I have had the honour of serving the people of this country on different occasions as a Member of Dáil Éireann and previously as a Member of Seanad Éireann. There are many differences between the two Houses, each of which exercises distinct but connected constitutional functions. These are known to Senators. Also known to Senators is the fact that, notwithstanding some important differences, there are fundamental characteristics common to both Houses. In my own experience, the first among these characteristics is the shared commitment of the Members of Dáil Éireann and Seanad Éireann to vindicate and protect the democratic rights and freedoms of the citizens of this country. While this may sound extravagant, we who serve in the Houses of the Oireachtas know that this characteristic is given substance in the reality of the daily grind of legislative and other business conducted by the Members of this House and the Dáil — often unreported, frequently unobserved and usually unacknowledged. Yet we in these Houses know, as do the citizens of the new democracies of central and eastern Europe, that the true value of our work as parliamentarians might be seen only if it were lost.
One such role is to investigate and reveal the facts in relation to matters of great public importance. However, somewhere along the road from Westminster to the present, Irish parliamentarians lost the legal power to coerce witnesses into attending before them and answering their questions which was transmitted to every post-colonial parliament in the English speaking world.
This loss may not have been immediately evident. Committees were solemnly entrusted in their Orders of Reference with the "power to send for persons or papers". Those for whom we sent generally came. In recent years, as the concerns of our committees widened, situations were encountered where some of those for whom we sent declined to come; those who came from time to time declined to respond to questions which we thought important, others thought it best to withhold from us documents which we felt might throw light on murky corners. What this Bill does, essentially, is to ensure that a call from a committee of this or our companion House is a call which cannot be denied.
At present a committee engaged on a legitimate fact finding mission in the interest of the public can, when blocked in its quest, call to its aid nothing more than whatever degree of public opinion it can arouse by its reaction. Those who treat an Oireachtas committee with contempt are unlikely to be unduly influenced by reports of our criticism or endorsement of it by the press. This Bill will give such a committee a more sure and effective sanction. Unjustified refusal to comply with its demands will put the refusenik on the hazard of court action, fines and even, not to put a tooth in it, prison.
Nor will a committee have to flounder around and speculate about what documents a potential witness may have and hope to strike it lucky by hitting on the precise document it wants. It is being specifically empowered under section 3 to do as the courts can do and require a witness to "discover"— or list out on affidavit — what material he or she has that is relevant to the subject matter of a committee's inquiries.
The basic purpose of this legislation is to increase the capacity of Oireachtas committees to investigate areas of public concern. It is part of the Government's comprehensive programme of legislative reform under the strategic management initiative. Taken together with other legislation it is designed to modernise and streamline the operation of the public services — including the Houses of the Oireachtas.
The powers to be conferred by this Bill involve the interrelated concepts of compellability, privilege and immunity. Compellability means that committees of both Dáil Éireann and Seanad Éireann, with authority to send for papers and persons, may be given powers to require witnesses to attend hearings and to respond to questioning when they attend. Such committees will also be able to compel the submission of documents as evidence. This is a substantial increase in the power of Oireachtas committees which will confer on Deputies and Senators acting through them a significantly enhanced capacity to inquire into and investigate matters of pressing public concern.
The concepts of privilege and immunity are proper and necessary counterweights to these powers of compellability. As the inquiries of committees acting with powers of compellability will be quasi-judicial in nature, witnesses who are compelled to attend and give evidence before hearings of such committees must have available to them an appropriate measure of protection from the consequences of the evidence they are required to give. This is in the interests of natural justice. Accordingly, under this Bill, committees with powers to compel witnesses to attend and give evidence will be able to grant to those witness the equivalent of "High Court" privilege. This means that the evidence given by such witnesses does not leave them open to defamation actions or self-incrimination.
Under Article 15.13 of the Constitution, Deputies and Senators have absolute privilege in respect of utterances in either House of the Oireachtas. This means that they are not liable to any legal action arising from statements they make in Dáil Éireann or Seanad Éireann as the case may be. Since 1976 this absolute privilege has been extended, by legislation, to Members of the Houses of the Oireachtas speaking at committee meetings.
However, under existing law, witnesses giving testimony before committees of the Dáil or Seanad are entitled only to "qualified privilege". This form of privilege does not prevent legal action being taken but it allows a defence against libel or slander unless it can be proven that a witness was actuated by a motive not connected with the privilege, that is, by ill-will or spite. Qualified privilege provides such witnesses with a good defence against actions for defamation; it does not, however, prevent such actions being brought and it provides no protection against actions which could arise from the honest provision of evidence — actions for breaches of confidentiality, breach of duty or care, for example. Therefore, the risk of legal action with attendant costs, even where a good defence exists, presents a serious hazard to any witness.
As this Bill will now confer on specific Oireachtas committees new statutory power to compel the attendance and co-operation of witnesses and the furnishing of documents, it is clear that the exercise of such powers could well give rise to major difficulties for such witnesses if they were to have an entitlement to qualified privilege only as at present. Accordingly, it is right and proper that this legislation should give committees operating under compellability powers the authority to confer enhanced privilege on witnesses. The form of privilege actually conferred is equivalent to that which is available to witnesses giving evidence before the High Court.
This is virtually identical to the absolute privilege enjoyed by Members of Dáil Éireann or Seanad Éireann. Such privilege is conferred on all persons directed to give evidence or to present documents to such committees.
In summary, these two elements are essential to the Bill: witnesses may be compelled to give evidence and, if so, those compelled to answer questions are being given protection from any adverse legal consequences of complete responses.
Issue specific legislation has been used twice in the past to confer absolute privilege for inquiries. The first such example related to the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970. That committee was charged with investigating events which subsequently became known as the "arms crisis".
More recently, the Select Committee on Legislation and Security of Dáil Éireann (Privilege and Immunity) Act, 1994, conferred powers to grant privilege in order to enable that committee to conduct an investigation into the circumstances leading to the fall of the Fianna Fáil-Labour Government. This Bill now means that more permanent arrangements are being put in place which will allow certain committees of the Dáil and Seanad to assume powers to compel witnesses and to confer privilege without the need for separate legislation in each case.
The Bill provides that Dáil Éireann or Seanad Éireann will determine individually or jointly in framing orders of reference for existing or new committees whether they are to have the specific powers to send for persons or papers which would bring the compellability and privilege powers into effect. The Bill before Members allows for the Committee on Procedure and Privileges of either House to establish a subcommittee on compellability to determine when these powers should be brought into effect and to apply any limitations on their exercise.
This provision recognises the independence of each House and preserves the right of Dáil Éireann and Seanad Éireann, individually or jointly, to make whatever arrangements it considers appropriate in utilising these new powers. It also ensures that a committee, before deciding to utilise its powers must demonstrate to an authority external to itself, but still within the relevant House, that there is a genuine need to draw on them in a particular instance.
One characteristic of the way we do business in committees of these Houses has traditionally been one of minimal formality assisted by, dare I say it, indulgent chairmanship when, as happens from time to time, speakers drift away from the precise matter before them. This lack of rigidity has served us well; it has made it possible for seasoned, intelligent and well briefed defenders of the status quo to be unhorsed by unpredictable but apposite questions which this process can throw up.
I would be loth to see that informality end but once a committee decides to utilise its powers of coercion, to compel the attendance of witnesses or to answer questions put to them, that informality has to be replaced with a strict adherence to rules and procedures. That change of mode will, I suspect, be difficult for many of us but it will place on chairpersons of committees a new, and possibly unwelcome, burden. The Chair will be required to hold the ring not merely between Members but between Members and witnesses. They will also be charged with protecting the rights of those not present to whom reference may be made in the course of a committee's hearings.
The Bill recognises the crucial situation of the chairperson by naming him or her as the voice through which the committee exercises its powers — as the signer of orders or requests and as the authority who can remove from a witness the wide privilege which he would otherwise enjoy.
There is a clear need to provide for a limited number of restrictions and exemptions in relation to the operation of the powers conferred by this Bill. For example, in keeping with the Constitution, the President and members of the Judiciary will be exempt from this legislation. However, virtually every other citizen is to be compellable by Oireachtas committees acting under these new powers. This will include members of the public, the Taoiseach, the Tánaiste, Ministers, Ministers of State and officials.
A partial restriction applies to civil servants, gardaí and members of the Defence Forces who may not question or express comments on the merits, or the merits of the objectives, of Government policies. This issue has already given rise to considerable discussion so I propose to consider some of the key matters arising from these restrictions.
The relevant section of the Bill — section 15 — does not prevent a committee, acting with powers of compellability, from calling any civil servant, garda or member of the Defence Forces and requiring that person to answer relevant questions put to him or her by that committee which do not necessitate comments on the merits of Government policy. Equally, such public servants will be obliged to produce or send documents as evidence if directed by such a committee to do so as long as relevant comments of a public servant criticising the merits of Government policy have been excised or deleted from that document. Once before such a committee, there is no restriction on any line of questioning on matters of policy or even on what advice the relevant public servant may or may not have given to his or her Minister or to the Government.
The objective of the provisions of section 15 is not in any sense to try to put a gag on any committee pursuing matters of public concern in questioning a public servant on matters of Government policy. On the contrary, these provisions are intended to facilitate and enhance the working of such committees by providing openly and honestly, clear and comprehensible guidance on the reasonable restrictions which apply. The purpose of these limited restrictions is to preserve the tradition of independence and the non-political character of the public service. They are also designed to maintain the integrity of the relationship between Ministers, the Government and their public officials.
From time to time, civil servants, senior Garda members and officers in the Defence Forces need to give advice or opinions to the Government or to an individual Minister which may include criticism of the merits of policy. A public servant who demurred from giving an honest and candid view to a Minister or Minister of State would not be doing his or her job and would not last long in my company. When I do my job as a Minister of State, I pursue Government policy and I am always conscious I am acting for and on behalf of the citizens. I expect and demand the best and most honest advice available. I do not want to be told what some official might think I want to hear. I want officials who tell it like it is, even if that means having to hear a view which criticises the merits of a policy line I am committed to taking. Such advice may or may not be right. It may or may not be accepted, but I want it said and I want to hear it.
Why then am I intent on preventing committees having the benefits of the same candour? There is a simple reason relating to the primacy of the democratic element in our governmental arrangements. Over the past two weeks this House touched upon, in the context of the Public Service Management (No. 2) Bill, the ideal cutoff point between a Minister's responsibility and those of his or her officials. However divergent the views we may hold on precisely where in a Department a Minister's role should ideally stop, there is a universal consensus that it must encompass decision-making on policy. Allowing an official to comment on the merits of the policy which has been decided at the political level seems at the least to me and to my colleagues in Government to erode that position. To do so in what is a political forum, with all the baggage of partisanship that implies, can in practical terms alter the relationship which must obtain between Minister and official where a policy must be implemented.
We are not creating any new restriction here. There has long been a convention in Oireachtas committees that civil servants are not asked to comment on policy. That convention has been given statutory form in the Comptroller and Auditor General (Amendment) Act, 1993, prepared when the current Opposition parties were in Government, which forbids accounting officers from commenting and imposes a similar obligation on a constitutional officer, the Comptroller and Auditor General.
Further matters, which have already led to considerable debate on this Bill, concern the compellability of the Attorney General, the Director of Public Prosecutions and their officers. Their compellability is to be limited to the general administration of their offices, including statistics in the case of the DPP. Both are to be compellable before the Committee of Public Accounts. The Attorney General will not be compellable in his or her role as legal adviser to the Government. This make sense. I do not believe that any Member would advocate a situation in which the Attorney General might be required to give evidence which compromised the crucial lawyerclient relationship central to our system of Government. Moreover, the Attorney General is not to be made compellable in his or her role as defender of the public interest. This is also reasonable. Whatever action an Attorney General might see fit to take with respect to individual cases must have the protection of confidentiality. Given these reasonable requirements, the arrangements to limit the compellability of the Attorney General to the Committee of Public Accounts constitute an appropriate and workable balance.
With respect to the Director of Public Prosecutions, the original proposals excluded the Director from compellability but the Minister for Finance signalled on Second Stage in Dáil Éireann that an amendment would be brought forward to encompass certain aspects of this office within the terms of the Bill. As Senators will be aware, the DPP chose to refuse to accept an invitation to appear before an Oireachtas committee, but shortly afterwards agreed to participate in a popular radio phone-in programme. Therefore, the Bill now before this House provides for the compellability of the DPP on much the same terms as the Attorney General. This again is a reasonable and balanced response to this important question which also reflects the feelings of many in this House.
I want to draw the attention of the House to a number of exempted matters relating to the powers of compellability provided for in this Bill. These arise in relation to evidence or documents likely to prejudice Cabinet confidentiality, matters sub judice, State security and relations with other States, criminal matters and tax liability assessment. Before the Bill in its original form was published, much attention was given to working out the precise nature of these exemptions and how differences of opinion between a committee and a witness on such matters might be determined.
In relation to the particular matters exempted, they do not go beyond the kind of issues which an investigative committee in a similar jurisdiction would try to avoid. These include State security, matters sub judice or which are the subject of separate statutory arrangements, such as the assessment of an individual's liability for tax. The Bill provides mechanisms to ensure that such exemptions will not be invoked frivolously or lightly.
In relation to matters affecting the security of the State, relations with other states or the prevention, detection or investigation of criminal offences, we have not left the adjudication to the individual Department or Minister involved. Instead we have decided that, even within the framework of Government administration, those who feel they have grounds for invoking these exemptions will have to secure the agreement of a specific public servant — the Secretary to the Government who, by virtue of his position, will have a wider view. Similarly, a means of referral for determination by the High Court is provided for in relation to questions arising about matters sub judice.
Witnesses may also inform a committee if they believe a direction falls within the limits of High Court privilege and a mechanism to allow for the determination of such matters by the High Court is also provided. This mechanism replaces a more complex arrangement in the Bill as originally published, which provided for four specific exempt categories including: information given and received under pledge of confidentiality, information affecting a person's business, profession or occupation, information affecting a person's family life or private affairs and information whose disclosure would be prejudicial to relations with other states. The letter exemption has been included in another section, as I referred to earlier, but the other three specified exemptions have been deleted from the Bill.
A further safeguard built into the details of this complex Bill concerns third parties who are identifiable from committee questioning. In such cases, persons who are referred to by name or who might otherwise be identified during committee proceedings, will be granted the right to appear before the investigating committee to vindicate their good name. Arrangements have also been included to enable a committee to hear evidence from an employer, a person acting on behalf of an employer or a body.
The powers conferred on Oireachtas committees by this Bill are to be underwritten by substantial penalties to be imposed on those found guilty of an offence arising from a committee acting under compellability powers. The fines provided for have been supplemented by the option of imprisonment. I am satisfied that these penalties are appropriate to the importance of the measures being provided for in the Bill.
I re-emphasise the importance of this modernising and challenging Bill. The empowering of certain committees of the Houses of the Oireachtas to allow them to investigate substantial issues of public interest and concern has the potential to transform the role of the Dáil and the Seanad in the public life of this State. Members understand the scope and potential of the Bill but I believe that its real benefits will not become clear to the general public until the practice and techniques of investigating matters under the compellability powers provided are fully developed. When these implications become more widely known and the powers conferred by the Bill come to be exercised, a greater appreciation of the value of these new powers will be more widely acknowledged.
I am presenting this Bill not in any partisan sense but as a set of legislative proposals which have drawn together the views of a wide crosssection of public opinion. The exercise of these new powers will make demands on the Members of this House and Dáil Éireann. There is a well-established tradition of co-operation between the two Houses in our jurisdiction, influenced, no doubt, by the regular interchange of personnel between them. It would be improper of me to trespass on the prerogatives of either House of the Oireachtas or to try to prescribe in legislation how the relationship between the Dáil and Seanad should be conducted. However, in line with that tradition of co-operation and having regard to the independence of each House, I will, on the enactment of the Bill, draw the attention of the Committee on Procedure and Privileges of each House to the desirability of their entering a concordat on the manner in which they operate this legislation. I commend the Bill to the House.
