asked the Minister for Finance whether any undertaking has been given by him, the Attorney General, any member of the Government or by any of their predecessors to meet the legal expenses either incurred in the past or to be incurred by any civil servant arising out of legal proceedings initiated in their private capacity, and on their own behalf within the past five years; and, if so, under what Vote heading will such expenditure be allocated.
Ceisteanna—Questions. Oral Answers. - Payment of Legal Expenses.
9.
The State does not normally accept responsibility for the legal expenses of civil servants in respect of proceedings initiated in their private capacity and on their own behalf. However, where a civil servant initiates a legal action relating to the performance of his official duties, e.g. for libel, consideration may be given to the question of undertaking to provide financial support from official funds in respect of his legal expenses. Such support would only be afforded after careful consideration of the relevant circumstances and in accordance with the advice of the State's legal advisers. The provision of support would be dependent on the officer having acted responsibly in the execution of his duties and on it being in the interest of the State that the action be taken. Any payments made under these arrangements, which would be limited to amounts not otherwise recoverable, would be from the Vote for the officer's Department.
In accordance with the foregoing, undertakings have been given in a small number of cases in the past five years.
Will the Minister tell me the exact number of cases in which these undertakings have been given? Can he confirm that such an undertaking was given to Mr. Holloway, secretary, Department of Energy? Does he accept that this is an inappropriate way to spend taxpayers' money? Was Mr. Kevin McDonald of the Irish——
The Chair deprecates the use of the names of persons outside this House. This is a privileged assembly. The names of persons outside the House should not be mentioned.
It is important that I get this information. May I ask on what basis were these undertakings given? Will the civil servants involved repay to the State all the award, if any, granted? Would he agree that if somebody has the resources of the State at his disposal he will not be interested in settling the case and that this will put the parties in such a dispute in a position of inequality?
There is a clear distinction between a civil servant initiating civil proceedings in his private capacity and in his public capacity. This does not arise where he initiates proceedings in his private capacity. He may feel it incumbent on him, and he should have the backing of the State if, in the performance of his official duties, he is put in a position where he must take legal proceedings. In such a limited sense, over the past five years, eight public servants have been supported by the State, and the civil servant referred to by the Deputy is one of those eight. That is the position, and it is perfectly above board.
Does the Minister accept that it is in the interest of the freedom of the press that the performance of Government, and the advice given to Government by public servants, should be capable of being criticised and that this will be put in jeopardy if public servants have available to them, in the normal course of events, the resources of the State to bring legal actions against such publications? Will the Minister tell me whether any award made to such civil servants will be paid in full to the State since the civil servant will have nothing to lose.
This is a perfectly valid position and I have never heard it challenged before. If a public servant, in the execution of his public duty, is put in a position where he must take legal proceedings for carrying out public policy, it is proper that he should be supported when defending his position, which is basically the position of the State, the Government, and the Oireachtas.
Who makes the decision that he is being libelled?
The courts are there for that. I think this is a perfectly defensible case.
I must admit I am at a loss to understand how one can talk about taking on newspapers and magazines which have tremendous resources behind them while most public servants are not particularly well paid. May I take it from what the Minister is saying that it is Government policy, where a departmental official is libelled or abused in a newspaper or magazine, that they should be indemnified by the State if they want to defend their character, as is the position in the case mentioned.
I agree with the Deputy. I fully defend this principle if the public servant must take legal action when he has been criticised for executing State policy. I cannot see the rationale behind attacking that principle.
Perhaps the Minister will agree that it is very unusual when one party to litigation has nothing to lose no matter how far they go with it, whereas the other party find themselves paying tax, and having their taxes used to subsidise a case against themselves. If a person has all their tax costs indemnified by an agreement in advance, they have nothing to lose by continuing the action while the other side have everything to lose. Would the Minister also agree that his answer to Deputy Harney is inadequate in one respect because somebody has to decide in advance of the court decision whether a person has been libelled. Are we to take it that it is a decision of the Cabinet? Is it the Attorney General's opinion? Who makes the decision? The House is entitled to know these facts since taxpayers' money is being used.
This is a very long question.
In all those cases there was the fullest internal assessment of the matter.
By whom?
Deputy Kelly wishes to ask a question.
It is time we started to stand up for this State, in this House——
Do the Cabinet decide?
While I do not disagree with a great deal of what the Minister has said, I would like him to reply more specifically to a point Deputy Harney made, namely the fact that in these conditions a plaintiff does not have the normal inducement to settle which ordinary plaintiffs have. That being so, can he assure the House that the supervision which the State's law officers, I presume, exercise over the progress of the State is continued? In other words, may the House take it that while the State, in my view being within its rights, supports the initiating of an action by a plaintiff who feels he is being libelled because of carrying out his public duties, the legal advice at the State's disposal will also monitor the progress of the action so as not to involve the State needlessly in expense along the lines mentioned in Deputy Harney's supplementary question?
The utmost caution is used in all these matters. As Deputy Spring and Deputy Desmond are aware, the case referred to by Deputy Harney was the subject of a Government decision, and rightly so. I fully defend that.
Will people in the wider public service be given similar guarantees, for example, members of the Garda Síochána and other State employees?
Yes, where it is warranted. The matter is fully investigated by the Chief State Solicitor's office, the Attorney General's office and advice is available from internal legal services. If in the opinion of counsel and if, as in the case quoted by Deputy Harney, independent legal counsel give their opinion that there is a sustainable case where the State is being damaged as well as the individual, then it is perfectly legitimate that the State back the individual concerned.
(Interruptions.)
I am anxious to call the next question.
In view of the name of a public servant being mentioned——
I did not name him.
It is the Government who make the decision to provide such indemnity.
Why was I not told that?
I am anxious to get confirmation——
That is what I was asking.
One small point of information. Civil servants are covered as well as people in the broader public sector, but what would be the position of a Minister or office holder? Would the same policy apply if a civil action were taken by such a person?
We are up for target practice.