Seanad debates

Wednesday, 10 July 2013

Houses of the Oireachtas (Inquiries, Privileges and Procedures) Bill 2013: Second Stage

 

4:25 pm

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour) | Oireachtas source

This Bill establishes a comprehensive statutory framework for the Houses of the Oireachtas to conduct inquiries under the current constitutional framework. The legislation is fully within the parameters laid down by the Supreme Court in the Abbeylara case. It is very clear from the views expressed in the Supreme Court judgment that the Oireachtas is not empowered in general to make findings of fact adverse to the good name of any person who is not either a Member of the Houses or an officeholder or otherwise directly accountable to the Houses. Accordingly there is no scope under the legislation to make findings of individual culpability unless there is a specific constitutional authorisation for such a finding.

Research following the defeat of the Oireachtas inquiries referendum in 2011 has confirmed that while there is a distrust among the public of the political system, in particular in relation to making findings of culpability, there remains broad support for the Oireachtas itself to be able to carry out legitimate inquiries.

This Bill provides the necessary framework for such inquiries and represents a very important step in the process of clarifying the role of the Houses of the Oireachtas in securing accountability through investigations into matters of significant public importance. One of the lessons for parliamentarians from the referendum is that while the public is not innately opposed to granting further powers to the Oireachtas it is clear that public representatives will have to earn the public's trust. Such inquiries could represent a very substantial strengthening in the effectiveness and contribution of the Legislature to our democratic system by not only helping us learn vital lessons from past events but through their recommendations identifying the legislative reforms and policy changes essential to making sure that egregious policy errors are not repeated.

I have long advocated the need for an effective and legally robust parliamentary banking inquiry into the events that occurred on the night of the bank guarantee and the systemic failures that led to our current fiscal position. It seems that the case for a parliamentary inquiry into the banking collapse is a strong one. One of the best reasons to proceed with a parliamentary inquiry at this stage is that none of the other possible models has been successful at meeting the public demand for a full account of this issue, nor are they likely to do so.

The investigations being conducted by the Director of Public Prosecutions for instance are against a number of named individuals and on a number of reasonably narrow grounds. These prosecutions do not hold out the prospect of establishing a narrative around the events that have caused such damage to our State and society. We have already had a commission of inquiry via the Nyberg report, which, while offering a macro analysis of events, has not succeeded in explaining the perspective of the individual participants involved.

Ironically, the time being taken to get prosecutions right is stymying the public's desire to understand and have an account of what happened. Earlier this week it was reported that the Irish Independent had withheld further publication of tapes, at the behest of the Director of Public Prosecutions, for fear of jeopardising prosecutions. As far back as two years ago the Chartered Accountants Regulatory Board was asked to delay public inquiries into the involvement of individual members and accountancy firms in respect of the events which came to light in 2008.

Nobody wants to prejudice inquiries or professional investigations. Nor is it satisfactory that more than five years on from the time these events came into the public domain we remain in the position we are in. Nor have we any guarantee, given the nature of our legal system that the position would be fundamentally altered in the near future.

This Bill will facilitate such an inquiry provided the terms of reference of the inquiry are correctly framed. However, the proposed legislation does substantially more than facilitate a banking inquiry. I want to underscore to the House that the primary purpose of this legislation is to create a comprehensive legal framework which is of general application.

An Oireachtas inquiry can work and successfully deliver essential public accountability providing it follows three key principles. The terms of reference for an Oireachtas inquiry must not seek to specifically investigate the conduct of individuals and make findings of individual culpability. The inquiry itself must be carried out in a manner consistent with the terms of reference. The inquiry respects the legal and constitutional rights of all witnesses called. The secretariat of Oireachtas committees and members have a wide experience on a day-to-day basis of carrying out committee business subject to these requirements. The weakening of trust in our politicians is not a good thing for our democracy. The Oireachtas comprises experienced and capable members motivated to act in the public interest. We need to have faith in them to do their job. The conduct of a banking inquiry will assist in strengthening the effectiveness of the Oireachtas and enhancing trust in the political system. It will require a disciplined approach by Members to ensure that inquiries are fair, balanced and effective. I am confident that the statutory framework provided in the Bill provides assistance in this regard by giving clarity to the Houses on their powers and by setting out guidance in relation to matters such as fair procedures, avoidance of bias and so on.

The Bill contains explicit requirements to observe fair procedures. The extensive fair procedure requirements apply to all types of inquiries conducted under this Bill, notwithstanding that the inquiry may have no scope to make findings that could have a direct adverse effect on the reputation of individuals. Access to the courts for directions in respect of any dispute is provided for in the Bill.

The Bill also contains provisions in relation to the behaviour of Members to avoid any perception of bias. An assessment of whether a perception of bias has arisen will depend firmly on the circumstances of the individual case. It is for the Oireachtas to make an assessment of bias in the first instance. The matter could ultimately be determined by the courts by assessment of the view formed by a "reasonable" person. I would like to emphasise though, that bias provisions will not stifle the healthy debate that we, as politicians, engage in on a day-to-day basis.

Members of the Oireachtas would be expected to have strong views and to have articulated them previously on important matters of public policy that are relevant to their legislative and parliamentary role. This was made clear in the Abbeylara judgment itself. However, a disciplined approach by members of an inquiry committee will be essential, once the inquiry is established. It would not be appropriate for members of an inquiry committee to make public comments both immediately prior to and during the course of an inquiry on the subject matter of the inquiry where its findings had the potential to impact adversely on the reputation of an individual. Furthermore, in line with the commitments in the programme for Government relating to civil servants giving evidence to Oireachtas committees, the Bill makes provisions to expand the scope of evidence that civil servants may give. Civil servants will not be restricted from giving evidence for the purpose of establishing facts and giving the committee the full narrative of a series of events.

This will be the case both in regard to an inquiry conducted under this Bill and also in the context of committees conducting daily business. The current restrictions on the Oireachtas committees from asking a public servant to otherwise express an opinion on the merits of policy will be maintained. It is not expected that disclosing policy-specific policy advice should occur other than in exceptional circumstances where it is essential to terms of reference of an inquiry. This will be set out in revised guidance to all civil servants, which is currently being prepared by my Department and which will be made available once this legislation is enacted.

The Bill respects the principle that the Houses, pursuant to Article 15.10, should be afforded significant autonomy to regulate their own affairs. The legislation envisages a central role for the Houses of the Oireachtas in both initiating and conducting a parliamentary inquiry. There should be no confusion, as the Bill empowers the Oireachtas - and not the Executive - to conduct inquiries. There was a conscious decision to do this as a common critique of Irish politics is that it is dominated by the Executive. Under the Bill, responsibility is assigned exclusively to the Houses of the Oireachtas to determine the requirement for a formal inquiry, the terms of reference of that inquiry, the appropriate committee to conduct the inquiry and the procedural and organisational aspects of the inquiry.

The Bill will not impede the important and valuable work currently being conducted by Oireachtas committees. The Bill fully replicates and restates the powers available to committees contained in the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, as well as providing for a simplification of the current process of invoking compellability. The Bill will therefore repeal the 1997 Act.

The programme for Government contains a commitment to address the issue of confidential communications with Members through constitutional change. Following a detailed policy assessment and on the basis of legal analysis, it has now been decided to legislate in regard to this issue. The Bill provides for qualified privilege for confidential communication from members of the public to Members of either House of the Oireachtas. This will facilitate those who wish to draw wrong-doing to the attention of Members of the Oireachtas without having their identities disclosed. The Bill provides for qualified statutory privilege for private papers of Members and official documents of the Houses. These provisions are intended to apply in all circumstances and are not restricted to inquiries carried out under the Bill.

I would now like to turn to the Bill before the House. This Bill, as I have already indicated, establishes a comprehensive statutory framework for the Houses of the Oireachtas to conduct inquiries. I will now go through the Parts of the Bill and give a brief outline of its content and purpose. Part 1 of the Bill contains sections 1 to 5, inclusive, and deals with standard preliminary and general matters, including the Title of the Bill and provisions for its commencement. Part 2 is divided into two chapters detailing the types of inquiries that may be conducted in accordance with the Bill. Section 6 outlines the scope of chapter 1 and section 7 provides for an inquire, record and report inquiry; this is a power to undertake inquiries by way of recording and reporting evidence and making findings of uncontested facts.

Section 8 provides for a power to undertake inquiries and make findings of fact relating to the legislative functions of the Houses. Section 9 provides for a power to undertake inquiries relating to the removal of certain officeholders as provided for in Article 33.4, relating to the Comptroller and Auditor General, or Article 35, relating to judges of the Supreme and High Court, of the Constitution or arising from legislation relating to the removal of other judges or officeholders where a resolution of both Houses is required. Section 10 provides for a power to undertake inquiries in respect of the conduct of a Member of either House in his or her capacity as a Member. Section 11 provides for a power to undertake inquiries to hold the current Government to account pursuant to Article 28.4 of the Constitution and also to hold to account any person who is liable to Dáil scrutiny by virtue of the terms of his or her contract or statutory appointment. Section 12 provides for a parliamentary mechanism whereby a proposal by a committee to conduct an inquiry is assessed by the individual or committee designated by the rules and Standing Orders of the House or Houses. Section 13 makes provision for the passing of a resolution by the House or Houses to establish an inquiry and the setting of terms of reference for a Part 2 inquiry. Section 14 outlines the finding of failure to co-operate with a Part 2 inquiry that a committee is entitled to make. Chapter 2 contains sections 15 and 16 of the Bill and contains details of an inquiry related to the impeachment of the President under Article 12.10 of the Constitution.

Part 3 contains sections 17 to 32, inclusive, and provides for a range of fair procedures to be followed by an Oireachtas committee conducting an inquiry pursuant to the Bill. As outlined, the requirement to observe fair procedures applies to all Part 2 inquiries conducted under the Bill. I draw Members' attention to the following sections in this part. Section 18 makes it clear that a witness to an inquiry has the same privileges and immunities as a witness giving evidence to the High Court. Section 19 permits the committee designated by the rules and Standing Orders of the House or Houses to issue a wide range of guidelines, consistent with the Bill, relating to the procedures of Part 2 inquiries. Section 21 prohibits a Member of the Houses from sitting on a committee where a perception of bias might arise in a reasonable person.

Section 22 provides that a witness to an inquiry has the right to be accompanied by his or her legal practitioner while giving evidence if he or she so desires and attend any public session of the inquiry or the giving of evidence by any witness relevant to him or her. Section 24 outlines the rights of a person whose good name is or may be in issue. These rights include the right to be given advance notice of evidence proposed to be given against him or her in so far as that is possible, the right to cross-examine witnesses, the right to give evidence to the inquiry, the right to call witnesses and the right to make a submission at the close of evidence. Sections 26 to 28, inclusive, provide for a notice to issue of a committee's intention to exercise its compellability powers, set out the standard of proof and its duty to inform witnesses of its powers. Section 29 makes it clear that evidence compiled for the purposes of an inquiry will not be admissible in any other proceedings such as criminal and disciplinary proceedings. Section 31 makes provision for the taking of evidence to be conducted in public and states this evidence may be broadcast to the public, unless the Chairman of the committee is satisfied that it would not be in the interests of the inquiry or fair procedures to do so.

Part 4 contains sections 33 to 41, inclusive, and makes provision for interim and final reports of a committee conducting an inquiry. These sections make provision for the form and content of such reports, matters relating to the amendment and publication of reports and the confidentiality of such documents.

Part 5 is divided into five chapters and concerns costs. Again, I will highlight the most significant sections in this part. Chapter 1 contains sections 42 to 45, inclusive. Section 43 requires a committee, prior to commencing an inquiry, to prepare a report containing an estimate of the legal costs and expenses expected to be incurred in the conduct of the inquiry. Section 44 provides for the appointment of a panel of legal costs accountants willing and able to act as a parliamentary legal costs adjudicator in certain circumstances, whereas section 45 sets out the powers of the adjudicator.

Chapter 2 contains sections 46 to 52, inclusive, and contains provisions relating to Oireachtas inquiry legal costs. The focus in the Bill is on providing for recoupment of legal costs only in the limited cases where the good name of a person is at issue. Section 46 empowers the Houses of the Oireachtas Commission to issue guidelines in respect of inquiry legal costs. Section 47 provides for the recoupment of third party costs in specified circumstances. Section 48 provides that where a committee conducting an inquiry, or another person, has incurred additional legal costs as a result of the behaviour of a third party, the Houses of the Oireachtas Commission may direct the third party to pay such costs, provided that the grounds for the belief have been confirmed by the High Court.

Chapter 3 contains sections 53 to 55, inclusive, and concerns the payment by the Houses of the Oireachtas Commission of inquiry expenses and the power of the commission to issue guidelines and direct third parties to pay expenses in certain circumstances.

Chapter 4 contains sections 56 to 61, inclusive, and makes provision for legal costs in respect of private bills. These provisions allow for the updating of 19th century and early 20th century legislation in respect of private bill costs to bring it into line with the other costs provisions included in the Bill.

Chapter 5 contains sections 62 to 64 and contains miscellaneous provisions in relation to costs. Parts 6 and 7 largely mirror and update the provisions of the Committee of the Houses of the Oireachtas (Compellability Privileges and Immunities) Act 1997. Part 6 contains sections 65 to 75 and concerns compellability, privileges and immunities and applies only to an Oireachtas committee while it is conducting an inquiry pursuant to the Bill and on which a power to send for persons, papers and records has been conferred by the House. This Part outlines the powers of such a committee in relation to obtaining evidence and makes provisions relating to irrelevant evidence and exempt evidence.

Part 7 contains 5 chapters and concerns compellability privileges and immunities. This Part applies to an Oireachtas committee while it is conducting non-inquiry committee business and on which the power to send for persons, papers and records has been conferred. Chapter 1 contains sections 76 and 77 and contains relevant definitions in relation to the Part. Chapter 2 contains sections 78 to 82 and concerns privileges and immunities of witnesses in circumstances where a committee is conducting its ordinary business, outside of formal inquiry mode. Chapter 3 contains sections 83 to 90 and makes provision for directions that may be given by a committee while it is exercising its compellability powers. Chapter 4 contains section 91 and provides for the payment by the Oireachtas Commission of the reasonable expenses of a witness in proceedings before a committee. Part 8 contains sections 92 to 93. Section 92 provides that a Member of either House shall not be amenable to any court and authority other than the House by which the relevant committee was appointed in respect of any utterance in or before a committee. It also provides that certain documents may be privileged. Section 93 places restrictions on the evidence of certain persons and contains the reformed procedure in relation to the evidence of civil servants which I outlined earlier.

Part 9 contains sections 94 to 103 and provides for applications to the High Court in relation to the conduct of an inquiry. Section 94 clearly provides for an application to the High Court for directions in respect of the proceedings of an inquiry where a person is of the opinion that any matter relating to the proceedings is not being inquired into or otherwise dealt with in accordance with the Act. A committee may itself apply to the High Court for directions and section 95 makes provision for such an application when a committee is of the opinion that a report could prejudice criminal proceedings.

Section 98 permits a parliamentary legal costs adjudicator to refer a question of law arising in the context of an application for an adjudication of costs for the opinion of the court. Section 99 permits a committee to apply to court where a person fails to comply with a direction of the committee or the Chairman. Section 100 allows for appeal to the court where a direction from a committee could prejudice criminal proceedings which are pending or in progress. Part 10 contains Sections 104 to 111 of the Bill. As outlined earlier, this Part provides for a statutory qualified privilege for the private papers of Members and confidential communications from members of the public to Members of the Houses. I will highlight the main provisions of this Part briefly.

Section 104 sets out definitions and also makes clear that the operation of the privilege does not prejudice the power of each House to make rules and standing orders pursuant to Article 15.10 to create a protection for the private papers of Members. Section 105 provides for qualified privilege for the private papers of a Member and confidential communications from members of the public to Members of the Houses and sets out the circumstances in which such papers of confidential communications may be accessed or disclosed. Section 106 permits a person who has communicated with a Member and who is otherwise entitled by law to disclose the fact or content of the communication to make such a disclosure. Section 107 provides for the determination of what constitutes a private paper or confidential communication. Section 108 provides for guidelines to be developed by the Houses of the Oireachtas, while section 109 sets out the arrangements which will apply to the private papers or confidential communications of former or deceased Members of the Houses.

Part 11 contains sections 112 to 116 of the Bill and, as I mentioned earlier, provides for a statutory qualified privilege for the official documents of the Houses of the Oireachtas. Section 112 sets out definitions and also makes clear that the operation of the privilege does not prejudice the power of each House to make rules and standing orders pursuant to Article 15.10 to create a protection for official documents. Section 113 provides for a power for an Oireachtas committee designated for that purpose to make rules designating categories of official documents. Section 114 provides for qualified privilege for official documents of the Houses and sets out the circumstances in which an official document may be accessed or disclosed.

Part 12 contains sections 117 to 119 of the Bill and governs the power of the Houses of the Oireachtas and any Oireachtas committee to examine witnesses and administer oaths. Part 13 contains sections 120 to 122 of the Bill and contains provisions in relation to the laying of documents and allows for the repeal of the 1966 Houses of the Oireachtas (Laying of Documents) Act.

Part 14 contains sections 123 to 133 of the Bill and provides for miscellaneous matters including provision for offences by bodies corporate in section 123, provision for proceedings in court in section 124, matters relating to the prosecution of an offence under the Bill in section 125, clarification on the status of court proceedings in the event of a discontinuation of an inquiry or the dissolution of either House in section 126. Section 127 contains restrictions on the Freedom of Information Acts 1997 and 2003. Sections 128 to 132 provide for the consequential amendments of other legislation.

The Schedule provides for a repeal of previous Acts relating to the Oireachtas that are either obsolete or are replaced by this Bill. It also provides for part amendment of a small number of Acts. I am conscious that this is a large and complex Bill and I have dealt with its provisions in summary form in my contribution to the House today. That will explain why we have taken such great time and care with the Bill. I thank both Houses for the degree of input into the Bill. Having carried out an analysis of the referendum result in 2011 we asked for the views of Oireachtas committees. They looked at the heads in some detail and provided useful debate before we published the final Bill in May. I am happy to expand on any of its provisions during the course of this debate. If Senators wish to raise any particular issues they are welcome to do so. They will have an opportunity on further Stages to examine the Bill in detail. I look forward to hearing the contributions of Senators during this debate. I hope the House will support the passage of the Bill and assist in securing its early enactment because there is a public view that this is a piece of legislation that should be passed by the Houses of the Oireachtas.

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