Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I thank Deputies, in particular Deputy Funchion, for tabling this legislation and allowing us to have this debate. The Bill, as was said, proposes to amend the Commissions of Investigation Act 2004 to require former members of a commission of investigation, upon written request, to appear before the relevant Oireachtas joint committee within six months of the presentation of the commission's final report. I will go briefly through some of the key elements of the Commissions of Investigation Act which I think are relevant in considering this Bill. I do agree and believe that there may be times following publication of certain commissions of investigation when it is appropriate for the chair in particular to make a public statement or to provide an explanation or clarification, especially to avoid confusion and to make sure that we maintain public confidence in the process itself and that those who are involved in the commission have confidence in it. However, it should be a matter for the chair himself or herself, or else the Minister of the day who is setting out the terms of reference, to say that very clearly. We know this happened with previous commissions of investigation whereby that was set out clearly in the terms of reference and where there was public commentary and clarification.

I note and acknowledge the reason Deputy Funchion has just outlined for the Bill being put forward. I do not for a second doubt her reason for putting it forward.

She has been very much to the fore of this in chairing the committee and her involvement with many of my own colleagues, and working with the Minister, Deputy O'Gorman. The chair requested at several stages that the commission would appear before the committee at that stage. That had been resolved. There has been an acknowledgment by the Minister, Deputy O'Gorman, and others that many people but, in particular, survivors, had been left very disappointed by aspects of the report, particularly by the tone and language used in the summary. They had not been able to get clarification or ascertain what they felt were the facts. I understand their feeling of disappointment in that regard. It does not change the fact, though, that in setting out the commission of investigation, the primary function is to establish the factual position about the matter under investigation. We talk about getting justice for people but we have to be clear that it is about setting out the facts and, hopefully, that will, in turn, provide some level of comfort or justice for people. That might not be the case either, however. It has to be absolutely clear that the establishment of a commission is to report on matters of significant public concern. It is to establish the factual position but, as the Deputy also set out, it remains completely independent at every stage. That is where the challenges have arisen regarding this Bill.

I will outline some of the challenges. The commission established under the Commissions of Investigation Act 2004 is required to act independently to conduct its investigation in accordance with fair procedures. This requires it to respect important legal principles that ensure relevant persons obtain a fair hearing and an opportunity to reply to evidence affecting them and their good name. The chairing of commissions is entrusted to persons, usually judges or former judges and senior lawyers, with the skills and expertise to ensure those legal principles are upheld in the conduct of the commission's work and in the writing of its report. It operates in a carefully controlled environment and aims to produce a carefully balanced report that can withstand legal challenge before the courts.

Section 35 of the Act provides that a draft report may be amended for reasons relating to a failure to observe fair procedure. When a commission finishes its report, it has no further authority to act. Requiring a member of a commission to come before an Oireachtas committee in the way suggested in the Bill would not be appropriate. It carries considerable risk to the principles of fair procedure to take the issue out of what is intended very clearly to be a controlled environment where the rights of participants, in particular, are protected and to potentially reopen them in an environment that is not in that sense carefully controlled. It could reopen some of the challenges, and the rights of the participants could be at risk.

Section 9 of the Act provides that: "A commission shall be independent in the performance of its functions" while section 10 provides that "A commission may, subject to this Act and the commission's rules and procedures, conduct its investigation in the manner that it considers appropriate in the circumstances of the case." The proposal in the Bill to require a former member to give account to an Oireachtas committee is not compatible with these particular provisions of the 2004 Act. In terms of separations of powers, it is sometimes the case, as I have mentioned, that members of a commission consist of a member of a Judiciary or, in fact, they may be the sole member or may be chairing. In the event that such a person was to appear before an Oireachtas committee, it is inevitable that difficulties would arise with separation of powers, which is a key element of the constitutional framework. Deputies need to consider this issue carefully before agreeing that the Oireachtas would enact legislation that would potentially give rise to difficulties in that regard.

The Bill also proposes that a former member of a commission shall not be required to give account with regard to number of specific matters, including any facts established by a commission. The Deputy said that specifically with regard to mother and baby homes and the establishment of facts and how the final conclusion was reached. If we cannot talk about the facts established, information concerning any person who is identified and evidence given to the commission in confidence because of that exclusion, members of the Oireachtas committee would have great difficulty in asking questions of any value while complying with the Bill.

Section 32 of the 2004 Act provides that "a commission shall prepare a written report, based on the evidence received by it, setting out the facts it established in relation to the matters referred to it for investigation." It goes on to state that where "a commission considers that the facts relating to a particular issue have not been established, the commission ... shall identify the issue, and may indicate its opinion as to the quality and weight of any evidence relating to the issue".

In light of this provision, therefore, it is reasonable to conclude that the report of a commission would deal as comprehensively as possible with the matter under investigation and, consequently, there would be nothing further for a member of the commission to add in the context of giving account to an Oireachtas committee. The Bill is based on the idea that a commission of investigation is to be accountable to a committee appointed jointly by both Houses of the Oireachtas. The 2004 Act provides for the establishment of a commission that is to be independent in carrying out its functions. It is to be the independent of the Government and also the relevant Minister responsible for overseeing administrative matters relating to the establishment of the commission. Again, the proposals in the Bill would not be compatible with this requirement for independence.

I want to stress again that I absolutely appreciate and understand the rationale behind the proposals. I reiterate that I believe there should be times where clarifications are needed and where there are issues that should be set out and explained, particularly where it avoids confusion but making sure confidence is maintained in this process. That is something that can and should be done through the Minister or the chair when setting out the terms of reference. For the reason I have outlined, however, there could be an implication for future commissions if we were to have a line crossed where that independence was in any way being jeopardised, not just the structure itself and the potential is there for the environment to have implications for those who have contributed to what is a very controlled environment and process, with challenges also arising if members of the Judiciary who are more likely to be the chair coming before a committee. Perhaps there is a way we could engage to see how we could make sure something that has happened previously does not happen again, as the Deputy outlined. I understand the disappointment and the manner in which some of it was dealt with, which was not fair to those who put themselves forward and took part in the commission. We could make it clear that there is a way forward. That type of clarification could be provided in the future so that something like this does not happen again.

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