I move: "That the Bill be now read a Second Time."
This Bill before the House today is the first important step towards ensuring that the Houses of the Oireachtas can undertake full parliamentary inquiries.
It will enable the constitutional amendment to permit the Houses undertake full inquiries into matters of general public importance in an effective and cost-efficient manner.
As set out in the Programme for Government, the proposed constitution amendment contained in the Referendum Bill is a key element of the broader parliamentary reform programme to which the Government is strongly committed.
These reforms are underscored by a conviction regarding the potential of our Parliament and its members on both sides of the House to lead change, to govern effectively, and to hold the Government to account. The successful discharge of these roles by the Houses of the Oireachtas is imperative if we are to restore the trust and confidence of the public in the institutions that serve them.
It is integral to the effective functioning and modernisation of parliamentary democracy that the Houses of the Oireachtas have express legal capacity to initiate and undertake full inquiries into issues of general public importance where the Oireachtas has a clear legislative, oversight or public policy role in making findings and recommendations firmly underpinned by extensive fact-finding.
In order to achieve this objective the legal and constitutional issues identified in the Supreme Court’s judgment in the Abbeylara Judgment must be addressed.
The constraints and restrictions imposed by the Supreme Court judgment on the ability of the Houses to conduct inquiries will be well known to many members of the House.
The work of the all-party Joint Oireachtas Committee leading to the publication of its Fifth Report on Article 15 of the Constitution and the parliamentary power of inquiry in January of this year was particularly valuable – drawing on the advise of external experts and important work of the Law Reform Commission in this area – in analysing in some detail the main findings of the judgment and in making specific recommendations on how the limits and restrictions created by it could be resolved through constitutional change.
The proposed wording of the Referendum and the policy approach which the Government is adopting is in fact closely in line with the recommendations of the Joint Committee.
A vigorously active and independent Parliament with powers to investigate into particular matters of general public importance should have the objective to ensure that the type of systemic failures we have seen take place in our banking system – to take one example - as documented in the reports by Regling and Watson, Professor Honohan and the Nyberg Commission – will be much less likely to occur in the future.
There are significant public policy benefits from the operation of an effective system of parliamentary inquiry. This is evidenced by the broader international experience, and by our own specific national experience in the case of the successful DIRT inquiry carried out by the Dáil Public Accounts Committee.
We need to ensure that we, as parliament, use this power carefully and appropriately and only in circumstances that it is clearly warranted in line with the objectives of the constitutional amendment.
In essence, a power of inquiry consistent with the constraints identified in the Abbeylara case would not facilitate meaningful inquiries leading to substantive recommendations and findings where it is essential to inquire into individual conduct and potentially make findings regarding the actions of individuals.
In order to facilitate comprehensive discussion of and inform debate on the issues involved, I published detailed and advanced draft Heads of the Houses of the Oireachtas (Powers of Inquiry) Bill earlier this week. This legislation will underpin the proposed constitutional amendment, and will provide a comprehensive governing legal framework for the establishment and operation of an Oireachtas inquiry system. The legislation details the proposed structure and operation of the proposed new system of Oireachtas inquiry. It requires in particular the establishment of a framework through rules approved by the Houses to secure procedural fairness. This legislation will be enacted if the proposed constitutional change is approved by the electorate. I welcome any views or suggestions on the legislation to help define the final shape of the inquiry system.
Inherent in this legislation is the constitutional imperative under Article 40 3 of the Constitution that the Houses of the Oireachtas’ proposed powers of inquiry must be carried out in a manner consistent with the rules of natural justice but also taking into account the public interest in ensuring the Oireachtas inquiries are effective. This is the key balancing exercise to be determined in the design and implementation of the inquiry system. This balancing will be governed by rules established under the enabling legislation.
Outline of Bill in Detail
I will now briefly go through the sections of the Bill and give an outline of their content and purpose.
Section 1 provides for the amendment of section 10 of Article 15 of the Constitution by the insertion of the text set out in the Schedule to the Bill. Section 2 is a standard provision specifying how the Amendment and the Act shall be referred to.
The Schedule contains the proposed text of the Constitutional Amendment, in both Irish and English.
The Referendum, if approved by the electorate, will insert the three new subsections, as set out in the Schedule, into Article 15 of the Constitution.
The need for an explicit, express and unambiguous statement granting a power of inquiry to the Oireachtas is addressed by Subsection Two contained in the Schedule of the Bill. Its wording reflects the finding of the Joint Oireachtas Committee on the Constitution, that a constitutional amendment is required to avoid any doubt that the Oireachtas has an inherent power to inquire into matters of general public importance. It minimises the risk that the Houses of the Oireachtas might be found by the Courts to be precluded from carrying out such inquiries on the basis of institutional or structural bias.
Subsection Two does not and cannot discharge the members of an Oireachtas committee of inquiry from the requirement not to pre-judge the outcome of an inquiry. Members of Oireachtas committees of inquiry would be required to behave impartially in respect of the matters which were the subject of an inquiry.
In addition, this Subsection provides that the inquiry must be into a matter "stated by the House or Houses concerned to be of general public importance". The draft Heads of the Houses of the Oireachtas (Powers of Inquiry) Bill contains the proposed process to be undertaken and the evidence to be provided to allow the Houses to make the assessment that a particular matter is of general public importance and therefore, warrants an inquiry.
Subsection Two also provides that the manner in which an inquiry is conducted would be in line with provisions laid down in legislation. The draft Heads of the Houses of the Oireachtas (Powers of Inquiry) Bill, as published, provides a framework within which the Houses of the Oireachtas can formulate rules and guidelines governing the conduct of such inquiries.
Subsection Three of the Schedule to the Bill seeks to address two of the major concerns identified by the Supreme Court in the Abbeylara judgment by granting a power to the Oireachtas to investigate the conduct of individuals and make findings.
This would be done in the context and with the objective of making and rationalising recommendations for changes. Such recommendations could, for example, relate to legislative or regulatory frameworks or the role, structure, governance and management systems of public bodies.
Subsection Three of the Schedule equally ensures that the Oireachtas could not be inhibited by the likelihood of any civil or criminal liability being inferred from its deliberations in relation to powers of inquiry.
This Subsection explicitly provides that an investigation can be carried out into the activities of any person or persons irrespective of whether members of either House or not.
A key requirement for the proposed new system of Oireachtas inquiry will be adherence to the rules of natural justice consistent with constitutional principles and Ireland’s obligations under international law. Subsection Four in the Schedule to the Bill is designed to meet this requirement. This is a very significant element of the proposed new system of Oireachtas inquiry
It is not intended to change the fact that fair procedures and the rules of natural justice must be respected in any form of inquiry that puts good name or reputation at risk.
The proposed approach is consistent with judicial decisions which have noted that a tailoured approach is appropriate to the rights to fair procedures. The established constitutional rights of a particular individual will vary according to the position in which they are placed - one’s rights, such as to one’s good name, must be at risk. This has been borne out in the field of tribunals of inquiry.
What the proposed constitutional amendment does is to reflect the need for the Oireachtas to implement in a pragmatic way fair procedures in its inquiry process, and the need to implement them in a manner which is balanced against the public interest. This is done to ensure that inquiries are effective, cost-efficient and completed within a reasonable timeframe.
The manner in which the Oireachtas strikes this balance must be reviewable by the Courts. If the Courts believe that the balance has not been properly determined, they can overturn the decision made by the inquiry. In assessing this issue, the Courts would take account of the proposed constitutional provision that the Oireachtas is empowered to strike the balance.
Under present constitutional arrangements the Courts in determining these issues would review exclusively in this context the provision of fair procedures. I do not need, I think, to set out for the House how in such circumstances it could be expected that any Oireachtas inquiry would be rendered ineffective and impotent by constant recourse to the Courts by parties to any investigation and the introduction of Tribunal-like procedures into an Oireachtas inquiry. It is almost certain that the inquiry process would be ineffective, and the public interest would not be served.
However, let me be clear - the amendment to the constitution contained in the Referendum Bill before us does not disregard the rights of witnesses to fair procedures. Indeed, as set out in the proposed underpinning legislation (i.e. the draft Heads of the Houses of the Oireachtas (Powers of Inquiry) Bill) high hurdles have been set to ensure that fair procedures are adopted, and that inquiries are carefully and correctly conducted.
In making its determination a committee of inquiry would be expected to have regard to certain factors. These could include whether specific facts are in dispute between witnesses and the extent to which the reputation of witnesses is an issue. An overarching concern for an Oireachtas committee of inquiry should be to ensure that the level of rights should be commensurate to the risk to an individual’s good name against whom allegations may or have been made. Every citizen in our democracy has a right to their good name but that right needs to be balanced with the undeniable public interest that is realised by effective investigation into matters of serious public concern.
It is highly desirable that Oireachtas inquiries should be carried out in an efficient and cost-effective manner and conclude their work within a reasonable period of time. Citizens would expect that the Houses should carry out such inquiries as expeditiously as possible, and it is important that such inquiries are perceived as such. These inquires need to inspire public confidence in our parliamentary system, and not diminish it through delay, enormous cost, and ineffectiveness
Conclusion
To conclude, I am asking the House to support and approve this Bill and in doing so provide for the Houses of the Oireachtas to conduct full inquiries. This Bill is important in the strengthening of our parliamentary democracy, it provides for a political ethos in which there is a true sense of accountability. I commend it to the House.