Tom Shehan (Fine Gael)

Under the heading of parliamentary reform, the programme for Government commits to holding a referendum to amend the Constitution to reverse the effects of the Abbeylara judgment to enable Oireachtas committees to carry out full investigations. Both Fine Gael and the Labour Party had committed to this in their general election manifestos. In the "New Politics" policy document of 2010, Fine Gael committed to radical reform of political structures, including a reversal of the Abbeylara judgment, which limits the powers of Dáil committees to conduct investigations.

The key issue arising from the Abbeylara judgment from the point of view of Oireachtas committees is that no Oireachtas investigation can be pursued if the good name of any citizen who is not a Member of the Oireachtas might be impugned. The right to a good name is protected by Article 43 of the Constitution and the Oireachtas does not have the inherent general power to set up an investigative committee.

Following the shooting dead of John McCarthy by Garda officers in Abbeylara in April 2000, the Oireachtas established a subcommittee to inquire into the circumstances surrounding his death. The possibility arose that the findings of the subcommittee might have an adverse effect on the constitutionally protected right to a good name for some of the gardaí concerned. A number of gardaí, having been compelled to appear before the subcommittee, challenged its constitutional standing on the basis the Oireachtas did not have the power to establish such a committee. That is why we are here today.

The Supreme Court subsequently found the Oireachtas did not have the general power to set up an investigative committee. Rather, under the Constitution, it had limited powers to inquire into certain matters with a view to drafting protective legislation. In the Abbeylara investigation, there was no suggestion the Oireachtas was considering making legislation. The sole purpose of the subcommittee was to investigate the circumstances surrounding Mr. Carthy's death. This was beyond the inherent powers of the Oireachtas under the Constitution.

The Supreme Court further held that the powers of the Oireachtas under the Constitution did not allow it to make findings of facts that could potentially damage the good name of persons who were not Members of either House of the Oireachtas. As the Minister outlined, there are names that must be brought in and put to the test.

Another important factor considered by the Supreme Court concerned the constitutional right to fair procedure. The court held that in restricting the right to cross-examine witnesses before the subcommittee, the committee had breached the constitutional rights of those concerned. Gardaí called to testify before the subcommittee were permitted to cross-examine witnesses only at the end of the subcommittee oral hearings and then subject to the approval of the subcommittee. The Supreme Court concluded this approach did not meet the constitutional requirement of fair procedure.

The Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill, which has been published by the Minister, is to ensure the Oireachtas has an effective system of inquiry to secure effective and cost efficient parliamentary scrutiny of issues of significant public importance and is essential in facilitating more open, transparent and better government, as promised in the programme for Government. This is a key element of the Government's ambitious political reform programme. This Bill will enable the constitutional reform to allow the Houses of the Oireachtas to undertake full inquiries into matters of general public importance in an effective and efficient manner, responding to the issues raised by the Supreme Court in the Abbeylara case.

The late Deputy Jim Mitchell was the instigator and chairman of what is generally considered to have been the most successful Oireachtas inquiry to date. The success of the inquiry is attributed to its relatively low cost, efficient turn-around, tangible outcome and importance in the public policy context. In 1998, the media published allegations that the Revenue Commissioners had made a deal with AIB over a significant deposit interest retention tax liability owed to them. Within days of the issue being reported in the media, the Chairman of the Committee of Public Accounts, Deputy Jim Mitchell, sought Dáil support to conduct an investigation into the matter. The Committee of Public Accounts established a subcommittee and within 14 months had secured the necessary powers to hold the inquiry. It held public hearings and published its first report. In the year that followed, the Revenue Commissioners conducted a look-back audit generating £173 million - €220 million in today's money - in payments from the financial institutions in tax, interest and penalties. Individual bogus non-resident account holders were subsequently targeted in a massive sweep that brought hundreds of millions of pounds to the Exchequer.

Commenting on the inquiry, The Irish Times noted it cost £1.8 million and the televising of its public hearings enthralled a large section of the public. People could see their representatives demanding answers from representatives of the State bodies and financial institutions involved in that scandal. The inquiry's work helped to restore trust in the political system which had been shaken by damaging revelations concerning payments to politicians and low standards in public office. Perhaps the Minister will indicate what can be covered by these inquiries. It would be generally accepted that as a consequence of the Abbeylara decision the Oireachtas is not in a position to conduct an inquiry into the most recent banking scandal. I would favour constitutional change to allow for such an inquiry.

Speaking in April, following publication by the commission of investigation of its report into the banking sector, Misjudging Risk: Causes of the Systemic Banking Crisis in Ireland, the Minister, Deputy Noonan, indicated that while he favoured the holding of such investigations by the Oireachtas, owing to the failures of the previous Government to effectively address the Abbeylara judgment it is not possible for Oireachtas committees to effectively fulfil this important oversight role. He stated that the Government would, therefore, hold a referendum to address the consequences of the Abbeylara judgment and would bring forth proposals in this regard in the course of the year. Hence here we are.

I have a few questions for the Minister. Can the Minister give us examples of the possible subjects of inquiry? Public concern in regard to certain issues may assist in decisions on what needs to be investigated. I believe we should have a full investigation into the banking issue. It was revealed earlier today by FÁS that it provided false information to a committee last year. What type of sanctions will be applied in that regard? Can persons brought before an inquiry block inquiries through the courts? What procedures are in place to permit smooth movement of an investigation through a committee so as to ensure people with deep pockets cannot block them through the courts? A particular case comes to mind.