Amendment No. a1 to section 1 is in the name of the Minister. I observe that amendment No. 1 is an alternative. Amendments Nos. 2 and 33 form a related composite proposal. I suggest, therefore, that we discuss amendments Nos. a1, 1, 2 and 33 together.
Select Committee on Legislation and Security of Dáil Éireann (Privilege and Immunity) Bill, 1994: Committee Stage.
SECTION 1.
I move amendment No. a1:
In page 2, lines 19 and 20, to delete "assigned to it by order of Dáil Éireann made on the 6th day of December, 1994" and substitute "specified in relation to it in an order of Dáil Éireann made on the 6th day of December, 1994, or any other functions relating to those functions specified in relation to it in an order of Dáil Éireann".
The purpose of this section is to define the committee to which the Bill relates. It is defined as being the Select Committee on Legislation and Security of Dáil Éireann while engaged in the performance of the functions assigned to it by order of Dáil Éireann made on 6 December 1994. In addition, in that section a document is defined as including a thing which, in the context of this Bill, is intended primarily to refer to a tape, video tape, recordings or video recordings.
As indicated on Second Stage, the amendment of this section is essential because the mandate given to the committee on specific issues on 6 December terminated when its chairman reported to the Dáil. I am aware that the report made was an interim one, but the Order assigning the functions to the committee was so phrased that the presentation of that report to the Dáil had the effect of discharging the committee's reponsibilities in full.
Irrespective of our views on the correctness or otherwise of the Dáil initial decision, the Government accepts that an appropriate substitution for the original terms of reference is required to allow the inquiry continue. It is essential for this section to be amended to take account of whatever action the Dáil takes in this regard. A number of amendments put down both by the Government and the Opposition deal with this issue.
The Government amendment No. a1 is designed to cover the committee's mandate being reactivated by the Dáil in relation to those functions assigned to it on 6 December by providing that it relates not only to those functions assigned to it by the lapsed Order but also to any other functions relating to those functions specified in any other Order of Dáil Éireann.
In a brief meeting with the Whips this morning we had preliminary discussions on the possible format of the committee. I give notice that I will try to introduce a Report Stage amendment which will allow the format of the committee to be changed.
I would appreciate notice of that amendment as soon as possible so that we will have an opportunity to study it before Report Stage. We have only received some of the Minister's amendments during the last few minutes.
The Minister's amendment No. a1 is better than my amendment No. 1. Will the Minister indicate if I am correct in saying that the amendment refers to future orders of the Dáil?
That is correct.
In that case I will not move my amendment No. 1. Having had an opportunity to consider the Minister's other amendments, I intend, with the agreement of the House, to withdraw all my amendments.
Does the House agree to Deputy Mitchell's proposal to withdraw all his amendments? Agreed.
I support the Minister's amendment and also amendments Nos. 2 and 33. There is nothing contradictory in these amendments. Amendment No. 33 sets out the order of the Dáil in a proposed new schedule while amendment No. 2 refers to that schedule. The three amendments tidy up the Bill and achieve the objective proposed in my amendment No. 1.
The Minister of State's proposal seems sensible in so far as it proposes to add the words "or any other functions relating to those functions specified in relation to it in an order of Dáil Éireann". With the agreement of the House, the words in the amendment in the names of me and Deputies O'Donnell and O'Malley, "the text of which order is set out in the Schedule* to this Act", should be interposed in amendment No. a1 after the words "December, 1994". The two amendments can be happily married in those circumstances. The amendment would then read "specified in relation to it in an order of Dáil Éireann made on the 6th day of December, 1994, the text of which order is set out in the Schedule* to this Act, or any other functions relating to those functions specified in relation to it in an order of Dáil Éireann". This would achieve everyone's objective, thus satisfying all of us.
How stands the Deputy's suggestion?
I agree with the suggestion.
I understand from my party Whip that everyone is anxious to ensure that the provisions on the composition of the committee, its membership and the way it proceeds are as flexible as possible. Given that Fianna Fáil does not control the House, it is important to point out, so that it can be considered between now and Report Stage, that the committee is defined in section 1 as "the Select Committee on Legislation and Security of Dáil Éireann while engaged in the performance of the functions..." This definition will be amended to meet the limitations of the order imposed on the committee on 6 December last and so that when the committee next meets it will carry out its business in a more ordered way.
Deputies should consider that the membership of the committee is being restricted to its present membership. Obviously it is open to the committee to order its own business and Deputies should consider whether they wish to restrict the composition of a future committee to the existing membership of the Select Committee on Legislation and Security or whether a committee should be set up to deal with the matter set out in the schedule and any other functions assigned to it. The Whips may wish to retain some measure of flexibility for themselves in terms of the membership of the committee, and obviously this would require amendment to the Bill.
If Deputies want to restrict the composition of a future investigation committee to the existing membership of the Select Committee on Legislation and Security that is fine. I am merely pointing out that Deputies have the option of deciding whether the membership of any future committee could be decided by the parties without reference to any existing committee and this would require amendment to the Bill.
I understand there is general consensus that tighter control should be exercised by the chairman over the conduct of any of the committee's functions under the Bill and there should be agreement among the parties to a provision which gives the active function of asking questions to a small group of people rather than having it diffused among all the members who have to raise their hands if they want to ask questions.
Under the committee's terms of reference it is open to a party to substitute another person for a member and we are not tying ourselves down to any personnel by agreeing to leave the membership of the present committee to whom this task is delegated as it stands. The Minister's sensible concern that there should be flexibility in terms of membership of the committee is well and truly met by that provision. Everybody in the House is conscious of the requirements of dignity, probity, the rule of law and the Constitution in how the affairs of the committee are conducted. One cannot have a free for all and by agreement we can achieve a balance and a proper regime under which the committee can operate, rather than by attempting to impose in advance on the committee particular methods of operation.
That is a practical suggestion.
The Labour Party supports the Minister's amendment No. a1 as amended in the way proposed by Deputy McDowell. The Minister of State referred to an amendment he proposes to put down on Report Stage. I am somewhat puzzled about this and do not understand why he proposes to put down the amendment on Report Stage when he has just circulated a list of Committee Stage amendments. Given that we are dealing with both Stages today, any amendment should be given to us now so that it can be considered in the context of what we are discussing here.
As the matter stands the Select Committee on Legislation and Security is set up in accordance with the present format. I do not know whether Deputy Michael McDowell has in mind an informal arrangement between the Whips and members of that committee but such an arrangement would be highly desirable. I take the view that the composition of the committee is too large to do the job efficiently in a reasonable time. I do not know whether it is suggested that we deal with that question by way of amendment here or whether it can be done in that way. If any such amendment is available we should have it now.
The suggestion that a smaller number of members participate in the inquiry seems reasonable. I chaired the Committee of Public Accounts for six years, during which time the most difficult examination we had to carry out was the Carysfort case which had difficult political implications but we got through it very well. It was a focused inquiry. The whole question of focus needs to be considered and agreed on by the parties. I repeat what I said earlier, that I would like to see the relevant amendment as soon as possible so that we can have an opportunity to discuss it.
Much concern was expressed about the question of natural justice. As the terms of reference of the Select Committee on Legislation and Security stand, a member can be substituted by another member of the same party. That could lead to a situation where a person who is a witness today could be a substitute member of the committee tomorrow and, therefore, could examine other witnesses who would not have the same opportunity to examine that witness. I put that down as a question mark. In any practical arrangement we would have to ensure that natural justice was protected.
I rise to utter a word of caution in relation to what appears to be an agreement in the House, to restrict the right of Members to become involved in the committee when it is up and running. It would be wrong of the Dáil to restrict the membership of the committee in examining or asking questions of those coming before it. There has been such restriction in the past in relation to the order of speakers but, so far as I am aware, there has never been a question of restricting examination of three or four members of a committee. That would not be the correct way to proceed.
We have tended to forget the net issue in all of this, that is, the seven month delay in the Smyth case. It is important to ensure, if we are adopting the order of 6 December, that the committee have the ability to investigate the circumstances in which there was a seven month delay in dealing with the file in the Attorney General's office. It is important to clarify whether the membership of the committee will have the right to investigate that net issue. I realise there are other agendas in relation to politicians generally but the word should go out from here that this Parliament wants to investigate the reason for the delay in the Smyth case.
In considering this issue it is important that we have before us even a draft of the amendment proposed by the Minister which will touch on the procedures by which the committee may do its business in discharging its functions under this Bill. That goes to the core of what we are talking about. It is difficult to reach conclusions without knowing what the Minister intends proposing. As it stands members of the committee can be changed by a procedure of going through the Committee of Selection. There is also a substitution procedure whereby, if on a particular day a member cannot attend, another member can stand in for them. Under existing procedures there is provision for the attendance of Members who do not happen to be members of the committee. There is also a procedure whereby, apart from voting rights, such non-members have virtually the same rights as members of the committee. If there are to be changes in relation to fulfilling the task described in this Bill and by order of the House of 6 December, that is fine provided there is agreement. I raised with the Minister the question of what happens if the different parties cannot reach such agreement. We should think ahead in regard to what would apply in that kind of situation, that is unless we can have agreement now on all these various issues.
There are two issues here — personnel and size. Deputy Michael McDowell is correct in what he said about the right of political parties to substitute. That handles the question of personnel but we are still left with the question of size. There is general agreement that it will have to be a fairly small focused committee if we are to get at the truth, which is the objective of Members on all sides of the House. I agree with Deputy Dermot Ahern that it is not appropriate to deal with this by way of amendment to the legislation, surely the committee has that power. I am asking the Minister of State whether the select committee can select a sub-committee of itself to deal specifically with this matter?
On that point we should trust the committee to be able to order its own business. The excess numbers on the committee can be modified by agreement of the party Whips. On a cross-border basis we can agree to order our business in a dignified and civilised way, in a way which will allow us to pursue the search for the truth. The motion passed on 6 December 1994, as in the schedule to the Bill, sets out a defined focus for the committee's business. Apart from that we should leave it to the committee and the Whips to order our business so that the immature procedures, which we saw in stark evidence last Wednesday, will be modified by us as Members of the House and allow us to proceed in a dignified manner.
It is of crucial importance that we have an agreement across the floor in relation to how we proceed. It is evident from the shambles we had here last Wednesday that we cannot have 165 practising politicians becoming self-appointed senior counsel. If we attempt to do that we will be here for a very long time, perhaps for years. The logical and sensible procedure is to endeavour to have the committee arrive at some arrangement to ensure precise questioning and that there are precise rules so that the entire committee will not fail in its objective. It will fail if there are too many chiefs and not enough Indians.
I support the amendment from the Government side but I am concerned that we are getting bogged down already. We are debating an amendment we have not seen. Surely we should proceed with the amendments we have seen. I would remind the Government Deputies that this Bill is enabling the committee to carry out its brief. How it does that, once it is enabled to do so must be a matter for the committee.
I respectfully submit to the Chair that what we have been discussing for the past ten minutes or so is essentially a Report Stage amendment which has been talked about by the Minister of State. The points made by the acting Minister for Transport, Energy and Communications, Deputy Cowen, are valid points to be taken into consideration but they should be considered on Report Stage when the amendment is circulated to us; at the moment it has not been drafted. We got past amendments Nos. 1 and 2; amendment No. 3 is next and we can then take the section. Rather than get bogged down on something that should arise later, we should complete Committee Stage first by moving on to amendment No. 3, if that is agreed.
The reason I raised the matter was to get the views of Members on the conduct of the committee. If I read correctly what has been said by Deputies Michael McDowell. O'Donnell and others, I think we are at one. This matter can be decided by the committee, but I felt it necessary to raise it now so that we could get a general view from Members as to how we should conduct the business of the committee. I believe it is the view of this House that the committee, in whatever format it is eventually set up, should be very focused and that there should be a limit on the number of questioners. This is not because anybody here wants the committee to operate in this fashion. On Second Stage I made a statement, subsequently circulated to the Whips, giving the Attorney General's view. He adamantly stated that if there is a repeat of the débacle at the committee meeting last Wednesday, it would get nowhere, constitutional rights would be infringed and the committee would be bogged down in litigation before getting off the ground. My purpose in raising this matter now and discussing it with the Whips is to establish if there is consensus that the committee should be focused. I can attempt to table an amendment on Report Stage or to summarise what we have discussed here. The Minister of State, Deputy O'Dea, asked if the committee could form a subcommittee and I understand it can. Other Deputies referred to restricting the rights of individuals to ask questions, which has never been the case in this House. We never had a committee such as the one proposed and, while it is all very fine to invite people to the Committee of Public Accounts, the Joint Committee on Commercial State-Sponsored Bodies, the Joint Committee on Women's Rights and others and allow them to ask questions in any order, that would not be acceptable when people's constitutional rights are in question and we would not get away with it. The committee must be structured and focused.
I will quote the Attorney General's advice on the procedures of the Select Committee on Legislation and Security. He stated:
The very idea that a Committee composed of 35 members should be entitled to question witnesses, raises enormous difficulties of practical importance. I do not know whether the standing orders of the Committee limit questioning time for each member of the committee or confine them to a specific number of questions. I do not know whether or not the members of the Committee will be allowed to make statements when asking questions. This should be forbidden absolutely. I do not know what sanction is available to the Chairman for a Committee member who proceeds to break such a rule.
The Chairman of a Committee of such size will have an almost impossible task. Presumably he has no punitive powers. Can he exclude or suspend members of the Committee who misbehave and fail to obey his directions?
That is only a part of the Attorney General's advice on the procedures of the Committee. I understand Members opposite have a copy of that memorandum. It is valid that I should raise this matter to get the views of Members without tabling an amendment and if I interpret their views correctly, there is cross-party consensus that we should proceed on the basis of a much more focused committee. If that is the case, an amendment may not be necessary, but I would like to hear Members' views in that regard.
(Carlow-Kilkenny): The Select Committee on Legislation and Security is getting much criticism about what happened last Wednesday. In fairness to the committee, which has worked well under its chairman, it was the setting, in which all Members of the Dáil took part, which caused the problem. We tried to get the Members of the committee to sit in the two front rows, but that was not agreed by the Fianna Fáil Members, who were entitled to sit in their seats. The committee was not at fault, the setting in which it was trying to do business was wrong. Having regard to the manner in which the committee is being referred to, one would imagine all its members were nut cases.
If we recap on what took place last Wednesday, we will get nowhere. We are endeavouring to reach a consensus.
I agree with the Minister of State.
Is that generally agreed? Agreed.
Amendment No. a1, as amended, agreed to.
Amendments Nos. 1 and 2 not moved.
I move amendment No. 3:
In page 2, between lines 21 and 22, to insert the following definition:
"`evidence' includes the expression of an opinion, belief, intention or allegation.".
This definitional procedure is included in the main Bill which was prepared by a number of Governments in the past, but not introduced. The purpose of the amendment speaks for itself. As it stands, the wording of the Bill limits privilege to actual evidence and, in accordance with the hard legal definition of that term, would exclude privilege to the expression of an opinion, a belief, intention or allegation, which I do not believe is the intention of the Bill. It would be safer and better to follow the main legislation in this regard which contains an extended definition of "evidence" covering expressions of opinion and, possibly, hearsay evidence, so that people coming before the committee to give evidence need not be concerned that expressions of belief and so on, would not be covered under the privilege provision.
I do not have a difficulty with this amendment and Deputy Taylor is correct. There is a provision in a later section of the Bill which states that witnesses, besides giving evidence, may be entitled to make written and oral submissions. Would the term "evidence" cover such submissions or is it necessary to insert that in the Bill?
That provision may be deleted when we reach the section.
It is my understanding that Deputy Taylor's provision is not necessary, but we do not have an objection to inserting it in the Bill.
It is in the main Bill.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
I move amendment No. 3a:
In page 3, between lines 3 and 4, to insert the following subsection:
"(3) (a) Subject to paragraph (b) of this subsection, any statement or answer given or made by a witness before the committee shall be deemed for the purposes of this Act to have been given or made while the committee is engaged in the performance of the functions
(b) If a witness who is making or giving a statement or answer before the committee is directed by the chairman or the person acting as chairman of the committee to cease making the statement or giving the answer, on the grounds of irrelevance or fairness the witness shall be entitled only to qualified privilege in respect of any part of the statement or answer made or given by the witness after the giving of the direction.".
This section confers on a witness giving evidence before the committee, or furnishing evidence to it at the committee's request, similar privilege and immunity as a witness appearing before the High Court. This provision precludes a witness or a furnisher of documents being sued in relation to the evidence or documents furnished. The difference between this privilege and absolute privilege was mentioned on Second Stage when at least one Member sought assurances that it would not result in the Attorney General being unwilling to appear before the committee.
The second element of the section is intended to meet doubts about the impact on privilege of the attendance at meetings of the committee of the public or media and provides that this will not diminish the privilege of a witness. The third element prevents a statement made, or documents produced, to the committee being used against a person in criminal proceedings.
Amendment 3a provides that any statement by a witness to the committee shall be deemed to have been made while the committee was carrying out the functions assigned to it on 6 December 1994. The intention of this provision is to ensure that evidence given before any revived or new inquiry is brought unequivocally within the terms of the Bill and that privilege accorded in that connection is copperfastened.
The second part of this amendment is designed to meet the danger identified on Second Stage of a witness using the privilege conferred by the Bill to make statements which, in other circumstances, would render him or her amenable to the law. This is done by having the High Court privilege terminate once the chairman or acting chairman asks him or her to cease making statements or answering. Members will be aware that qualified privilege is one under which a person can be sued, which leaves a witness with the defence that he or she was carrying out a duty unless it can be shown he or she was acting in a malicious manner.
We received notice of this amendment a short time ago. While in theory I have no objection to the principle outlined by the Minister of State, I have some questions in regard to the manner in which this would operate. We need time to tease this out. Perhaps it is something we should re-examine on Report Stage because it would appear we are giving the chairman or acting chairman of the committee very extensive powers. A decision by a chairman or acting chairman as to what was or was not relevant or fair would be subjective. It would be taken on the spot, so to speak. Perhaps we could insert a sentence or phrase reading "the chairman or acting chairman, with the consent of the committee". If the committee decided to override a decision of the chairman or acting chairman, it could do so.
Some witnesses appearing before the committee will be Members of the Oireachtas while others will not. One view is that any witness appearing before the committee has the same privilege as another but I am not entirely sure that is the case. That is something on which I should like to obtain advice. If the chairman or acting chairman of the committee was able to withdraw privilege, a witness in one category would be left with qualified privilege only. A witness in another category, say a Minister, answering to the committee would be perceived to be discharging his or her duty as a Minister and therefore might have constitutional protection.
I do not object to the section itself but I should like to tease out the question of qualified privilege. If the chairman or acting chairman was able to apply qualified privilege, could he apply to a Minister, a former Minister or a Member of the Oireachtas the same privilege he would apply to an official or a stranger brought before the committee? The second question is whether the chairman or acting chairman should have such power even if the committee did not agree with his judgment.
This is something to which we need to return on Report Stage and to which we should devote some thought in the interval.
In relation to the amendment circulated, it has been brought to my attention that it should read "on the grounds of irrelevance or unfairness".
The grounds of "fairness" would seem to be an odd way to exclude a statement. It demonstrates the problems about rushed legislation.
The word "unfairness" was meant.
After a few years in this House, it can be said that questions are disallowed on the grounds of "fairness", which has happened to me on the odd occasion, but not on your part, a Leas-Cheann Comhairle.
I do not see what this proposed sub-section adds to the Bill. No material given thus far requires to be validated retrospectively in any way; nothing has been said which could possibly give rise to litigation by the only person who has yet come near this committee. I do not believe that anything like that necessitates retrospective validation or privilege.
I am not at all happy with the proposed subsection (3) (b) which reads as follows:
If a witness who is making or giving a statement or answer before the committee is directed by the chairman or the person acting as chairman of the committee to cease making the statement or giving the answer, on the grounds of irrelevance or unfairness, the witness shall be entitled only to qualified privilege in respect of any part of the statement or answer made or given by the witness after the giving of the direction.
That subsection does not make sense. Whereas it may have made sense when the drafting process was begun, as it stands now it means that, after one has been given a direction, no matter what one may say, one lapses into a different form of privilege. That appears to be the worst of all worlds. One gets a direction to be relevant or fair and, on the basis of this provision, one goes from High Court witness privilege to having qualified privilege by reason of the fact that one has got a direction, even one with which one complies. I cannot see how this constitutes any improvement and I suggest that it be withdrawn. If it can be sensibly re-phrased for Report Stage let us examine it then, but in its present form it means virtually nothing to me. If it actually means that a witness has the nature of the privilege afforded him or her decreased after a direction we should provide something to the effect that the witness would have that partial removal of protection afforded him or her only if he or she ignored the direction given by the Chair. The amendment does not even provide that. We would be better off without this provision. If some well drafted proposal along these lines is thought necessary to the Bill, we can deal with it on Report Stage.
Now that we have switched over to "unfairness" rather than "fairness", the point I was going to make has been taken care of. However, I might pursue the point made by Deputy Michael McDowell. As I see it, the chairman of the committee would issue a direction if a witness was being irrelevant or unfair. It seems to me that a witness who was being irrelevant or unfair should not be entitled to the full High Court privilege. What we are providing in this amendment is that if a witness does not comply with the direction, he or she will have reduced privilege but, as it were, he or she would have no loss of privilege in relation to that portion of his or her evidence which was unfair which had given rise to the need for the direction. That is the point the Minister would need to examine. That is my worry about the drafting of this amendment.
I have no problem with the Minister's proposed subsection (3) (a) but I am somewhat puzzled about subparagraph (b) in a number of respects. As I understand it, the privilege granted under section 2 (1) is High Court privilege which I understand to be qualified privilege, not absolute privilege. If a witness has qualified privilege only to start with, how can it be reduced down to qualified privilege by the Minister's subsection (3) (b)? Perhaps my interpretation of that is wrong but that is the way it strikes me. Even if there is a difference between High Court privilege and qualified privilege — and I presume there must be since it is worded that way — I am still not happy about it because this amendment would give the chairman a judgmental judicial role in assessing what was or was not relevant and fair. It could be that a witness might regard what he or she was saying as quite fair and appropriate but as it might have adverse consequences on another person, it should not be open to the chairman to intervene and say that the privilege to which the witness would otherwise be entitled under the section is thenceforth discontinued. The question of irrelevance or unfairness could give rise to a number of difficulties. To give a judgmental or judicial role to the chairperson is at variance with the object of the Select Committee on Legislation and Security which is a fact finding investigation. It is to take and record the statements of anybody who has anything to contribute in so far as the issues deputed to it are concerned. The committee's role is not to assess the veracity of those statements or to comment on them. That type of judicial determination would be outside its role and this type of provision would not be appropriate in this Bill.
In general terms there are two types of privilege, absolute privilege and qualified privilege, but there is also what the Minister of State at the Department of Justice described here last week as the hybrid, the privilege given to a High Court witness. My understanding is that absolute privilege is given to the Members of this House by the Constitution and because of that it was not possible for this House to give that privilege to others. Accordingly, the House had to decide whether to give witnesses appearing before the committee qualified privilege or the privilege given to a witness in the High Court. Qualified privilege is for a witness who is obliged to give information to a person or body who had a duty to receive it and such evidence would have to be given without malice. The hybrid privilege covers the evidence given by a witness in the High Court or a variation of the High Court. A witness appearing in court is entitled to that privilege when he or she gives evidence before the court, but should that witness drift into irrelevancy he or she would no longer have any privilege. This amendment provides that if that should occur in the course of the committee's hearings, the witness would still be protected by qualified privilege, namely, the privilege of a witness who has a duty to give evidence to a body or persons who have a duty to receive that evidence. The terms of this amendment protect the witness in the event of him no longer being covered by the protection afforded a High Court witness. I am sorry if that sounds convoluted and complicated but it is the position as I understand it.
Basically I agree with Deputy O'Donoghue's point about qualified and High Court privilege. Qualified privilege is a lower form of privilege than that afforded to High Court witnesses. Under qualified privilege if a witness giving relevant evidence in the matter under consideration does so maliciously he or she can be caught, whereas under the privilege given to a witness who appears before the High Court, a witness can only be caught if he or she tells deliberate lies about matters extraneous to the matter before the court. I agree with Deputy O'Donoghue on the need for this subsection. Regarding what Deputy Taylor said about the chairman's role, surely the chairman must have some role in excluding matters which are irrelevant or unfair. One of the main functions of the chairman is to prevent people wandering from the matter under consideration and making the most outrageous statements.
The amendment does not provide for that.
It does. It gives him a role in deciding to exclude what he considers is irrelevant or unfair.
The chairman's role is to keep order.
It is not a judicial function but certain consequences can flow from it. Deputy McDowell's interpretation on his initial reading of the subsection is incorrect. He seems to think that if the chairman cautions a witness on evidence he has ruled out, the witness will only have qualified privilege when giving the rest of his evidence. I do not believe that is the position. The subsection refers to the statement or the answer, that is the statement or the answer about which he was warned.
I stand over my interpretation. The subsection says that the witness shall be entitled only to qualified privilege in respect of any part of the statement or answer made or given by the witness after the giving of the direction. If a witness is told that he or she is being irrelevant or unfair and not to answer the question but continues he or she will lapse into qualified privilege.
What about the remainder of the witness's statement?
I do not know how we should deal with the present position. As Deputy Taylor pointed out, it is clear that if the chairman gives a direction under this subsection and the witness does not comply with it even though he or she is trying to tell the whole truth, the witness moves from High Court witness status to qualified privilege status. Deputy O'Donoghue fully encapsulated the distinction between the two. The witness moves from one status to the other because the chairman has given a direction to him.
That is clear and is the simple ordinary meaning of the section. It is not appropriate that a witness's protection should depend on a ruling given by the chairman of the committee instanter or half way through a statement or answer. Regardless of how well advised is the chairman of the committee, he is not a lawyer by definition and is not in a position to suddenly withdraw a witness's privilege because he considers the witness is being irrelevant when a High Court judge might later decide the opposite and consider the remark made was highly relevant. Deputy Taylor's objection is absolutely valid. We do not want people to move from one category of protection to another on an instant remark made by the chairman of the committee to the effect that the witness is either being irrelevant or unfair and is required to desist on that basis.
It is not fair to change people's rights at law by reference to a ruling of a chairman suddenly given when in the cool light of day a week or a month later, it may transpire that the chairman was wrong in his ruling or misunderstood the point the witness was trying to make and the witness was right and his point was relevant and fair. Taking away somebody's protection in law based on an instant adjudication by a chairman in the course of a debate is unfair, but more to the point, it is entirely unnecessary.
We do not need this provision. If a witness makes a malicious statement unrelated to the matter being considered by the committee, he or she has to face the music as people regularly do in the High Court. If a witness in the High Court loses his or her privilege by making an irrelevant and untrue remark about somebody else, he or she is not entitled to this new qualified privilege. Why should a witness who comes before a Dáil committee be given greater protection than a High Court witness? A ruling of the High Court does not decide the matter and a ruling of the chair should not be decisive in an equivalent context here.
The Bill set out to give witnesses the same rights as High Court witnesses. Let us forget about what happens when they are being irrelevant or are given a direction by the chairman. That does not happen in the High Court. If a High Court judge says to a witness: "you are being irrelevant; this has nothing to do with the case", the witness would not automatically lose privilege as a result. It would be a matter for another judge on another day to decide whether such irrelevancy, unfairness or malice was involved. What we are doing is not necessary.
I reiterate that Deputy Taylor's objection is correct. By virtue of instantaneous decisions of the chairman of the committee we are depriving people of protections which they should have and which perhaps on reflection people believe they should always have. We are giving to the chairman of the committee a very difficult role of deciding when somebody is straying into the realms of irrelevance. The chairman is entitled to hold those views and to keep order at the meeting, but if by making a decision on irrelevance or unfairness he eliminates somebody's privilege, it is an unnecessary complication, it is unfair and puts an unnecessary burden on the chairman of whether he should intervene on the grounds of irrelevance or say nothing because he may be damaging or creating a cause of action against the witness.
I agree with Deputy Taylor in that if this concept is to be introduced we should have a better amendment to deal with the real issue. I do not agree with Deputy O'Dea. It is very clear that it is the portion of the statement made by the witness after being given a direction that goes into the lesser category of privilege. I do not know what the purpose of that is, but it is completely unnecessary. It does not happen in the High Court and it is not necessary here.
I have some sympathy with the argument made by Deputies Taylor and McDowell. The current chairman would not want the difficulty foisted upon him under this amendment, that is to make decisions on the spur of the moment in circumstances where evidence is being given by a witness. However, it is important that there be some restriction or penalty on a witness who goes into the realm of unfairness or irrelevance. We must remember that we are bestowing on non-Members who appear before the committee a very important right that must be treated with great respect, that is the privilege of a High Court witness. There must be some stricture on that person's ability to say things they might not be able to say outside the House. While I have sympathy with the argument made by Deputies Taylor and McDowell, there must be some restriction in that regard.
We are purporting to give to witnesses outside this House the High Court equivalent of privilege, yet in the High Court witnesses have to take an oath. I raised on Second Stage whether witnesses appearing before this committee would be required to take an oath to tell the truth. That should be considered because it is possible for people to appear before the committee and not tell the truth. Unlike the position in the High Court, witnesses before the committee who would be privileged in that respect would not have to take an oath. Perhaps that matter could be considered before Report Stage.
On the last point made by Deputy Ahern, there exists a power for the Ceann Comhairle to confer on any committee of the House the right to hear evidence under oath — I think it applies under the Oireachtas Witnesses Oaths Acts, 1924. It was used in the past two years on the Limerick Markets Act. The Ceann Comhairle can extend to a committee the right to hear evidence under oath and, as I recall, the oath is administered by the clerk of the committee. We may wish to hear evidence under oath and it would be a matter for the Ceann Comhairle as to whether to confer on the committee a general power or a specific power at any given time.
The difficulty does not arise with sub-section (3) (a) but rather with subsection (3) (b). I have doubts about this paragraph and I would need to take advice on it. I ask the Minister to reply to the important question I raised earlier. What is the difference between the status in terms of privilege of a Member of the Oireachtas, Minister or former Minister appearing before this committee as a witness and that of a civil servant or other person who is not a Member of the Oireachtas?
Deputy O'Donoghue summarised very well the different types of privilege. On the relevant point raised by Deputy Mitchell, my understanding is that those appearing before this committee will have absolute privilege, as have Members of this House. This amendment was proposed because on Second Stage some Members raised the question of absolute privilege and at least one Member sought assurances that the difference between absolute privilege and High Court privilege would not result in the Attorney General being unwilling to appear before the committee. That should be borne in mind.
I wish to address one or two other relevant points. It is my understanding — I put this to the Whips this morning and it arose on Second Stage — that a legal adviser will have to be available to this committee. Such a person would act in the capacity of adviser to the chairman and to the committee and defender of the constitutional rights of all people who come before the committee, be they witnesses or questioners. In that context the chairman — some people may fear he would act in a partisan way — would not suddenly decide that the questioning is getting tricky, that somebody will be embarrassed or that he must protect the Attorney General, a former Minister or whoever; his decision would be based on the advice from the legal adviser whose job it would be to advise him and protect the constitutional rights of Members. The amendment should be considered in that context.
As a lay person — I have heard many legal people refer to this — I read this section as being a safegaurd for witnesses appearing before the committee who are not Oireachtas Members. I would have absolute privilege, but a witness who is not a Member of the Oireachtas and may not have much experience of the law may unwittingly stray into an area which is unfair or irrelevant. It is not fair that the chairman, acting on advice from a legal adviser, should warn the witness that what he is saying is irrelevant or unfair? If the person concerned chooses to proceed and continue with a statement he or she should be under no illusion as to the consequences and that is what this amendment is designed to achieve.
I accept Deputy McDowell's point — I am not a legal person — but it is my clear understanding that the chairman would interrupt the witness to advise him that what he is saying is irrelevant and unfair and that if he stops at that point he will continue to have privilege. I presume that is the way it would be done. As Deputy McDowell suggested, there might be a need for clarification but I fear that if we do not include the section non-Members of the Oireachtas will not appear before the committee because they will say that if they make a statement they will not have privilege. I ask Members to think again about this matter.
If Members wish, I can retable the amendment on Report Stage — we will have to decide shortly when we will take it — exactly as it is or with a slight change in the wording but we should consider the matter very carefully.
The Minister of State may have touched on a possible solution to this problem. We want to give the chairman the power, with the legal advice available to him to advise a witness that what he is saying is either irrelevant or unfair and warn him of the consequences. This matter could be covered by the rules of procedure relating to the way in which the committee will be conducted.
The problem with this amendment is that not alone would the chairman have power to advise a witness that what he is saying is irrelevant or unfair but also to prescribe a penalty. This seems to be ridiculous in the sense that what the witness might say later may be in order, relevant and fair. The solution might be to delete this subsection and, in the proposed rules of procedure for discussion between the parties, to give the chairman, with the advice available to him from the legal adviser, the power to warn a witness that what he is saying is irrelevant or unfair and to spell out the consequences. Essentially, we are trying to put a witness in the same position as a witness in the High Court.
I reiterate what I said earlier: the warning, where a person lapses into qualified High Court privilege, will only relate to the rest of the answer; in other words, if he takes a particular direction he will be warned and if he chooses to proceed he will only attract qualified privilege for the remainder of the statement.
That is what the Minister says.
That is my understanding of the amendment. Deputy McDowell asked why we should give witnesses who are not Members of the Oireachtas greater rights than witnesses before the High Court. If one looks at the totality of the Bill one will see we are giving them a miscellany of rights and protections which do not apply to High Court witnesses. For example, High Court witnesses cannot cross-examine——
We have not dealt with that matter yet.
Witnesses who are not Members of the Oireachtas before the tribunal will not be in the same position as High Court witnesses because some, if not all, will be, as described in the Haughey case, parties.
In relation to the proposal before the House, if a person is not being malicious, genuinely believes what he says and what he is saying is irrelevant, it is only right and fair that, if he continues, he should suffer some sanction following a warning. Having reflected on this matter it strikes me there could be another difficulty. If someone gives evidence which is irrelevant maliciously, as things stand, he will be caught before he is given a warning and if he continues in the same vein following a warning he will be protected. That presents a difficulty and it might be wise to look at that matter again.
The Minister of State's statement, that if the amendment is not made to the Bill some people might be discouraged from giving evidence to the committee, puzzles me; I would have thought that the reverse was the case for the obvious reason that a person might be disinclined to appear if they know they may be tripped up, inadvertently, and lose privilege as a result of a warning given by the chairperson of the committee. If they know they may give evidence with privilege they would feel safer.
If one thinks about the term "unfairness" I have little doubt that as the work of the committee progresses witnesses will say things that many people would regard as unfair and others perfectly fair. This is a subjective test depending on one's point of view. It is incapable of being operated with the specified intent.
Given the way paragraph (b) is worded, as soon as a warning is given by the chairman all the remaining evidence would be given by the witness concerned with qualified privilege. The amendment states "in respect of any part of the statement or answer made or given by the witness" to the committee. This covers the entirety of what they say to the committee. After a couple of lines the chairperson may interrupt the witness to say that what he is saying is irrelevant and that he has to warn him in accordance with the subsection. When this happens it seems, in regard to the remainder of the statement, the witness would lose privilege and be subject only to qualified privilege. This could be a disadvantage to any witness who might be prepared to give evidence before the committee. I ask the Minister of State to consider this point.
The Minister of State referred to the question of having a legal adviser to the chairperson. We will have to consider this matter very carefully to see if this would be advisable. I have doubts about it because one would then be setting about substituting opinions on issues of relevance and fairness, not necessarily strict legal issues — we are not talking about a law case but an inquiry to establish the facts. Would the chairperson be bound by whatever advice was given by that legal person? The chairperson might not agree with it and might feel there was a relevance but the legal person might say there was not. The chairperson has a difficult and onerous job and must make decisions. It is not a question of the chairperson of the committee having no control over the affairs of the committee and the exercise of sanctions.
It seems to me, subject to correction, that the chairperson of this committee, like any other committee, would be perfectly entitled simply to stop any witness talking about total and absolute irrelevancies. To say that one can continue with the irrelevancies but on a different privilege basis is not the point. If total and complete irrelevancies are offered by a witness, the chairperson would have both the power and the duty to stop it and say it has nothing to do with what the committee is about. If the witness continues in that vein, he or she will have to be asked to stand down or something to that effect.
On the basis of order.
There is no obligation on the chairperson of the committee to hear total irrelevancies. The sanction is for irrelevancies; it is not a question of altering the privilege position.
My understanding is that provided the evidence of the witness, in the course of the committee's inquiry, is relevant to the subject, he or she can speak maliciously, or without justification or from ill will and be covered by privilege. Let us take the position of a witness who, by sheer accident, drifts into an irrelevance. If that is done without malice he or she is covered by qualified privilege. If, on the other hand, the witness concerned drifts into an irrelevancy or an unfair statement purely for malicious purposes, that person is clearly not covered by the qualified privilege provision.
I disagree with Deputy Taylor who suggests that the witness would have lost the status of High Court privilege if the chairperson should say that the witness was being irrelevant or unfair. Clearly, the chairperson would have to be right in that judgment. Subsequently, it would have to be established, if it was raised, that the chairperson was right and that what the witness said was irrelevant or unfair.
Not the way this is drafted.
That is my understanding of the position. In those circumstances I wish to reiterate that the safety net of qualified privilege is essential because a witness may go off the subject and become irrelevant without malicious intent. The entire objective of the amendment, as I read it, is to give an additional layer of protection to the witness and it is crucially important — and everybody wants to get to the truth of this matter — that every witness can feel protected and be in a position to tell the truth.
It is obviously a point of concentration. With the permission of the House, we will withdraw the amendment and try to redraft it for Report Stage. I am advised that there is no problem with giving the chairman power to reduce the level of privilege, which was a point raised here. In regard to the semantics, we will have a look at that for Report Stage rather than delay proceedings any further.
Do not mention "fairness" next time.
We will let the Deputy decide that.
Is it agreed that the amendment be withdrawn on the basis that it will be dealt with on Report Stage? Agreed.
Amendment, by leave, withdrawn.
Amendments Nos. 4 and 5 not moved.
Section 2 agreed to.
NEW SECTION.
I move amendment No. 6:
In page 3, before section 3, to insert the following new section:
"3.—The committee shall, while engaged in the functions referred to in the Schedule* to this Act, take all steps which in the opinion of the committee are necessary to protect and vindicate the good name, character and other constitutional rights of witnesses and other citizens.".
In this amendment we propose to delete section 3 and, subsequently, section 4, and substitute this amendment. The Schedule would be changed now to section 1 because we have incorporated that Schedule into an earlier amendment of the Minister's.
We believe sections 3 and 4, as presented in the Bill, are much too elaborate for the task the committee has to face. The legal origins of these sections date back to the 1971 case in re Haughey. We believe it is not necessary to set out in detail in this Bill the law as laid down in the Haughey case. It would be difficult to disagree with the concerns expressed by the Attorney General in his memorandum to Government. In relation to our procedures, they are not insurmountable problems and the Whips can agree to overcome those procedural difficulties. The Attorney General also had concerns in relation to the constitutional rights of witnesses.
If the Haughey rights apply, as they may, the Attorney General's view of the scope of the Haughey case is too wide. It is worth noting that the Haughey case was most unusual. During the course of an investigation by the Committee of Public Accounts, a Garda chief superintendent made a number of serious allegations against Mr. Jock Haughey. These were about matters so central to the committee's inquiry — the expenditure of the grant-in-aid for Northern Ireland relief — that the Supreme Court held that Mr. Haughey was not simply a witness but was, in reality, in a position analogous to a defendant, at least in so far as his good name was concerned.
Nowhere in the Haughey case is it suggested that all witnesses before parliamentary committees are entitled to these rights. That contention has never been made until now. The scope of the Haughey rights are far reaching and it is worth questioning how many of the proposed witnesses to appear before the committee are in a position analogous to that of a defendant. The rights as laid out in the Haughey case should be put on the record because we will have to be mindful of them when we are dealing with this matter in committee. They are (a) a witness should be furnished with a copy of the evidence which reflected on his or her good name; (b) that he should be allowed to cross-examine by counsel his accuser or accusers; (c) that he should be allowed to give rebutting evidence and (d) that he should be permitted to address, again by counsel, the committee in his own defence. These are the Haughey rights as laid down and they are currently the law.
The Bill, as drafted by the Attorney General, goes further than this. Witnesses are to be given a copy of all evidence or documents, all witnesses are to be permitted legal representation, the right to cross-examine and various other rights. Even persons who are not witnesses but who are identified in the evidence can also join in the proceedings for the purposes of the later section 4.
We believe our amendment will give the committee sufficient direction and will accord to any person who is in a position analogous to that of a defendant all the rights guaranteed to him or her in the Constitution and all the procedural facilities necessary to assert them. Sections 3 and 4 are far too elaborate. We should be able to trust the committee. With the assistance of legal advice, for the chairman, as proposed by the Government Whip, to allow him supervise and perhaps exclude matters under the advice of a lawyer, we can guarantee that those rights will be protected. There is no need to lay down in sections 3 and 4 the detailed statement of the law as in the Haughey case.
If I had brought a Bill like this before the House last Tuesday I would have had no difficulty in accepting what Deputy O'Donnell said but my memory is not that short. I was in the House and saw what happened here last Wednesday which, as I said previously, was a disgrace to Members collectively and to the profession of politics. I make no apology for saying that. What I saw last week would not allow me in conscience — on the basis of whatever agreements may be made and I hope an agreement will be made — to put a Bill through the House that did not copperfasten the constitutional rights of every citizen. I have no objection to accepting the amendment as worded, subject to the provision that section 3 and other relevant sections remain. I would be happy to accept the amendment as a double indemnification that Members realise there are constitutional rights that must be protected. If the Progressive Democrats Party is prepared to allow the specific spelling out of those rights in the Bill by amending its proposal, I will have no difficulty in accepting the amendment.
On the Second Stage debate Deputy O'Malley referred to the Constitution and the constitutional position and if I am not misinterpreting him I think he said that the Constitution afforded too much protection in this area. It is our Constitution and I will not be a party to diminishing anybody's constitutional rights.
I will accept the amendment subject to the deletion I mentioned, which would leave section 3 as is, and I want sections 4 and 5 included so that those constitutional rights can be clearly specified.
I cannot accept section 3 as drafted because it requires the committee to carry out certain things at the behest of a witness. As I said on Second Stage, I do not think it would be right for this House to empower a witness to require a parliamentary committee to do something. We would be giving that witness more power than the committee and I set out a number of amendments, Nos. 7 to 17 inclusive, all of which I have agreed to withdraw. If this amendment is passed it will not be necessary to amend section 3 as acceptance of this amendment involves its deletion. I support that and on that basis I agreed to withdraw my amendments.
I am not sure if the House heard Deputy O'Donnell say that she wanted to substitute "person" for "citizens". I think "citizens" would be too narrow a definition. I took advice on this matter from an eminent senior counsel and I will read an extract from his advice:
For the purposes of ensuring compliance with the Constitution, it seems to me that it is not necessary to have an absolute entitlement in witnesses, either to deal with matters in the manner contemplated in Section 3, or to be dealt with by the Committee in the manner suggested in Section 4. There obviously are circumstances where a person will have to be afforded certain rights, or the procedures may fail to comply with the rules of constitutional justice. However, that does not mean that in every case a request of a witness needs to be acceded to. I, therefore, believe that the best way of dealing with this is to confer in each case a discretion upon the Committee. In order to ensure that that discretion is properly exercised, it would be helpful, in my view, if a sub-section were included, which provided that the Committee was obliged to accede to such a request unless it was satisfied that it was unnecessary in the interests of justice to so accede. There is a principle of constitutional interpretation known normally by reference to the "East Donegal Co-op" case, in which it was first clearly set out, which states that the Courts will assume that other constitutional organs (most normally the Oireacthas) will, in exercising any rights which they have, comply with provisions of the Constitution. Therefore, provided the Section requires the Committee to consider the interests of justice, the Courts will assume that the Committee will make any decision in a proper fashion, and will not permit someone to have the proceedings of the Committee damage them without giving them a proper chance to be heard.
From what the eminent counsel I consulted said, the following sentence: "Therefore, provided the Section requires the Committee to consider the interests of justice...." is covered by the amendment in the name of Deputies O'Donnell, O'Malley and McDowell and, accordingly, I support it. I do not support the section to which I proposed an amendment which I have now withdrawn. It is quite clear, particularly from counsel's opinion attached to the special report of the Committee of Public Accounts from which I quoted on Second Stage — PL5645, May 1988, that the proceedings of the Committee of Public Accounts in 1971, which were challenged in the Haughey case, were valid except for one section referred to already by Deputy O'Donnell. Rather than inserting meandering, unnecessary sections I think a general principle of this kind, when it is adhered to by the committee and in particular by the chairman, well and truly covers us against the concerns expressed in the Haughey case. I have no doubt this amendment is the best way to proceed.
I support the section. It is important to enumerate in legislation how the Dáil wants to proceed in examining witnesses in this committee. This Bill is purely and simply about this committee only and the amendment in the name of Deputy O'Donnell and others is too bald. It is open to interpretation — and indeed misinterpretation — and perhaps just as in the Haughey case where he found it necessary to go to court to try to find out exactly what his constitutional rights were at that stage it may very well be necessary for us under this amendment to close up shop temporarily so that the High Court, or indeed the Supreme Court, could give a ruling on this issue. It is far better to enumerate matters in the Bill so that witnesses coming before it would know for certain the procedure to be adopted and how their constitutional rights would be guaranteed.
Will there be a difficulty, vis-à-vis the Haughey principles in giving a potential witness a statement of other witnesses' evidence in advance of them appearing before the committee? Under section 3 (1) (c), apparently the first witness will be entitled to a statement of evidence by other witnesses appearing before the committee. There is an onus on the committee, even before any witnesses appear, to have statements taken from witnesses and given to people in advance of their appearing before the committee.
It is important that we take issues one by one, know the allegations clearly and list them so that people coming before the committee know what they must refer to. This must be given to them in advance of their coming before the committee.
I support the section. It is important to enumerate and list the rights and duties of witnesses but there is a procedural problem. Last week the committee was hung up on procedural matters and I would not like to see another débacle. Under this section, the first witness to appear will be entitled to advance notice of what other witnesses are about to say.
Amendment No. 6 encompasses all the rights of a witness or another person. Nothing is excluded. It insists that the committee take all steps necessary in its opinion to protect and vindicate the good name, character and other constitutional rights of witnesses and other persons. Setting out the rights in extenso as in sections 3 and 4 does not confer any additional rights on a witness or other person. The Constitution takes precedence over any law and if a Bill tried to cut down on anyone's constitutional rights, it would be nugatory. A person has rights anyway and cannot be denied them. They can be vindicated in the High Court if necessary. Therefore amendment No. 6 is adequate to cover the entirety of the rights.
The rights set out in extenso in sections 3 and 4 are unnecessary because amendment No. 6 grants all those rights plus anything that is left out of sections 3 and 4. Sections 3 and 4 go beyond what is laid down in this respect in the three cases which are relevant — Haughey 1971, Goodman No. 1 and Goodman No. 2, 1991. The other distinction is that it is assumed that every witness who comes before the committee will stand in the same position visà-vis the committee as Mr. P. Haughey stood vis-à-vis the Committee of Public Accounts in 1971. That is not so. Mr. Haughey was found by the Supreme Court to stand in the position of a defendant before that committee and that is why he was given certain rights such as having statements of evidence produced to him beforehand to enable him to cross-examine. That will not arise in this case.
This committee will not come to any conclusions. It does not have to make a report. It simply wants to hear the evidence that will be given by the people who come before it. It is a political rather than a legal matter and the public at large can make up their own minds on the basis of the evidence that is given. Every right is protected by amendment No. 6 and it avoids the excessive prolixity of sections 3 and 4 and the purported giving of rights which are inappropriate to witnesses who are not accused of anything and in respect of whom certain of the Haughey rights, if we can call them that, are not relevant.
For that reason the House should accept amendment No. 6 and let us get on with the matter. Nobody is deprived of anything as a result of accepting the amendment. Every right to which a person is entitled, whether a witness or another person, is guaranteed by this amendment in a neat and clean fashion and it will avoid the committee getting bogged down in legalities, which it undoubtedly will if sections 3 and 4 stand unaltered.
As we tease out this Bill it is becoming increasingly clear that we are in considerable difficulty not only on this but other amendments. It calls into question the adequacy of the entire procedure.
If we delete section 3, will the Bill be constitutionally unsound? I have not received any convincing answer to that question. I understand the motivation behind putting down this amendment. It seems that the mechanics of the section would make the inquiry too unwieldy and lead to an unduly lengthy inquiry. I understand the concern which has been expressed on that front.
Deputy Mitchell seems to be paranoid about the degree of power we would confer on those who are not Dáil Members. On Second Stage he almost spat out the words "civil servants". He became very worried that civil servants could dictate to the committee. He interpreted the spirit of the section is wrongly. The spirit of the section is more in the context of protecting people's constitutional rights. The difficulty with the amendment is that it states: "will take all steps which, in the opinion of the committee, are necessary to protect and vindicate...". Is it the committee's prerogative to determine the constitutional rights of any witness or person who comes before it?
Deputy O'Malley said he did not expect the committee would reach any conclusions or issue a report. The public must ask what we are all going through. What is the purpose of all this——
We are seeking the unvarnished truth.
——if we are not in a position to arrive at some consensus in terms of conclusions or issue some report? Deputy O'Malley stated this was more a political than a legal inquiry. The reality is that it is in between. It is quasi-judicial. The history of British select parliamentary committees of inquiry is an unfortunate one which has not had much success. Deputy Ahern made the point that people would like to know why there was a seven-month delay in the Smyth case. Now we hear that we will not reach any conclusions on that important issue. We are taking a path which could lead us down an unconstitutional road. It is a pity that we have been forced into this situation by time constraints and the circumstances which arose in recent weeks. This very important legislation will, no doubt, act as a precedent for the introduction of similar legislation in future and may influence the behaviour of Parliament on such matters. I question whether we are dealing with the legislation with undue haste and making decisions which may ultimately be proved incorrect, particularly in terms of the constitutionality of the Bill. I say this as someone who wants to get the truth as quickly as possible. However, I increasingly question the adequacy of this procedure as a vehicle for getting at the truth. There must be a better and easier alternative.
As I said on Second Stage, there are a number of major difficulties with section 3. I tabled amendments to try to improve that position and I think the Minister also put down an amendment in this respect. The first dealt with the provision which gives a witness the right to require the committee to summon the attendance of any other person or specified persons to give evidence to it. The other key point related to the necessity of giving written statements in advance before any witness gave evidence to the committee. If those measures had stood, the work of the committee would have been rendered completely and totally ineffectual and the committee would never have had the ability to get off the ground in any practical way.
I agree with Deputy O'Malley that the purpose of the committee is to take statements, to give the people concerned an opportunity to say what happened in detail and, in so far as there may be gaps in the statement they make to the committee, to enable a group of persons, either the entire committee, or, by agreement, a lesser number of people, to ask questions to fill those gaps. I fail to understand how giving a person, who has been deputed to come to the committee to give an account and record of the events, the opportunity to see by way of statements in advance what other people said can influence their account of the events of which they have personal knowledge and of which only they can know. For those reasons there should not be any need to provide them with statements in advance as to what the evidence of other people would be. They know their story and facts and will outline them. There will be a report by the Committee consisting of an amalgam of the statements taken and the questions asked. I do not envisage that the committee will make value judgments as to the veracity of a statement between one witness and another but it will recall and make searching inquiries into all the facts and evidence within the knowledge of each person coming before it.
It would be much more satisfactory to adopt the broad simple procedure envisaged in amendment No. 6, which the Labour Party will support. This amendment will give witnesses the necessary protection to ensure they are not unfairly taken advantage of. The committee must form its opinion based on the evidence. It has a job to do as to what is right and proper in that regard, it is part of its function, and I have little doubt that the combined resources and thoughts of the Members of the committee will be well able to ensure fair play and a vindication of the constitutional rights of the witnesses coming before it.
I wish to raise two technical points with Deputy O'Donnell and her co-signatories to amendment No. 6 which they should address before the amendment is agreed. I do not like the use of the word "citizens", it is an inappropriate word. The word "persons" should be used instead.
It will be changed to "persons".
Some adjustment to the amendment will be necessary by reason of amendment No. a1 which we have already taken on board.
We have already dealt with that.
Subject to that, we will support amendment No. 6.
We all want the Bill to be workable and constitutional. Central to the question of constitutionality is the protection of the rights of witnesses before the committee. One can adopt one of two approaches: first, the broad approach, encompassed in the Progressive Democrats' amendment, or, second, the particular approach where one specifies, as provided in the Bill, those rights and the broad approach is the proper one. Deputy Martin questioned whether the broad approach is constitutional, it specifically provides that whatever steps are necessary will be taken to ensure that the constitutional rights of witnesses are protected. It is difficult to see how there could be any validity in the criticism that the broad approach is unconstitutional.
I suggest that the same does not apply in regard to what I would refer to as the particular approach outlined in the Bill. The first danger with the approach is that one may omit some constitutional right, the danger of omission. We are entering into unchartered waters with the committee and we are not sure what type of situation may present itself in future. We cannot be certain that we will have covered by way of particular rights everything that may arise before the committee.
The other danger is that by being over particular we may tie up the committee in legal knots. It is already obvious from section 3 that this is so. A witness who wanted to be difficult could be advised to drive the proverbial coach-and-four through section 3 as it is drafted at present. Section 3 provides that a witness before the committee may, in person or through a legal representative, require the committee to request the attendance of specified persons and to request the appropriate persons to produce or send specified documents to it. It also provides that the committee shall comply with such a requirement. A person who wanted to impede the work of the committee could be advised to request the chairman of the committee to require the attendance of, say, President Yeltsin, on the spurious case that he was a witness before a similar committee in Russia, or President Clinton——
It would be more relevant than some of the stuff the Deputy is coming out with.
If we specify that witnesses have a right to require the attendance of specified persons and that the committee must comply with such a request then we are making a nonsense of the legislation.
The Deputy certainly is.
With all due respect to Minister Cowen, who hopefully has not forgotten his legal training during the past few years in office——
Most certainly not.
——if the Bill gives witnesses certain rights then those rights will have to be respected by the committee. In giving what is admittedly an outrageous example, I am pointing out that a person who wanted to impede the work of the committee could use their rights under the Bill to achieve it.
Did the Deputy see our amendment?
With due respect, the amendment does not cover the point. It substitutes the word "request" for "requirement" but it does not remove the basic right of the witness to impede the work of the committee.
It does.
I quote this example to highlight the benefit of taking the broad as opposed to the particular approach. I urge Government members to adopt that approach and not support a provision which would tie up this committee in legal knots.
The purpose of the Government is precisely to avoid tying ourselves up in legal knots. The Minister of State at the Department of the Taoiseach, Deputy Dempsey, has outlined our position clearly. It is clear that the Opposition parties will vote down sections 3 and 4. Certainly we will not support that. In case the Bill ends up in the courts I would remind them of some of the advices we have received from our chief law officer on this matter and in that context people would be advised to reconsider before deleting sections 3 and 4. These advices are available to other Whips. Deputy O'Malley mentioned cases such as Haughey 1971, Goodman No. 1 and Goodman No. 2 but omitted to mention Garvey and a couple of others in which the principles of constitutional justice have been clearly laid down. I would remind him to keep an eye on those when seeking to delete sections 3 and 4.
I assure all Deputies that everyone will intend to vindicate his good name and reputation in this House and if they cannot through the committee, they may have to elsewhere. That is not our wish, and certainly not mine, I am capable of vindicating my good name anywhere. When people talk about the narrow and the broad approaches — as did Deputy O'Keeffe — I ask them to keep in mind the basic issues here for Members like me. At the end of the day when I walk away from here all I have is my good name which I intend to protect and I will take whatever steps are available to me to protect it. I make no apologies to anyone for doing that.
Constitutionality is an important issue about which we should not be flippant. To accommodate everyone's point of view on it we have been seeking to incorporate the Progressive Democrats' amendment into the Bill to ensure strict compliance with the constitutional justice principles. The House should be aware of the advice available to us on sections 3 and 4 which were not put in for any flippant purpose. The Attorney General, in his advices, points out that including these sections makes it clear that parties likely to be adversely affected by statements made by witnesses before the committee will enjoy all procedural safeguards. The Attorney General pointed out that while the position may not be entirely without doubt, in the event that the committee conducted its proceedings in such a way that there was not underlying strict compliance with the rules of constitutional justice, a question mark could be placed over the entire proceedings. The Attorney General states that we could not rule out the possibility of a person who considers himself or herself adversely affected by the failure of the committee to comply with such rules, having recourse to the courts for appropriate relief. Obviously the courts would have to think carefully before granting injunctive relief in respect of the proceedings of a Dáil committee. However, if the manner of conducting those proceedings was such as not to provide adequate protection for the strict constitutional rights of witnesses to their good name the courts would be prepared to intervene. This factor should also be taken into account in considering the desirability of proceeding in the way proposed.
In the interests of everyone in the House, this committee should meet the strict constitutional requirements of every citizen and I would caution people who will make statements which will affect a person's good name and reputation that these people can have recourse to the courts. That may be necessary depending on how the proceedings are conducted. It is clear that prudence and caution should dictate the view of the Oireachtas as we tread on totally new ground. Never before has such a committee been set up. It is not for the purposes of obfuscation that sections 3 and 4 are being inserted, but on the strict advice of the chief legal law officer of the State to ensure strict compliance of which none of us should be afraid. We should ensure that this legislation gives explicit assurance that we will conduct these proceedings in accordance with the law. As the Minister of State, Deputy Dempsey said, an implicit guarantee, based on what I saw here last week, is not sufficient. I understand Opposition members' point of view but given the need to ensure that the presumption of constitutionality cannot be challenged during the proceedings of the committee, one should be wary of deleting sections 3 and 4 in case the proceedings of the committee are not in strict compliance with constitutional justice. Others have also made that point.
On the issue of constitutionality, we are aware of the difficulties in setting up this type of committee. That there is no compellability provision gives rise to concern from the constitutional point of view. In the absence of a compellability provision, witnesses acting in good faith could be prejudiced and it must be expected that the committee will expressly declare its rejection of evidence, which would be incomplete evidence, given by a witness who refused to co-operate or submit to cross-examination. While the position is not entirely without doubt, it is hoped that the adoption of such an approach by the committee would save the Bill from a declaration of infirmity on constitutional grounds, should such a course of action be adopted by any person.
A factor that should also be taken into account is that the committee is not required under its standing orders to make findings or deliver a verdict on the evidence before it. Clearly, whether on the issue of individual constitutional rights, the question of compellability, the need to work, the wish of the House to bring forward this Bill to deal with special circumstances, outstanding questions remain.
While everyone is anxious to establish the committee to deal with the uncertainty, I hope judgment will be suspended until all the evidence is heard when we can come to our own conclusions one way or the other. On the legal advice available to the Government the deletion of sections 3 and 4 could lead to problems if there is not strict compliance with constitutional rights. This is not something we should leave to chance. We should warn everybody by explicit reference to it. The lack of a compellability provision also leaves one open to certain possible problems which can be dealt with if procedures are adopted by the committee which will ensure that incomplete evidence is rejected because of non-appearance or refusal to be cross-examined. Those in the legal profession and others in the House are aware of these issues. They must be taken on board to ensure that in setting up this new type of committee we do not adopt a prudent and cautious approach for the purpose of protecting this procedure for other matters with which the House may have to deal in the future.
I take the Minister's point about compellability. The absence of compellability may trammel the committee in what it does, but by the same token, it is clear from the Government's amendments that it does not propose to deal with this issue. Warning us about its implications runs both ways in the context of the present argument and we will have to leave it in that form. If we go down the road of dealing with the issue of compellability, we would be dealing with the constitutional rights of others. If the committee were set up to make findings of fact and to produce a report stating whether my evidence — if I were a witness — was credible, and to adjudicate on the credibility of people's evidence and thereby impugn their characters, all the points that were made would have greater force than at present.
No Member on this side of the House is setting at nought, reducing or diluting the importance of constitutional procedures in a case such as this. We are trying to put in place a formula which is workable and committed to people's constitutional rights. This amendment is designed to achieve a workable committee and faithfulness to our constitutional requirements and it does so in a more flexible and appropriate manner than the provisions of section 3 and 4 of the Bill as drafted.
It is interesting to note that Deputy Martin stated this might be a precedent for other occasions. I am deeply concerned about that. If this Bill is a precedent for the procedures of other committees of this House, we should be very careful about putting in place provisions which we know in our hearts are unworkable.
Apparently the Attorney General advised the Government that the various judgments referred to require that natural justice be applied and that in the context of allegations people be given a right to defend themselves and a right of advance warning of allegations made about them. Does the Minister, Deputy Cowen, seriously believe that any court or tribunal has ever functioned under the regime set out in section 3? Has any court, tribunal or inquiry in the history of the State operated under the rubric that a witness can demand legal representation, make submissions and require other witnesses to appear before it? Has any person ever suggested in any other context that a witness, great or small, has such a right? It did not apply in the case of the beef tribunal nor is it stated in the Tribunal of Inquiries (Evidence) Act. It is not imposed on the courts, on the Employment Appeals Tribunal, the Rent Tribunal or other tribunals set up to make adjudications, which this body will not have to do. There is no precedent in Irish law which states that everybody is entitled to bring lawyers and to tell an inquiry who should be brought before it. It is nonsense to make the proposals in section 3 so wide-ranging. There is a duty to act constitutionally and the four rules adverted to by Deputy O'Donnell must apply to a person who is not only a witness, but whose witness character is transformed to quasi-defendant or quasi-accused.
I do not wish to anticipate what will happen at the committee, but Members of the House — the Minister of State, Deputy Dempsey, being one of them — have said they believe they are on the wrong end of a witch-hunt. On Second Stage I indicated to the Minister of State, Deputy Dempsey, that I knew nothing to his detriment and I have heard nothing thus far which has convinced me of anything to his detriment. Nevertheless, if it were the case that the character or good name of a Member of this House or anybody else was brought into question because of what somebody else said, they would be constitutionally entitled to the four elements of protection to which Deputy O'Donnell referred. However, it cannot be claimed every witness would be a quasi-defendant or a quasi-accused and that this is the only safe way to deal with an inquiry. If that is the precedent for this inquiry, God knows what will happen at the Committee of Public Accounts, when it investigates financial frauds and so on, if all witnesses presume they can bring lawyers and demand that other witnesses appear before the committee to corroborate their evidence.
I note the proposal to insert the word "request" instead of the word "requirement" in section 2, but if section 3 is operated as it stands witnesses appearing before the committee would have much greater powers than the committee itself. They could dictate the order of appearance in which witnesses should attend, the issues with which the committee should deal and cross-examine along the lines they consider relevant, even if such matters are of no interest to the committee. A flexible formula is the correct way of the committee to proceed. We do not have to remind it that there is case law and constitutional requirements covering this matter and if a person appears before it in a quasi-defendant or quasi-accused position they must be dealt with in a different manner from that of a witness who, say, merely states he or she brought a letter from the Attorney General to the Taoiseach at 2.35 p.m. on a particular afternoon. How could such a person claim legal representation and want to cross-examine those who handed him or her the letter or who were in the room when the letter was delivered? How could a committee function if it was forced to make available people to be cross-examined by witnesses regardless of the relevance, centrality, obscurity or peripherality of such people's testimony?
This matter requires flexibility. Such a requirement is not imposed on the courts, it was not imposed on the beef tribunal; no tribunal functioning under our law has such a blanket requirement imposed on it. I have not heard of the establishment of an inquiry in circumstances in which a witness could demand the presence of another witness. This is a radical new proposal which was not implicit in the Haughey decision or subsequent case law.
I ask Fianna Fáil speakers, who were concerned that by deleting sections 3 or 4 the Bill would become unconstitutional, to consider the proposed new section 3. How could one go to the High Court and say that a committee directed by this House to apply the constitutional law as laid down by the courts in all its dealings with every witness and all other people is unconstitutional because the committee may not do so by any standard of presumption of constitutionality of an Act and of constitutionality in favour of the other organs of State. The courts owe this House some respect in the same way as we owe them respect? How could any court say that it is to be presumed that a committee of the Oireachtas will trample down rights especially in the context of a legal provision which requires them to faithfully and scrupulously uphold every constitutional right?
Of course, in certain circumstances, if an allegation is made the person against whom it is made, is entitled to know who made it and the evidence on which that person will rely. The curious thing about this committee is that, as was the case, in the Tribunal of Inquiry into the Beef Processing Industry, we do not have people to take statements from witnesses. We cannot call on Mr. Fitzsimons, the Attorney General and say we would like to know what he will be saying in evidence the day after tomorrow to this committee. If he is in conflict with Deputy Cowen I, as a Member of this committee, will not be in a position to ask Deputy Cowen to give me a full account of what he intends saying which may be detrimental to the Attorney General.
It will be the committee that will be taking statements.
I think Deputy Cowen would be the first to go to the High Court if I demanded it, and say: "Tell me everything you are going to say, because I want to warn the Attorney General in advance."
Deputy McDowell need not worry, he would not drag me to the High Court.
I would not drag the Minister but I think he would have me down there pretty fast.
No doubt the Deputy would chase a few pounds.
Let us be practical about this. Section 3 imposes on a group of people, who are only Members of this House, the obligation to take statements, formulate allegations, then put them to other people for their consideration. We are not in a position to know what happened. We are not in a position to demand of Deputy Reynolds, Deputy Cowen or anybody else that they come here and furnish a preliminary statement so that we can ascertain whether they all match. We are not in the position of the Tribunal of Inquiry into the Beef Processing Industry, which was a most peculiar one, of compiling a book of allegations. Must we sift through all the conflicting comments we have heard in recent weeks, put them in tabular form and say we want to put this to one person and that to another person? This is not what we are about. We are not in a position to take statements in advance. It would be great if people would furnish us with statements but we cannot rely on everybody doing that. For instance, we do not know what Deputy Dempsey might say to the committee. We are certainly not asking him to write out in advance, present to the committee, and give the new Attorney General, a copy of what he proposes to say and vice versa; it cannot be that complicated a procedure.
If we had had the immunities the Attorney General required and could have assured him on the day, nobody would have said to stop as he did not know in advance what a witness would say in Dáil Éireann. Nobody would want him silenced until he had received a written account of what he was going to say. That is not on. What is proposed in the new section 3 is not merely adequate but essential. The original sections 3 and 4 were not adequate, were grotesque in their possible application and impractical. These may be famous last words but the Bill would be more constitutional containing section 3, as proposed by Deputy O'Donnell, than it would be with these attempts at an elaboration of what the law requires, if I may say so without being disrespectful to anybody, rather clumsy attempts to set out what is in the law.
I urge the House to avoid particularity, to tell this committee to be scrupulously faithful to constitutional requirements and natural justice, to the obligation to protect everybody, be they Members of this House or those who are not Members, and their constitutional rights. If the committee does that, operates sensibly and in a civilised manner, it will be able to get on with its work. Were we to accept the existing sections 3 and 4 the committee, on the contrary, will not get on with its work, and will become bogged down. It is clear from section 3 that the first thing the committee would have to do is send out investigators to take statements from people. In such circumstances it is doubtful that the Attorney General would start furnishing statements to one Member of this committee, acting as a kind of roving policeman, to build up a book of evidence and it is doubtful that one could distil allegations therefrom. In that context it is doubtful that one would comply with the provisions of section 3. There is a danger that people nobody had heard of would, in accordance with section 4, be demanding to be heard and, in those circumstances, demanding that other people be called as witnesses.
I ask Fianna Fáil members to accept that what we want is a short, practical and expeditious inquiry. It can be done in accordance with the Constitution and it does not have to be turned into a mini-tribunal. The committee will be sensitive to what the law requires of it and does not need a rather ham-fisted exposition of the law in the manner set out in sections 3 and 4 in order to carry out its functions. Indeed if they were spancelled with sections 3 and 4 as proposed they will never report that to this House. Presumably the report of the committee to the House will point to what happened, pass no judgement and say it is up to everybody to pass their own judgement as to what they conclude from the facts.
As the House will know, the circumstances which led to the establishment of this committee happened rather quickly. The Government did not have adequate time to give all the issues due consideration in order to determine whether witnesses should be compelled to appear before the committee. Compellability will have to be considered in the future when we deal with this in a more detailed manner.
I can forgive Deputy Michael McDowell because amendments are coming in thick and fast and he may not have had an opportunity to absorb those tabled by the Government side. The Government is proposing——
In the amendment?
In relation to section 3——
Amendment No. 16a.
As Deputy O'Keeffe should know, there is a fundamental difference between the words "require" and "request".
The words are, "The committee shall comply...".
The wording in section 3 (2): "The committee shall comply with a requirement..." will now form a request and will read: "The committee may comply with a request...". That amendment will be introduced on Report Stage.
Deputy O'Dea is inventing as he goes along.
It follows logically on the first amendment we propose, although we are all rushed and there is a great deal of pressure in relation to this——
Nobody told us about the substitution of the word "may" for the word "shall". What will that mean?
I accept what Deputy McDowell is saying but I am sure he will accept that these amendments will answer much of the Deputy's argument.
How can we——
Can we speak?
Can we speak for a change? The courts decided in the Haughey and Goodman cases Nos. 1 and 2 that a witness before a tribunal of inquiry is entitled to certain constitutional protections if, in the words of then Chief Justice Ó Dalaigh, they become a party to the proceedings. Chief Justice Ó Dalaigh stated:
A person becomes a party if the appellant's conduct is the very subject matter of the committee's examination. We do not know in that sense, which witnesses will become parties to the proceedings. We cannot tell in advance and some of the witnesses cannot tell in advance. It might depend on their evidence or on the evidence of other people. I am endeavouring to convey to the House that the committee will be in a good position to know because its Members will be considering the matter and preparing the report. We are giving the committee power to decide who has and who gets these rights. People will have to accept that as being a very reasonable approach.
Who will take the statements?
The committee will take the statements.
They have to be prepared in advance and furnished to the witnesses. You cannot start taking evidence until you have statements.
I will come back to that.
These are very fair questions.
Deputy O'Malley referred to the fact that in re Haughey case the facts were different in that Mr. Jock Haughey was almost in the nature of a defendant and that, as a result of the report the Committee of Public Accounts, Mr. Haughey could have been criminally prosecuted; the same thing applied in the Goodman case. While they may have been the facts of those cases, the reality is that the judgments of the courts in those cases said something entirely different. The judgments in the Haughey and Goodman Nos. 1 and 2 cases, and in other cases to which Deputy O'Malley did not refer, as I understand it, were that a person has a numerated constitutional right to vindicate his or her good name if it is impugned.
The late Chief Justice Ó Dálaigh in his judgment in the Haughey case stated; "whereas here it is considered necessary to grant immunity to witnesses appearing before a tribunal then a person whose conduct is impugned as part of the subject matter of the inquiry must be afforded a reasonable means of defending himself." The "reasonable means" to which he adverted was that he agreed with counsel's submission on the four protections mentioned by Deputy O'Donnell. The word "impugned" is wide-ranging. It does not necessarily mean that a person would be open to criminal prosecution, it could mean simply that their good name would be defamed. We should not imagine things because the consequences for Mr. Haughey and others might be different from those for some of the witnesses who appear before this committee of inquiry. The protection to be given to witnesses, such as members of political parties, who appear before the committee should not be any less than that which applied in other cases.
The point was made that the amendment in the name of Deputy O'Donnell is in accordance with the Constitution. If legislation is introduced which states that people will get their constitutional rights, that is in accordance with the Constitution but who will decide people's constitutional rights? Will it be the committee?
The Oireachtas can decide a person's constitutional rights.
If witnesses, such as members of political parties, who come before the committee consider they get something less than their constitutional rights, there will be constant referrals——
The Deputy can try to spell out a person's constitutional rights.
I can read what the Supreme Court ruled and legislation can be drafted on that basis. That is a much better approach than leaving the investigation to a committee when we do not know what it will come up with. Deputies McDowell, McManus, Taylor and I all have a similar wish in this regard, that the matter moves forward as quickly as possible and dealt with in the least cumbersome way. Nevertheless, if we go along these lines and have something general, standing on its own as proposed by the Progressive Democrats, we might never reach a conclusion because I foresee constant referrals to the courts. If Deputies McDowell and O'Malley consider that the rights of witnesses, such as members of political parties, in this case are something less than the rights given to Mr. Haughey in that case——
I do not.
Deputy O'Malley seemed to suggest that although I accept that Deputy McDowell did not. Let us spell out those lesser rights, otherwise we will flounder in a sea of uncertainty. The Government amendments meet the case made by Deputy McDowell because the committee will know who will be affected, whose conduct will be the subject of the committee's consideration and what witnesses will fall into that category.
That is what we said.
The committee was obliged to allow those witnesses to look for whatever statements they wanted initially. Now the committee is being given that discretion and it is best suited to decide that. I would prefer the committee to decide those matters which are peculiarly within its knowledge instead of deciding what form of constitutional protection should be given to potential witnesses who are members of parties here if that protection is less than the protection outlined by the Supreme Court in the Haughey case.
Who will prepare the Book of Evidence? This is ridiculous.
The amendment regarding requirement does not enhance the Bill because the concern I expressed on Second Stage — and continue to express — relates to section 3 (1) (ii) where a person may require the committee to request the attendance of specified persons and require the committee to request the appropriate person to produce certain specified documents to it. That section enumerates many other points. As I said on Second Stage, it is absurd that any witness should have the right to require a parliamentary committee to do what that person wishes. That is not only unconstitutional, it is undemocratic. I put down a marker in respect of that section on Second Stage.
Minister Cowen mentioned the Attorney General's advice as law agent and I also read out the legal advice of an eminent senior counsel who is an expert on constitutional matters.
There is no question but that lawyers differ.
That is the point. We should put both cases on the record. Part of the senior counsel's advice was: "therefore provided the section requires the committee to consider the interests of justice, the courts will assume that the committee will make any decision in a proper fashion and will not permit someone to have the proceedings of the committee damaged without giving them a proper chance to be heard". That is well and truly covered by this amendment. I was so concerned that, following the advice, I was told that if I tabled a number of additional amendments to those I had already tabled they would improve matters. In section 3 eight of the 11 amendments are in my name and in section 4 nine of the 11 amendments are in my name. I tabled 17 amendments to those two sections to bring them in line with what is constitutional, fair and reasonable. Far from this being a good section and not being open to challenge, on advice I received I have seen 17 areas in those sections which need amendment before the Bill passes this stage, Report Stage or goes to the Seanad. There seems to be an underlying suggestion that Members of the House would go to court to vindicate their rights, that is their right. If any witness who appears before the committee feels that his or her constitutional rights are impugned, the witness is free to go to court. I put down the marker that I doubt if the courts would put up with the type of arguments made in this House. The courts would decide the matter based on the law and on what is fair and reasonable. Witnesses should take that into account before they go to court and incur costs.
We would like to avoid the need for witnesses to go to court.
Based on the advice the Deputies who tabled the amendment and I received, this amendment meets the requirements admirably. I do not know if anything further needs to be said on this section. I support this amendment and the deletion of section 3 because it will give greater protection to witnesses. I do not consider that any of the concerns expressed in that regard are borne out. The argument here strongly favours the new amendment tabled by Deputies O'Donnell, O'Malley and McDowell, the withdrawal of my amendments and sections 3 and 4.
(Carlow-Kilkenny): I will not delay the House on this matter unlike others who said they would be brief and were not. When lawyers get together the amount of talk is unbelievable. I do not believe that the contribution by Deputy Cowen, who ridiculed my colleague over his contribution, improved the position.
The Deputy is entitled to that view although it is not widely shared.
(Carlow-Kilkenny): The amendment gives constitutional cover. What more can be given? We have argued about that all evening. When witnesses are guaranteed constitutional rights they cannot be improved on, regardless of what amendments are included. I have no legal training but I have a reasonable understanding of English. I listened to the debate all evening and if we had a strict chairman —this is not a reflection on you a Leas-Cheann Comhairle — he would have knocked heads together. It is time we moved on.
There would be very few heads knocked on this side of the House because most of the last hour was taken up with contributions from Deputies opposite.
(Carlow-Kilkenny): The Deputy was not listening to his colleagues.
I was listening carefully. One Member, who made a fine contribution, took 35 minutes.
It is a new concept. Deputies should not contribute because they will hold things up.
I agree with Deputy Browne that there is not much point in spending much more time talking about this matter. I cannot embellish what has been said by my two legal colleagues but I reiterate that our desire in accepting the Progressive Democrats' amendment and requesting that sections 3 and 4 remain in the Bill is to make absolutely sure that people are aware of their constitutional rights and to set out procedures the committee can follow to ensure those rights are vindicated. If the Bill is amended as proposed, those constitutional rights will not be spelt out. My party will not agree with that and will register its dissent if it is put to a vote.
Is the amendment agreed?
The wording states that acceptance of this amendment involves the deletion of section 3 of the Bill. My understanding is that it will also involve deletion of section 4.
I will put the question on amendment No. 6 first and then we will deal with that matter. The question is that the new section be there inserted.
On a point of order, if this new section is inserted the House will be left with the option of accepting or rejecting section 3 with the amendment inserted, but what we want to do is enuniciate the amendment as a stand-alone operation. If we proceeded in the way proposed we would be presenting ourselves with a procedural difficulty.
The amendment was tabled in substitution for sections 3 and 4. It was stated on the Order Paper that acceptance of it would involve the deletion of section 3 and we did not query that.
The House should proceed on the basis that if amendment No. 6 is adopted, section 3 is deleted. Section 4 will be dealt with as a separate item.
I am putting the question that the new section be there inserted.
If the word "inserted" is used we will then be left with section 3, with amendment No. 6 inserted, and it will not be possible to deal with amendment No. 6 as a stand-alone operation. I think the correct term would be "that the amendment be made".
I am advised that the terminology I am using, that the new section be there inserted, is correct. We will deal with the sections thereafter.
We have no objection to the insertion of that amendment.
Question, "That the new section be there inserted", put and declared carried.
SECTION 3.
Amendments Nos. 7 to 17, inclusive, not moved.
Question, "That section 3 stand part of the Bill", put and declared lost.
Section 3 deleted.
SECTION 4.
Amendments Nos. 18 to 28, inclusive, not moved.
Question, "That section 4 stand part of the Bill", put and declared lost.
Section 4 deleted.
SECTION 5.
Amendments Nos. 29 to 32, inclusive, not moved.
Question, "That section 5 stand part of the Bill", put and declared lost.
Section 5 deleted.
May we speak to section 5?
It has been deleted.
The effect of deleting section 5 is that those who will appear before the committee as witnesses and those who may have to bring lawyers with them to defend their rights — I presume they will have this right even though section 3 has been substituted by Deputy O'Donnell's amendment — will not be entitled to costs or reasonable expenses if they are out of pocket due to the loss of a few days work. They will literally be entitled to nothing. That is the net result. Perhaps Members will reflect on this.
That is what people call strict compliance with constitutional justice. The position is that if sufficient malicious attacks are made the person concerned, in order to vindicate their rights and good name, may be beggared. This is considered to be just so far as this House is concerned. It is disgraceful. Everyone who has appeared at a tribunal has had their costs covered.
This is not a tribunal.
It is a committee of the House.
I give notice that we will be reconsidering on Report Stage the decision to delete section 5.
The Members opposite may reflect on the matter in the meantime.
So might the Minister.
NEW SCHEDULE.
I move amendment No. 33:
In page 4, after line 44, to insert the following new Schedule:
"SCHEDULE
Order of Dáil Éireann made on 6th December, 1994
`(1) That the Standing Orders of Dáil Éireann relative to Public Business be suspended today pursuant to Standing Order 143 for the particular purposes of hearing statements and the answering of members' questions to the Taoiseach and to each Minister involved in meetings of Ministers on 11th, 13th and 14th November, 1994, on the circumstances surrounding:
(a) the appointment of the President of the High Court on Friday, 11th November, 1994;
(b) the request on Sunday, 13th November, 1994, from the Taoiseach and the Minister for Justice to the Attorney General to reexamine all details of the Brendan Smyth case;
(c) the alleged request from the Taoiseach to the then President of the High Court to resign on Monday, 14th November, 1994;
(d) the draft reply and covering letter provided to the Taoiseach by the Attorney General in advance of the Dáil debate on Tuesday, 15th November, 1994, on the issue of the prior application of section 50 of the Extradition (Amendment) Act, 1987, and the identification of all persons involved in, or approving, the draft reply and covering letter; and
(e) the identification of all those involved in the preparation of the Taoiseach's Dáil speech for Tuesday, 15th November, 1994; and
(2) that the said proceedings shall be brought to a conclusion at 10.30 p.m. tonight and that the following arrangements shall apply;
(a) the Dáil shall sit later than 8.30 p.m. tonight and the hour at which business is to be interrupted shall be 10.30 p.m.;
(b) the statement of the Taoiseach, the Tánaiste, the leaders of the Fine Gael Party, the Labour Party, the Progressive Democrats Party and the Democratic Left Party shall not exceed 30 minutes in each case;
(c) statements from other members shall not exceed 20 minutes in each case: provided that members may share time;
(3) at the conclusion of the statements, the matters referred to at paragraph (1) shall be referred to the Select Committee on Legislation and Security for the purpose of questioning all persons the Committee deems appropriate. The Committee shall meet at 10.30 a.m. on Wednesday, 7th December and shall report to Dáil Éireann on Thursday, 8th December for as long as is necessary; and
(4) at the conclusion of business, the Dáil shall adjourn until 10.30 a.m. on Thursday next'.".
Amendment agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
The order of the House indicates that there is to be no Report Stage. I formally move that there be a Report Stage and, with the agreement of the House, there be an adjournment of ten to 15 minutes to allow us prepare amendments. One relating to a subcommittee may have been circulated. If the House is agreeable, I suggest that Report Stage be taken at 5.45 p.m. The order of the Dáil states that, notwithstanding anything in Standing Orders, the proceedings on the Committee Stage of this Bill, if not previously concluded, shall be brought to a conclusion at 6 p.m. by one question which shall be put from the Chair and which shall, in relation to amendments, include only those set down or accepted by the Minister. I formally propose to allow the Dáil to deal with the Bill on Report Stage, if it is agreeable, at 5.45 p.m.
I have no difficulty with that proposal provided we understand exactly what we will be doing. We will be considering the amendment relating to the subcommittee the Minister of State said he would bring forward. It is being circulated at present.
We have not got it yet.
The Minister of State also wants to table a further amendment dealing with the payment of expenses to witnesses. We need to know the timescale within which it is proposed to conclude the debate.
By 6 p.m.
If the debate had lasted the full four hours it would have taken us to 6.35 p.m. I presume that if we do not change the order the debate will conclude not later than 6.35 p.m. If we finish within 15 minutes, so be it.
I may have misheard the Minister of State. Did I hear something about amendments in his name being made? That would not be acceptable.
No.
It sounds like a guillotine motion in favour of the Minister of State and there is no question of that motion being accepted.
Each amendment should be put seriatem.
There are only two amendments.
The suggestion is that the sitting be suspended until 5.45 p.m. when we will take Report Stage. Is that satisfactory?
Yes.
Provided there is no question of guillotining the debate to allow Government amendments through.
We cannot do that.
That is what the Minister of State is saying.
There is no such proposal before us.
There is one further point to be agreed and that is that the House should not sit later than 6.35 p.m. to conclude Report and remaining Stages.
That has not been changed.
Sitting suspended at 5.30 p.m. and resumed at 5.45 p.m.