Thursday, 29 January 2015
Order of Business
It is proposed to take No. 8, the Redress for Women Resident in Certain Institutions Bill 2014 - Second Stage (resumed); and No. 1, the Central Bank (Amendment) Bill 2014 [Seanad] - Second and Remaining Stages.
It is proposed, notwithstanding anything in Standing Orders, that the proceedings in relation to No. 1 shall be taken not later than 2.30 p.m. today and shall, if not previously concluded, be brought to a conclusion at 4.42 p.m. today and the following arrangements shall apply: the proceedings on the Second Stage shall, if not previously concluded, be brought to a conclusion after one hour and 30 minutes; the opening speeches of a Minister or Minister of State and of the main spokespersons for Fianna Fáil, Sinn Féin and the Technical Group, who shall be called upon in that order, shall not exceed 15 minutes in each case and such Members may share their time; the speech of each other Member called upon shall not exceed ten minutes in each case, and such Members may share their time; and a Minister or Minister of State shall be called upon to make a speech in reply which shall not exceed five minutes; and the proceedings on the Committee and Remaining Stages shall, if not previously concluded, be brought to a conclusion at 4.42 p.m. today by one question which shall be put from the Chair, and which shall, in relation to amendments, include only those set down or accepted by the Minister for Finance.
It is not agreed. I do not intend to force a physical vote on this. I just want to highlight my grave reservations about the import and impact of this Bill, the implications of which have not been widely circulated. I have been informed by my party Whip that the Whips were informed at a meeting of the Committee on Procedure and Privileges that significant limitations are to be imposed on what the Central Bank can disclose to the banking inquiry committee. I understand that up to 60% of the documentation may not be fully accessible by the banking inquiry. I stand to be corrected in that regard. It seems that the documentation will be stored in a central location. While the members of the banking inquiry committee will have access to that documentation, they will not get copies of it and it will not be available for public scrutiny. I am informed that some of this relates to EU directives. My party and I have not received any real written presentation on the degree to which the Central Bank can provide this documentation to the banking inquiry. How much documentation is there? What use can be made of that documentation? I understand it will not be made public when it goes to the banking inquiry committee. I understand that no individual or corporate can be named. It is possible that when the members of the inquiry are questioning Central Bank officials, they will not be able to ask questions about specific banks, corporates or individuals. This should have been flagged well in advance of the establishment of the banking inquiry. Were the limitations with regard to a key player and institution in the entire banking collapse understood?
The new Standing Order that will have to be introduced next week is significant because it provides that members of the banking inquiry committee may be sanctioned for "failure to comply with professional secrecy provisions in respect of confidential information provided under the Central Bank Act 1942". The proposed Standing Order states:
(1) Where confidential information has been provided pursuant to section 33AK(5) of the Central Bank Act 1942 a member shall not make an utterance during the course of proceedings which constitutes a failure to comply with the provisions of professional secrecy referred to in sections 33AK(6) and (6A) of the aforementioned Act. Where a member makes such an utterance during the course of proceedings it may prima facie be an abuse of privilege, subject to the provisions of this Standing Order.It goes on to say that a submission can be made within two weeks in these circumstances. We were given notice of this motion in tandem with the legislation, all Stages of which are to be put through today. We have got very preliminary legal advice of our own.
(2) If, during the course of proceedings, it appears to the Ceann Comhairle that a member has made an utterance as described in paragraph (1), he or she shall refer the matter to the Committee on Procedure and Privileges: Provided always that the Ceann Comhairle may also at any time thereafter, on his or her own volition, refer any such matter to the Committee.
A comprehensive presentation of the implications of any Bill like this should be made before it is put before the House. The point is that this will limit the degree to which the Central Bank can co-operate with the inquiry.
It seems that any Member of either House of the Oireachtas to whom confidential information is provided and who fails to comply with the provisions of professional secrecy in respect of that information may be subject to the sanction of the Houses of the Oireachtas in accordance with the rules set down in Standing Orders. The actual implications of this are quite serious. The members of the banking inquiry committee will have to ensure they do not breach the duty of professional secrecy that they owe arising from the receipt of confidential information from the Central Bank. It will be very difficult for the members of the inquiry committee to conduct the work of that committee in a thorough and competent way if they are precluded from referring to and questioning witnesses on documentation they have received from the Central Bank. That is the key point.
I will repeat the point I was making before I was interrupted. It will be very difficult for members of the inquiry team to conduct their work in a thorough and competent way if they are precluded from referring to and questioning witnesses about documentation they have received from the Central Bank. I would appreciate it if the legal advice to the Oireachtas and to the inquiry could be made public and presented to Deputies who have to debate the Bill today. My understanding is that when the documents go before the banking inquiry, they will not be published. A substantial number of them might not be accessible at all. The subsequent questioning by the members of the banking inquiry committee that will follow the reading of those documents that are accessible will be limited in so far as it will not be possible to name or identify individuals or corporates. I should quickly add that my understanding of the matter is based on what was communicated to me by my party Whip after he was briefed verbally on it at the Committee on Procedure and Privileges. I would respectfully suggest it is no way to conduct a debate in the House on such an important matter. That is why I stood up to oppose this. I am speaking on the basis of the quick legal advice we have received with regard to this important issue.
I understood when I was arranging to take the Order of Business this morning that this matter had been agreed between the Whips, having been before the Committee on Procedure and Privileges in the context of the relevant changes in Standing Orders that are required. I was advised that the Whips had reached agreement on that. To be clear, the purpose of this Bill is to empower the Central Bank, which is an independent entity in its roles and functions, to co-operate with the banking inquiry as fully as possible.
I would like to make a point about the work of the banking inquiry so far. As the Deputy and I know from the public reports of the banking inquiry, there is very serious legal advice about how the members of that inquiry have to conduct themselves for the inquiry to proceed successfully. They are under heavy advice about how to conduct themselves. My understanding this morning was that this matter had been agreed among the Whips. It had also been before the Committee on Procedure and Privileges and had been agreed there as well. I understand the Deputy has just learned about issues that have been raised very recently.
The reason for next week's change in Standing Orders is very simple. If the Central Bank (Amendment) Bill 2014 is passed by the House, it will have to go to the President for signature.
The changes to the Standing Orders cannot happen until that has been done. It is for that reason and no other that the consequential changes will come before the House next week. My understanding is that this was agreed among and between the Whips.
I just hope that Members in all parties understand what happened yesterday. Standing Order 57 was invoked in an unprecedented manner that silenced the House in its capacity to debate serious legislation establishing a commission of investigation into matters of fundamental concern pertaining to the administration of justice. Standing Order 57 was originally brought into being to prevent the very occurrence that happened yesterday. Back in the 1980s, there was an attempt by writ to suppress debate. The response to that attempt was this Standing Order. It was known at the time as the "gagging writ" because there was an attempt made to issue a writ preventing Dáil debate. The Dáil correctly decided that could not happen, so it introduced this Standing Order to prevent attempts to gag the House. It is extraordinary that the purpose of the Standing Order has been turned around 180° to do just that, namely, silence the House. It is a serious issue on which I would ask the Tánaiste and other members of the Government to reflect. I have no doubt that all Members on the Opposition side are as one, in that this cannot happen again.
The action concerned is not before a jury. How does a debate often start? The Ceann Comhairle or Leas-Cheann Comhairle states "notwithstanding anything in Standing Orders". That could have happened yesterday. The Leas-Cheann Comhairle or the Acting Chairman could have squared off the issue pertaining to Deputy Shatter's legal representations by warning Members not to say anything that might impinge on the courts and by putting the onus of responsibility on the Members. That has happened on countless occasions in this House, but it did not happen yesterday. The Ceann Comhairle had made his ruling.
It is without question that the ruling was totally disproportionate. Not only that, but it was against the spirit of why the Standing Order was introduced on day one. In my understanding, there was a particular reason dating back to the 1980s, namely, to ensure that the House could never be gagged again. Ultimately, the House is master of its own procedures. The idea that a parliamentary assembly could be silenced by a judicial review or a writ taken by a Member of the House is the very antithesis of parliamentary democracy as we know it. If all of us cherish what this Parliament is about, we should urgently seek a review of the ruling on yesterday's absence of a debate pertaining to the establishment of the commission of investigation. We should all be united in having self-respect and self-esteem in our role as parliamentarians and ensure that this never happens again.
Will the Tánaiste comment on this matter? I ask the Leas-Cheann Comhairle to bring what I have said to the attention of the Ceann Comhairle. What happened yesterday was a grave perversion of parliamentary democracy.
I concur entirely with all of the sentiments expressed by Deputy Martin. In addition to concerns regarding open and free democratic debate in this Chamber and the interpretation of Standing Orders, it seems a perverse interpretation of Standing Order 57. This is the worst imaginable start for the commission of investigation. The job set out in the terms of reference is to investigate serious allegations of Garda malpractice in Cavan and Monaghan. To insist that those terms of reference would go through the Oireachtas mar dhea without the opportunity for democratic scrutiny, debate or amendment, if needs be, was extraordinary. It was quite something to see the Taoiseach yesterday insisting that this matter be forced through even though there clearly were basic and fundamental difficulties.
We know that there was correspondence between the former Minister, Deputy Shatter, and the Ceann Comhairle and the Taoiseach's Department. We assume that the Ceann Comhairle sought legal advice on foot of that. I am making the assumption that that advice was sought from the Attorney General.
In the first instance, we need to be provided with that correspondence and legal advice. All of these matters need to be reviewed. We cannot tolerate a situation in which the work of the Oireachtas, be it on the floor of the Dáil or in the committees, can be brought to a halt because someone runs to the courts pre-emptively or otherwise, lawyers up and sends legal letters. People know that we enjoy privilege, but equally there are constraints on us. That is as it should be. However, yesterday was utterly farcical. It is not unprecedented for the Opposition benches to clear in that manner. It happened on the water legislation. The passage of time proved it to be the correct judgment on the part of Deputies on this side of the House. Equally, our decision yesterday underscored the seriousness of this situation. I am sure that the Tánaiste, other Labour Party Members and perhaps even Fine Gael Members also recognise its seriousness.
Before I call the Tánaiste to respond, I have a note from the Ceann Comhairle. Members will be aware that the Ceann Comhairle is required to examine in a fair and impartial manner all Bills, parliamentary questions and motions to ensure that they comply with Standing Orders. On 22 January 2015, the Ceann Comhairle received a notice of motion from the Minister for Justice and Equality seeking the approval of Dáil Éireann to a draft order establishing a commission of investigation into certain matters relative to the Cavan-Monaghan division of the Garda Síochána. The recommendation to establish the commission of investigation was made in the report prepared by Mr. Seán Guerin, SC, for the Taoiseach.
Having regard to the fact that High Court proceedings had been initiated against Mr. Guerin in connection with certain conclusions contained in this report, the Ceann Comhairle was obliged to consider carefully all relevant matters in the context of Standing Order 57, which sets out the rules for debating matters that are sub judice. The Ceann Comhairle formed the view that, while the motion could be moved in the House, it was not in order for debate because of the risk of encroachment by the Dáil on proceedings before the High Court. In reaching that view, the Ceann Comhairle had particular regard to Standing Order 57(3), which reads: "a matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the Courts or a Judicial Tribunal".
The Ceann Comhairle informed the Minister for Justice and Equality by letter of his decision. In reaching his decision, it is important to put on the record the fact that the Ceann Comhairle was required to implement the relevant Standing Order. His decision was reached in a fair, impartial and objective manner, having regard to all of the facts before him. Any suggestion or characterisation to the contrary is incorrect.
I appreciate that this issue is of importance to Deputies on all sides of the House. Frankly, both parties in government would have welcomed a debate on this issue. That is why, in ordering the business of the House for the week, we provided for such a debate. As the statement read by the Leas-Cheann Comhairle indicates, however, the Ceann Comhairle had a legal contact from the former Minister.
The Ceann Comhairle did what he is required to do in terms of his job. Whether or not the Deputy, or anybody else here, agrees with the Ceann Comhairle's decision, he was upholding his functions as Ceann Comhairle of the House.
I read some of the record of yesterday's proceedings. The Opposition focused on Standing Order 57(2) whereas the Ceann Comhairle in his statement, which was read out by the Leas-Cheann Comhairle, referred to Standing Order 57(3). I think that may be where the distinction lies, between Standing Orders 57(2) and 57(3), having read the comments yesterday.
In his statement, the Ceann Comhairle said: "A matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the court or a judicial tribunal."
There was evidence of Standing Order 57(2), but the Ceann Comhairle has made it clear in that statement that his legal advice was guidance in respect of Standing Order 57(3), stating: "A matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the court or a judicial tribunal."
As everybody here is aware, the Ceann Comhairle is responsible for applying standing orders, and he got legal advice. He would have welcomed a debate, which is standard on all commissions of inquiry. We made time in the Dáil schedule in good faith. The former Minister for Justice and Equality made contact with the Ceann Comhairle. The Ceann Comhairle obtained legal advice and that advice guided the decision that he had to make concerning the application of standing orders, having particular reference to Standing Order 57(3).
I suggest that one way of addressing this would be for the Committee on Procedure and Privileges to meet in the context of the standing orders. However, the Ceann Comhairle has made his ruling. We would have preferred a debate, I will be honest about that. That is the reason we tabled it.
The House has to see the bigger picture, which is that Mr. Guerin's report, and the debate and discussion that preceded his being appointed by the Government to scope and examine the issues, raised the most serious issues about the administration of the Garda Síochána and the administration of justice in the State. The Government accepted Mr. Guerin's report and recommendations, and they are reflected in the terms of reference. As we know, other people had different views about some of the terms of reference.
However, the bigger picture is to get on with the work of the commission under the independent judge. Separately, through the Committee on Procedure and Privileges, we can look at the operation or content of Standing Order 57, if that is what the CPP wishes to do.
We all get the big picture but yesterday was a silent movie because nobody could speak. I want to make a point to the Tánaiste who appears to be condoning the silencing of Parliament yesterday. There have been many tribunals of inquiry established in this House. I set up quite a number of them myself. When I set up the inquiry into physical and sexual abuse in industrial schools, at the same time we removed the Statute of Limitations. We did so to facilitate the capacity of survivors of those schools to take legal action in the courts. That did not stop us from debating the terms of reference of that inquiry in this House.
The same thing happened when we established an inquiry into the Diocese of Ferns. It did not stop any debate here, even though there could have been court cases. In addition, the banking inquiry was established even though criminal cases are due in respect of some of the institutions that come under that inquiry's remit. How come there was no issue with having a debate on the banking inquiry? By the way, I welcome a debate on the banking inquiry. I have no difficulty with that but I am talking about the lack of consistency.
If one takes any tribunal of inquiry, there are many court cases related to quite a number of them, be they on planning or whatever. Numerous inquiries have been established here and there has never been a restriction on debate in the House on the terms of reference of those inquiries or the rationale behind them. Members of the House were, of course, invited to contribute to such debates. The current situation is quite unprecedented.
Standing Order 57 - the gagging writ, as it is called - was originally brought in to prevent what happened yesterday, because back then there was an attempt to do just what happened yesterday. It is now open to anybody to move a writ to prevent debate about particular items in the future.
That is a serious issue for Members of the House collectively in terms of the restrictions that are now implicitly, because of yesterday's ruling, being placed on this House.
I understand that the Government Whip has requested a meeting of the Committee on Procedure and Privileges. The Ceann Comhairle, who rules this House, is absolutely independent in the exercise of his functions. We would have welcomed the debate just as much as the Opposition. However, if the Committee on Procedure and Privileges meets, as requested by the Government Whip, perhaps the Opposition Whips can address those matters further.