Sheila Terry (Fine Gael)

I welcome the Minister. The tribunal and public inquiry system is critical to the functioning of a democratic State. The core principles of any investigation must be that it is effective, efficient and has the full confidence of the public. Despite much excellent work from the current tribunals, there is clear evidence that public confidence in the tribunal model as a means of excavating and delivering the truth has waned. The recently published fourth report of the Mahon tribunal does little to allay these concerns.

Any new proposals concerning tribunals will be judged by the members of the public from three distinct perspectives, namely speed, cost and results. Any proposed model that does not make significant improvements on all of those fronts will not amount to sufficient change. A new approach, therefore, which may bring speedy results at a reasonable cost is in principle worthy of support. However, one of the dramatic differences between this Bill and any other comparable legislation is that the model proposed by it politicises commissions of investigation to an unhealthy degree. It does so by ruling out any participation of the Oireachtas in the whole process, which is totally unacceptable.

I am glad that in the other House the Minister accepted Fine Gael's proposal that all lawyers must go through a tendering process before being engaged by a commission. This is something that should be made a requirement for tribunals also because it would go some distance towards reducing the cost of tribunals.

The rationale behind facilitating the establishment of commissions of investigation appears to be that they will be the first stage of an investigative process and if after investigation a matter is deemed more serious or more complex it will then be examined more fully by a tribunal. Will this legislation not just add a further layer to the existing tribunal process? Will the Minister of State tell the House how many of our existing tribunals would have been able to conclude at a commission of investigation stage? Many Members will agree the answer is zero.

Aside from questioning the basis of the Bill, my real problem is that it seeks to extinguish the role of the Oireachtas, which seems to have no role other than making a positive resolution to establish a commission. In every other respect, the Minister has total control and his powers are exercised without reference to the Oireachtas. It is the Minister who will establish a commission by making an order, set the terms of reference, appoint the members and receive and publish the reports. The Minister can effectively be the political master of a commission of inquiry. Has the Minister considered the effect this will have on public confidence in the process?

Under section 4, the order establishing the commission may authorise the Minister to set the terms of reference without any reference to the Oireachtas. This is in stark contrast to the way in which the terms of reference of a tribunal are set. These form part of the resolution, which establishes it and which is debated by the Oireachtas. Under section 32(4), it is the Minister who will receive the report of the commissions of investigation. Under sections 33 and 34, interim reports and draft reports must also be submitted to the Minister. The independence of any body, such as a commission of investigation, is paramount. In order to enjoy public confidence, the commissions must be at arms length from the Government. It is conceivable that much commission time will be spent investigating the activities of those not too far removed from the political sphere. Not alone must the commission be independent, but it must be seen to be so.

The Fine Gael Party believes the role of the Houses of the Oireachtas in bodies of this type needs to be reinstated. The commissions of investigation and their terms of reference should be established by the Houses of the Oireachtas. In addition, the chairman of each commission must be required to be answerable to the Houses, or an Oireachtas committee. The chairman of a commission should meet with and report to an Oireachtas Committee to answer questions on the investigative process but not on the content or detail of its investigations.

The public nature and consequent volume of lawyers are the two ingredients, which have made tribunals lengthy and costly. I am not convinced this legislation prevents these two factors becoming an issue in the context of commissions. Section 11 indicates that the bulk of a commission's work is to be undertaken in private. However, under section 11(1)(a) and (b), the commission must sit in public when a witness requests such or where fair procedures would require it. These circumstances are potentially broad and would seem to reintroduce the public element to commissions. Section 11(2) reintroduces the potential for the attendance of large and costly legal teams, as it allows legal representatives of persons other than witnesses to attend. Section 11(2)(c) and (d) introduces the right to cross-examine into the workings of a commission.

Section 6(2) is most unusual and gives rise to some concerns as it effectively states the terms of reference cannot be amended where to do so would prejudice the rights of a person who has co-operated or provided information to it. This effectively grants immunity from further and deeper investigation to those who assist the tribunal, irrespective of what negative detail of their role later becomes available. Is it wise to tie the hands of the commission in this unusual way? Section 10(2)(a) and (b) are unusual provisions that impose a mandatory obligation on a commission of investigation to "seek the voluntary co-operation of persons whose evidence is desired" and that it must "facilitate such co-operation". In practice, this could prove unduly onerous for a commission. For example, it could require overseas travel to facilitate witnesses in circumstances where it is not justified.

I give qualified support to the general principle of the establishment of commissions of investigation, but I would like the Minister of State to address the matters which I have raised. When can we expect a reforming Bill on the raft of tribunals of inquiry legislation, which dates back to 1921? In March 2003, the Law Reform Commission published a comprehensive consultation paper on this issue. Despite this, the Government has given no indication of interest in implementing that consultation paper. The legislation is long overdue for review. The Mahon and Moriarty tribunals and Dunne inquiry are going from pillar to post without any end in sight. In the Law Reform Commission's consultation paper, only five pages deal with alternatives to tribunals. This Bill only gives effect to those five pages. When will see the other 340 pages implemented?

The Law Reform Commission seems to favour the establishment of commissions of investigation. However, its consultation paper stated "the commission would expect that such an inquiry will not attract the rules of constitutional justice". In drafting this Bill, the Minister was faced with a quandary. On the one hand, he aimed to establish private inquiries, without the lawyers and publicity. On the other, he saw the constitutional constraints. The real question is whether the Minister has struck the right balance. Article 40.3.2 of the Constitution gives each person the right to a good name. The protection of this right before the courts necessitates the right of representation particularly where one's good name might be brought into question. Due to these considerations, and also out of caution, the Minister has conceded rights of attendance, representation and cross-examination. It is questionable whether in doing so, the Minister has avoided the potential infringement of a constitutional right. The workings of a commission seem to take on the trappings and procedures, which would be expected of a tribunal or a court.

The further one reads the Bill, the more the distinctions between a commission and a tribunal begin to fade. The requirements of natural justice have defeated the intention to have low key, private hearings. Has the Minister achieved his aim of private, speedy, inquiries without lawyers and without bowing to the rules of constitutional justice, as suggested by the Law Reform Commission? Or has he just added another layer to the tribunal process, which will be as lengthy, costly and as public?