Ivana Bacik (Independent)

I thank Senator Mullen for tabling this amendment because consideration of his amendment has assisted us in robust consideration of the overall amendment in the Bill. On Second Stage I indicated I was concerned initially when reading the wording that the words "it shall be" in paragraph 4o might imply exclusivity. The Minister answered my concern and the concerns of others comprehensively in his Second Stage response. It is worth noting the point he made that it was never intended that there would be an ouster clause in paragraph 4o. Reading it now, particularly with regard to the amendment inserted when the Bill passed through the Dáil - "with due regard to the principles of fair procedures" - I believe it answers the concerns expressed by Senator Mullen and others about potentially excluding the courts from any kind of supervisory role. That is the concern Senator Mullen seeks to address in his amendment, borrowed from the report of the Joint Oireachtas Committee on the Constitution. However, that report proposes a rather different wording at paragraphs 2o and 3o. There is a general change to the wording we are now debating of the Government's Bill. That is what generally happens. The committee simply puts forward proposals for wording that are of assistance to us.

It is worth looking at what the committee said in its report in respect of this particular provision when one is considering Senator Mullen's amendment. It pointed out that one cannot exclude constitutional justice considerations. It considered whether that could be done and decided it could not. It went on to mention the need for a robust amendment which would include some constitutional ordinance allowing for re Haughey rights to be balanced against the public interest in the facilitation of effective parliamentary investigations. That is what paragraph 4o seeks to do and it does so fairly, in a way that does not require the amendment tabled by Senator Mullen. The committee report discusses how re Haughey rights have been interpreted in the past. In the beef tribunal, for example, they were interpreted to allow all witnesses, including whistleblower Deputies who had made allegations against others, have legal representation and for a farmers' association against which no imputation had been made to have legal representation.

What we are talking about here with the Government's proposed wording is the setting up of genuine inquisitorial or investigative powers for Parliament to empower it. However, this model is different to the models we are used to as adversarial lawyers, which are the more adversarial models at issue in the tribunals. It is rights in an adversarial setting that are at issue in re Haughey. As the Minister pointed out, these are not mutually exclusive models. We now have provision in the 2004 Act for commissions of investigation, as we saw with the Murphy report, the Cloyne report and so on. Those are important models, as are the tribunal models. However, different matters would lend themselves more than others to different types of inquiry. It is clear with the example from Britain and the inquiry into phone tapping, some matters will lend themselves particularly well to parliamentary inquiries. We have hamstrung ourselves in the nine years since the Abbeylara judgment. The previous Government did not see fit to address the inadequacy in our Parliament of not having the investigative powers the Minister has described as being the norm in other parliaments.

There is no requirement for the amendment proposed by Senator Mullen. Having shared concerns with the Senator and other lawyers and individuals who had come to me about the wording, I think those concerns have been answered. I listened carefully to the Minister and to Senator Mullen and believe the Minister has answered the concerns.

It is important to look at paragraph 4o as providing for an admonition or requirement that the Houses of the Oireachtas must concern themselves with the balancing of rights, but not in a way that excludes the jurisdiction of the courts, which ultimately are the final arbiters as to whether the Houses have had due regard - an objective test - to principles of fair procedures in seeking to achieve an appropriate balance. Of course, it is important that in conducting any inquiry the Houses must seek to balance rights. What the Callely case shows us is that the courts have not been deferential to the Oireachtas, far from it. It also shows us that the Houses must have regard to fair procedures. It is useful that this has been made more explicit in paragraph 4o than it would be in Senator Mullen's amendment or in the draft wording proposed by the committee.