Willie O'Dea (Limerick East, Fianna Fail)

I wish to make two points in response to Senator Hayes. On the issue of clerical sexual abuse against children in Dublin, I am informed that the television programme which highlighted that issue prompted the Bill. The Senator suggested that this be the first item to be considered by one of the new commissions. I shall convey that to the appropriate people.

On the question of Ministers being the subject of allegations, I am informed that another Minister in the Government may appoint the members of the commission and may establish the commission. This would create distance between the Minister who is accused and the commission.

In regard to the amendments, I have listened carefully to what Senator Hayes said. Everything he said would be correct if we were talking about tribunals or a new form of tribunals. The Bill is not concerned with tribunals; it proposes to establish a totally different mechanism. The procedure is different. It includes taking evidence in private, limited cross-examination and so on. Its purpose is to establish facts, rather than draw conclusions. In the example the Senator has given of a serious allegation against a Minister, if a commission is set up and finds facts which appear to give some substance to that allegation I have no doubt that would be followed by a tribunal which would have to be established by the Oireachtas.

The consequences of establishment of facts by a commission would be different from the conclusions of a tribunal. I argue there is less risk of damage to reputation and so on. The whole idea of setting up the commission, as an alternative to tribunals in some cases or an addition in others, is to establish a procedure that is faster, flexible and more narrowly focused. When one listens to people outside speak about tribunals, all the discussion focuses on the length of time they take, the costs and the alleged enrichment of members of the legal profession, all of which tends to obscure the undoubted good work which they are doing. The reason we have got into this quagmire is that bona fides mistakes were made in the way the tribunals were set up. There are constitutional aspects arising from the Haughey judgment whereby certain procedures have to be followed and people have to be given the right to cross-examine and access to teams of lawyers and so on. In establishing the legislation for the setting up of tribunals the Government could be accused of erring too much on one side. If we err on this occasion I would prefer if it was on the other side because the purpose is different and we are dealing with a different type of procedure.

The Fine Gael amendment seeks to change the roles proposed for the Government and the specified Minister in regard to the establishment of commissions, the setting of terms of reference, the appointment of commissions and receipt of reports. It is proposed that these roles be assigned to the Houses of the Oireachtas. This is a different mechanism from tribunals. It is different in its purpose, its procedures and its consequences. Also it needs to be faster, flexible and more narrowly focused. These matters are being highlighted in the legislation because it is on those grounds that the current arrangements are proving unsuitable. The public would not be impressed if we merely repeated all the mistakes of the past by replicating the procedures and controls that have attracted such criticism and that are causing the public to lose confidence in tribunals as a means of addressing major public concerns and scandals.

The arrangements being proposed for commissions of investigation are not unique. In many respects they are akin to those that apply to investigations carried out under company law. As with company law procedures, the commissions established under the legislation will be required to observe fair procedures and to respect natural justice. Senators will agree that, by and large, company law investigations have been successful and, generally speaking, have delivered clear and precise results. There is one difference between this procedure and the company law procedure, namely, the procedure here is subject to judicial review.

The Oireachtas will also have a substantial input. Following a proposal to establish a commission it has to be debated by both Houses of the Oireachtas. At the conclusion of that debate people will have a good idea of the terms of reference of the commission. In addition, when a commission draws up its findings of fact there is nothing to stop any Member of the Oireachtas from initiating a debate, either by asking that time be taken to debate the report, or having it referred to a committee of the House, as in the case of the Barron report, or by raising it on the Adjournment or asking questions about it.

While I understand the purpose and the thinking behind the amendments, we will maintain the correct balance if we allow the proposals in the legislation to stand. The first commission has not yet been established but I have no doubt when the legislation becomes law commissions will be established quickly and we will see how they operate in practice. We had better err on this side in view of the experience we have had with the tribunals to date.