—

(i) the Committee by which it should be conducted;

(ii) the manner, under sections 7 to 11, inclusive, of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, in which it should be conducted; and

(iii) the draft Terms of Reference Resolution for the proposed inquiry;

and

(d) such other matters in relation to the proposed inquiry as the Committee on Procedure and Privileges considers appropriate.

Relevant report and Terms of Reference Resolution

107E. (1) The Committee on Procedure and Privileges shall cause to be prepared a relevant report under Standing Order 107A(3) on any relevant proposals it receives for a Part 2 inquiry and shall, as soon as is practicable after its adoption of the relevant report, lay the relevant report before the Dáil, and a member nominated by the Committee on Procedure and Privileges shall table a motion to consider the relevant report and the recommendations contained therein.

(2) The relevant report shall make recommendations in relation to the matters contained in Standing Order 107D, and may include the draft Terms of Reference Resolution in relation to the relevant proposal, with any amendments thereto which are considered appropriate by the Committee on Procedure and Privileges, for consideration by the Dáil.

(3) The Dáil shall consider the relevant report and the recommendations therein and shall neither pass nor decline to pass a Terms of Reference Resolution under Standing Order 107A(4) in relation to the relevant proposal until such consideration has been given.

Subsequent inquiry

107F. If a Committee conducting a Part 2 inquiry wishes to conduct a consequential inquiry not covered by the Terms of Reference Resolution passed by the Dáil, it shall give further notice in writing of an additional relevant proposal to the Committee on Procedure and Privileges, to which additional relevant proposal the provisions of Standing Orders 107A to 107E, inclusive, shall apply.

Part 2 inquiry reports

107G. Notwithstanding the generality of Standing Orders 85 and 86, where a Committee conducting a Part 2 inquiry makes an interim or final report, the report shall first be sent to the Clerk of the Dáil, who shall as soon as is practicable arrange for its circulation to members. Where members have been circulated with such a report by the Clerk of the Dáil, the Dáil may, where the report is an interim report, subsequently order that the report be laid before the Dáil and made public, and shall, where the report is a final report, order that the report be laid before the Dáil and made public.

Duty of member to uphold integrity of inquiry

107H. It shall be a general duty of a member to uphold the integrity of a Part 2 inquiry, including maintaining the confidentiality of deliberations and documents relating to the inquiry.'."

Under the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, certain new Standing Orders are required to provide the framework for an Oireachtas inquiry to be established, to operate and to report. These Standing Orders have been drafted in accordance with requirements of the Act. Their legal context has been considered in detail and they have been discussed and approved by members of the Committee on Procedure and Privileges, chaired by the Ceann Comhairle, Deputy Barrett. The Standing Orders are before the Dáil for approval and, once in place, a framework will exist for future Oireachtas inquiries to be established.

Enhancing the role and powers of the Oireachtas committees is at the heart of the Government's reform agenda. The Houses of the Oireachtas (Inquires, Privileges and Procedures) Act 2013 and the Standing Orders before the House are part of that. Since taking office less than three years ago, the Government has established a new Oireachtas committee structure, encouraging more public involvement in law making by introducing the pre-legislative stage at committee and giving committees additional roles in the budget process and with a post-enactment review of legislation.

The Standing Orders before the House make provisions in four areas, namely, the replacement of a chair of an inquiry committee, bias in regard to the subject matter of an inquiry, expanded terms of reference of the Committee on Procedure and Privileges and a gateway mechanism which includes provisions on the consideration of inquiry reports.

The first change is to Standing Order 90. This provides that where the chair of an inquiry committee is to be replaced, the Houses of the Oireachtas will appoint the chair. Under the normal circumstances, the replacement of an Oireachtas committee chair would be an election at the committee, but this new Standing Order is required under section 21(7) of the Act. The next change requires two new Standing Orders 97A and 97B which relate to the concept of objective bias. Addressing the issue of bias is vital not only to the functioning and fairness of an Oireachtas inquiry but also to how that inquiry is perceived by those involved in an inquiry and by the wider public. The test of bias is set out in the Act, namely, where the perception of bias might arise in a reasonable person in regard to any connection, dealing or utterance on the part of the relevant member of in any other relevant circumstances.

Not only were some people in this Chamber hostile to the Government's proposals, but the people were hostile to its proposals and they rejected them in 2011 on the basis of thus far and no further. They affirmed that powers should remain separate. Regardless of whether it is a banking inquiry or an inquiry into any other matter, the people have already expressed their views. The motion before us is to circumvent their views. It is to try to establish some form of inquiry by amending Standing Orders in the pretence that it will be non-political.

I remind Deputy Stagg that I have been a Member for 21 years. I have yet to come into this Chamber when it was not political. I expect it to be everything because it is a political Chamber. We have an adversarial democracy. Regardless of whether it is people on this side of the House, the other side of the House or more importantly people with nothing to do with this who could be called before inquiries in the time ahead, I make a certain prediction that we will be back and forth to the Four Courts time and again because people's good names will be taken prior to any findings. Last week, the Committee of Public Accounts was undermined by some of its own members pirouetting before microphones in an attempt at one-upmanship.

Is this a genuine attempt to establish inquiries in the Houses of the Oireachtas to inquire into matters of public interest? The Government could argue that it is. The people were asked to allow us to amend the Constitution to establish inquiries and they correctly rejected it because separation of powers is critical.

Objective bias is one issue and Deputy Stagg reinforced the view that the CPP will frequently need to make decisions on objective bias. The Chief Whip stated that the CPP would decide on the issue of objective bias and on the membership of the committees, and then it will refer it to the Parliament, as if this Parliament were not subservient to Government. Is the Chief Whip living in a fantasy world?

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