Dáil Éireann debate -
Thursday, 25 Mar 1976

Vol. 289 No. 3

Committees of the Houses of the Oireachtas (Privilege and Procedure) Bill, 1976: Second Stage.

The Taoiseach

I move: "That the Bill be now read a Second Time".

The Government initiated this Bill after receiving notification on the 12th of this month of a resolution which the Committee on Procedure and Privileges had adopted unanimously. The request from the committee was that legislation should be introduced so that Members of either House of the Oireachtas would have privilege in respect of any utterance made before the committee. The Government believe that any doubt as to whether privilege extends to utterances by a Member of either House of the Oireachtas before a committee of either House or a joint committee should be removed and this will be done by section 2 of the Bill.

Section 3 is a section which gives powers to the Committee on Procedure and Privileges as well as other Committees established by either House to summon and examine witnesses and make provision for circumstances in which inter alia a witness may obstruct the work of the committee by refusing to attend or by refusing to answer questions to which the committee may legally require an answer. Deputies will recall that this power was given by the unanimous agreement of both Houses to the Committee of Public Accounts by the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970. Portion of that Act was later found, by the Supreme Court, to be unconstitutional. The portions of the section which were found to be valid have been reproduced in this Bill; the invalid portion has not been reproduced and instead of a section on lines which the Supreme Court indicated would be constitutionally valid have been inserted.

The Government assumed that the Opposition would not object to the proposals in section 3 as they had, whilst in Government, introduced similar proposals in 1970 in respect of the Committee of Public Accounts. However, as opposition to the inclusion of this section has been raised the Government is prepared to amend the Bill by deleting section 3 so that the Committee on Procedure and Privileges can proceed with its work without delay.

I should, however, make clear that in the Government's view the powers contained in section 3 are necessary and desirable ones and it is hoped that the opposition to the section arises merely from its inclusion in the present Bill and not as a matter of principle. As it is highly desirable that questions concerning the privilege of Members of the House are matters on which, if at all possible, agreement from all Deputies should be forthcoming, I feel that it would be appropriate if the Leader of the Opposition and myself were, initially, to discuss such matters. I hope it will be possible to reach agreement on such matters as the powers the committee of the Houses of the Oireachtas should have in relation to witnesses they might wish to call before them, what powers tribunals of inquiry established by the Houses of the Oireachtas might have and the rights and obligations of Members of the Oireachtas in relation to such tribunals as well as how best to deal with the problem of breaches of the Houses' privileges. It would be my hope and the hope of my colleagues in the Government that agreement on such important matters could be reached in the interest of the proper working of our parliamentary institutions.

Mr. J. Lynch

I am glad the Government have decided to delete section 3. I do not at all accept that the reason put forward by the Government for its inclusion in the first instance was valid and I suggest that its inclusion in the 1970 Bill is not a valid comparison in the circumstances. On the contrary, I suggest it is rather naïve of the Taoiseach to suggest that, because there was such a section in that Act, we in the Opposition might agree to the inclusion of a similar section in this Bill. I will explain briefly my reasons for this statement. The 1970 Act was passed in the background of a series of incidents and the Committee of Public Accounts were requested to investigate the expenditure of moneys allocated for certain purposes in respect of which it was alleged the purposes were not fulfilled and the moneys were expended otherwise than for the purposes for which they were voted. I do not have to go into the merits of that particular case because they have been thrashed out ad nauseam but, for the purpose of that investigation, if the Committee of Public Accounts were to investigate the particular matter adequately, then the powers given in section 3 of that Act were necessary. Otherwise, it was felt, the Committee of Public Accounts would not have been effective for that purpose. I might also mention that that Act was passed for a specific purpose and it was an absolutely limited function. I quote:

In this Act "the committee" means the Committee of Public Accounts of Dáil Éireann while engaged in the performance of the functions assigned to it by order of Dáil Éireann made on the 1st day of December, 1970.

Therefore, the section was included in the Bill not only for a specific purpose but with the specific limitation that as soon as it had investigated that event or series of events, then its powers of sending for people and for persons and papers were at an end. Incidentally, I note there is a provision in section 4 of the Bill before the House repealing this Act, but I suggest that is not necessary because the purpose of the Act having been served, it has no other relevant function. That being so, I repeat that it is rather naive for the Taoiseach to suggest that, because a section similar to section 3 was included in that Act, we would have agreed to its inclusion in this Bill.

I want to give another reason why I stress this naïvety on the part of the Taoiseach and the Government. This Bill purports to extend the privilege that obtains in this House for Members of this House and of the Seanad to all committees of Oireachtas Éireann. I think it is proper that, in so far as there was any doubt that such privilege did extend to these committees, it should have been removed. But to give all committees for all time the power to send for witnesses and to compel them to produce documents under penalty of prosecution and, if convicted on prosecution, under penalty of £300 fine and/or six months imprisonment would be giving to committees of this House judicial status that is completely unwarranted, remembering, too, as I have indicated, that there is no limitation as to time or as to the type of committee on which these powers would be bestowed.

I shall give reasons why I think it is only proper that this power should not be given to such a committee. First, even though Members of the Houses of the Oireachtas may have legal training, it must be assumed that they are not expected to have such legal training and, therefore, could not be expected to exercise functions properly exercised by members of a court with the necessary legal background they are required to have before they can be appointed as members of any court in this jurisdiction.

Secondly—and this I put forward without any suggestion that what I say is judicially or juridically correct— a witness appearing before a court is given privilege for the evidence he gives before that court, but if he makes wild allegations to the point that these allegations are absolutely untrue and untrue to his knowledge, and to the extent that they could be construed as perjury, then he may be prosecuted by that court. But consider a situation in which an allegation is made here in the House, investigated by the Committee on Procedure and Privileges and a member of the Committee on Procedure and Privileges, by his own individual act, summons a witness to attend a hearing of a particular matter and that witness makes outrageous charges in respect of that matter or in respect of any other matter within or outside the jurisdiction of the House. I do not know what power the committee has or would have of dealing with such a person who, having made these outrageous charges would, perhaps, be completely immune.

As I said, a court would have power to have the person in question prosecuted for perjury, but as far as I can see, section 3 (2)—and I am only dwelling upon it because the Taoiseach referred to it at such length— gives a witness before the committee and a person sending a document to the committee the same immunities and privileges as if he were a witness before the High Court, but it does not purport to subject that witness to the same penalies as a witness before the High Court. I submit that on that score alone we have a perfectly valid objection to the inclusion of section 3.

The Taoiseach said he might discuss with me the inclusion in a subsequent Bill or Act of the provisions now being omitted from section 3. If he wants to consult with me on that, he will have to bring forward very cogent reasons to counter those I have put forward in the House this morning before I would even consider presenting any such proposal to my party.

I agree entirely with the provisions in sections 1 and 2 of the Bill with whatever new section might be necessary as a consequence of the deletion of sections 3 and 4. I am rather surprised at the urgency with which the Minister has introduced the Bill itself. I know the immediate purpose is to empower the Committee on Procedure and Privileges to investigate the allegations made by Deputy Crowley here in this House some weeks ago and in the course of this investigation to give Deputies or any other Members of the Oireachtas the immunities they would enjoy if they made statements here in the House. Statements and allegations of a political nature in the House are usually not the subject matter of such investigations and charges of being a communist are usually and have for many years been regarded as charges of a political nature. I remember a time when the former colleagues or predecessors of Deputy Cruise-O'Brien, the Minister for Posts and Telegraphs——

Mr. Esmonde

On a point of order. This matter is presently before the Committee on Procedure and Privileges, and I do not think it is right that we should be discussing it at this stage.

Mr. J. Lynch

If the Ceann Comhairle makes a ruling in accordance with the point made by the Deputy I will be bound by it, but I do not think the Deputy is right in making such a point.

An Ceann Comhairle

It is a matter which is before a committee of the House, and it would be better that the issue would not be referred to at this stage.

Mr. J. Lynch

I was referring in a general way to charges of a political nature, and I presume I may proceed on that basis without referring to the particular one which will now be the subject matter of the investigation of the Committee on Procedure and Privileges. It has been the precedent down through the years in this House that charges of a political nature were not regarded as in breach of privilege that a Deputy enjoys in this House. I suggest that on this occasion we are discussing a Bill obviously to deal as a matter of urgency with a charge that was made last week. I will conclude by saying that I regard that charge as no more than a political charge. Whatever the person against whom the charge was made thought of it, I think it is a matter that ought not to have been submitted to the Committee on Procedure and Privileges.

The Taoiseach

I find it a little difficult to follow Deputy Lynch because he appears to want to have it both ways, although I suppose that is understandable. The problem of the committees of the House not being given the same privilege as the House arose, I think, first in the investigation to which the Leader of the Opposition referred and which was undertaken by the Committee of Public Accounts in 1970.

As Deputies are aware, the Constitution guarantees to Members of either House of the Oireachtas absolute privilege. It was found in 1970 during the investigation of the matters referred to the Committee of Public Accounts that there was a doubt whether privilege given by the Constitution to utterances in either House was extended to the committees of either House. As a result, the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970, was introduced and passed. Subsequently, the Committee of Public Accounts investigated the matter in the light of the terms of that Act in respect of the portion of it which was found valid by the Supreme Court. This particular measure has been introduced arising out of allegations made in this House recently.

The Leader of the Opposition makes the point that political charges are not normally the subject of investigation or are taken as points made from time to time in the course of debates. That may be true but what was true up to recently was that if a Deputy made a personal explanation it was accepted. That explanation was not accepted in the case which warranted the introduction of this Bill. The Committee on Procedure and Privileges met and made a recommendation. It is not correct to say, as the Leader of the Opposition said, that this proposed inclusion of section 3 to which he objects, but which was a replica of similar provisions in the 1970 Act, would either convict or penalise a Member of the House or a person summoned before it.

If a person was so summoned, the committee would not be exercising judicial functions. The failure of a person to answer would then be a matter for the court. It would then be a matter for the court to apply the penalty. If there is opposition to this section, we do not want to proceed with it because it is essential that the recommendation of the Committee on Procedure and Privileges should be implemented without delay. As was experienced recently, if a witness before a Dáil committee, who is not a Member of either House, is not given the protection which it is designed to give here, it is obvious that no committee could secure his attendance, or, if it was secured, it could not be secured with the immunity which is essential if a committee of this kind is to examine and decide an issue before it. The House is familiar with a case where recently persons outside the House were named. While a Member of either House is protected in respect of utterances within the House, unless protection is given to outsiders, it is obvious that they cannot be expected to attend before committees of this kind.

On section 4, again I cannot follow the reasoning of the Leader of the Opposition. The only reason we suggested it be repealed was that that Act was passed to deal with a specific matter, the matter having been examined by the Committee of Public Accounts. If there is any objection to repealing this Act, there is no reason why it would not be left on the statute book, but as far as the particular inquiry which was undertaken is concerned, it is completed and the Act is spent. It is important to realise that the doubts which exist about the extent to which committees, which have been seen now to exist in at least two cases, as well as the possible defects and limitations in the Tribunal of Inquiries Evidence Act, might well be the subject of investigation. It is desirable for Deputies on all sides that the privileges of Parliament should be not merely adequate to ensure that they are protected, but when matters have to be investigated that they can be investigated without delay or without being held up due to technical procedural problems of a character such as that which has come to light both in the 1970 investigations by the Committee of Public Accounts and under the recent cases which have been before the Committee on Procedure and Privileges.

As I said, so far as the Government are concerned we are prepared to agree to the deletion of the section which is objected to although I should repeat it is similar to that which is included in the earlier legislation.

Minister for Posts and Telegraphs (Dr. Cruise-O'Brien)

May I——

An Ceann Comhairle

The Taoiseach's reply ends the Second Stage debate of this Bill. There will be opportunities on Committee Stage for Members to intervene.

Question put and agreed to.