Dáil Éireann debate -
Wednesday, 22 Nov 1995

Vol. 458 No. 6

Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Bill, 1995: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Kavanagh

I welcome the Bill. The Joint Committee on Commercial State-sponsored Bodies has been requesting the introduction of this legislation for many years. In 1976 — the year the committee was established — the Oireachtas Privilege and Procedure Bill was introduced. In its original form it dealt with compellability and privilege for witnesses but those provisions were removed during its passage through the Houses and we were left with a simple, short Bill which merely extended to committee members the privileges enjoyed by Members of the Dáil. Since then we have been requesting that committees of the House such as the Joint Committee on Commercial State Sponsored Bodies, which was set up to do a particular job, shold be given the means to do it by legislation. Members have referred to the delay in bringing this Bill before the House. As you may recall a Leas-Cheann Comhairle, in 1981 you and I were members of the Joint Committee on Commercial State Sponsored Bodies. The chairman at that time was the former Deputy Roche and he outlined on behalf of the committee the reasons for the introduction of this type of Bill that would give power to committees. On that occasion he indicated that the Joint Committee on Commercial State Sponsored Bodies had no legal redress where a person refused to attend, in other words anyone requested to attend could thumb his nose at the committee.

Also deleted on Committee Stage of the Committees of the Houses of the Oireachtas (Privilege and Procedure) Bill, 1976, were the subsections designed to compel witnesses to come in and the provision of penalties for those who did not. The demand to increase the relevance of the committees has been ongoing since then. I was an ordinary member and a vice-chairman before I became chairman and during that period we had many examples of witnesses refusing to attend or submit documents to the committee. In 1984 the Department of Communications refused to submit its particulars about Irish Shipping's five year corporate plan. Also in 1984 the then chairman of Irish Shipping refused to attend a meeting of the joint committee and in December 1984 the Departments of Finance and Communications informed the joint committee that it would not be appropriate for their officials to attend the meeting and give evidence during an inquiry into Irish Shipping. In June 1985 officials of the Department of Energy did not attend a meeting of the joint committee during its examination of Bord Gáis Éireann. In March 1989 the Irish National Petroleum Corporation refused to meet the committee with the usual sub judice ploy because of a very minor matter in this semi-State body. This is one of the semi-State bodies that should be investigated regularly by the Joint Committee on Commercial State Sponsored Bodies.

In April 1989 members of the then board of Siúcre Éireann were invited individually to attend before the committee and they refused or were told not to attend. In February 1991 An Post refused to discuss its viability plan and any matters connected with it. This is not an exhaustive list and in all these instances the Joint Committee on Commercial State Sponsored Bodies was unable to take further action apart from voicing its disappointment at the negative response and how its credibility was being undermined by these refusals. In fact the whole committee system had become a joke in the eyes of the general public and the media rarely covered its discussions at that time. As a result the then committee decided to report to the Dáil on its Terms of Reference and resources as follows:

In the context of recent developments, revelations in certain semi-State bodies it is clear that the Joint Committee as currently resourced and empowered is severely hampered from carrying out the incisive and persuasive examinations that are required. While the Joint Committee believes that the mere fact of considerable resources will not of itself guarantee 100 per cent effectiveness nevertheless it can be argued convincingly that it is unreasonable and disingenuous to require the Joint Committee to act as an alert watch dog with only extremely limited resources. Consequently the Joint Committee recommends:

(1) that it be given power to compel witnesses to attend or produce documents and that penalties apply to non-compliance in accordance with the procedures to be determined by law;

(2) the question of the privilege of witnesses to be resolved by extending qualified privilege to witnesses before public meetings of the Joint Committee;

(3) a formal mechanism to be provided to facilitate debates on its report;

(4) adequate resources and

(5) the review of the sub judice practice be expedited as a matter of urgency.

In the absence of appropriate powers, realistic resources and follow-up debate on the action of the report the existence and operation of the Joint Committee will be seen or perceived to be only a token exercise in public accountability rather than the genuine monitoring body it was intended to be.

The then chairman of the committee, the former Deputy Roche, on behalf of all members of the committee presented this report to the House on 26 November 1991 and the matter was debated in the House in 1992. The then Minister for Finance, Deputy Bertie Ahern, promised action on the various areas mentioned but I am sorry to say that although assurances were given no action was taken. After the General Election of 1992 the matter was taken up on many occasions. I am amazed the Opposition has accused the Government of foot dragging but I can show the House four letters which I wrote to the then Minister for Finance, Deputy Bertie Ahern, between 1992 and 16 March 1994 to which I received the usual reply:

I wish to acknowledge your further letter regarding compellability of witnesses to appear before the Oireachtas committees. The matter is receiving attention and I will be in contact with you again as soon as possible.

That happened on four occasions in those two years and nothing happened. I compliment the Minister on bringing forward this Bill and on implementing other measures.

On 1 March of this year the order of reference of the Joint Committee was changed and widened. The main recommendation is that appointees to high office in the State shall attend meetings of the joint committees as appropriate and subject to legal constraints in their office to discuss issues which are relevant to the matters comprehended by paragraph 1, which is to report on the accounts and operations of the commercial semi-state bodies.

Order 11 states that Ministers and Ministers of State shall appear before the joint committee to discuss current policies relevant to the matters comprehended in paragraph (1) and the implementation of such policies in their Department. A Minister or Minister of State may request the joint committee to convene to enable him or her to explain current policy proposals or to initiate debate thereon.

This expanded our operation as regards Departments. Two Ministers have come before the Oireachtas Joint Committee on Commercial State-Sponsored Bodies since those additional terms of reference were given. The first Minister requested to attend the committee since it was set up in 1976 was the Minister for Arts, Culture and the Gaeltacht, Deputy Higgins, who dealt with the White Paper on broadcasting. The second was the Minister for Transport, Energy and Communications, Deputy Lowry, who discussed the difficulties in CIE. That meeting was well publicised but our terms of reference remained the same. While the Minister's accusations of surveillance etc. were well known to committee members, it was not possible to investigate them further and they had to be ruled out of order. However, the Minister was questioned. The meeting was lively and well attended.

This Bill is welcome because people who, under the present terms of reference may refuse to attend at or produce records before the committee will not be in a position to do so under this legislation. The committee of which I am chairman initiated the pressure to have introduced this type of legislation. The provisions of the various sections are set out in the explanatory memorandum as follows. Section 2 "provides that only those committees on which power to send for persons, papers and records is conferred by the Oireachtas shall be covered by the principal provisions of the Bill". That is in line with the terms of reference of our committee. Section 4 "provides that a committee may not direct a person to give evidence or produce or send a document which is not relevant to the committee's terms of reference". This is the way in which we have been interpreting those terms of reference over many years. This Bill seems to contain the exact copies of those terms for which we have been asking for a long time.

The many sections of this Bill will require close scrutiny by all Members, especially those who will deal with it on Committee Stage. Any Member interested in this will have an opportunity to suggest improvements and seek explanations as to how it will work. It will have a great influence on the type of work committees can do and will be an improvement on what the position has been.

The financing and staffing of committees, indeed the level of legal advice they will require, will need to be vastly increased. My committee has lost an analyst and a clerk who has been replaced by a clerk with responsibility in respect of all the other committees. I consider that to have been a retrograde step. Without adequate staffing and other resources we will not be in a position to carry on our present level of work, take on the responsibility that this Bill will impose on all committees and still hope to get good results.

Section 6 (7) "provides that the reasonable costs and expenses in relation to an appeal shall be paid to the person concerned by the Minister for Finance". If people do not live locally and have to travel to come before us or if they need legal representation, their expenses will have to be paid for out of the Votes of the Houses the Oireachtas. This will impose a heavy additional expense. On the other hand, if legal representatives come with witnesses—it will be necessary for them to have legal-advice since committees are held in public—we will need a proper legal section within the Houses so as to be able to give proper advice in respect of any investigation. With these extra powers the committees will be transformed. They will be in a position to carry out much more rigorous investigations, the type of role that was envisaged for them in the first place.

Many commercial semi-State bodies were integral parts of previous Departments. For example, An Post and Bord Telecom came out of the old Department of Posts and Telegraphs — other Departments had such responsibility, too. Until they were re-established as semi-State bodies, they could be questioned as part of a Minister's responsibility under the various mechanisms available in the House — Question Time, private notice questions, matters on the Adjournment or during debate on departmental Estimates. When the relevant committees were set up, questions from Deputies about the performance of these bodies were referred to their boards and that was the end of it. This was the reason for setting up a committee like the Oireachtas Joint Committee on Commercial State-Sponsored bodies, which is responsible for a sector where considerable amounts of public funds are spent and money collected through a form of taxation supported by grants from Government — taxation, legal fees, licence fees etc. Therefore, it is proper that public representatives have a forum in which they can question the operation of these bodies, their spending and their reports.

Without the powers being provided for in this Bill, that work could not be done adequately. There has been a great reluctance on many occasions by some chief executives and chairmen of boards to give evidence before Committees.

I welcome this Bill. I have drawn attention to what will be involved when its provisions are implemented. I look forward to the Committee Stage debate on this, one of the most important Bills ever to come before us, dealing, as it is, with the semi-State sector which involves the expenditure of some billions of pounds. Other committees will have similar problems to those of the committee with which I am associated. I congratulate the Minister on bringing the Bill forward.

Mr. Foley

As chairman of the Committee of Public Accounts I welcome the opportunity to make a brief contribution. I, too, congratulate the Minister on bringing the Bill forward. The committee made many requests for such a Bill over the years. There were many instances where witnesses refused to come before the committee.

The Bill provides for Oireachtas committees whose terms of reference include provision for calling persons, papers and records, powers of compellability in respect of witnesses and evidence both written and oral. Witnesses giving evidence to committees, or sending papers and records to them, will be accorded the same level of privilege as is enjoyed by a witness appearing before the High Court.

The Bill sets out a limited range of areas where the exercise of the committee's power to compel the attendance of witnesses, the giving of evidence or the production of documents is circumscribed. It prescribes the procedures to be followed in summoning and swearing witnesses, in obtaining evidence and where a witness disputes his compellability to give evidence. It provides a mechanism under which, in certain instances, the public interest can be invoked in such disputes. It sets out arrangements to protect the rights of persons mentioned in the course of a committee's proceedings and confers certain rights on employers or bodies whose employees or representatives are summoned as witnesses in connection with their employee or representative capacities.

Under Article 15.12 of the Constitution Members of the House have absolute privilege in respect of utterances in either House. This was extended by legislation to cover them at committee meetings. Witnesses appearing before such committees enjoy qualified privilege. This does not prevent legal action being taken against them for anything they say before a committee but provides them with a defence against libel or slander unless it can be proved that he or she was motivated by ill will, spite or any other improper motive.

The purpose of the Bill is to give to committees which have provision to call for persons, papers and records power to compel witnesses and evidence, both written and oral. Unfortunately compellability is essential. We know the work of committees has been thwarted by evasiveness and the reluctance of some to appear before them. This will not be tolerated any longer.

The Bill creates offences in the areas of contempt, perjury and non-disclosure of information and stipulates penalties — a fine not exceeding £1,500 on summary conviction and not exceeding £20,000 on conviction on indictment. Those penalties will make the relevant committees more effective and ensure they are taken seriously.

The previous speaker mentioned staffing and legal advice and these issues will be to the fore. It is imperative that legal advice be provided for the committees and that sufficient staff is available. This is an important Bill which will benefit all committees but particularly those who call witnesses. I welcome the Bill and the proposal to set up a committee of investigation.

Mr. M. McDowell

As a matter of politeness I suppose I must join in the general congratulatory chorus to the Minister and the Department of Finance on bringing this Bill before the House. In case it should be thought that Christmas arrived a month earlier, I must query why it has taken so long for the Bill to be introduced. I am driven to the conclusion that the present mess suited many people. If that were not so, the position would not have been tolerated for so long. I will not point the finger now but there is a vested interest somewhere which was served by making persons non-compellable as far as Oireachtas committees are concerned.

In a general way, it is a case of the executive arm of the State doing everything in its power to avoid responsibility to the legislative and representative arm of the State, the Oireachtas. This is only one of the ways in which the balance between the Executive and the Legislature has been badly distorted over the years. The Executive, in the form of Ministers and Ministers of State and the public service, has a horror of being compelled to come before committees. I recall asking at the beginning of this Dáil if Ministers would go before committees established under the previous Government when Deputy Reynolds was Taoiseach. I remember suggesting that the Minister should appear before the Committee on Foreign Affairs and was given the reply that Ministers are responsible to the Dáil and not to its committees. It was a constitutional doctrine and would not be trenched upon. That has been forgotten now and we realise it is necessary to make the Executive responsible to the Legislature in more ways than simply fencing with words on Question Time where, as the Chair has often pointed out, there is no way to compel an answer, still less to compel a document, to be given. It is somewhat different now in that a Minister can be compelled to go before a committee or if a Department is compelled to send documents it cannot refuse to do so. That is a great step forward.

I have been critical of a number of the Bill's features. Section 14 (1) provides:

A civil servant or a member of the permanent Defence Forces or the Garda Síochána shall not—

(a) while giving evidence to a committee, question or express an opinion on the merits of any policy of the Government or a Minister of the Government or the Attorney General or on the merits of the objectives of such a policy...

Consider what that idiotic provision will mean if translated into law. If the Government has a programme for drug eradication in our cities and Commissioner Culligan appears before a committee he will be expressly precluded from discussing the merits of Government policy. He cannot say: "This is daft; the fight against drugs is directed by ill-conceived policy". Why do we not want the merits of some Government policies discussed by those we charge under statute with the task of implementing them? It is absurd that the Commissioner cannot answer and the chairman must say that he cannot be asked such a question. He cannot say if the drugs policy is correct or incorrect, effective or ineffective and whether it offers a solution. That illustrates the fundamental conservation of this measure. What is at issue is to grudgingly give as little as possible to the Legislature. It is sad that the Government portrays this as a dramatic new Bill when what is dramatic are provisions of that kind.

If the Commissioner of the Garda Síochána is summoned before or even voluntarily appears before a committee of the Dáil to deal with drugs, for example, he is caught by section 14 (1) and is not permitted to express an opinion on the merits of any policy of the Government. If he believes our laws on drug abuse, for instance, are misconceived and are a waste of his members' time, he is bound to keep quiet about it and continue to bat as if he held the opposite opinion.

Section 14 (1) (b) also fascinates me. It states that a civil servant will not send to a committee a document in which the merits of any Government policy are mentioned. We should be able to consider that in the context of the beef tribunal — I do not want to be controversial — to see if a decision was made on advice or in the teeth of advice. That is one of the many examples. However, we cannot find out what was the case. If a strong condemnatory memorandum is sent to a Minister by his top adviser saying it is the universal opinion of the Department that a particular exercise is foolish, that expert opinion tends to support that view and urging him not to pursue it, a committee of this House charged at a later stage with investigating why a disastrous policy had been embarked upon will be expressly prohibited from knowing about or seeing such material. That is very sad.

Section 14 (2) is even more dramatic. It states that if by chance a poor benighted garda, soldier or civil servant expresses an opinion or produces a document before a committee in which an opinion is expressed on the merit of ministerial policy, it will be kept secret. Nobody, not even a Member of the committee, could divulge it to the public. They could not even mention that a decision had been taken in the teeth of advice. It is extraordinary that the only person who can be told is the Minister or relevant departmental authority whose policy might have been criticised. That is another sad provision.

One might believe in relation to section 14 that an enlightened and liberal Government would have at least proposed that a civil servant or member of the security forces could decline to answer a question on the grounds that it touched upon areas of policy. However, to prohibit them from doing so and to suppress the fact that they have done so is entirely misconceived and wrong.

I understand the Government has decided to make some significant changes to the Bill. I welcome that and, in particular, the Taoiseach's views in relation to the Director of Public Prosecutions. I respect the independence of the DPP's office and I concur with the view that it would be most unsatisfactory if the Director of Public Prosecutions could be hauled before a committee of this or the other House and asked to justify decisions in a particular case because we would effectively have Oireachtas trial of the case which was not tried before the courts. It is a legitimate aim of legislative policy to avoid that situation. However, this House should be entitled to ask the Director of Public Prosecutions, through a relevant committee, to explain his policy in relation to the prosecution or non-prosecution of certain categories of offences.

I will give an example of the difficulties that arise in those circumstances. The offence of dangerous driving has two sub-categories — dangerous driving simpliciter and dangerous driving causing death or serious bodily injury. Frequently the Director of Public Prosecutions prosecutes in the District Court dangerous driving where a death has occurred as a simple dangerous driving charge. By doing so, he avoids the difficulties and expense of a jury trial. Perhaps that is something he may legitimately take into account. However, he also brings about a situation in which the public, in particular relatives of the deceased or badly injured person, find it impossible to believe that the necessary ingredients for an indictable offence were not present. It would be reasonable for this House to ask the present incumbent of that office to come before a committee to lay out the general principles he applies to decisions in such cases.

There are many other cases where general policy decisions of the Office of the Director of Public Prosecutions should be the subject of public discussion. If we need to change the law in a particular case to make an offence indictable rather than summary, the Director of Public Prosecutions is one of the first people we should ask about the implications of such a decision. We would need to know the policy implications of a decision we were contemplating for his office.

It is nonsense to say that because the Director of Public Prosecutions is independent he should not be accountable to this House in certain respects. The Ombudsman is as independent as the Director of Public Prosecutions and is appointed by a resolution of both Houses of the Oireachtas — it is not even a Governmental appointment — but at least he is required to report to this House. I do not believe there is any reason that the Director of Public Prosecutions should be exempt. I am delighted the Government is at least moving towards creating a situation in which the Director of Public Prosecutions will be amenable in a reasonable way to this House.

I have a number of other problems with this Bill, including the sub judice rule. The provision in section 5 (1) states: “Subject to the provisions of this Act, a committee may not direct a person to give evidence, or produce or send a document to it, or attend before it to give evidence, or produce a document, to it, relating to—”. Section 5 (1) (b) refers to “a matter the subject of proceedings currently before a court in the State, the Court of Justice of the European Communities, the Court of First Instance of the European Communities, the European Court of Human Rights or the European Commission of Human Rights,”. Is the phrase “subject of proceedings currently before a court in the State” to be construed narrowly or widely? If that means any proceedings which have been commenced in a court, this provision would be disastrous because it would mean that by the simple expedient of issuing a High Court writ or having somebody else do so, one could declare a matter off limits to a committee of the Oireachtas.

If it has the narrower meaning of some proceeding which is currently being decided on by a court and set down for trial or at an advanced stage where an Oireachtas committee would obviously be trespassing on the judicial function by embarking on the same territory, there could be a very different meaning to this section.

I am concerned that this House is always advised that the conservative meaning is the correct one. We are likely to be advised this means that any matter in relation to which proceedings have been commenced in a court is off limits to an Oireachtas committee. I would consider that a retrograde provision in any statute concerning the power of an Oireachtas committee.

I am also concerned with the penalties provided for in the Bill. For instance, on conviction on indictment for refusing to come before a committee of the House a person is liable to a penalty of £20,000. There are some people for whom that amount would be practically nothing. Some people would not face a tribunal or committee of inquiry if by doing so it would cause them significant personal or financial damage. I can imagine some of the merchant princes for whom payment of a £20,000 fine would be a very good way to bring about a year's delay in becoming responsible to a committee of this House. Many people who might elect for trial on indictment would consider themselves well off if they were fined only that amount.

The High Court should have power to compel a person to attend a committee and to punish them for contempt of court if they disobey the order. That action would be effective. If the High Court could, on the application of the Attorney General, dictate that a person must attend a committee, otherwise they will be punished in the same way as people who disobey other court orders, there would be some hope that the very rich merchant princes would be frightened into attending. As it stands some people might find it very sensible to ignore a committee.

Under section 3 (7) a person may be found guilty of an offence for failure to appear before a committee. We should specifically provide that an Irish citizen, wherever he or she lives, on being paid proper travelling expenses, should be liable to attend a committee. I do not want to be told that a businessman is too busy to attend and will remain outside the jurisdiction. It should be an incident of citizenship that a person, whether living in Paris, London, the Isle of Wight or the Isle of Man, who receives a summons to attend an Oireachtas committee is obliged as an Irish citizen to comply with it and refusal to do so would be an offence under law. Subsection (7) is doubtful in terms of territoriality. Provision should be made for requests to people outside the ordinary jurisdiction of our courts to attend committees. It should be incumbent on an Irish citizen living abroad to at least answer a request of a committee and to bring documents from abroad in so far as they are in his possession or power of procurement, irrespective of whether failure to comply with such an order would be deemed to occur within the State.

I am unhappy with the exemption procedure contemplated for the Taoiseach in sections 6 and 7 and the functions given to the High Court in that regard. Time does not allow me to elaborate on the extent of my unhappiness — I have done so before in public and would prefer to do so again in circumstances where the exact implications of individual decisions under those sections could be considered at greater length and in slightly less formal circumstances. Presumably that will be done on Committee Stage.

The Bill, while welcome, is not generous in its spirit. It is grudging and externally conformist but internally reluctant legislation in terms of increasing the powers of the Oireachtas and rebalancing what I consider the present distorted relationship between the Legislature and the Executive arm of the State. In that context I do not want to be negative. There is much in the Bill that is good, welcome and manifestly overdue. An explanation is due from the powers that be — I am not talking about politicians in office but a generation of politicians pressurised in a different direction by people who believed the Oireachtas should be kept in its place — on the reason it has taken so long for this Bill to come into being. We will not receive that explanation and the best redress we have is to make it as good a Bill as possible during its passage through Committee and Report Stages. I welcome the Bill and congratulate the Minister on it. I hope it will be capable of improvement and that some of the matters I mentioned will be considered.

Mr. N. Ahern

I welcome the Bill. Perhaps I am not the best person to speak on such a Bill since I have been a Member of the House for only a few years and may not understand the workings of committees down the years. Deputy Kavanagh listed various reports by sub-committees who believed they had been stymied in carrying out their work. Obviously long serving Deputies have a greater appreciation of that matter. While there was need for a Bill such as this, the events of November last year probably made it more obvious that it was urgently required.

There are one or two interesting comments in the Minister's speech. On reading the first page I wonder whether there is a hidden message. The Minister said that when a party comes into Government it has great ideas about solving the problems of the world. Further in his speech he seemed to be in a very despondent mood, as if he knows something of which I am not aware.

Mrs. Doyle

I would not read too much into it.

Mr. N. Ahern

I will quote the Minister's statement:

Any party coming into Government carries with it some vision of the direction which it wishes society to take. It is, in the case of my party, such a vision of the needs and rights of the public — ordinary workers and the underprivileged — which has animated our representatives, our activists and our core supporters since before the foundation of this State.

Later he states: "I think no Minister has left Government, for the Opposition benches, without a sense of things left undone or things done less than well". That makes me wonder whether there is a problem with next year's Estimates of which I am not aware, or maybe the Hitler remark is coming back to haunt the Minister. Perhaps the Cabinet is looking for a scapegoat and the Minister believes the finger is pointed at him. It is rather extraordinary — it is the type of speech one would expect somebody to write on leaving the Dáil after about 40 years. The Minister also spoke — if he is leaving he seems intent on bringing others with him — about the free ranging, spontaneous contributions from Deputies, probably Deputies such as me, and said that we might need new chairmen. What does that mean? Is he referring to new Members or saying that in future we will have to approach Deputy McDowell's colleagues in the Law Library? Will independent senior counsels act as chairmen to whip us in and quickly cut out the messing? I do not know what the Minister means. I have nothing derogatory to say about the current chairmen; I am sure they are as good or as bad as any other Members. Perhaps the Minister will tell us what he means because it appears he intends to bring in outside chairmen to whip us into line.

The Bill is a welcome attempt to reform and modernise the work of the Oireachtas. However, the Taoiseach was questioned earlier today about the North and his statement of a few days ago, that nobody outside this House should be better briefed than anybody within it, was quoted to him. Many things are said and put on record but are not subsequently lived up to. This is fine legislation but some people seem to think that once one genuflects in the right direction one need not act on what one says.

The committees are working well although perhaps there are too many of them. In the three years I have been in the House the number of committees has rocketed. The philosophy behind the system is grand but most of us have constituency work to do as well. How are we to run from one committee room to another if we have to do our constituency work at the same time?

I agree with giving committees real power if they are asked to do a job. However, I have attended committee meetings this year which were only attended by two or three Deputies. That is understandable because they have many other things to do. It is fine to try and imitate a British or European system of committees in which Members specialise in particular areas, but unless we go the whole hog and introduce single seat constituencies we cannot grapple with the problem. Imitating other countries will not work if we must cram everything into three days when our minds are constantly on other problems.

Perhaps it is different when one represents a constituency such as Dublin south-east; perhaps there is not the same volume of constituency queries. However, most of us represent middle of the road constituencies where, sadly, consituency work takes up too much of our time. That is a problem. While to try to imitate the foreign system of committees which have real power and are composed of specialists is good, one cannot have one's cake and eat it. One cannot have a parliamentary system like ours and expect members of large parties who are looking over their shoulders at their colleagues rather than at the opposition, to participate effectively in committees. I do not have that problem at present, although I am supposed to work towards bringing in a colleague——

Mr. M. McDowell

Councillor Taaffe might have something to say about that.

Mr. N. Ahern

There is a fundamental problem which we must address. The committee system cannot work to its full potential while we have the present electoral system.

A number of speakers have said the introduction of this Bill will mean no more tribunals like the beef tribunal because we will be able to do work like that here for a fraction of the cost. I hope they are right. However, we saw what happened in the Oireachtas Joint Committee on Commercial State-Sponsored bodies which dealt with the Lowry affair in recent weeks. The Government will always have a majority on committees. We will have to get away from that and give committees freedom to do what is right. There is no point in establishing a system and allowing a committee to deal with issues by calling witnesses and hearing evidence when ultimately it will vote along party lines. There is no point in going through the procedures unless the committees are given the wherewithal to to the job.

Deputy Kavanagh referred to instances when people refused to appear before committees. Any official working for an organ of the State should appear before such committees. I am horrified that people have refused or tried to evade doing so in the past. However, the officials are probably no different from Ministers who often are reluctant to appear before committees or to attend Adjournment debates. They try to wangle out of it in whatever way they can. I suppose it is a natural human reaction to try to avoid awkward questions.

The Government said this legislation has been studied in great depth, yet it proposed an amendment with regard to the DPP one week after the Bill was published. If it was studied in such great depth how can this happen? If the Bill was deeply thought out I fail to see how the Government could omit to provide for a fundamental public official and so quickly realise that he had been left out.

Mr. M. McDowell

The "Liveline" programme on RTE might explain it.

Mr. N. Ahern

It is extraordinary. The Bill also provides that the Attorney General can appear before committees on some issues. One might be slightly nervous about how that provision will be implemented.

The previous speaker mentioned a number of omissions in the Bill which refers to matters "respecting the security of the State". Part of the problem is that every public servant thinks everything he does and everything that crosses his desk affects the security of the State. I am not jibing at public servants; I worked in a semi-State body for long enough. However, we all try to create a mystique about what we do and that phrase could be interpreted in many ways. We know what it should mean but it is open to interpretation.

The Bill also refers to matters currently before the courts. It is cheap and easy to get a solicitor's letter. Does that mean that the matter is before the courts or that the procedure has started? The Bill is good and could work well but if somebody wished to make a mess of it and bind it up in bureaucracy he could successfully do so by referring to those provisions. Section 5 (2) refers to "the source of any information contained in an utterance by a member in either such House or at a meeting of a committee". If I came to the House with information and refused to disclose its source I would probably be hounded by the media, although they are quite good at not disclosing their own sources. I am nervous about how that provision will be interpreted, not by this Government but by future Governments which might not be fully committed to the objective of the legislation.

The Chief Whip referred to a committee of investigation. What will be the role of that committee? Will it deal with all matters of inquiry that would previously have been dealt with by the other committees? There are so many committees that their business is overlapping. There was a recent problem regarding the Garda Commissioner's appearing before the Joint Committee on the Family. Some committees appear to be operating in different directions dealing with various issues. It appears that sometimes they do not know what work they should be dealing with and are looking for work to include in their programme. I imagine other committees would be annoyed if the committee of investigation were to deal with matters of great interest and priority.

This legislation is part of the Government's OTA approach. Openness, transparency and accountability are words which have been said so often that they are now part of the Government's folklore, but is it living up to those principles?

I raised a matter on the privatisation of a section of CIE on the Adjournment before the summer recess, but the Minister for Transport, Energy and Communications. Mr. Lowry, did not come into the House to reply to it. He said that matter was a policy decision for CIE although most of us thought it was an important matter that required Government approval. Since then the Minister is almost telling the company what newspaper it should buy. He is saying that the board of CIE deals with major issues, but we learned earlier today that he will take the easy option of moving in to take control of it by putting his cuckoos on the board.

Mrs. Doyle

Would the Deputy have called Dermot O'Leary a Fianna Fáil cuckoo? I want clarification on that.

Mr. N. Ahern

Today the Minister implied that three people from his Department will be appointed to the board. Two of them have been transferred and are now CIE employees and he will appoint a third person. If one has one's people on the board and has control over them that is one way of getting the board to do what one wants quickly.

Mrs. Doyle

I admire the Deputy's neck in suggesting that. We have a lot to learn. We are in the ha'penny place compared to the Deputy.

Acting Chairman (Mr. Fox)

Let us hear the Deputy.

Mrs. Doyle

Continue Deputy, this is interesting.

Mr. M. McDowell

Has the Minister of State an aptitude for learning?

Mrs. Doyle

I admire the Deputy's neck.

Mr. N. Ahern

This is not the appropriate time to talk about the Minister, Deputy Lowry. In the context of openness, it appears he is sacking the board of CIE for no particular reason. I cite that as an example of how the Government is committed to one set of principles but does not adhere to them. It is difficult to decipher the truth because of the manner in which matters are glossed over. There is so much tinsel, wrapping paper and spin doctoring surrounding every Government statement that it is difficult to distinguish truth from fiction. My philosophy is that I will accept the word of anybody provided that everybody is judged by the standards they set themselves. If a Government creates hype about the principles of openness, transparency and accountability, it will be judged by those principles. I accept that to date it might not have been caught out to any major extent.

I welcome the Bill. I hope the committee system will operate more efficiently and that people will not abuse their privileged position inside or outside the House, a matter about which we must be careful. It was mentioned that the reputation of some people outside the House has been damaged by statements made here. I like to think that Members on this side have not been guilty of that in the past, but some Members have abused their privileged position and some have been scathing in their comments about others outside the House.

The Minister for Social Welfare made over the top comments about some of the Catholic hierarchy during the past few days. When I raised that matter with the Taoiseach I was disappointed he did not distance himself from them. In the past one could have expected more from the Leader of Fine Gael. I am aware Fine Gael is Fianna Fáil's natural enemy. Whatever else we may say about Fine Gael its members are mainly decent people of depth and substance. It is extraordinary that a Fine Gael Taoiseach would not distance himself from Deputy De Rossa's personalised remarks about the Catholic bishops.

Mrs. Doyle

I am trying to relate the relevance of that matter to the Bill. What section do the Catholic bishops come under?

Mr. M. McDowell

If they are compelled to turn up.

Mr. N. Ahern

I was referring to the use and abuse of Members' privileged position in the Dáil, on committees and outside this House.

Mr. Connolly

The commission set up under the Ethics in Public Office Bill might be the appropriate body to decide on the admissibility of information in respect of witnesses that may be called before a committee. I interpret that to mean that civil servants may not give evidence if the information disclosed could prove to be commercially damaging. A decision can be made on that matter in various ways. If a civil servant were to write a letter to the Taoiseach of the day and inform him or her of a matter, he or she might decide not to proceed on a certain course. However, having regard to the manner in which the Civil Service operates, I would not envisage a Taoiseach overruling a civil servant unless he or she thought that the matter concerned was of great importance.

There are 17 committees, the work of many of which is unwieldy and overlapping. Another difficulty is that many of them are held on Dáil sitting days. That has to be taken into account also. I have been a Member for many years and I have heard allegations made here against non-Members which have proved damaging for commercial and other reasons. When people hear allegations made under privilege they often adopt the view that there is seldom smoke without fire. I reject such allegations which can have far reaching consequences. I never resorted to making such wild allegations and I do not intend to in the future.

While section 7 is important further clarification is required on which witnesses may be called or who may decline to appear before a committee. If issues not related to those under investigation are raised will the person who raises them be subject to legal action? The courts may rule certain Bills unconstitutional, for example the Landlord and Tenant (Ground Rents) (Amendment) Bill was returned to the House on three occasions. On two occasions the courts found it to be unconstitutional although the legal advice to the Government at the time was that it was constitutional.

A person who is not a Member of either House who appears before a committee must be clear on the extent of the privilege they enjoy. It is important to hear the opinion of the Attorney General on this matter. If it is not clarified witnesses called before the committee may request such clarification before giving evidence. If the implications are not spelt out clearly the issue may be contested in the courts.

I wish to refer to third parties, those named by witnesses giving evidence whose reputations are at stake. They, because of immunity granted to witnesses appearing before a committee, have put one opportunity to vindicate their name, by invoking the procedure set out in section 10. Under that section a person, having been named or referred to in the proceedings, may make submissions before a committee and request the committee to call other witnesses who may be cross-examined on behalf of the named party. That may have serious repercussions for those named. I need further clarification on a number of issues. Three decades ago Mr. Jock Haughey declined, and rightly so, to appear before a committee because he would not have privilege in giving evidence. We need to ensure that those who are called before the committee and those against whom allegations may be made get an opportunity to defend themselves. I have no doubt on Committee Stage that I and others will have much more to say on the issue.

I have been listening to words such as "transparency" and "accountability" for the past couple of years. One would think there was no accountability by successive Governments over four decades. I do not agree with that. Those Members who have been in Government have carried out their duties responsibly and with integrity. Those who have been in Government know that the big problem — the Minister will confirm this — is that Departments do not have enough money to go around. Nevertheless, public servants are always fair, reasonable and understanding. They give their views to the Government of the day on how they see their position.

I would like confirmation from the Minister that witnesses who come before a committee cannot be sued subsequently for making statements they believe are true but which are challenged by others outside this House.

Minister of State at the Department of Finance (Mrs. Doyle)

I thank Deputies from all sides of the House for their contributions, including my colleague, the Minister of State Deputy Higgins. This complicated and long awaited legislation has been generally welcomed. Some Deputies indicated it was the 1970s when we first started talking about the need to empower committees to operate effectively but the main reason this legislation has taken three or four years to see the light is the need to take careful legal advice on the steps we are now proposing to take in the Bill. In another context the Minister referred to the need for forensic care. This Bill needs to be handled with forensic care and, once enacted, the committees will have to implement it with the same forensic care to ensure natural justice for those appearing before them.

In opening this debate the Minister, Deputy Quinn, indicated the origins of the Bill and its place in the thinking of his party. I and the Fine Gael Party share his view of its importance, as do all Government parties, and it is that convergence of thinking which secured its inclusion in the joint agenda of the three Government parties set out in A Government of Renewal. If I bring a different emphasis to this Bill it is because of my own role in Government. The mandate I have been given, which is reflected in my assignment to each of the three Departments which have a central function in relation to the public service and the public sector, is to improve the responsiveness of all parts of the State machinery to the needs of the citizen and the client. Put simply, my mandate is to improve the performance of public institutions and to bring about certain fundamental reforms in the public service. This Bill facilitates both processes. It provides an enhanced means for democratically elected public representatives to elicit information and to close the information gap which exists not not only between them and the Government but between them and the personnel in public institutions. It also provides a new and, I hope, effective mechanism to make officialdom accountable for its actions.

I am glad Deputies Dermot Ahern and O'Donnell noted the connection between this Bill and the wider question of public service reform and made particular reference to the strategic management initiative. What the Bill and the initiative, as it has been developed under my stewardship, have in common is the inculcation within the public service of a culture of accountable management. The Bill provides one of the capstones to this process by improving the accountability of office holders and public administration to Parliament.

The second element will involve the creation of new mechanisms in public Departments and officers designed to ensure a heightened degree of individual accountability for their actions and, less spectacularly but more importantly, their use of public resources. I am happy to assure Deputy Ahern and other Members that I have presided over the working out of the arrangements this initiative requires and I expect shortly —certainly by the New Year, if not earlier—to be in a position to indicate the steps being taken to put them into effect.

I wish to make some general points. At times, the debate strayed beyond the confines of the Bill—at one stage we were talking about Catholic bishops and the management of CIE—into the wider topic of the committee system——

Mr. D. Ahern

It is very topical.

Mrs. Doyle

——the manner in which this House conducts its business and matters relating to the internal disciplinary processes of individual parties. While I, like every Member of this House, have views on these questions, I regard them as falling into the province of my colleague, the Minister of State, Deputy Higgins, who has under consideration possible changes in some of these areas.

Mr. D. Ahern

We await those with bated breath.

Mrs. Doyle

Some of the contributions made last night suggested that the effect of this Bill would be to diminish the existing powers of Committees or to place Members in a less advantageous position vis-á-vis witnesses than at present. This is not the case. The Bill deals with the grant of privilege to witnesses and of powers to compel witnesses to appear before committees and sets out the arrangements which will apply when those powers are exercised. It does not debar committees from proceeding as they always have when they are exercising compulson. It does not prevent them from discussing matters exempted from disclosure under this Bill except when they are utilising the powers it confers. That is an extremely important point.

Deputy O'Donnell alleged this Bill was delayed in the Department of Justice and that certain features of the Bill confirm this view.

Mr. D. Ahern

In the Attorney General's office.

Mrs. Doyle

I do not know how this canard gained currency in certain political quarters but I must take this opportunity to correct it. The Bill was given normal circulation through all Government Departments and involved substantial discussions at all stages with the State's legal advisers but nothing which would justify singling out the Department of Justice or its recent Ministers for criticism in this regard. It is true the Department of Justice had views, as would its counterparts in any jurisdiction, about the impact of public disclosure on certain areas of its operations. These are reflected to some degree in the Bill. The idea that security of the State is a blanket term which can be used at whim by officials of this or other Departments is also inaccurate. A court judgment some years ago narrowed the extent of this term. Deputy O'Donnell has available to her in her party a Deputy who contributed to the debate this evening with direct personal experience of operating in this sensitive area. He can no doubt explain to her the real concerns which certain exclusions in the Bill reflect.

The Bill prohibits civil servants and others from commenting on the merits of the policy of Ministers or the Government. This does not preclude them from explaining particular policy and the reasons underlying that policy nor does it prevent the members of committees forming their own views on the merits of that policy.

Mr. D. Ahern

A civil servant might not understand it.

Mrs. Doyle

It prevents a civil servant setting him or herself up as a judge on the success or appropriateness of a policy which has been chosen by the people who, unlike him or her, have been entrusted by the electorate with that task, in other words, the democratically elected Members of this House. I am gratified that Deputy Martin shares that view. Deputy O'Donnell would not wish civil servants or gardaí to arrogate to themselves functions appropriate to politicians.

We have a tradition of a politically neutral Civil Service and police force. This restriction is intended to maintain and reinforce that tradition. It is not unparalleled. The legislation passed in 1993 dealing with the Comptroller and Auditor General imposes precisely the same restriction on accounting officers who appear regularly before the Committee of Public Accounts.

Mr. D. Ahern

The Minister of State should give us some credit for not complaining about that.

Mrs. Doyle

I am dealing with a specific point raised by other Members, not by Deputy Ahern.

Deputy Jim Mitchell made it clear that, in exercising their powers under this Bill, committees will require the guidance of a legal adviser independent of the Attorney General and that view is shared by the Government. What remains to be settled is how that advice will be obtained, whether by direct recruitment, secondment or the deployment of private practitioner. My Department and the Office of the Houses of the Oireachtas have already engaged in discussions on these matters.

Several Members put down markers about specific sections and subsections to which they promised to return on Committee Stage, to which I have no objections. We have already signalled, as has the Minister for Finance, our readiness and openness to consider suggestions from the Opposition. At least two of the comments from the opposite side of the House struck a chord on this issue. Deputy McCreevy raised the matter of public interest and how it might be defined and Deputy O'Donnell queried the definition of "private affairs". In the light of the law in relation to privacy in other jurisdictions, we felt it appropriate to build in some protection for personal privacy. We also recognise that circumstances could arise in which an investigation of some importance could be frustrated by blinkered observance of a privacy restriction. The solution we have devised, after much heart-searching, is embodied in section 6 (4). On this and on other sections we are open to conviction that there might be, or is, a better way.

Deputy McCreevy appeared to be concerned that Members of the Oireachtas are to be beyond compellability. That is not the case, save in so far as they cannot be compelled to disclose the source of any statement made in either House or to a committee. In including this provision we are merely reflecting the decision of the courts. Deputy McCreevy was also worried about abuse of privilege, as am I. However, in this Bill we have included a specific provision that if somebody giving evidence abuses privilege, and is requested to cease giving evidence by the chairperson of the relevant committee and refuses to do so, they will no longer enjoy the High Court-type privilege. Equally, if any person is named or their identity hinted at in committee, they will have a right to come forward to put their case before that committee. This right will exist regardless of whether the person is named or identified by a Member of the Oireachtas or by a witness.

Deputy McCreevy and others raised the question of a change from last December's Act, a once-off legislative measure, compared with this Bill. There are two fundamental differences. First, it was clear that that committee would not be making a finding. Second, as any Member who sat through the proceedings of the subcommittee of the Select Committee on Legislation and Security will be aware, legal advice was given to them in relation to the line of questioning; in other words, strictly pre-ordained lines of inquiry were laid down.

I fear Deputy Dempsey does us too little credit. The Bill he saw and circulated as a draft last year contained one significant provision absent from this one. Under his Government's proposals committees could not have compelled Ministers or Ministers of State to attend before them whereas under mine they can; whether that is a worthwhile change I will leave to the House to judge.

I should like to allay one of the fears of Deputies Dempsey and Dukes — that section 9 has been drafted to make it impossible for a boss in the public or private sector to substitute himself or herself for any employee called before a committee. However, he or she does have a right to respond in person or through another employee.

Deputy Jim O'Keeffe raised a number of questions about procedural issues for committees arising from their compliance with the provisions of this Bill. Clearly, it would be neither possible nor appropriate for any legislative measure to seek to tell the Oireachtas, or any of its committees, how to organise its affairs in detail. I anticipate that the appropriate authorities in the House of the Oireachtas will draw up the necessary guidelines to ensure compliance if the Bill is sensible, fair and workable.

Deputy Michael McDowell painted a malign scenario based on the restriction imposed on civil servants or members of the Garda Síochána in dealing with the merits of Government policy. I must stress that that restriction applies only to those categories of Government employees. It does not prevent Ministers from disclosing the existence of advice contrary to the line followed or preclude committees, armed with the power to compel witnesses to appear before them, from following lines of questioning designed to elicit such information. On the evidence available to me. Deputy McDowell's forensic skills are well up to that task.

Deputy Connolly was worried that a witness who disclosed information under the provisions of the Bill would be open to legal action as a result. The Bill extends to a witness the privileges he or she would enjoy in giving the same evidence to the High Court; they cannot be sued. Deputy Connolly also raised the issue of third parties named in proceedings. As he noted, we have provided a right of rebuttal. However, there is an additional protection contained in section 11, designed to stop abuse of privilege on the part of a witness, including malicious references to third parties. When a chairperson tells him or her to stop, privilege ceases. That is an extremely important point and demonstrates the responsibility this Bill will place on the skills of chairpersons and how important such supervision and strict discipline will be at such committees.

Mr. D. Ahern

Justifying their payment.

Mrs. Doyle

That takes me back to references by Deputy Noel Ahern to the speech of the Minister for Finance, when he wondered whether the Minister had some Machiavellian motives in terms of what he said, whether the present chairpersons might not last too much longer, or whether he had other plans to recruit outside chairpersons — I am paraphrasing Deputy Ahern's concerns. The Minister was really pointing out the extra degree of responsibility to be placed in future on the chairpersons of the various committees to ensure the disciplined conduct of proceedings, particularly when witnesses have been compelled to appear before them.

I am conscious there is no great difference between the two sides of this House about the desirability and necessity for a Bill to deal with compellability and privilege. In essence, what we have been discussing are matters of detail, procedural points, exemptions in limitations and, I fear, some misunderstandings. These have received much consideration on the part of the Government and its predecessor. The Bill before Members is our best shot at striking a balance between the needs of committees, the requirements of Government in certain sensitive areas and the rights of witnesses and others. There appears to be a feeling, not confined to any one side of the House, that some further refinement of subsections, some more precise targeting of exemptions or restrictions is required.

When the Minister for Finance and I discussed this Bill with the Government Chief Whip we explicitly identified it as one which, more than any other, provided meat for Committee Stage. The debate today has made it clear that that view is widely shared.

The Government is not prejudiced in considering improvements or refinements suggested by any side. Our joint endeavours should be to produce a Bill which will withstand legal scrutiny and prove effective and readily workable in practice.

Question put and agreed to.