Brendan Howlin (Wexford, Labour) | Oireachtas source

The client can, but it is very unusual, certainly in the context of inquiries of this sort. In regard to Cabinet confidentiality, subsection (1)(a) provides that the committee shall not direct a person to give evidence or documents relating to the discussions at a meeting of the Government or a committee appointed by the Government whose membership consists of members of the Government. This respects the principle of Cabinet confidentiality. Article 28.4.3^o was inserted into the Constitution following the judgment of the Supreme Court in the Attorney General v. Hamilton (No. 1) judgment, deriving a principle of Cabinet confidentiality from the general principle of collective responsibility. The bar on giving any disclosures has been modified in regard to the constitutional amendment that subsequently happened but the principle of Cabinet confidentiality will be respected in this legislation. The Senator is quite right in that regard.

Senator Reilly has welcomed the Bill and I thank her for that. She made an important point that the Bill has general application, although we were all narrowly focused in most of our contributions on one aspect of it and how it will be conducted in terms of a banking inquiry, but a number of potential inquiries are provided for under the Constitution and we set out a process in respect of each case in the Bill. I strongly agree with the Senator that it is important that we, as politicians, regain the trust of the people before we would ask them to give us further authority in terms of strengthening the investigative powers of the Oireachtas to come to conclusions that would adversely impact on the good name or character of people who are not subject to the constitutional oversight of the Houses already. This is a test for us in the Houses to see if we can conduct this in an effective way.

Senator Bacik made a strong point, as she would as a criminal lawyer, in terms of the primacy of the criminal process. I am a little concerned that she would raise the expectations of people that there would be wholesale criminal prosecution because criminality is confined to a narrow range of behaviours. There will be a lot of people who, in some people's minds, would be considered reckless, who they consider did not do their jobs or were careless, and much of that might not amount to a criminal offence that could be prosecuted. Obviously, that process needs to be brought to its normal conclusion. All of us are a little bit frustrated but there is a separation of powers. The prosecution authorities are independent of political interference and that is right and proper. That is there for a good reason. We do not want political prosecutions but we expect prosecutions to come when all the evidence is adduced and the Director of Public Prosecutions is ready to bring prosecutions to the court, but that should not negative our wish to have, to use Senator Bacik's words, the full narrative of what happened seen. We have to look at the oversight of all the principal players, the Department of Finance, the regulator, the Central Bank and the Cabinet, who ultimately made the decisions. Who was imputing, what state of knowledge did they have and how did they come to make those decisions? I think this can be done.

Senator Bacik talked about the conduct of the last referendum and the issue of kangaroo courts, which were words displayed in a discordant poster during the campaign in that referendum. No more than inquiries in any other jurisdiction, parliamentary inquiries are so described and we should not be so weak in the capacity we give our own Parliament that we weaken its hand to have proper oversight, but the decision in that referendum was a decision of the people and we have to accept the decision of the people and build trust. To answer Senator Reilly's question directly, there will be no rush to have a further referendum because we need to get on with this process, within the confines laid down by the people and the courts, of the constitutional demands upon us. This Bill is crafted within those confines. It is a comprehensive Bill and, if implemented effectively in a way that I believe is within the encompass and the capacity of Members of these Houses to do, it will greatly strengthen the people's trust in our capacity to hold people to account.