I should like to refer later to the argument which has been made by a long succession of speakers on this side of the House, but before I get on to the main point of contention in this Bill I should like to refer to section 19. In that section there are a number of unusual provisions. On the whole they are rather undesirable provisions. In subsection (2) of that section there is a provision that
.... a person who is called as a witness at the trial of a petition shall not be excused from answering any question relating to any offence at or connected with the relevant local election on the ground that the answer thereto may incriminate or tend to incriminate him or on grounds of privilege;
It then goes on to make some provisos in relation to that, to which I will refer later on, but the point about which I am particularly concerned is that a witness will not be excused from answering on the ground that the answer thereto may incriminate or tend to incriminate him. It has always been a very basic provision in our law that nobody giving evidence in any form of court, particularly when he is on oath, should be forced to answer a question the truthful answer to which he himself considers might incriminate him. In every court in this country, criminal and civil, and even in semijudicial courts like, for example, a coroner's inquest, there is an obligation on the judge, justice, coroner or whoever happens to be presiding or indeed the man presiding at a sworn inquiry to tell a witness if he is asked a particular type of question that he is not obliged to answer it if he feels that the answer to it might tend to incriminate him.
That rule is basic in our law not just for 50 or 100 years but back as far as one can go. Of course the reasons for it are very good; that a man should not be put in the position of having an alternative choice of either perjuring himself or else admitting to a crime for which he can be prosecuted. Our law, and the English Common Law long before our own specific law, always recognised that no citizen should be put in that position, and with very good reason. That rule is as valid and as necessary today as it was 500 or 600 years ago because the unenviable choice that can face many witnesses remains and is just as unpleasant now as it ever was. Perhaps it is even more unpleasant now in many circumstances for people are brought in, possibly against their will, to give evidence at a petition hearing in the Circuit Court about a matter which, let us face it, is not all that important: a disputed local election. It may be of great importance to those who are immediately involved in it but, looked at in any way objectively, it is not really of great importance whether or not a particular councillor is or is not validly elected to some local body. I do not think any man should be brought in and put in the position—I may be wrong but, so far as I know, he cannot be put in that position anywhere else under our law—that he has a choice in certain circumstances of two things: either admitting to a crime for which he will be prosecuted as a result of his admission or alternatively committing perjury.
I do not think that is fair. I know there are certain provisos in relation to this, that the court can give him a certificate that it believes his evidence. However, I do not think that is of much use. In fact that itself could well give rise, as was pointed out here last week on the Committee Stage, when unfortunately I was not present, to many problems because untrue statements about somebody can be certified for by the court. The right of a man to decline to answer on the grounds that he might incriminate himself is regarded as so fundamental in some other countries that it is written into their Constitutions. I do not think it is specifically written into our Constitution probably not because the drafters felt it was not the kind of basic right which should be protected but because it was so very much part of our fundamental law that they did not envisage that it would ever be sought to be set aside. We seem to have this situation here and it is no harm to remind the House that this situation could not arise in other countries. In many ways one would be less concerned about this if the proceedings in which a provision of this kind was made were much more important than these proceedings. Petitions about local elections are not very common and even when they do happen they are not normally of world shattering or even nation shattering significance.
Later on in this subsection there is a proviso that a man is entitled to get a certificate from the court if the court is satisfied that he answered truthfully and this gives him an indemnity against everything except a prosecution for perjury. It was pointed out here last week by Deputy Molloy that the position of a perfectly innocent outside party slandered by somebody who gets a certificate of this kind from the court is very difficult indeed. He might be more than anxious to take proceedings to clear his good name. He might be able to prove that the statement made about him was untrue and was slanderous but notwithstanding that he is precluded from even bringing those proceedings. This sort of artificial protection of somebody who makes a statement at one of those petitions is wrong. The point could well be made that while he is in the actual petition court and makes that statement he is privileged anyway. He is, but if he gets a certificate of its truth he can go outside the court and repeat it ad nauseam if he wishes in the full knowledge that it is untrue but because he has this certificate he can never be sued.
The provision in subsection (1) which allows the court of its own volition to direct that a particular person should be brought before the court and should give evidence at the trial is, on the face of it, perhaps not too onerous. But it can give rise to, to say the least of it, a danger of perjury, because if people are being dragged in against their wills obviously they are trying to stay out for some good reason. They are more likely in those circumstances to commit perjury than if they came voluntarily as witnesses or even under subpoena from any of the parties to the petition. It is hard to imagine anyone who has anything relevant to testify about not being brought by one of the various parties to that petition because a petition is not confined, as an ordinary case would be, to a plaintiff and a defendant. There may be quite a large number of parties, including in most cases, the Attorney General, who would have full power to subpoena somebody and would have a duty to do so if he thought that person had any relevant evidence to give in relation to the matters at issue.
The matters dealt with in section 19 are important. They perhaps do not get very much attention because they are of a technical nature. They go to the fundamental rights of a citizen in a fairly drastic way.
The part of the Bill that has got much public attention is that which arises out of section 24, namely, the question of giving power to the Minister for Local Government, the Minister for Education and the Minister for Agriculture and Fisheries to make regulations specifying what classes of local government or other employees may take part in elections to local authorities.
All of us accept gladly the principle that manual employees and the lower grades of employees outside the office in a local authority should be entitled to take part in any such election as candidates or to canvass on behalf of candidates. Everyone welcomes the proposed order in that respect. There is only one simple, net point about which virtually all in the House—not just the Opposition—are in disagreement with the Minister for Local Government, whether or not they express that disagreement. I am referring to the proposal under the proposed order he has given us in relation to what he intends to do under section 24, his intention to include clerical officers of local authorities, and presumably their equivalents in health boards and vocational education committees. He intends to exclude them from the restriction on local government employees.
In common with very many speakers who put their point moderately, calmly and coherently, I think this is wrong. As earlier speakers pointed out, all of us have met people over the past week of all political persuasions and of none who are unanimously of the opinion that this proposal is wrong. Unless there is some ulterior motive involved, I cannot understand why the Minister for Local Government will not accept the amendments and proposals that have been put continuously from this side of the House in relation to this point.
The matter has been argued more ably than I could do. I do not need to repeat the arguments of Deputies Calleary, Callanan, Crowley and others who have a great deal more experience of local government than I have. We had the example of Deputy Calleary who was employed by a local authority at one time; he told the House about the dangers, of which he knew from experience, of someone in the position of clerical officer with access to private and confidential information being allowed to be a member of the local authority by whom he was employed.
I am surprised that although the Minister on Committee Stage accepted amendments which many people might think important in themselves but less important than this case, now he refuses to accept this amendment. In the last few days I have spoken to various grades of employees of local authorities, including clerical officers, and most of them thought this proposal was wrong. I would add I do not know the political affiliations of the employees concerned. They were able to instance to me numerous examples of what a clerical officer could do that he should not do. They made the point, as was done by Deputies Calleary and Callanan tonight, that there will be a serious conflict of duty if a clerical officer, an employee of the manager for the purpose of control of his employment, is also to be a controller of the manager because of his membership of the local authority. There is a blatant, clear and open conflict here and I do not think anyone has denied or could deny, this is so. It is most unsatisfactory because as Deputies Crowley, Healy and others said, the proper kind of balance as between the membership of a local authority and the employees could be put in jeopardy.
Unfortunately, there may be a situation where there will be two grades of councillors, those with access to everything and those with access only to what the manager tells them. It is unfair to the other councillors, and it is unfair to the clerical officer/ councillor himself, and this point was made earlier tonight. For instance, if a meeting of the local authority takes place on a Monday evening, the other members of the local authority can go their different ways and not meet again for a fortnight or a few weeks. However, the clerical officer has to face the manager on the following day, conscious of the fact that he is a comparative junior employee and very much subject to the manager's directions. His whole career is in the manager's hands and, consequently, the man who is interested in not jeopardising his career will take it very handily so far as many issues that come before the council are concerned.
In my opinion, and I think this is shared by many speakers, it is wrong that the hands of a public representative should be tied in advance because of such a situation. Any man who enters public life, whether in this House, in the Seanad or in a local authority, should be free to speak his mind as he sees fit to do so. Whatever the political consequences for him—and this is a matter he must assess—there should be no consequences, or potential consequences, for him in his employment and in his career. That is where the great danger lies in this situation.
It is not even a question of having to amend the Bill at this late stage— this might not be possible for one reason or another. In order that we might be happy about section 24, all that is necessary is an assurance by the Minister that in the order he will make he will exclude clerical officers. If he does that, he will be agreeing with the views of 95 per cent of the people who know anything about the problems caused by this proposal.
One could make a valid case for the inclusion of people such as outdoor rate collectors and rent collectors, whom the Minister proposes to exclude. I am not particularly worried one way or another whether they are in or out, but there is far more justification for having them in than there is for including clerical officers. A rent collector or a rate collector does not have access to files or information in the local authority office. He is not in a position to have prior information about proposals of the local authority. We are all aware that certain members of local authorities have been able on occasions in the past to get prior information from officials of the council, usually from clerical officers or people of that grade. Having got that information about actions proposed to be taken but still confidential, it is known that members of local authorities have gone to their electoral areas and, for instance, have told the people in that area that a certain road is in a terrible condition and that they are immediately going to the county council about the matter.
They know perfectly well that work will be starting in five days, because they were so informed. They come back five days later when the steamroller has arrived on the particular road. They are hailed as marvellous men because of what they have done. We have all heard stories like that. We know that type of thing only occasionally happened in nearly every county because some official failed in his duty of confidentiality.
A man cannot be aware of something in his capacity as a clerical officer and not be aware of it in his capacity as a counsellor. He would not be human, to say the least of it, and probably not very effective if he was not sorely tempted to make use of that private information. He may be intimidated in acting as freely as he should because of his relationship of master and servant, vis-á-vis the county manager, who is his superior, and his views on him can have considerable bearing on his future career in that or another local authority.
Because of these reasons I believe there is an unanswerable case that clerical officers should be excluded. We are now asking the Minister to be reasonable in his attitude to this. He must be aware by now that it is the view of the overwhelming majority of the people who have anything to do with or know anything about local authorities that his proposals in the draft proposed order, of which he has given us details, should be changed. While we could make valid cases about the inclusion or exclusion of various other grades, we are confining ourselves solely to the glaring case of the proposed inclusion of clerical officers among those entitled to stand for local authority elections.
I would remind the Minister again that we have not even the problem of having to make an amendment at this late stage. As the clerical officers will be in or out because of a subsequent order which the Minister will make, if and when the Bill is passed, we do not have the problem we usually have if we propose a change or an amendment on the Fifth Stage. It would be very easy for him to do what everyone, including the Government parties, knows is the right thing in the circumstances.
I must be the eighth or ninth successive Fianna Fáil speaker on the Final Stage of this Bill. Everyone of us feels the same way about the same point and for the same reason. We were all moderate in the way we put our case. Any arguments used by the Minister on the Committee Stage in relation to the same point, do not answer at all.
There may be some advantage to the Minister or his party in the short term to persist in this, but I can say with certainty that in the long term the benefits will even themselves out. Therefore there is no political advantage in the long term to anyone. The Minister should do what everyone who has put his mind to this particular proposal is agreed should be done.
