Select Committee on Legislation and Security of Dáil Éireann (Privilege and Immunity) Bill, 1994: Report and Final Stages.

I move amendment No. a1:

In the new section 3 inserted by Committee Stage amendment No. 6, to delete ", while engaged in the functions referred to insection 1 of this Act,”.

Amendment agreed to.

I move amendment No. 1:

1. In page 4, between lines 29 and 30, to insert the following:

5.—(1) The Select Committee on Legislation and Security of Dáil Éireann (in this section referred to as "the committee") may appoint a subcommittee consisting of such members of the committee as it may determine.

2. A subcommittee appointed undersubsection (1) of this section shall, if so requested by the committee, perform the functions referred to in section 1 of this Act in lieu of their being performed by the committee; and, in relation to the performance of those functions by such a subcommittee, this Act shall apply and have effect with the modification that references in this Act (other than section 1) to the committee shall be construed as references to that subcommittee and with any other necessary modifications.”.

Members will recall that earlier in the debate we discussed the possibility of setting up a subcommittee so that the inquiry can be more focused. The amendment propose that the Select Committee on Legislation and Security of Dáil Éireann (in this section referred to as "the committee") may appoint a subcommittee consisting of such members of the committee as it may determine. That subcommittee will be given the right to continue on an investigation as if the full committee were pursuing it. This is a reasonable way to proceed and it will help to achieve what we all desire, to focus the committee, get it working and tighten its procedures.

The last sentence of the amendment concerns me, namely, "and with any other necessary modifications." Will the Minister expand on precisely what is meant by that term? This is a good amendment and I will be supporting it but I have one concern about it. As I explained on Committee Stage — I believe my recollection on this is correct — the Oireachtas Witnesses Oaths Act, 1924 allows the Ceann Comhairle to confer on committees of the House the right to hear witnesses under oath. My understanding is that a witness who is found to have given evidence under oath which is incorrect is liable to be treated in the same way as if that person were in a court. In other words, it would be a criminal offence of perjury. I am not suggesting that any witness would want to do that but I am suggesting that the committee may wish to ask the Ceann Comhairle to confer such powers on it for the purposes of its examination. If I recall correctly, a committee took that course of action in recent years on a relatively innocuous Bill.

If the committee wishes to examine any witness under oath and is given that power by the Ceann Comhairle, whom I understand is empowered to do so, would that power extend to a subcommittee of the committee? In other words, if the committee allows a sub-committee to carry out an examination on behalf of the committee, would that subcommittee have all the powers of a committee? If the Ceann Comhairle would confer powers to hear evidence under oath, would that power transfer to the subcommittee also?

I also support the thrust of this amendment. As I said on Committee Stage, for this operation to be effective, it is necessary and essential to have a smaller grouping which can deal with this matter in a much more effective, controlled and expeditious manner. I would like the assurance of the Minister, in so far as he can give it, that the composition of the subcommittee would bepro rata party wise to the composition of the committee. I would like confirmation also that the subcommittee will sit in public and otherwise will conduct its affairs like the committee.

I wish to make some observations on this amendment. In principle I agree with the amendment but some points occur to me. The definition of "committee" is in section 1. I raised that with the Minister of State during the interval and he felt it was necessary to redefine it because of the fact that it is delegating its functions under section 5. I am not sure I understand that. If it were not necessary to redefine it, the words "Select" and "on Legislation and Security of Dáil Éireann (in this section referred to as `the committee')" could be deleted because "the committee" is already defined.

The words, "and with any other necessary modifications" seem to be very wide. I suggested substituting the words "mutatis mutandis”, which have a particular meaning and which would not be as wide as “and with any other necessary modifications”. I understand the Minister of State's advice is that the phrase “mutatis mutandis” should be avoided and I then made the alternative suggestion, which I hope will be accepted, that it should read, “and with any other necessary and consequential modifications”, in other words to insert the words “and consequential” after “necessary”. Without this, the modifications could, I think, be very wide and that is not appropriate. Subsection 2 states: “A subcommittee appointed.... shall, if so requested by the committee, perform the functions....” Is it necessary to put in a phrase such as “shall be empowered to perform and shall perform” or is the phrase “shall perform the functions” sufficient to confer all the powers and duties of the committee on to the subcommittee? I do not want somebody to challenge the subcommittee afterwards by saying that there was not a full delegation to it or there was not power for a full delegation. I ask that the words “and consequential” be put in on the second last line.

Before the Minister of State, Deputy Dempsey, replies to those various points I wish to query something Deputy Gay Mitchell said. Deputy Mitchell raised the matter of the oath but it seems that the only implication of administering an oath is that if somebody lies under oath he can subsequently be prosecuted for perjury. As I understand section 2(3) any statement or admission made by a person before the committee will not be admissible as evidence in any criminal proceedings. If the oath is administered it may be necessary to amend that position to say "except in relation to proceedings for perjury" or some words of that nature.

The Government amendment No. 1 states:

The Select Committee on Legislation and Security of Dáil Éireann (in this section referred to as "the committee" may appoint a subcommittee consisting of such members of the committee as it may determine.

The Committee Stage debate was very constructive. From listening to Members' contributions I think there is a perception that if a special committee or subcommittee is to be set up to deal with this matter it should include Members with a legal background. My reason for raising this matter is that if membership of the subcommittee is to be confined to the members of the Select Committee on Legislation and Security it may exclude others who would have a valid claim to be on the subcommittee. We should make available the facility of substitute members. On the basis that the subcommittee comprises of 12 members representative of the various groups it would mean that for the smaller groupings only one of its members would be entitled to be on the subcommittee and could be tied up for weeks on it. I think it would be necessary to have a facility to appoint designated substitutes and perhaps we should consider also allowing Members who are not members of the Select Committee on Legislation and Security to serve on the subcommittee.

Will the Minister of State explain fully the relationship between the subcommittee and the committee? In most people's eyes a sub-committee is a lesser body than the parent body. We would have to be satisfied that they were of equal standing and had equal authority.

The issue of substitutes does not present a problem for the committees as that is written into the regulations governing them. Is it the case that, even though it is not written into this amendment, the issue of substitutes will not present a problem later? Will the Minister clarify this?

I had raised on Committee Stage the question now raised by Deputy Kenny. The only practical solution is by way of the Committee of Selection. It is fair to say that this will be the most important work that this committee will do in the immediate future and therefore it will be open to all parties to reconstitute their membership of the committee and select the people who they believe will best contribute to it and they can do this by means of the Committee of Selection. Thereafter there will be sufficient members to arrange substitutes if the Standing Orders of the committee arrange for this when setting up this subcommittee. The practical solution to the problem is to maintain maximum flexibility and participation by those whom each party would like to see involved and to use the Committee of Selection to reconstitute the Select Committee on Legislation and Security if so required. When the committee sets up its subcommittee it will ensure that the provision of designated substitutes will be part of the Standing Orders of the subcommittee.

I do not think one can do that.

Others may have a different point of view but that is mine.

On Committee Stage when this matter was raised we agreed that this might be the practical solution to the problem. It was the unanimous view of those participating on Committee Stage. I see precisely the point Deputy Enda Kenny raises. On the question of empowering the committee we have accepted as a basic principle that a committee can order its own business. That being the case, a committee can delegate the performance of its duties and functions to a subcommittee. I do not think there can be a problem about the dilution of competence passing from a committee to a subcommittee. It is fair enough to raise the point but common sense dictates that if a committee can order its own business it can order a subcommittee to do the business of the committee in a specific matter.

You would have to give the power to the subcommittee.

In my opinion that would be an internal matter for the committee. Once the Standing Orders allow for it, it would not be inconsistent with this legislation.

On the question raised by Deputy O'Malley of providing for too wide a modification I think the committee will decide on that at the end of the day. The committee will have a majority to ensure that is the case and from a practical point of view I do not think there will be such modifications of its duties as to cause a problem.

The point raised by Deputy Kenny is serious and I am not sure if the solution postulated by Deputy Cowen is the answer. Perhaps if I tie it in with my other comments on substitutes the matter can be teased out further. Under the existing rules of procedure, substitutes may attend a committee or a subcommittee thereof and those substitutes may not necessarily by members of the committee. I understand also that any substitute is entitled to speak at such committee or subcommittee meetings but is not entitled to vote.

If substituting for a full member you can vote.

I sought advice on this last week on behalf of a colleague and that is the advice I received.

That is like saying a substitute cannot score goals in a soccer match.

Score a few own goals.

I am merely pointing out the advice I was given by an official of the House.

Should we talk about substitutes to a committee of this importance? If a Deputy does not intend to serve on the committee, the Deputy should not accept the nomination.

It would be totally inappropriate to permit substitutes.

A Deputy may well be ill and so on. These issues, which at first glance seem clear, need to be teased out——

The Deputy will be too busy.

——so that the practicalities of the procedures will not cause problems once the committee and subcommittee have been established.

We are talking about legislation to give a specific committee serious work to do. Can Members imagine a Member attending a committee meeting and then making three substitutions in a morning in order to attend a county council or other meeting? Some committees have problems getting a quorum. I caution against the subcommittee having the right to nominate substitutes. There should be continuity of membership on the committee otherwise substitute Members who may not hear the evidence could ask a range of separate questions. We want to avoid that. We are talking about setting up a structure to give legislative effect to a subcommittee of the main committee and we should reflect further on the question of substitutes to the subcommittee. It could cause problems.

(Carlow-Kilkenny): Could a witness who had given evidence be substituted to interrogate some other witness?

Smaller parties such as Democratic Left and the Progressive Democrats may have one person as a designated Member of the subcommittee and it may be necessary to have a substitute for that Member otherwise the same person could be engaged on that committee for weeks without a break. This was mentioned at the Whips' meeting when we discussed the broad parameters of the arrangements and procedures to be agreed. There should be flexibility for smaller parties to put forward a substitute if a Member is not able to be present on a particular day. This would not be a choppy arrangement.

I am extremely anxious to get at the truth of this matter and have a trenchant attitude in that regard. Irrespective of the mechanism used I want the truth to emerge. However, it is important to state that there is every chance the President will refer this Bill to the Supreme Court. In deference to Article 40 of the Constitution, and to the powers of this House to confer privilege on witnesses, it might be considered to be an ouster of the jurisdiction of the court and the Bill may well be found to be unconstitutional. I hope that does not happen.

Deputy Cowen suggested that the absence of compellability might imperil the constitutionality of the Bill. No Member brought forward any proposal to insert a compellability provision into the Bill. If the Bill were found to be flawed by the absence of such compellability provisions — I do not see how it can but, perhaps, Deputy Cowen is right — it will not be because of the rejection of any proposal on compellability that it will be found so wanting.

We did not have sufficient time to consider these provisions.

I accept that. I am making the point that it will not be because any provision was rejected. The courts administer justice and this House is part of Parliament. Parliament is not merely a legislature, it is a house of representatives. Part of our function as representatives is, on occasion, to make inquiries for ourselves and not rely on the courts to determine facts or on the Executive to supply us with advice but for us to make up our own minds, especially when it relates to whether the House was or was not misinformed on certain matters. It is part of the integral nature of a Parliament in a democracy and of a house of representatives in such a Parliament that it has powers to carry out inquiries. Inquiry is not a function which is the monopoly of the courts. The House should not be shy about taking to itself its constitutional rights to inquire into matters and satisfy ourselves as public representatives entitled to come to our own conclusions one way or the other on the matter.

The report of this committee will not be one in which anyone will be adjudicated to have misbehaved or otherwise. Neither the committee, nor any subcommittee, is entitled under its terms of reference to evaluate the evidence, reject it or come to any verdict or conclusion about it. That is a matter for Members of the House and the public when they see what emerges in the committee.

I agree with the latter part of Deputy McDowell's contribution. In the negotiations for the illfated resumption of the Labour-Fianna Fáil partnership Government, I drafted a section dealing with committees such as this. I have no fears about extending the powers of the House and it having an inquiring role. I agree with the Deputy on that.

The Bill is unusual in many respects, not least the constitutional aspects referred to by many speakers. There was all-party agreement that this was the Bill, more or less, which should be brought forward.

The issue of compellability has been examined for 16 years. We are aware of the difficulties involved. We are a caretaker Government and had we introduced such a provision it would have fundamentally altered the Bill. That is why we did not insert it.

Unlike other Deputies who spoke I am not a lawyer. My view of the Constitution is that this House can regulate its own business. This is a committee of the House and everything mentioned by various speakers can be met under the Constitution. I may be wrong but as a lay person and a Member of the House I would like to believe we can do so and go ahead on that basis.

The following phrase is at the end of the amendment: "with any other necessary modifications". I do not know if Deputy O'Malley wants to insist on including "consequential". My advice is that it is not necessary and does not add anything to the Bill. However, if Members want to insert it, I have no difficulty doing so. The other necessary modifications relate to the composition of the committee, etc. In other words, we will do our own business; the law will provide the framework and we will decide the specific structures.

Deputy O'Malley referred to the phrase "shall perform". My advice is that the phrase is sufficient and that the subcommittee will have the same rights as the full committee. Deputy Taylor asked about the composition of the committee. This is a matter for further discussion. At the Whips' meeting this morning Deputy Kenny said that a committee of 12 members would ensure that the proportionality of the House was respected. It was also felt by the Whips — this matter will also have to be discussed, and Deputy O'Donnell referred to it — that, in line with the advice we got from the Attorney General, there should be one questioner per group on the committee for each witness. This would allow for some movement of personnel. It is necessary that the subcommittee is as confined and focused as possible.

When the Bill is enacted this House, the Whips and, if necessary, others will be able to modify the procedures for the subcommittee and bring forward new procedures. We will regulate our own affairs in that respect.

Is Deputy O'Malley's recommendation that the words "and consequential" be inserted before the last word in the amendment——

In the circumstances, I will not press my recommendation.

Amendment agreed to.

I move amendment No. 2:

In page 4, between lines 29 and 30, to insert the following:

"5.—The Minister for Finance may provide for the payment, out of moneys provided by the Oireachtas, of any reasonable costs and expenses incurred by a person in respect of the appearance of the person, in person or by a legal representative, before the committee or the giving of evidence, or the production or sending of a document, by the person to the committee."

The Government is proposing that section 5, as initiated, should be restored to the Bill. This is in deference to the views expressed on Second Stage. The substitution of the word "may" for the word "shall" is a small but significant amendment. The section, as amended, will now read:

The Minister for Finance may provide for the payment, out of moneys provided by the Oireachtas, of any reasonable costs and expenses incurred by a person in respect of the appearance of the person, in person or by a legal representative, before the committee or the giving of evidence, or the production or sending of a document by the person to the committee.

I should emphasise that this power will be discretionary and will relate only to reasonable costs. This amendment is rooted in the fundamental principle that any measure enacted into law by the Houses of the Oireachtas should not tread on the constitutional rights of any citizen. We should not abandon section 5 which was devised to protect the rights of witnesses and others. This section is important in ensuring certainty in regard to the constitutional rights of citizens.

It is not necessary for the House to agree to this amendment. Almost all the witnesses referred to are public servants in one form or another, either elected or permanent public servants, and are paid from the public purse. Arrangements can be made to deal with this problem as it relates to civil servants.

I referred earlier to the Oireachtas Witnesses Oaths Act, 1924. This one page Act states:

1.—(1) Each of the Houses of the Oireachtas may administer an oath to a witness examined before such House.

(2) Any Committee of either House of the Oireachtas, and any Joint Committee of both Houses of the Oireachtas, may administer an oath to a witness examined before such Committee.

2.—Any person examined as aforesaid who wilfully gives false evidence shall be liable to the penalties of perjury.

3.—Any oath under this Act may be administered by the Ceann Comhairle of Dáil Éireann or the Cathaoirleach of Seanad Éireann or by such other person or persons as may be appointed for that purpose by them or by either of them, or by any Standing Order or other order of either House of the Oireachtas or by any Standing Order made by the Houses of the Oireachtas jointly.

4.—This Act may be cited as the Oireachtas Witnesses Oaths Act, 1924.

We should be aware that the Ceann Comhairle has this power. For the reasons I outlined on Committee Stage, it is not necessary to accept the Minister's amendment and I will oppose it.

The inclusion of the amended section 5 in the Bill is a test of the assurances by Members that they will fully respect our constitutional rights and be mindful of them during the proceedings of the committee. This is not a tribunal but I am sure that during tribunals some people felt their good name was being challenged and legitimately took all necessary steps to vindicate it. This was done at the taxpayers' expense and in some cases it amounted to £1 million. That is fair enough and I have no problem with it. It was for the chairman of the tribunal to make that decision and he rightly made it in favour of everyone who wished to take up that offer.

As I said, this will not be a tribunal but the same principle applies. It has been said that almost all the people involved are public servants and that they should have no problem attending the committee. I do not intend to spend too much money at the taxpayers' expense in maintaining my good name and integrity. This depends on how the committee behaves towards me and whether my integrity is impugned. If, as I have been assured, myin re Haughey rights will be respected, I do not see why I have to do this but if it comes to it there is no problem. I am told that the minimum protection available to me as a citizen, quite apart from that available to me as a public representative, in respect of allegations made against me are set out in in re Haughey, one of which is that I will be allowed to cross-examine by counsel the accuser or accusers.

We have been told not to worry, that there is no question of anyone being put in the place of a defendant or being regarded as a party to the proceedings. I do not know who has given out the tablets for collective amnesia in regard to last week's events but the number of accusations made were phenomenal. It was as mad a frenzy as I have seen in a long time.

(Carlow-Kilkenny): There was even one relating to waffle.

Deputy Mitchell and others chewed on a bone but unfortunately they had left their teeth at home.

We will see what the Minister chews on in future.

I look forward to chewing on the Deputy in a few weeks' time.

The Minister will not have much to chew on.

The point I am making is simple. It is that basic courtesy be extended from colleague to colleague in respect of my right, if necessary, to be cross-examined by my accuser or accusers and my right to be permitted to address the committee in my own defence. If it is being suggested that the reasonable cost of vindicating my right is too great a burden on this House, I can make my own arrangements. That is not the point — there is a principle involved here. If it is felt by a majority in the House that that is unreasonable, this amendment can be voted down, as the previous amendment was on Committee Stage. I appeal to Members' sense of justice, if they have any, and urge them to reconsider that point. If they do not wish to consider it, I will do without it and I am sure many others will also. It is indicative of the attitude which sometimes comes to the fore despite one's best efforts to hide it that your sense of fair play——

(Carlow-Kilkenny): The Minister is waffling.

I remind the House that I shall have to put the question in less that five minutes' time.

If Deputy Browne wishes to call me a waffler, that is fine.

(Carlow-Kilkenny): The Minister has made a fair effort to date.

It is difficult for a party with such roots as the Deputy's to understand that we have free speech. People have fought hard for it.

We have had a calm day. Let us keep it that way.

I will continue regardless of any interjection from Deputies opposite. I appeal to Members' sense of justice. If they do not wish to reconsider this point, that is fine. Nobody will grovel to colleagues for basic courtesies. I will not make an issue of it but if Members consider the cost of vindicating rights is too burdensome for this House, we will do without it.

It is not a matter of courtesy. It is a matter of the fundamental nature of a committee of this House. We will fundamentally change the nature of inquiries before this House if we accord a new system of legal aid and if it becomes the norm for barristers and solicitors to attend on behalf of people who feel their reputations are imperilled and who know that by bringing barristers and solicitors here they will be able to look to the public purse to reimburse them. In the amendment the word "may" is inserted instead of "shall" but I cannot understand how that changes anything. If the new Minister for Finance is given power to give costs to persons how is he to exercise that power and how is he to distinguish between witnesses? There is no guidance given to him in the legislation. I believe the courts would interpret the world "may" as "shall" and require them to deliver costs to everybody or to nobody and certainly would not allow him to distinguish between one person and another. It is not a question of generosity, it is a question of the nature of the proceedings of this House. The proposition that Members of this House should come before the House with lawyers when asked questions about the performance of their functions as Ministers is undesirable to say the least and we should lean against it, in so far as we can, within the Constitution.

I wish to point out there are two decided cases — Securityv. Ireland and Condon v. CIE — in which the courts have indicated that the rights of people to use lawyers and advocates to protect their good name and their property rights under the Constitution do not carry with them a concomitant right to have legal aid.

No one suggested that.

I appreciate the Minister has not suggested that. There are many people who get no costs when they go before an employment appeals tribunal or a rent tribunal. We should not forget that there are many people who, due to the absence of public funds, get no effective legal aid for up to six or eight months in our legal aid centres. People have to provide their own legal representation in many spheres of life, without the right to costs. It is not a matter of being niggardly, trampling down rights or trying to subvert rights. If we establish a system of payment of costs and if we give to the Minister the discretion which the word "may" would imply, it would have to be exercised consistently and by reference to some rational criterion and inevitably everybody would have costs awarded.

This a special committee.

It is not necessary for public servants who come before this House to look to this House for costs. If a public servant by virtue of his or her public duties as a civil servant is summoned before the House and it is reasonable and necessary for them under the Constitution to bring their own representatives, they can look to their employer, the State. We are really talking about politicians here. With the greatest of respect, when the day comes that politicians require representation to deal with each other it will be a sad day for democracy.

That is an outrageous statement.

As it is now 6.35 p.m. I am required to put the following question, in accordance with an Order of the Dáil of this day. The question is: "That amendment No. 2, in the name of the Minister of State on Report Stage is agreed".

Question put and declared lost.

As there are no further amendments on Fourth Stage the question is: "That the Bill do now pass".

Question put and agreed to.
The Dáil adjourned at 6.35 p.m. until 10.30 a.m. on Thursday, 15 December 1994.