INFORMATION NOTE HOUSES OF THE OIREACHTAS (INQUIRIES, PRIVILEGES AND PROCEDURES) BILL, 2013 Context to the Bill The Houses of the Oireachtas (Inquiries Privileges and Procedures) Bill 2013 establishes a comprehensive statutory framework for the Oireachtas to conduct inquiries consistent with the constitutional parameters set down by the Supreme Court in the Abbeylara case1. The Bill provides the necessary detailed legislative framework for the Houses of the Oireachtas to discharge its constitutional functions that allow it carry out inquiries into any significant matter of public interest or public concern Providing the inquiry does not seek to directly attribute blame to individuals ‐ other than in circumstances that the inquiry relates to a member of Houses or to an officeholder or other persons that are accountable to the Oireachtas ‐ there is a very broad scope of legitimate parliamentary inquiries that could be carried out under the legislation. The Houses of the Oireachtas (Inquiries Privileges and Procedures) Bill 2013, therefore, 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. Main Features of the Bill The Bill provides specific statutory underpinning for five general types of Oireachtas inquiries: ¾ An Inquire Record and Report (IRR) inquiry which in relation to any specific issue can make findings of uncontested facts and draw attention to matters in dispute ¾ A legislative inquiry into any matter that the Oireachtas has or could legislate for; ¾ An inquiry relating to the removal of an officeholder (e.g. Article 12.10 (President), Article 33.5 (Comptroller and Auditor General) or Article 35 (Judges of the Supreme and High Court) ¾ An Inquiry relating to the Conduct of a Member of the Houses in his/her capacity as a Member. ¾ An Inquiry to hold the Government to account and also to hold to account any person who is liable to Dáil scrutiny by contract or statutory appointment. The Bill contains explicit requirements to observe fair procedures and contains provisions in relation to the conduct of Members to avoid any perception of bias. 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 1
Maguire v Ardagh [2002] 1 IR 385 determined that the Oireachtas does not, in general, have the power to make findings of facts adverse to the good name of any person who is not a member of the Houses or directly accountable to the Houses. 1
reputation of individuals. Access to the courts for directions in respect of any dispute is clearly provided for in the Bill. 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. It also provides for qualified privilege for confidential communication from members of the public who wish to draw wrongdoing to the attention of Members of the Houses of the Oireachtas without having their identities disclosed. Structure of the Bill The Bill is divided into 14 Parts: Part 1 – Contains standard preliminary and general provisions including the title of the Bill and provisions for the commencement of the Bill. Part 2 – Details the types of inquiries that may be conducted in accordance with the Bill. Part 3 – Makes provision for fair procedures to be observed when a committee is conducting an inquiry pursuant to the Bill. Part 4 – Makes provision for Interim and Final Reports of an inquiry and makes provision in relation to certain confidential documents concerning an inquiry. Part 5 – Deals with costs and is divided into Five Chapters: Chapter 1 – Contains relevant definitions and makes provision for a Parliamentary Legal Costs Adjudicator Chapter 2 – Makes provision for legal costs in relation to an Oireachtas inquiry. Chapter 3 – Makes provision for expenses incurred in relation to an Oireachtas inquiry. Chapter 4 – Makes provision for legal costs in relation to private bills. Chapter 5 – Contains miscellaneous provisions in relation to costs. Part 6 – Contains provisions in relation to compellability, privileges and immunities and applies only to an Oireachtas Committee whilst it is conducting an inquiry pursuant to the Bill. Part 7 – Contains provisions in relation to compellability, privileges and immunities and applies only to an Oireachtas Committee on which the power to send for persons, papers and records has been conferred and whilst it is conducting non‐inquiry committee business. The Part is divided into Four Chapters: Chapter 1 – Contains relevant definitions in relation to the Part Chapter 2 – Concerns privileges and immunities of witnesses to a committee that is not conducting an inquiry. Chapter 3 – Makes provisions for directions that may be given by a committee conducting other committee business. Chapter 4 – Makes provision for the payment of expenses of witnesses to a committee conducting ordinary Oireachtas business by the Oireachtas Commission. 2
Part 8 – Provides for the privilege and immunity of committees and Members of the Houses of the Oireachtas and contains restrictions in relation to the evidence of certain persons. Part 9 – Provides for applications to the High Court in relation to the conduct of an Oireachtas inquiry. Part 10 – Creates a statutory privilege in relation to the private papers of Members and confidential communication with Members of the Oireachtas. Part 11 – Creates a statutory privilege in relation to Official documents of the Houses of the Oireachtas. Part 12 – Makes provision for a committee to hear evidence on oath. Part 13 – Contains provisions in relation to the laying of documents. Part 14 – Contains a range of miscellaneous provisions in relation to the operation of the Bill and consequential amendments of other legislation. 3
FAQ on some practical considerations concerning the Houses of the Oireachtas (Inquiries Privileges and Procedures) Bill 2013 Will the legislation allow a banking inquiry to go ahead? The Bill will be of direct practical assistance in facilitating a Banking Inquiry. However; the primary purpose of the Bill is to create a legislative framework for Oireachtas inquiries generally and is not limited to the banking inquiry in particular. While it is a matter for the Houses of the Oireachtas to decide, in the light of the powers in the Bill, what form of inquiry they wish to hold, two of the forms of inquiry set out in the Bill could be particularly suited to investigation of the banking crisis and related issues: 1. An IRR inquiry which records and reports evidence and may make recommendations could be conducted to seek to establish the full narrative of a specific event or decision such as the events leading up to and of the night of the bank guarantee. It would set out the uncontested facts and those facts in dispute. 2. A legislative inquiry could be conducted into the performance of the functions and responsibilities of public bodies in the context of the legislative functions of the Houses including whether there is a need for new legislation. The purpose of the inquiry must be forward looking rather than a cloak to investigate specific past events. However, providing it did not seek to directly attribute blame or responsibility to individuals and fully respects fair procedures, such an inquiry could be a powerful tool for establishing facts, making findings and recommendations in relation to the significant issues of public policy. Why could an Oireachtas Committee not carry out an IRR inquiry into the banking crisis using its existing powers? All of the experience from parliamentary inquiries previously conducted is that the absence of a legal framework would cause any such inquiry to fail. The Bill provides:‐ • legal certainty in relation to the scope for parliamentary inquiries; • the necessary statutory framework for an inquiry operating under proper constitutional authority to carry out its functions; • all ancillary powers including the creation of offences necessary for the effective conduct of an inquiry; • for the fair procedures that are essential in the case of any such inquiry Will the Bill allow for effective parliamentary inquiries? The Bill puts in place the necessary statutory framework for the Oireachtas to conduct parliamentary inquiries into matters of significant public importance within the current constitutional constraints. The Bill provides the necessary detailed legislative framework for the Houses of the Oireachtas to discharge its constitutional functions that allow it carry out inquiries into any matter of significant public importance. 4
When will the banking inquiry commence? As set out in the Bill, responsibility is assigned exclusively to the Houses of the Oireachtas to determine the requirement for any formal inquiry, the terms of reference of that inquiry and the procedural and organisational aspects of the inquiry. Does the Bill fully respect the Supreme Court Judgment in the Abbeylara case? The Bill fully respects the Supreme Court judgment in the Abbeylara case. The Bill is underpinned by extensive legal advice from the Office of the Attorney General and External Counsel and is framed to ensure that it fully meets current constitutional requirements, including the right to fair procedures. The Bill contains explicit provisions for full access to the courts. Does the Bill fully respect the decision of the people in the October 2011 referendum? The Bill fully respects the decision of the people in the October 2011 referendum. The Bill does not permit adverse findings to be made against individuals other than in the context of the exercise of a specific constitutional function of the Oireachtas. Will the Bill undermine the role and work of Oireachtas Committees not carrying out inquiries? The Bill does not jeopardise the work of any of the other Oireachtas Committees. The Bill fully replicates the powers available to Committees that are currently contained in the Committee of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 and simplifies the process for invoking compellability powers. The Bill is structured so that the powers available to Committees operating their day to day business (referred to in the Bill as Other Committee Business) are clearly and separately set out in Part 7. Will the reputations of individuals be at risk in inquiries? As confirmed by the Abbeylara case, Oireachtas Inquiries do not have the power, 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 directly accountable to the Houses by virtue of the terms of their contract or statutory appointment. Only in such limited cases (or cases of impeachment of officeholders) may the reputations of individuals be put in issue. What protections do individuals have under the Bill? The Abbeylara case firmly established that any inquiry carried out by the Houses of the Oireachtas must strictly comply with fair procedures consistent with the principles of natural justice. This is essential in all types of inquiry, notwithstanding that the inquiry may have no scope to make adverse findings against individuals. The Bill provides the full gamut of protections which the courts have required to guarantee fair procedures (i.e. re Haughey rights). 5
Is there a right of access to the courts under the Bill? The Bill provides for full access to the courts in order to ensure that any party or witness to an inquiry can seek to vindicate their constitutional rights. Are legal costs payable? The aim of the Bill is for the payment of costs only in the limited cases where the good name of a person is in issue. Such reasonable costs can be recouped from the Oireachtas Commission. Costs may be withheld where the individual fails to co‐operate with the inquiry. It is anticipated that payment of costs will not be the norm as there is ample scope to conduct inquiry under the Bill without putting the good name of any person in issue. Will legal representation be allowed for witnesses? No witness will be required to have legal representation for the purposes of attending at an Oireachtas inquiry. However, a witness is entitled to be accompanied, at his or her expense, by a legal representative. The Bill explicitly states that there is no prohibition on a person who is entitled to question a witness to do so through the person’s legal practitioner. The intention is to provide for a recoupment of legal costs from the Oireachtas Commission only in circumstances where the good name of a person is in issue and subject to co‐operation by that person with the inquiry. What expertise will the Committees have available to them? Are members of the Oireachtas suitably qualified to conduct an inquiry of this nature? It will not be the case that an inquiry will be taken out of the hands of Members of the Oireachtas and conducted in its entirety by legal experts. However, it is open to an Oireachtas Committee to employ various experts to assist them in conducting an inquiry if they consider it necessary (e.g. accounting experts). The Bill specifically provides that a Committee may question a witness through a legal representative if they so desire. How does the Bill safeguard against bias? The Bill contains a specific provision stating that a Member shall not be a member of a committee conducting an inquiry if a reasonable perception of bias might arise. The Bill provides guidance in relation to the determination of whether bias might arise; however, ultimately this is a matter for the Houses themselves to determine. On account of their public statements, would most Members of the Oireachtas not be likely to be ruled out from carrying out a banking inquiry on account of bias? Any assessment of whether a perception of bias has arisen will depend firmly on the circumstances of the individual case. This would be determined by the Courts by an assessment of the view formed by a ‘reasonable’ person taking into account, for example the specific utterances of a member of an inquiry committee that are directly relevant to the specific matters that are the subject of the 6
inquiry under its terms of reference or serious shortcomings in the procedural fairness with which an inquiry is carried out. It seems clear that it would be not be appropriate for members of an inquiry committee to make public comments both immediately prior and during the course of an inquiry on the subject matter of the inquiry where its finding had the potential to impact adversely on the reputation of any individual. However, the fact that members of an inquiry committee had formed a preliminary view of serious failures in performance of particular organisations or sectors that, for example, had already been the subject of other reports would not necessarily disqualify them from participating in an inquiry providing the inquiry was not established with the objective of establishing individual misconduct relating to that failure. How workable is the Oireachtas Inquiries legislation in practical terms? The extensive and comprehensive nature of the provisions included in the legislation will help ensure that the framework for Oireachtas inquiries is practicable and workable. Members of the Oireachtas are experienced in operating within the existing framework for the work of committees and have knowledge of the current legislative framework for the work of Oireachtas committees set out in the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. The procedural elements of the legislation are essential to adequately vindicate the rights of witnesses appearing before an Oireachtas Inquiry. The Abbeylara case firmly established that any inquiry carried out by the Houses of the Oireachtas must strictly comply with fair procedures consistent with the principles of natural justice. The comprehensive nature of the legislation is intended to support the effective and efficient conduct of an Oireachtas inquiry by providing clarity and certainty on central issues such as for example:‐ ‐ the scope for parliamentary inquiries to be carried out by Oireachtas committees in a manner fully consistent with existing constitutional parameters ‐ the appropriate powers necessary in order to conduct a successful inquiry. ‐ the full suite of protections which the courts have required to guarantee fair procedures (i.e. re Haughey rights) and compliance with which will be essential for an inquiry. Is it not inevitable that an Oireachtas Inquiry will be challenged In the Courts? A key theme which arose in the context of the campaign on the Referendum in autumn 2011 to provide the Oireachtas with full powers of inquiry was the absolute constitutional right of access to the Courts. The Bill provides for full access to the courts for directions in respect of any dispute arising in the context of the operation of the Bill in order to ensure that any party or witness to an inquiry can seek to vindicate their constitutional rights. 7
The Bill itself is fully compliant with the principles laid down in the Abbeylara judgment and operates within the current constitutional framework. The extent to which the Bill may give rise to legal challenges will reflect factors such as the type of inquiry being carried out, whether the inquiry it is entitled under the Constitution to make findings that are may impact adversely on a person’s reputation, the manner in which the inquiry is conducted and in particular its compliance with fair procedures. Conclusion • Parliamentary inquiries under this legislation can be cost‐effective, efficient and resilient to any legal challenge providing they have focused terms of reference and comply strictly with fair procedures • The Bill provides all of the constitutional safeguards to protect the rights of individuals consistent with the outcome of the Referendum on Oireachtas Inquiries • The legislation is essential to conducting a parliamentary banking inquiry • It is the responsibility of the Oireachtas itself to determine how the legislation might be applied but a detailed, comprehensive and robust legal framework is now available:‐ o to determine all the relevant facts and events (i.e. IRR inquiry); o make findings on the performance of the banks and public bodies involved; and o make recommendations for the policy and legislation based on the lessons learned (i.e. legislative inquiry) • Outside of the specific scope currently provided by the Constitution for holding its Members, the Government and certain Officeholders accountable to the Oireachtas the parliamentary inquiry system cannot be a vehicle for attributing individual responsibility; apart from the risk of prejudicing criminal proceedings, any attempt to do so would cause the inquiry to collapse and would conflict with the decision made in the October 2011 Referendum 8