Wednesday, 17 November 2004
Tribunals of Inquiry (Evidence) Acts: Motion.
That Seanad Éireann resolves that the terms of reference contained in the resolution passed by Dáil Éireann on 7 October 1997 and by Seanad Éireann on 8 October 1997, as amended by the resolutions passed by Dáil Éireann on 1 July 1998 and by Seanad Éireann on 2 July 1998 and further amended by the resolutions passed by Dáil Éireann and Seanad Éireann on 28 March 2002 and by the resolutions passed by Dáil Éireann on 3 July 2003 and by Seanad Éireann on 4 July 2003 pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 to 2004, be amended by the addition of the following paragraphs after paragraph I:
'J. (1) The tribunal shall, subject to the exercise of its discretion pursuant to J(6) hereunder, proceed as it sees fit to conclude its inquiries into the matters specified below, and identified in the fourth interim report of this tribunal, and to set out its findings on each of these matters in an interim report or reports or in a final report:
(a) the Carrickmines I Module;
(b) the Fox and Mahony Module;
(c) the St. Gerard's Bray Module;
(d) the Carrickmines II Module and Related Issues;
(e) the Arlington-Quarryvale I Module;
(f) the Quarryvale II Module;
(g) those modules that are interlinked with the modules set out at paragraphs (a) to (f), and that are referred to in paragraph 3.04 of the fourth interim report of the tribunal.
(2) The tribunal shall, subject to the exercise of its discretion pursuant to paragraph J(6) hereunder, by 1 May 2005 or such earlier date as the tribunal shall decide, consider and decide upon those additional matters, being matters in addition to those set forth at J(1)(a) to (g) above and in respect of which the tribunal has conducted or is in the course of conducting a preliminary investigation as of the date of the decision, that shall proceed to a public hearing and shall record that decision in writing and shall duly notify all parties affected by that decision at such time or times as the tribunal considers appropriate.
(3) The tribunal may in the course of investigating any additional matter under paragraph J(2) or a matter being investigated under paragraph J(1) investigate any other matter of which it becomes aware when it is satisfied that such further investigation is necessary for the tribunal to make findings on any such additional matter or a matter referred to in paragraph J(1) above.
(4) Notwithstanding any other provision of these terms of reference the presentation to the Clerk of the Dáil of an interim report or reports, as the case may be, and of the final report on the matters identified at paragraphs J(1)(a) — (g), J(2) and, where applicable, J(3) shall constitute compliance by the tribunal with all its terms of reference, as hereby amended, and no further investigation or report shall be required of or from the tribunal on any other matter.
(5) Nothing in these amended terms of reference shall preclude the tribunal from conducting hearings or investigations into any compliance or non-compliance by any person with the orders or directions of the tribunal.
(6) The tribunal may in its sole discretion — in respect of any matter within paragraphs J(1), J(2) and J(3) of these amended terms of reference — decide:
(I) to carry out such preliminary investigations in private as it thinks fit using all the powers conferred on it under the Acts, to determine whether sufficient evidence exists in relation to the matter to warrant proceeding to a public hearing if deemed necessary, or
(II) not to initiate a preliminary investigation and-or a public hearing of evidence in relation to the matter notwithstanding that the matter falls within the tribunal's terms of reference, or
(III) having initiated a preliminary investigation in private, and whether same has been concluded, but prior to the commencement of any public hearing of evidence in the matter, to discontinue or otherwise terminate its investigation notwithstanding that the matter falls within the tribunal's terms of reference.
In exercising its discretion pursuant to this paragraph the tribunal may have regard to one or more of the factors referred to below:
(i) the age and-or state of health of one or more persons who are likely to be in a position to provide useful information, including, but not confined to, oral evidence to be given privately or publicly, including the age and-or likely state of health of any such person at such 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, and in particular the issue as to whether their age and-or state of health is or is likely to be an impediment to such person being in a position to co-operate with the tribunal or to give evidence to the tribunal in private or in public;
(ii) the likely duration of the preliminary investigation or public hearing into any matter;
(iii) the likely cost, or other use of the resources of the tribunal, of such investigation or any stage of the investigation into any matter;
(iv) 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 and-or to make recommendations;
(v) 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.
(7) subject to paragraph J(3) any matter not brought to the attention of the tribunal or of which it is not aware by 16 December 2004 shall not be the subject of any investigation by the tribunal.'.
The purpose of the motion is to allow an amendment to enable the tribunal to complete its work by 2007. This is significantly earlier than would be the case if the amendment were not made. Under the existing terms of reference for the tribunal, it is mandated to investigate any allegation of corruption associated with the planning process. The fourth interim report issued by the tribunal on 15 June of this year gave an overview of the work on hand. Although the tribunal was, of necessity, very circumspect in the language that it used, the report indicated that the tribunal still has a large volume of work on hand, which, if investigated in full, would require the tribunal to carry on until 2014 or 2015. There was some comment that it would still be in operation for the centenary of the 1916 uprising.
The tribunal itself requested a change to its terms of reference to allow it a discretion not to pursue certain lines of inquiry. If Members check the original arrangement under which the tribunal was set up, they will note that it can request changes to its terms of reference. After the tribunal's request, the Government mandated the Attorney General to consult the tribunal on changes to its terms of reference, as provided for under the 1998 tribunals legislation. This is the appropriate contact point. The Attorney General was also asked to discuss with the tribunal the impact of the Government's decision in July of this year to apply a new scale of fees to the legal teams of existing and future tribunals.
As I stated, the tribunal currently has a mandate to investigate any allegation of an act of corruption associated with the planning process. The major changes proposed, which are the subject of today's motion, will add a new paragraph J to the terms of reference. Sub-paragraph J(1) enables the tribunal to complete its current investigations into planning issues in Dublin, including the Carrickmines and Quarryvale modules and interlinked matters. Sub-paragraphs J(2) and J(7) provide for the introduction of two important deadlines. There were no deadlines previously.
Under sub-paragraph J(7), the final date for receipt of any new complaint or request for investigation is fixed by the terms of reference at 16 December of this year, that is, 30 days from today. By 1 May 2005, the tribunal must decide what new matters on its books will be proceeding to a public hearing. After that date, no new investigation can be referred to public hearing by the tribunal.
However, there were concerns that the tribunal could discover something during its investigations which it feels must be investigated to allow it to complete its overall report. An inflexible deadline should not tie its hands in investigating something like that. All Members would agree with this. For that reason, sub-paragraph J(3) provides that, notwithstanding the dates in the terms of reference, the tribunal will also be able to investigate something that it discovers if it is necessary to enable it to make findings on the matters it is already investigating or has decided to investigate.
Sub-paragraph J(4) provides that the report or reports produced by the tribunal will be taken to be in full compliance with its terms of reference. Paragraph J(6) will enable the tribunal to exercise the discretion it sought in the fourth interim report on matters it proceeds to investigate, having regard to certain factors such as the age or state of health of people who are likely to be witnesses, how long the investigation will take, and the likely cost and relevance in terms of the overall cost vis-À-vis the complaint itself.
I intend to bring a short Bill before the Oireachtas in the next few weeks to give legal backing to the discretion being granted to the tribunal to decide which issues to investigate within its terms of reference. Given the benefit of hindsight, it appears extraordinary that the tribunal currently does not have the discretion to reject an allegation. For example, if there is an allegation that someone improperly received €250, the tribunal would nonetheless have to go through a whole panoply of investigation, which would cost perhaps tens of thousands of euro. It is improper not to give this discretion to the tribunal. These changes to the terms of reference set a firm timeframe for the work of the tribunal. The tribunal has indicated that the changes to the terms of reference will allow it to complete its work by March 2007.
In addition, the tribunal has now confirmed in writing to the Attorney General that it intends to utilise the power to sit in divisions when it is appropriate and practical to do so. This could not happen until after the hearings of the current modules. However, it is anticipated that the tribunal will begin to sit in divisions thereafter. The idea that the three judges should sit in a plenary session is not tenable. It is a practical suggestion that the tribunal should be in a position to sit in divisions.
In order to help the tribunal to meet these new more challenging timeframes, especially to allow it to sit in divisions, the Government has agreed to the allocation of an additional seven legal persons to the tribunal's legal team. Initially it will involve additional cost. It should be looked at in the context of the shorter timeframe for completion of the tribunal's work of less than three years compared to a ten-year timeframe, as indicated in the fourth interim report. The Government has decided that the new fee scale for lawyers appearing at tribunals, which was approved by the Government in July 2004, will not apply to the tribunal until 31 March 2007.
I wish to conclude by saying that I believe the changes being proposed today will allow the tribunal complete its mandate, in a more timely way, within a more certain framework. The changes will allow the tribunal reach findings and make recommendations to help ensure that the events it has investigated cannot occur again. I commend the motion to the House.
The motion before the House is a product of discussions and agreement between the Government and Judge Mahon. It is not the result of an open and frank consultative process between the Government, Opposition and Judge Mahon. Why were there not more meaningful cross-party consultations on the matter? I understand the members of each party met with the Attorney General and the Government. It would have been preferable if the Government was more inclusive in its discussions. It would have given the Opposition a better opportunity to meet Judge Mahon. This is not to say that the motion, which proposes the speeding up of the work of the planning tribunal, is not welcome in principle because, if the current terms of reference remain unchanged, the timescale for completion of the tribunal's workload will be ten or 11 years.
This morning in the Dáil, my colleague, Deputy O'Dowd, tabled two amendments. The first suggested that after each of the modules, the tribunal will conduct public hearings and issue an interim report. In the interests of openness and transparency, the tribunal must publish reports as soon as they are complete and not wait until a future date to report on issues which will have been in the public domain for a number of years.
The second amendment concerns the legitimate request to the tribunal to provide the Oireachtas with recommendations on the effectiveness and improvement of existing legislation governing the important issue of corruption. I hope the Minister will consider the amendments tabled by Fine Gael. We had no time to table amendments in this House because I only received the amended schedule this morning.
As a forum for receiving complaints about corruption, which have dogged this investigation, what does the Minister envisage will replace the Mahon tribunal? Despite its shortcomings, the tribunal exists as an official vehicle for dealing with complaints. It appears the door will be firmly closed in 30 days and the only recourse open to people will be the Garda. What proposals, has the Government to fill this void?
The proposed cut-off date for complaints is 16 December 2004. Fine Gael is proposing the setting up of a committee of investigation to investigate allegations of corruption, which should be taken on board. In An Agreed Programme for Government, the Government made a commitment to introduce a proceeds of corruption Act, but it appears to have withdrawn from that commitment. People have mentioned this to me on several occasions. I would like the Minister to spell out the policy on the issue.
In the fourth interim report, Judge Mahon anticipated that the tribunal would run until 2014. He now believes it will conclude in 2007, seven years earlier than scheduled. I am sure the Minister will agree this implies an extraordinary condensing of proposed investigations. It begs the question as to what has fallen off the wagon and what issues reported to the tribunals will not be investigated. It appears that Deputy McCreevy's proposed reduced fees will not apply to the agreed seven new staff members of the tribunal. Why are these people being paid exorbitant rates, which is causing widespread public concern? The principle of competitive tendering is not being applied in this instance. The cost of the tribunals since 1997 is a whopping €36 million, which is tantamount to legalised corruption. It is an issue which needs to be addressed because the general public are fed up with the costs associated with the tribunals. Perhaps the Minister will respond to these issues.
I am pleased the Minister, Deputy Roche, came to the House tonight. This matter has received general approval and agreement. This move came from Judge Mahon and, as Leader, I would like to pay tribute to both Judge Mahon and his predecessor, Mr. Justice Flood, for the painstaking work they carried out. We all demanded and got the appropriate terms of reference for the tribunals. We laid down the salaries and conditions that would apply. Even though the changes Deputy McCreevy proposed will be introduced in March, to change salary arrangements mid-stream was difficult.
We must remember that there was a demand for these tribunals to be set up. There was a further demand to appoint more judges and I am pleased the judges will make arrangements to sit in three separate streams in which they will be able to deal with issues in a concurrent way, which will be helpful to the whole process. I have every confidence that the professionalism shown by the Mahon tribunal will continue. There was an outcry when it was reported that the tribunals would not end until 2014. Everyone said we were suffering from "tribunalitis". My response was that everyone was crying out for the tribunals, they were provided and we should now get on with it. I have always felt that one should not comment on nor throw stones at them. The work, which goes into the tribunals is very professional and time-consuming.
I share the opinions expressed regarding the costs of the legal team. The Minister said more members would be appointed to the legal team and that would be more productive and cost effective rather than otherwise.
Countries around the world have come to grips with corruption. Many have had tribunals. Many have dealt with matters in other ways, depending on the country and how it views such issues. From now on, once this is over, such matters will be dealt with by, a commission. We passed legislation in the House setting up a commission, which will be quicker and better able to take on board issues that arise. There was concern that a tribunal could discover something during its investigation that it felt must be, investigated to allow it to complete its overall report. There could not therefore be an inflexible deadline. Sub-paragraph J(3) provides that notwithstanding the dates in the terms of reference, the tribunal will also be able to investigate something that it discovers if that is necessary to enable it to make findings on the matters it is already investigating or has decided to investigate. There are full safeguards in this as it is laid out.
The Minister also consulted with the nominated representatives of the relevant political parties as the Bill was going through. The tribunal has now confirmed in writing to the Attorney General that it intends to utilise the power to sit in divisions. That is entirely correct. It cannot happen until the current module is over. Once it is, it will begin to sit in divisions.
We cannot have this every way we wish. We demanded tribunals, which we wanted to be punitive, far-reaching and comprehensive. We got them, but as soon as we did people began to say they were too costly and we should not have bothered. Matters such as this have a price. The general tenor and conduct of our country has a price. The price is the tribunal and the professional people who sit on it. This motion is timely. It is neat and understandable. I commend the Government for the way it has handled this matter.
I too welcome the Minister to the House. This is a timely proposal and we should be prepared to assist the tribunal in any way we can and pay tribute to it for the work it has done.
These tribunals were great cathartic events in the life of the nation. They have done much to purify public life and, I hope, to restore credibility. However, the longer they are allowed to go on the less impact they will have and the more they will become a part of the furniture. It is important to bring them to a conclusion.
I have two comments. One arises from Senator Bannon's call for interim reports. There is much to be said for that idea. It is very important that the tribunals name the people who are corrupt or guilty. It is also important to clear people against whom ungrounded allegations were made because of the way cases are presented; there is an opening statement in which all the dirty linen and allegations the tribunal sets itself to investigate are aired. It is not the fault of the tribunal, but these matters are broadcast publicly on the airwaves and they take on the appearance of fact so that there are people against whom allegations are made whose names cannot be cleared until there is a final report. A means of dealing with that relative injustice would be helpful.
It is intended to bring a Bill before the House. However, the proposal to provide for the tribunal to investigate something it discovers if it is necessary to enable it to make findings on matters it is already investigating might be a bit narrow. What happens if the tribunal is investigating a case and discovers an appalling event relating to another case? Is it to pretend it did not discover it? It should be left to the tribunal, if there is a matter that appears to it to warrant investigation, to come back to the House and ask to be allowed to investigate it. The proposal seems to unnecessarily curtail the tribunal.
I congratulate the Minister on this timely motion, which I support.
I thank Members for their contributions.
Senator Bannon made the point that the Government should have involved the Opposition in the discussions with Judge Mahon. This matter arose in the other House as well. It is simply not possible to do that because the two Houses of the Oireachtas passed legislation in 1998 that prohibits such an approach.
The Senator should listen for once, and he will hear the truth. The Act makes it clear that the appropriate person with whom to interface or make contact is the Attorney General. That is the way the legislation was drawn. For the record, on the day I received the final draft of these agreements and put them to Government, I contacted the Opposition parties and the Attorney General and spent the best part of an entire day meeting and briefing the Opposition to the extent that it was possible. It is simply not truthful to suggest that the Government of the day is trying to prevent anybody being involved. I am not prepared to allow that to stand on the record. The Act, which we in our wisdom put on the Statute Book in 1998, has determined the modalities that deal with the tribunals.
I ask Members to read the legislation in the context of the amendment motions. I was asked whether I would have accepted amendments. I would have if it were legally possible for me to do so but again if Members take the trouble to read the legislation that we collectively put on the Statute Book they will find we specifically provided that the tribunal must request any changes or that it must consent to any changes following consultations with the Attorney General on behalf of the Minister. The Minister does not interface in any way with the judge and it would be improper to do so. The appropriate mechanism through which any contact is to be made is through the Attorney General. It is an unusual role for the Attorney General because the Attorney General is appointed under the Constitution to be the legal adviser to the Government. However, on this occasion the Attorney General acts as a bridge between the Houses of the Oireachtas and the tribunal.
It is untrue to suggest that the Opposition was in any way excluded. It was involved to the extent that it was possible to do so. The Senator may shake his head as much as he wants. The reality is different. I met four people designated by his party leader to discuss this.
I am being frank with the Senator. I met four people. He can check with his party leader. There were other contacts which I will not discuss here.
The Senator also suggests that when the tribunal ends there will be nothing to replace it. That is not true. On the point raised by Senator Maurice Hayes, the existing power to establish a tribunal will continue to be on the Statute Book and it is a choice for the Houses of the Oireachtas if they want to establish another tribunal.
If another issue were to be discovered, that would be one approach. The second approach, which Senator Bannon seems to have overlooked but which was mentioned by Senator O'Rourke, relates to the legislation introduced last year by the Minister for Justice, Equality and Law Reform to establish commissions of investigation. This legislation draws on our experience of tribunals and allows for a much less convoluted or contorted approach to be adopted, an approach that would become less of a feeding ground for people in the legal profession. A more cost-conscious approach has been adopted. It is also worth remembering what we have done as parliamentarians to bind ourselves to rules of good behaviour. We have established standards in public office and a most transparent system for dealing with political donations. We should not always flay ourselves in the belief that Irish public representatives are behind in this regard. We have put very stringent procedures in place to deal with the type of corruption, which we discovered at the outset of this process.
An issue, which was raised by Senator Bannon and about which there was significant criticism in the other House is that relating to legal fees. It is difficult to disagree with anything that has been said about the extraordinary levels of fees which are being charged. In reality, however, there are people who have invested a significant period of their lives in the tribunals. If the Government were to announce that their wages will be cut, which would be the effect of a unilateral introduction of the new fees, some of them might walk away. We would then be in the extremely difficult situation whereby the tribunals would be unable to complete the difficult tasks with which they are charged.
We are trying to bring finality to something which has taken legs. The tribunals were put in place, and this one in particular, as a result of the revulsion that was felt both in the Oireachtas and by the public. Nobody had the prescience to predict that this process could continue for ten or 15 years. The Government's current approach was taken at the sensible suggestion of Judge Mahon in order to bring finality. We are introducing the necessary arrangements to give effect to the changes requested by the tribunal. That is all we are doing, nothing more and nothing less. It is simply not true to suggest that anybody in either House is imposing these changes. We are doing what the Act says we should do by taking a proposal from the tribunal and giving it legislative effect.
I am grateful to the House for accommodating me today because I am anxious to get these arrangements through so we can look forward to a conclusion in 2007.