Dick Roche (Wicklow, Fianna Fail)

Senators will recall that when I was here on 17 November last, I gave notice during the debate on the amendment of the terms of reference of the planning tribunal that I intended to bring a short Bill before the Oireachtas. The Bill will give legal backing to the discretion granted in the amended terms of reference to the tribunal to decide which issues within its terms of reference to investigate. The Attorney General advised me that it would be important to underpin this new discretion with legislation.

On 3 December, I made the instrument giving effect to the amended terms of reference as passed by this House and the Dáil. Under paragraph J(7) of the amended terms of reference, the final date for receipt of any new complaint or request for investigation is fixed by the terms of reference as of 16 December of this year. The exercise of the discretion by the tribunal on any new matters that come to its attention before 16 December is vital to the running of the tribunal. Otherwise, I was advised that an argument could be made that the exercise of the discretion may be considered to have been outside of the tribunal's powers. This is the reason this legislation has been brought before the House so quickly. I briefed Opposition spokespersons on the amendment to the terms of reference and on the need for this Bill prior to the motion to amend the terms of reference being brought before the Oireachtas.

For the benefit of any Members who were not present for the debate on 17 November, I would like to review the reasons for amending the terms of reference and the consequent need for this Bill. The tribunal was established by the Oireachtas in 1997 to examine certain specific activities and letters that had aroused suspicion of corrupt acts in the planning process. It was also mandated to investigate any other matters that came to its attention that could amount to corrupt acts in the period since 20 June 1985. In July 1998 the terms of reference were expanded further, at the request of the tribunal. As a result, the tribunal had a mandate to investigate any allegation of corruption, whatsoever, associated with the planning process. This was a very wide remit indeed.

Notwithstanding the fact that the tribunal was expanded to include three members in 2001, the work of the tribunal, based on its terms of reference, has proved to be unwieldy. As a result, the tribunal itself in its fourth interim report issued on 15 June of this year requested a change to its terms of reference to allow it more discretion in the issues it investigates, with a view to shortening the anticipated duration of the tribunal's activities.

In the report, the tribunal indicated that it still has a large volume of work on hand which, if its mandate played out to its fullest extent, would all have to be investigated. The tribunal therefore indicated that it could see the work carrying on until 2014 or 2015. The tribunal recognised that this situation could not continue and it sought a discretion to decide what matters it should investigate. In addition, if the tribunal decided that the continued pursuit of its inquiries were of limited or no further value in discharging its mandate, it sought the power to report that to the Oireachtas and to convey to the Oireachtas the wish of the tribunal that its investigations and inquiries should terminate on a date to be specified by the tribunal.

Following the publication of the report, the Government mandated the Attorney General to consult with the tribunal on changes to its terms of reference. That arrangement for consultation through the Attorney General was queried elsewhere but that is clearly envisaged under the 1998 tribunal's legislation. The changes which were then consented to by the tribunal go further than those originally requested in the interim report. The amended terms of reference were agreed by both Houses on 17 November this year when we had a good debate on the topic. The tribunal has indicated that the amended terms of reference, together with the additional resources given, will allow it to complete its public hearings by March 2007, a substantially shorter timeframe than that indicated in the tribunal's fourth interim report.

Since we have already debated them, I will not repeat the detail of the changes made in the new paragraph J which was added to the terms of reference. Suffice it to say that paragraph J enables the tribunal to complete its current investigations into planning issues in Dublin, including the Carrickmines and Quarryvale modules and interlinked matters. Any new complaint or request for investigation must be received by the tribunal by 16 December of this year. By 1 May 2005, the tribunal must decide which new matters on its books will proceed to a public hearing. To allow the tribunal to prepare its final report, no new investigation can be referred to public hearing by the tribunal other than matters that come to light during existing investigations.

The discretion being granted to the tribunal, which is the subject of this legislation, is in paragraph J(6) of the terms of reference. This will allow the tribunal to decide to carry out any preliminary investigations as it sees fit, in private, using all the powers conferred on it under the Acts, in order to determine whether sufficient evidence exists regarding any matter before it to warrant proceeding to a public hearing if deemed necessary; to decide not to initiate a preliminary investigation or a public hearing of evidence regarding the matter, notwithstanding that the matter falls within the tribunal's terms of reference or in any case where it has initiated a preliminary investigation in private, whether concluded or not, but not yet initiated a public hearing of evidence in the matter; or to decide to discontinue or otherwise terminate its investigation, notwithstanding that the matter falls within the tribunal's terms of reference. This is a rather convoluted provision but, if Senators consider it, they will see it is not an unreasonable discretion requested by the tribunal.

In exercising this discretion the tribunal must have regard to the following matters. First, the age or state of health of one or more persons who are likely to be in a position to provide useful information, including oral evidence to be given privately or publicly. This would include the age or likely state of health of any such person at the possible date in the future when that person or persons might be expected to be called upon to give oral evidence or to otherwise co-operate with the tribunal. In particular, the tribunal may consider the issue as to whether such person's age or state of health is or is likely to be an impediment to him or her being in a position to co-operate with the tribunal or to give evidence to the tribunal in private or in public.

Second, the likely duration of the preliminary investigation or public hearing into any matter. Third, the likely cost, or other use of the resources of the tribunal, of such investigation or any stage of the investigation into any matter. If, for example, the tribunal were to receive an allegation that €250 or €500 had been improperly received, under the existing arrangements, the tribunal would have to pursue discovery which could cost €9,000 or €10,000 to investigate. The tribunal should have the discretion to take a common sense approach in such matters.

Fourth, whether the investigation into the matter is likely to provide evidence to the tribunal which would enable it to make findings of fact and conclusions or to make recommendations. Fifth, any other factors which in the opinion of the tribunal would, or would be likely to, render an investigation, or the continued investigation into any matter inappropriate, unnecessary, wasteful of resources, unduly costly, unduly prolonged or which would be of limited or no probative value.

During the debate on the tribunal's amended terms of reference, the issue of using more positive language in regard to the discretion was raised. However, the language used is that requested by the tribunal. The tribunal's legislation requires that any amendment to the terms of reference must have the consent of the tribunal. Therefore, I pointed out at the time that my hands were tied on this matter. In any case, the tribunal and the Government are happy that the language in the terms of reference will allow it to exercise its discretion flexibly and effectively.

In the course of the debate in the Houses on the amendment of the terms of reference in November of this year, reference was made to future investigations of allegations of corruption. The Government has put in place a number of mechanisms to investigate allegations of corruption. These include provisions in the Planning and Development Act 2000, the Local Government Act 2001, the Prevention of Corruption (Amendment) Act 2001 and the Standards in Public Office Act 2001. If the tribunal, on the publication of any interim or final report, recommends further action in this area, I assure the House such recommendations will be given full consideration.

In particular, the legislation brought forward by the Minister for Justice, Equality and Law Reform and enacted in July of this year as the Commissions of Investigation Act 2004 allows for commissions of investigation to be established. It is envisaged that these commissions will conduct their inquiries in a less confrontational manner and will be more cost effective than tribunals of inquiry. We all know that the costs involved and the length of time taken to come to conclusions has been a cause of public disquiet. Among other things, the legislation addresses a point which I know to be of concern to Senator Bannon, as well as to the Government, namely, to ensure that the legal costs of these investigations do not go out of control. This matter was raised by a number of spokespersons when I spoke on this issue in the House previously.

The Commissions of Investigation Act provides that a specified Minister may direct that a competitive tendering process be used in selecting persons to work with the commission, including barristers and solicitors. In addition, when a commission is being established, the full costs of the commission will be estimated and the chairperson of the commission will have to seek authority from the specified Minister if the estimate is to be exceeded. My colleague, the Minister for Justice, Equality and Law Reform, will shortly bring forward legislation to address the issue of the legal costs of tribunals, particularly third party legal costs. This will give this House an opportunity to debate the issue more thoroughly.

The House will be aware that the planning tribunal has been given additional legal resources to allow it to complete its work within the time limit it has set for completion. This is in line with the Government's commitment to ensuring that the work of the tribunal will be completed fully and properly. When allied with the changes to the terms of reference, the additional staff will result in a substantial reduction in the projected life of the tribunal and, as a result, an overall reduction in the final cost of the tribunal to the Exchequer.

The proposed legislation will underpin the tribunal's exercise of its discretion as to which matters it will investigate or bring to public hearing. This will help the tribunal to complete its mandate in a more timely way and within a more certain framework. The changes in the terms of reference and this legislation will allow the tribunal reach findings and make recommendations to help ensure that the events it has investigated cannot occur again. I commend the Bill to the House.