Dáil Éireann debate -
Wednesday, 16 Apr 1997

Vol. 477 No. 6

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

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

I move amendment No. 34:

In page 5, to delete lines 37 to 47 and substitute the following:

4.—(1) 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, that is not relevant to the proceedings of the committee.

(2) Where a direction to which paragraph (a) relates is given to a person and the person is of the opinion that evidence or a document to which the direction relates is not relevant to the proceedings of the committee concerned and so informs the committee —

(a) the committee shall either withdraw the direction or refer the question whether the evidence or document is so relevant—

(i) if the committee is a committee of Dáil Éireann or a subcommittee of such a committee, to the Chairman of Dáil Éireann,

(ii) if the committee is a committee of Seanad Éireann or a subcommittee of such a committee, to the Chairman of Seanad Éireann,

(iii) if the committee is a joint committee of Dáil Éireann and Seanad Éireann or a subcommittee of such a committee, to both such Chairmen,

(b) if the question is referred to either or both of such Chairmen, he, she or they shall decide it, and

(c) if he, she or they decides or decide or (if there is an appeal from the decision) the High Court decides that the evidence or document is not relevant to the proceedings of the committee, the committee shall withdraw the direction.

(3) Where the Chairman or Chairmen aforesaid make a decision under subsection (2), he, she or they shall cause the committee concerned and the person to whom the direction concerned was given to be notified of the determination and the person may, within 21 days of the notification, appeal against the determination to the High Court.".

The amendment is in response to comments made during Committee Stage that Government amendment No. 20, which provided for an adjudication procedure in cases where there were disputes on whether a committee's questions fell within terms of reference, made no provision for the Seanad. I undertook to introduce a Report Stage amendment to rectify this and the text of the amendment so provides.

The parliamentary draftsman used the phrase "not relevant to" instead of "outside" with regard to a committee's terms of reference on the basis that the former is more accurate drafting term. The basic meaning remains unchanged. The procedure provides for the Ceann Comhairle to decide if directions are within a Dáil committee's terms of reference. The Cathaoirleach will decide for Seanad committees and both officers for joint committees. If questions are held to be not relevant to the proceedings of a committee, the committee shall withdraw the direction. Witnesses will have 21 days to appeal to the High Court on the determination made under this section.

Mr. D. Ahern

I welcome the amendment and agree with it. It pulls the Ceann Comhairle and the Cathaoirleach within the realm of the legislation.

A person will have 21 days in which to appeal to the High Court. This is an extensive time limit and may hold up the deliberations of a committee.

Mrs. Doyle

A time limit has to be included. One could argue that the figure should be 14 days or 28 days but a period of 21 days is reasonable and rational. I suspect there is a precedent, although I am not in a position to quote it for the Deputy.

We are covering some of the ground covered by Deputy McDowell this morning. I was out of order in responding. He referred to the relationship between the Seanad and the Dáil and what may be included in the terms of reference for Seanad and Dáil committees. The Seanad has the same right to conduct its business through committees and to address issues within its role as a House of the Oireachtas. Deputies will be aware of the unique role of Dáil Éireann in relation to the collective responsibility of Government. This confers a particular status on the actions of Dáil Éireann and Dáil committees. I would not presume — Deputy McDowell did not do this morning — that the Seanad would conduct its affairs in a manner which would cause difficulties for this House.

When the legislation comes into operation, I imagine the matters that come within the remit of Seanad and Dáil committees will be made clear. We cannot have a committee of the Seanad and of the Dáil investigating separately the same issue, compelling the same or different witnesses to attend and seeking the same or different documents. One does not find parallel operations in the case of courts of law or tribunals. I do not envisage that it would be acceptable in this House. The matter will be resolved by the Houses of the Oireachtas.

Amendment agreed to.

An Leas-Cheann Comhairle

We now proceed to amendment No. 35. Amendment No. 35 is consequential on amendment No. 36. Amendment No. 46 is related to amendment No. 36. Amendments Nos. 37 and 38 form an alternative proposal to amendment No. 36. It is suggested, therefore, that amendments Nos. 35 to 38, inclusive, and 46 be taken together. Is that agreed? Agreed.

Mrs. Doyle

I move amendment No. 35:

In page 6, line 1, after "committee" to insert "(‘Oireachtas Committee')".

This is a drafting amendment to avoid any confusion, that the committee referred to in section 5 (1) is an Oireachtas committee. This is necessary as there are references in other parts of the subsection to a Government appointed committee.

In section 1 a committee is defined for the purposes of the Bill, save where the context otherwise requires, as a committee apointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas, other than the Committee of Members' Interests of Dáil Éireann or the Committee of Members' Interests of Seanad Éireann or a sub-committee of such a committee. While this is adequate in most sections where the term "committee" occurs, there are two references in section 5 to a committee, one of which refers to an Oireachtas committee and the other to a committee appointed by the Government. While a careful reading of section 5 will show that the context conveys the appropriate meaning in each case, there may be a small risk of ambiguity. On the advice of the parliamentary draftsman, therefore, this amendment is being made to remove any risk of confusion as to the meaning of the section.

On amendment No. 36, as I indicated on Committee Stage and in my comments on the previous two amendments, I accept the principle that only the proceedings of properly organised Government meetings should be exempt from compellability under the Bill in deference to the Supreme Court ruling on Cabinet confidentiality. The amendment provides that all formal Government meetings will be exempt from compellability. The proceedings of Government appointed committees will be exempt only if the following conditions are met: membership of the committee consists of members of the Government together with one or more Ministers of State and the Attorney General; the holding of the meeting was authorised by the Government; the proceedings of the meeting are to be reported to Government, and the Secretary to the Government is to confirm in writing to the investigating committee that the last two conditions listed were met.

The amendment removes the extension of confidentiality to meetings involving civil servants. Deputies will be aware this issue was the subject of a protracted debate on Committee Stage. We have not removed Ministers of State, however, from the scope of the section as would be done by amendment No. 37. Deputies will be fully aware of the roles of Ministers of State, particularly in relation to crucial cross-Department matters, which from time to time is reflected in their involvement in Cabinet committees in their own right or as substitutes for the member of Government responsible for the Department of State to which they are assigned. The arguments for excluding discussions held at meetings of the Government can be said to apply also to the many essential functions performed by Ministers of State concurrently as Ministers of the Government.

Amendment No. 37 is a repeat of Committee Stage amendment No. 28a. As amendment No. 36 provides for the principle set out in the amendment, I ask Deputy Ahern to consider withdrawing it. The only Government appointed committee meetings which are to remain exempt from compellability are those involving members of the Government together with one or more Ministers of State and the Attorney General. This new definition captures the essence of the amendment. Only those meetings authorised by and reporting to the Government and certified as Government meetings by the Secretary to the Government will be exempt from compellability.

Amendment No. 38 seeks to define and introduce verification procedures for Government appointed committee meetings. As I stated on Committee Stage, I can see merit in the principle as none of us would like to see a situation where informal conversations between members of the Government could be regarded as a meeting of a Government committee. On the basis and in fulfilment of the commitment I made on Committee Stage to bring forward an amendment on Report Stage on this point, Deputies will see from amendment No. 36 that the essence of Deputy Ahern's proposals in both amendments has been provided for.

Amendment No. 46 is a natural consequence of amendment No. 36 and is introduced in response to comments made by Deputy Ahern on Committee Stage that, for convenience, meetings could be retrospectively deemed to have been Government appointed committee meetings for the purpose of avoiding compellability in regard to the proceedings of such meetings. The amendment provides that meetings of people who meet the qualifying criteria of a Government appointed committee but whose meetings were not authorised by the Government will not be retrospectively deemed to have been Government appointed committee meetings and, therefore, exempt from compellability.

Mr. D. Ahern

I thank the Minister of State for her lengthy explanation of the amendments in her name. This is one of the most important sections of the Bill. When drafted, it extended the principle of Cabinet confidentiality not alone to meetings of one Government Minister and, say, five Ministers of State but to meetings of one Government Minister and a plethora of say, ten civil servants. I understand programme managers were not included for a particular reason.

I am glad the Minister and the Government listened to the strong views of Opposition and Government Deputies who believe this proposal goes totally against what the Government said about the relaxation of the Cabinet confidentiality rule. The Bill as initially drafted would have tightened up Cabinet confidentiality by extending the principle to other meetings which the framers of the Constitution never intended should be covered.

The Minister proposes to restrict the principle of Cabinet confidentiality to meetings with a Cabinet Minister and perhaps some junior Ministers but she has not gone far enough. She is extending the principle to committees of the House. Most people agree that, in view of events of recent years, we should in some way relax the Cabinet confidentiality rule. This is one of the reasons I endeavour in my amendments Nos. 37 and 38 to neuter, so to speak, the Government's proposal in section 5(1)(a) and to restrict the principle of Cabinet confidentiality to Members of the Government and the Attorney General. Even though the Government's original proposal has been watered down as a result of very strong representations, the Bill still goes too far.

The Taoiseach has stated that the Government will introduce a Bill to relax the Cabinet confidentiality rule. If this is the case then the proposal in this Bill goes in the opposite direction. If the Minister's attempts to let in the light under this Bill are anything like those we will see under the Cabinet confidentiality Bill then we will be very disappointed. The Bill dealing with Cabinet confidentiality will seek to release the 15 Members of the Government from the principle of Cabinet confidentiality in certain cases. However, this Bill goes in the opposite direction.

The Minister's amendment No. 46, which she tabled as a result of representations made by me and others on Committee Stage, deals with the retrospective authorising of confidentiality to a committee meeting in cases of political strife, for example, where a Minister or Minister of State of one party in a coalition Government refuses to come before a committee. One may say that this is stretching the imagination but, as history shows, there are numerous such cases.

We are not doing ourselves a favour by restricting further the ability of Oireachtas Members to inquire into issues which arise from time to time. By restricting this ability further the Minister is setting at naught all the honeyed words uttered by the Taoiseach during the past two years about openness, transparency and accountability and all the fine words uttered by the Tánaiste and Minister for Foreign Affairs and the Minister for Social Welfare when they were in Opposition. This proposal is wrong as it will tie the hands of Deputies and will extend rather than restrict the rule of Cabinet confidentiality. The Government appears to be going in two directions on this issue.

The Minister may be aware of the proposals in the Cabinet confidentiality Bill which apparently will be published within the next week or so. I do not know if Ministers of State attend discussions on such issues——

Mrs. Doyle

Maybe some Ministers of State do but I do not.

Mr. D. Ahern

This Government made an exception by allowing the Minister of State, Deputy Pat Rabbitte, to sit on the high chair at Cabinet meetings as a two-thirds Minister. Once one gives way on this issue then one is effectively giving way on the entire issue of Cabinet confidentiality. This decision raised serious questions about whether the concept of collective responsibility would also apply to him. I accept that the Chief Whip and Attorney General also attend Cabinet meetings but they do not have voting rights and their positions are time honoured ones. The only reason the Minister of State, Deputy Rabbitte, was allowed to attend Cabinet meetings was to make up the numbers and to keep people happy.

I accept that the Minister has received her instructions on this issue and will not accept my amendment, but it is important to point out that this proposal is wrong and that the Government is extending, not relaxing, the rule on Cabinet confidentiality. If it could have got away with it, it would have extended it to cover meetings between Ministers and civil servants. This would have been wrong and I am glad it has seen the light on this point.

Under the Constitution a meeting with a Minister or Minister of State is not covered by the principle of collective responsibility. Under the Minister's proposal it will not be open to a person affected by the deliberations which arose out of a meeting with a Minister or Minister of State to raise the matter at a committee meeting. I wager that this person will be entitled to take a case to court on the basis that his constitutional rights have been infringed by the extension of the collective responsibility rule to such meetings. This proposal is wrong and I ask the Minister to accept my amendments.

Mrs. Doyle

I could have written the Deputy's script as we had a protracted debate on Committee Stage and I know his views on this matter.

He conceded that I have substantially amended this section and the defination of "Government committee", as it applies to this section, since the Bill was originally published on foot of representations made to me and trenchantly expressed by Deputies on all sides of the House on Committee Stage. I am unable to go the last step with him in relation to the point made about Ministers of State. To remove Ministers of State from the concept of a Government committee in regard to what we are talking about would not be recognising the reality of the role of Ministers of State, particularly in relation to crucial cross-departmental matters, which is reflected in their involvement in Cabinet committees. Ministers of State are involved in Cabinet committees in their own right or as substitutes for members of the Government. Given the enormous increase in the demands on Government Ministers to be here, there and yonder at the one time, Ministers of State regularly substitute for their line Minister at Government committee meetings.

Mr. D. Ahern

Not at Cabinet meetings.

Mrs. Doyle

We are talking about Government committees.

Mr. D. Ahern

The effect of what the Minister of State is doing will be to extend the whole principle.

Mrs. Doyle

No. The Deputy is making that a next step, legitimately in the context of the debate, but I mentioned Government meetings and sub-committee meetings. The role of a Minister of State has been expanded beyond recognition compared to what it was ten or 20 years ago. Ministers of State substitute or partake in their own right on Government sub-committees and at Government committee meetings on a range of issues by virtue of the role of Ministers having greatly extended on the international, European and Anglo-Irish scene generally. As demands on Cabinet Ministers increased, the role of the Ministers of State was upgraded so they could substitute for their Minister or another Minister at Government meetings or committee meetings generally. The arguments for excluding discussions held at meetings of the Government can be said to apply also in relation to the many essential functions performed by Ministers of State concurrently with Ministers of the Government.

I am not in a position to accede to the point being made. I do not know nor am I privy to what is contained in the forthcoming legislation on Cabinet confidentiality. Other Ministers of State may know — they may have been part of the negotiations — but I was not in that particular loop. That does not mean the point being made is not valid. I do not know how that legislation will define Government meetings or sub-committee meetings, but there would be lack of logic if what we were doing was not in step with what will be done in that Bill.

Mr. D. Ahern

That is what concerns me.

Mrs. Doyle

Anyone with a rational thought process would assume they would have to be moving together. We will know soon enough when we debate the legislation on Cabinet confidentiality. The role of a Minister of State would mean we cannot omit them from this definition of a Government committee or sub-committee, thereby excluding them from this compellability provision. They must be excluded as part of a Government committee, along with others already defined in the Bill.

The proceedings of Government-appointed committees will be exempt from compellability under the Bill only if the following conditions are met: membership of the committee consists of members of the Government together with one or more Ministers of State or the Attorney General; the holding of the meeting is authorised by the Government; the proceedings of the meeting are reported to Government; and the secretary of the Government is to confirm in writing to the investigating committee that the last two conditions, namely, the holding of the meeting having been authorised and the proceedings of the meeting reported to Government, were met.

Mr. D. Ahern

May I say a few words in response to the Minister of State?

An Leas-Cheann Comhairle

Strictly speaking, I am not in a position to call the Deputy again.

Mr. D. Ahern

I accept that but it is recognised this was a particularly complex Bill, and we did not have an opportunity to discuss the Minister's amendment.

An Leas-Cheann Comhairle

Perhaps we can invoke the rule providing for an additional two minutes to respond.

Mr. D. Ahern

I do not subscribe to the principle that Ministers of State are, in effect, the Government for the purpose of Government meetings. Under the Constitution, the Government alone is governed by the principle of collective responsibility. If there is a move to dilute that in some way, which the Government apparently intends to do by putting it to a referendum, it is going in the opposite direction. If we had ordered the business differently and waited until the Cabinet confidentiality Bill had been produced, we might have known where we were going on this issue.

In relation to one of the meetings with a Minister and some Ministers of State, from what I can gather——

Mrs. Doyle

All meetings will have at least one Government Minister in attendance.

Mr. D. Ahern

I accept that, but the Ministers may be from the one party which, in a state of political flux, might cause difficulty. The secretary to the Government could be in difficulty in regard to whether it is a meeting of the Government. I am merely trying to tease this out. The Minister's amendment does not suggest that the secretary to the Government would be in attendance at one of these meetings. The proceedings of the meetings have to be reported but it does not necessarily say the secretary to the Government has to be in attendance. Perhaps the Minister of State would indicate whether that is the case. From my reading of it, any secretary or somebody else could be in attendance but it does not have to be the secretary to the Government. The secretary to the Government merely has to sign a document to say the meetings was authorised by the Government. There is a difficulty in that it is a diminution of Cabinet responsibility. It is spreading out Cabinet confidentiality over a much wider area than has ever been envisaged.

An Leas-Cheann Comhairle

Perhaps we can also invoke the two minute rule in the case of the Minister of State.

Mrs. Doyle

We have been doing that all day.

An Leas-Cheann Comhairle

Strictly speaking, when I call the Minister of State to conclude the debate on the amendment, it must conclude. We can discuss this matter all day if Members wish to revert to Committee Stage. The Minister of State has two minutes to reply.

Mrs. Doyle

I appreciate that, a Leas-Cheann Comhairle. We are extending the basic principle to include Ministers of State. We are reflecting the reality of the role of Ministers of State in relation to Government meetings and sub-committee meetings. I have made that quite clear. That is as it should be because Government would not function without the role of Ministers of State. All of the meetings deemed to be Government meetings or sub-committee meetings, and so excluded from the compellability provisions here, will have to meet the four points I have already mentioned and they will be presided over by one Cabinet Minister. The secretary to the Government does not have to be at all Government meetings or sub-committee meetings, but meetings will have to be reported back to the Government and the secretary will have to confirm in writing to the investigating committee that that condition was met and that the meeting was originally authorised by the Government.

An Leas-Cheann Comhairle

Is the amendment agreed?

Mr. D. Ahern

It is not agreed. The way the Government is going in relation to this is reprehensible.

Amendment put.

The Dáil divided: Tá, 70; Níl, 54.

Tá

• Ahearn, Theresa.
• Allen, Bernard.
• Barry, Peter.
• Bell, Michael.
• Bhamjee, Moosajee.
• Boylan, Andrew.
• Bradford, Paul.
• Bree, Declan.
• Broughan, Thomas.
• Bruton, Richard.
• Burke, Liam.
• Burton, Joan.
• Carey, Donal.
• Connaughton, Paul.
• Costello, Joe.
• Coveney, Hugh.
• Crawford, Seymour.
• Creed, Michael.
• Crowley, Frank.
• Currie, Austin.
• Deasy, Austin.
• Deenihan, Jimmy.
• Doyle, Avril.
• Dukes, Alan.
• Durkan, Bernard.
• Finucane, Michael.
• Fitzgerald, Brian.
• Fitzgerald, Frances.
• Flaherty, Mary.
• Flanagan, Charles.
• Fox, Mildred.
• Gallagher, Pat (Laoighis-Offaly).
• Gilmore, Éamon.
• Harte, Paddy.
• Higgins, Michael.
• Hogan, Philip.
• Howlin, Brendan.
• Kavanagh, Liam.
• Kemmy, Jim.
• Kenny, Seán.
• Lowry, Michael.
• Lynch, Kathleen.
• McCormack, Pádraic.
• McDowell, Derek.
• McGahon, Brendan.
• McGinley, Dinny.
• McManus, Liz.
• Mitchell, Gay.
• Mitchell, Jim.
• Mulvihill, John.
• Nealon, Ted.
• Noonan, Michael (Limerick East).
• O'Keeffe, Jim.
• O'Shea, Brian.
• O'Sullivan, Toddy.
• Owen, Nora.
• Pattison, Séamus.
• Penrose, William.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Ryan, John.
• Ryan, Seán.
• Shatter, Alan.
• Sheehan, P.J.
• Shortall, Róisín.
• Taylor, Mervyn.
• Timmins, Godfrey.
• Upton, Pat.
• Walsh, Éamon.
• Yates, Ivan.

Níl

• Ahern, Dermot.
• Ahern, Michael.
• Ahern, Noel.
• Aylward, Liam.
• Brennan, Matt.
• Brennan, Séamus.
• Browne, John (Wexford).
• Burke, Raphael.
• Byrne, Hugh.
• Callely, Ivor.
• Connolly, Ger.
• Coughlan, Mary.
• Davern, Noel.
• de Valera, Síle.
• Dempsey, Noel.
• Doherty, Seán.
• Ellis, John.
• Fitzgerald, Liam.
• Flood, Chris.
• Foley, Denis.
• Haughey, Seán.
• Hughes, Séamus.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kenneally, Brendan.
• Keogh, Helen.
• Killeen, Tony.
• Kirk, Séamus.
• Kitt, Michael.
• Kitt, Tom.
• Leonard, Jimmy.
• Martin, Micheál.
• McCreevy, Charlie.
• McDaid, James.
• Moffatt, Tom.
• Molloy, Robert.
• Moynihan, Donal.
• Nolan, M.J.
• Ó Cuív, Éamon.
• O'Donnell, Liz.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Batt.
• O'Keeffe, Ned.
• O'Leary, John.
• O'Rourke, Mary.
• Power, Seán.
• Quill, Máirín.
• Ryan, Eoin.
• Smith, Brendan.
• Treacy, Noel.
• Wallace, Dan.
• Walsh, Joe.
• Woods, Michael.

Tellers: Tá, Deputies Durkan and B. Fitzgerald; Níl, Deputies D. Ahern and Callely.

Amendment declared carried.

Mrs. Doyle

I move amendment No. 36:

In page 6, to delete lines 5 to 13 and substitute the following:

"(a) relating to discussions at a meeting of the Government or a committee appointed by the Government whose membership consists of members of the Government,

(b) relating to discussions at a meeting of a committee appointed by the Government whose membership consists of one or more members of the Government together with any of the following, that is to say, one or more Ministers of State and the Attorney General if —

(i) the holding of the meeting was authorised by the Government,

(ii) the proceedings of the meeting were required by the Government to be reported to them, and

(iii) the Secretary to the Government so states in a document signed by him or her and furnished to the Oireachtas Committee concerned,".

Amendment put.

The Dáil divided: Tá, 66; Níl, 54.

Tá

• Ahearn, Theresa.
• Allen, Bernard.
• Barry, Peter.
• Bell, Michael.
• Bhamjee, Moosajee.
• Boylan, Andrew.
• Bradford, Paul.
• Bree, Declan.
• Broughan, Thomas.
• Bruton, Richard.
• Burke, Liam.
• Bruton, Joan.
• Carey, Donal.
• Connaughton, Paul.
• Costello, Joe.
• Coveney, Hugh.
• Crawford, Seymour.
• Creed, Michael.
• Crowley, Frank.
• Currie, Austin.
• Deasy, Austin.
• Deenihan, Jimmy.
• Doyle, Avril.
• Dukes, Alan.
• Durkan, Bernard.
• Fitzgerald, Brian.
• Fitzgerald, Frances.
• Flaherty, Mary.
• Flanagan, Charles.
• Gallagher, Pat (Laoighis-Offaly).
• Gilmore, Éamon.
• Harte, Paddy.
• Higgins, Michael.
• Hogan, Philip.
• Howlin, Brendan.
• Kavanagh, Liam.
• Kemmy, Jim.
• Kenny, Seán.
• Lynch, Kathleen.
• McCormack, Pádraic.
• McDowell, Derek.
• McGahon, Brendan.
• McGinley, Dinny.
• McManus, Liz.
• Mitchell, Gay.
• Mitchell, Jim.
• Mulvihill, John.
• Nealon, Ted.
• Noonan, Michael (Limerick East).
• O'Keeffe, Jim.
• O'Shea, Brian.
• O'Sullivan, Toddy.
• Owen, Nora.
• Pattison, Séamus.
• Penrose, William.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Ryan, John.
• Ryan, Seán.
• Shatter, Alan.
• Sheehan, P.J.
• Shortall, Róisín.
• Taylor, Mervyn.
• Timmins, Godfrey.
• Upton, Pat.
• Walsh, Éamon.

Níl

• Ahern, Dermot.
• Ahern, Michael.
• Ahern, Noel.
• Aylward, Liam.
• Brennan, Matt.
• Brennan, Séamus.
• Browne, John (Wexford).
• Burke, Raphael.
• Byrne, Hugh.
• Callely, Ivor.
• Connolly, Ger.
• Coughlan, Mary.
• Davern, Noel.
• de Valera, Síle.
• Dempsey, Noel.
• Doherty, Seán.
• Ellis, John.
• Fitzgerald, Liam.
• Flood, Chris.
• Foley, Denis.
• Fox, Mildred.
• Haughey, Seán.
• Hughes, Séamus.
• O'Leary, John.
• Power, Seán.
• Quill, Máirín.
• Smith, Brendan.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kenneally, Brendan.
• Keogh, Helen.
• Killeen, Tony.
• Kirk, Séamus.
• Kitt, Michael.
• Kitt, Tom.
• Lenihan, Brian.
• Leonard, Jimmy.
• Martin, Micheál.
• McCreevy, Charlie.
• McDaid, James.
• Moffatt, Tom.
• Molloy, Robert.
• Moynihan, Donal.
• Nolan, M.J.
• Ó Cuív, Éamon
• O'Donnell, Liz.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Batt.
• O'Keeffe, Ned.
• Treacy, Noel.
• Wallace, Dan.
• Walsh, Joe.
• Woods, Michael.

Tellers: Tá, Deputies Durkan and B. Fitzgerald; Níl, Deputies D. Ahern and Callely.

Amendment declared carried.

An Ceann Comhairle

Since amendment No. 36 has been carried, amendment No. 37 cannot be moved.

Amendments Nos. 37 and 38 not moved.

An Ceann Comhairle

Amendments Nos. 39 and 45 are related and Nos. 40, 41 and 42 are alternatives to No. 39. I suggest, therefore, that we discuss amendments Nos. 39 to 42, inclusive, and 45 together. If No. 39 is agreed, Nos. 40, 41 and 42 cannot be moved.

Mrs. Doyle

I move amendment No. 39:

In page 6, to delete lines 14 to 18 and substitute the following:

"(b) if the evidence or document could, if given, sent or produced to it, reasonably be expected to prejudice a matter the subject of proceedings currently before a court in the State,".

This subsection exempts matters which are the subject of court proceedings from compellability. This amendment narrows the exemption by limiting it to matters which might prejudice court proceedings rather than matters which are merely the subject of court proceedings. I withdrew an amendment on this point on Committee Stage in deference to comments made by Deputy O'Malley and others as to whether it is appropriate to include international courts in this provision. Therefore, references to European courts have been removed, which limits application of the subsection to courts in this State. As Deputy Ahern's amendment No. 40 would have the same effect as amendment No. 39, there is no need for a separate amendment.

Regarding amendment No. 41, my legal advice is that the words "at issue in" could involve some of the matters in a court case being compellable whereas others in the same court case could be exempt. As amendment No. 39 removes the phrase "the subject of" from the text, replacement of that phrase by "at issue in" is no longer relevant and there is no need for the amendment. For that reason I am not in a position to accept it.

The subsection as amended by amendment No. 39 would require a value judgment as to whether proceedings are being prejudiced. For this reason amendment No. 45, outlined in section 5(2), provides for an adjudication procedure which gives the High Court the power to decide the issue. This amendment also makes the form of words used in this instance consistent with those in the Freedom of Information Act.

The intention of the proposal in amendment No. 42 is to reduce recourse to the sub judice rule by making reluctant witnesses prove that the issue under investigation has been listed for hearing in court. As the new section 5(2) provides for an adjudication procedure to decide if investigations prejudice court proceedings, the onus is primarily on the witness to provide an opinion that the investigation is prejudicing proceedings.

This proposal is also covered by amendment No. 45. Deletion of the section cannot be agreed as the sub judice principle cannot be ignored. However, the Government amendment restricting application of the role to cases which might be prejudiced means that the present text is consistent with the proposals made by the counsel for the sub-committee of the Select Committee on Finance and General Affairs on this point. The limits on exemptions imposed by the Government amendment and the adjudication procedure outlined in amendment No. 45 show that the Government has gone as far as legally possible on this issue. As the principle of the amendment has been provided for, I cannot agree to the amendment proposed.

Mr. D. Ahern

Section 5(1)(b) provides that the committee may not direct a person to give evidence on a matter the subject of proceedings currently before a court in the State, the Court of Justice of the European Communities, the European Court of Human Rights or the European Commission of Human Rights, etc. Amendment No. 41 which proposes replacing the words "the subject of" with the words "at issue in" seeks to restrict the scope of that paragraph. Difficulties have arisen in this area before and we changed the rules of the House to ensure that outsiders could not issue a High Court summons and stop the discussion in this House on the matter in question. Amendment No. 41 seeks to concentrate on a subject the issue of pleadings where a person involved in proceedings that are the subject of dispute in a court case would justifiably not be able to come before a committee of the House under the compellability rules.

The intent of amendment No. 40 is similar to that of amendment No. 41. I accept what the Minister said about section 5(1)(b). Her amendment seeks to make it less specific. Does amendment No. 45 set out the conditions under which the provisions of section 5(1)(b) will come into operation? I regret the need to clarify this, but we have only recently received these amendments.

Mrs. Doyle

If I understand the Deputy, I think he is interpreting me correctly. We are taking snippets from the legislation and quoting them back and forth.

Mr. D. Ahern

Where a committee does not withdraw the direction, a person can go to the High Court for a determination as to whether the issue is prejudiced as a result of a committee dealing with that matter. That seems logical. It was the view of most Members on Committee Stage that section 5(1)(b) was too restrictive. The Minister has gone some way to redress that.

Amendment No. 42 seeks to ensure that the situation is not carte blanche. For example, it would be up to a person relying on the sub judice rule coming before a committee to prove that he or she is prejudiced and the proceedings he or she is taking are prejudiced. I support amendment No. 39.

Amendment agreed to.

Amendments Nos. 40 to 42, inclusive, not moved.

Mrs. Doyle

I move amendment No. 43:

In page 6, line 21, after "State" to insert "or to be prejudicial to the State in its relations with other States".

Subsection 6(9) of the Committee Stage text is to be deleted by amendment No. 57. While there were many calls for the deletion of that subsection, there was support for retention of the provision that would have exempted evidence which could be prejudicial to the State in its relations with other states from compellability. With the deletion of subsection 6(9), that provision would also be deleted. It has, therefore, been decided to include the provision among the categories listed in subsection 5(1) which are always exempt from compellability. This amendment, by expanding the provision on security of the State to include evidence which could be prejudicial to the State in its relations with other states, allows for such evidence to remain exempt from compellability.

Mr. D. Ahern

There was a great deal of disquiet because what was proposed in the Bill could include many objective issues if the evidence or document given, sent or produced could reasonably be expected to affect adversely the security of the State. The Minister's amendment extends this broad exemption. I have problems with the section in this regard.

Who determines what adversely affects the security of the State? There could be conflicting opinions as to what constitutes the security of the State. Will the Minister give an example to illustrate what she proposes? There was a great deal of discussion on the treatment of ordinary people compared with that of civil servants, gardaí and members of the Defence Forces. For example, a garda or member of the Defence Forces could give evidence before a committee and say they cannot answer a question because it affects the security of the State. What happens when a committee wants to inquire further?

Mrs. Doyle

The Secretary to the Government decides what issues relate to the security of the State.

Mr. D. Ahern

That is not stated in the Bill and there could be a difficulty with it.

Mrs. Doyle

There is a facility for appeal to the Secretary to the Government for determination in section 7(2)(d).

Mr. Lenihan

I refer to the question of who decides issues under section 5. The machinery is provided in section 7 to determine these matters. On the question of relations with other states, there is a long established practice in the courts which existed before the independence of the State and which is assumed to have been carried on since. The Minister for Foreign Affairs issues a certificate of the courts on any matter where our relations with other states are an issue. I am surprised at the powers given to the Secretary to the Government in section 7 because the Minister for Foreign Affairs is the person responsible. I accept that in matters relating to external relations the Constitution vests Executive power in the Government to avoid any friction on the committee but one person would have to be empowered to make a determination. The correct person would be the Minister for Foreign Affairs because he or she is accountable to this House in a way the Secretary to the Government can never be. It is inappropriate to give the certifying function to the secretary or any officer in the Department of Foreign Affairs. The Minister should be given the certifying function and if a contentious issue arises from the certificate, a political issue can be raised.

Section 5 provides for the exemption of certain evidence. It states that persons who have documents in their possession or are in a position to make statements about certain matters are not compellable before a committee. I assume the chairman would have to so rule. Then, in certain circumstance, the Bill provides that exemptions can be declared as such by certain persons. We will deal with that later but the question of the security of the State also arises as regards who is the determining agency. If the Chairman's powers are removed under any subsequent provision, the determination must be made by a person with political responsibility to this House.

Mrs. Doyle

We will deal in greater depth with these points under section 7 but in terms of relations with other states and the issue of compellability, the Minister for Foreign Affairs will be asked for an opinion and the Department's view will be taken. The final decision will be made by the Secretary to the Government to ensure a non-political decision is taken on the issue. The same applies to State security matters. The relevant Department, such as the Departments of Justice or Defence, will be consulted but, at the end of the day, the Secretary to the Government will make the call on such matters also.

Mr. D. Ahern

Does the Secretary to the Government take any advice from members of the security forces in the State? How does he or she arrive at a determination? Where are regulations laid down other than in section 7 of this Bill? Is there a precedent in other legislation in regard to how the security of the State is determined?

Section 7(2)(d) provides that where such a request is made the Secretary may, on application to him, state that the evidence relates to an issue in this paragraph but the Taoiseach may, in the public interest, refuse to give such a declaration. In that instance I would have thought the Taoiseach could affirmatively and positively make a political decision as to whether the public interest so determines. I am not trying to hamstring the Taoiseach or the acquisition of evidence. However, if a determination of the Secretary to the Government may be overidden by a political person, that causes difficulties.

Mrs. Doyle

Which political person may override?

Mr. D. Ahern

The Taoiseach, under section 3.

Mrs. Doyle

That will no longer be the case if my amendments are accepted.

Mr. D. Ahern

That may be better, as it means only the Secretary to the Government can make the determination, as someone must do so. Perhaps between now and the debate in the Seanad the Minister will consider whether there could be an appeal from a decision of the Secretary to the Government, perhaps to the High Court. That may be allowed under the Bill as it stands. I do not call the Secretary to the Government into question but it might be better to allow an appeal to the High Court similar to the procedure allowed elsewhere in the Bill.

Mrs. Doyle

Can one stop it?

Mr. Lenihan

That is a fair point.

Mrs. Doyle

Lest there be any reservation about the buck stopping with the Secretary to the Government on these issues, the National Archives Act provides a precedent for the Secretary withholding information or certifying the release of records. Everyone has the ultimate right to take the judicial route, nothing precludes that.

Acting Chairman (Ms F. Fitzgerald)

If Members wish to speak more than twice, as on Committee Stage, the Minister should move that the relevant amendment be recommitted to allow a Committee Stage discussion. That is the technical way of dealing with the matter.

Mr. D. Ahern

I was going to suggest this morning that we recommit every amendment.

Amendment agreed to.

Mr. D. Ahern

I move amendment No. 44:

In page 6, to delete lines 22 to 27.

This amendment is to delete a subsection. I cannot remember why I wanted to do this because I can see why evidence gathered for the prevention or detection of offences should not be brought forward. If one considers the timespan, a committee of the House may be hamstrung if an investigation has not been concluded by the Garda Síochána and no final determination has been made. Might it be necessary to revisit this in the Seanad to take up this point? Most Deputies would accept that garda investigations should not be discussed by a committee until they are finalised. However, issues such as the Brendan Smyth affair have not been finally determined to this day and a committee of the House might be prevented from investigating related matters, if one was overly technical. That may have been why I put down this amendment some time ago.

Mrs. Doyle

This subsection currently exempts certain evidence from compellability. It is designed, inter alia, to protect confidential Garda sources. The form of words now used is consistent with the Freedom of Information Act. To be fair to the Deputy, when he tabled the amendment that legislation might not have been available to him. As the amendment would remove protection from confidential Garda sources I am not in a position to agree to it. As with the timespan question, the ultimate arbiter as to whether one could reasonably expect that something would prejudice or impair the prevention, detection or investigation of offences, etc., in terms of compellability of witnesses or documents, would be the Secretary to the Government. If there was an undue delay he would make the final decision.

Amendment, by leave, withdrawn.

Mrs. Doyle

I move amendment No. 45:

In page 6, between lines 34 and 35, to insert the following:

"(2) Where a direction is given under section 3 in relation to evidence or a document and—

(a) the person to whom it is given, is of opinion that the evidence or document could, if given, produced or sent to the committee concerned, reasonably be expected to prejudice proceedings currently before a court in the State and so informs the committee, or

(b) a person who is a party to any such proceedings is of opinion that the evidence or document could, if given, produced or sent as aforesaid, reasonably be expected to prejudice the proceedings and so informs the committee,

then——

(i) if the committee does not withdraw the direction

(I) the person may, not later than 21 days after being informed by the committee of its decision not to do so, apply to the High Court in a summary manner for the determination of the question whether the evidence or document could, if given, produced or sent as aforesaid, reasonably be expected to prejudice the proceedings aforesaid, or

(II) the chairperson of the committee may, on behalf of the committee, make such an application,

(ii) if such an application is made, the committee shall, if necessary, adjourn the proceedings concerned for such period as it considers requisite and the High Court shall determine the question aforesaid, and

(iii) if the High Court determines that the evidence or document could, if given, produced or sent to the committee, prejudice the proceedings, the committee shall withdraw the direction.".

Amendment agreed to.

Mrs. Doyle

I move amendment No. 46:

In page 6, between lines 40 and 41, to insert the following:

"(3) A meeting of persons who subsequently constitute the membership or part of the membership of a committee appointed pursuant to subsection (1)(b) shall not be regarded, for the purposes of this section, as a meeting of that committee.".

Amendment agreed to.

Mr. D. Ahern

I move amendment No. 47:

In page 6, between lines 40 and 41, to insert the following:

(3) A committee may not direct a witness to give evidence or produce or send to it a document relating to the source of any information required by that committee where such witness satisfies the Committee that——

(a) such information was obtained by him in the course of his occupation as a journalist, and

(b) the objection to giving such evidence or producing such document is reasonably based upon the preservation of anonymity assured by him to the person the source of such information.".

This is a resubmission of an amendment I moved on Committee Stage, on which we had some considerable discussion. It would allow journalistic privilege to a journalist coming before a committee. It is not included in the Bill as drafted. It proposes that a committee may not direct a journalist to give evidence or produce any document if he satisfies the committee that such information was obtained by him or her in the course of his or her occupation as a journalist and that the objection to giving such information or producing such a document is reasonably based on the preservation of anonymity assured by him or her to the person who was the source of such information.

This is a reasonable amendment which gives committees the power they would need. Issues will arise from time to time which had not been investigated properly by the arms of the State because of legal constraints but may have been investigated by journalists who were of a view that they could not disclose their sources. I was surprised the Government was not able to accede to the request and allow the subsection to be included. I was also surprised that it did not come forward with its own amendment on Report Stage — perhaps the Minister could indicate if it has one?

Mrs. Doyle

No.

Mr. D. Ahern

If I remember correctly, she said she would revisit this issue but unfortunately that is not to be.

Mrs. Doyle

I did revisit it but the result may not please the Deputy.

Mr. D. Ahern

That is all very well but the Bill is going backward rather than forward. This Bill endeavours to give committees ample power but they will not have that power if a committee attempts to force journalists to disclose a source, although they will not. The legal counsel for our committee suggested that ultimately the courts would widen the scope and allow journalists some element of journalistic privilege. That may ultimately be the case but we have the opportunity to effect change now and we should take it. This situation relates to the case of Goodwin v. the UK. Mr. William Goodwin, a journalist, was threatened with imprisonment in 1989 for refusing to disclose the identity of a source who provided him with information relating to a story on Tetra Business Systems, a computer software company. Mr. Goodwin was a graduate trainee on his first job, examining the financial restructuring of the Tetra firm. He was fined £5,000 for contempt of court and, after a number of successful appeals, he won at the European Court. The NUJ provided the funds to take his case to that court and in September 1993 it found in his favour. The court ruled that the order to reveal his source constituted a breach of his right of freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights. If we proceed on this basis with the Bill and do not allow journalists this privilege before our committees, we could be in breach of that Article.

The Goodwin case was again referred to the European Court in April 1995, when the British Government declined to reach a settlement. This case was a very important one in the area of journalistic privilege. Section 10 of the Contempt of Court Act in England states that no court may require to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it is established to the satisfaction of the court that it is necessary in the interests of justice or national security or for the prevention of disorder or crime.

The Government has spoken honeyed words about attempting to redress cases where journalists are dragged before courts from time to time. We have had umpteen instances since the Kevin O'Kelly issue. Recently, a reporter for The Star was lucky to get away without having to disclose his source. It would be detrimental to the power of our committees and the status of the House if a journalist with whom Members might be friendly on a day to day basis was pressurised at a committee in an attempt to force disclosure of information. Such a journalist might then go to the High Court for a determination as to whether he or she needs to disclose the source and then we are in the area of contempt of court.

We must accept that journalists regard it as a right of theirs not to disclose sources. In France, a journalist who appears as a witness in a civil or criminal case concerning information gathered in the course of journalistic activities has an absolute right not to disclose his or her source. In Austria, journalists have a right to refuse to answer questions referring to an author, contributor or source of information. In Germany, under the lander laws, journalists are protected from disclosing their sources even when they are suspected of involvement in a criminal offence. In the Netherlands, the courts have recently shifted towards offering journalists the right to protect their sources and in Norway, because of case precedents, it is extremely unlikely that a court would order the disclosure of sources. In Sweden, a journalist who reveals his or her source without the consent of the source may be subjected to criminal prosecution if the source demands and the First Amendment of the US Constitution gives US journalists and their sources significantly greater rights to protect the identity of their sources than British law does.

We are going against the flow in this matter. This Government has spoken of openness, transparency and accountability, but if we insist that a journalist discloses a source, the committees will fall into disrepute. Article 10 says that everyone has the right to free expression. This right shall include freedom to hold opinions and to receive and impart information without interference by public authorities and regardless of frontiers. The Article goes on to say that the exercise of these functions may be subject to certain formalities, conditions and restrictions necessary in a democratic society in the interests of justice or national security or to prevent disorder or crime.

That would not apply to a journalist coming before a committee of this House. By ruling in favour of William Goodwin, the European Court established in principle that the right of journalists to protect the identity of sources is a fundamental part of the right to freedom of speech, and that right is as defined in the convention I have read from.

The Minister of State probably wants to accede to our request, but forces greater than her are working here, be they the permanent Government or, as I suspect, the non-permanent Government. It is their view that this should not be allowed. In 1983, The Guardian was ordered to disclose confidential documents in the interests of national security and the British courts have tended to be very restrictive in this regard, going against the spirit of Article 10. The various bodies interested in this matter, such as the National Newspapers of Ireland, made submissions to the Constitutional Review Committee. They made the point that this should be enshrined in our Constitution. The review group recommended that Article 46º1º1 should be replaced with an Article modelled on Article 10 of the European Convention on Human Rights, of which Ireland is a signatory.

I cannot understand why the Minister of State is not accepting my amendment, given that we have signed this convention. The Minister cited the Constitutional Review Group saying that the Constitution should be changed in order to mirror Article 10. Adoption of Article 10 would allow journalists to do what they have to do normally and allow them to come before committees without being obliged to reveal their sources. That would be advantageous to the investigative system of our committees.

The provisions of Article 10 are already fully understood by Members of the Oireachtas, lawyers and citizens. Its inclusion in our Constitution would be following the trend of our European as opposed to our British neighbours. The vast majority of European countries have provided for journalistic privilege.

In the 1981 British Steel Corporation v. Granada Television case in the United Kingdom Lord Salmon said:

The freedom of the press depends on the immunity from disclosing their sources. Were it to disappear so would the source from which its information is obtained. The public would be deprived of much of the information to which the public of a free nation is entitled.

I accept that there are drawbacks in relation to journalistic privilege, that there may be some unscrupulous journalists, but our general experience of cases already brought before the courts in regard to journalistic privilege has been that the vast majority of our people have accepted that the journalistic profession has behaved in an honourable manner in regard to disclosure of its sources.

This general issue is a very important one and has been the subject of discussion in committee. I recommend that the Minister accept my amendment. I know it has the agreement of the Progressive Democrats and that some members of the different parties in Government are also of the view that we should enshrine this provision in legislation. It ill behoves this Government, which espoused openness, transparency and accountability, not to accede to this request. If a journalist refused to disclose his or her source of information or, worse still, if a journalist refused to appear before a committee, he or she would have to be directed to give evidence. How would the Minister propose to address circumstances in which a journalist found himself or herself in that position? The reality is that committees would divide on political lines as between Government and Opposition and we could be confronted by an extreme difficulty vis-à-vis relationships between Government and Opposition and the media.

I exhort the Minister to think again. I suppose I will be informed that the Government has refused to accede to the request to allow some journalistic privilege before committees of this House. If that is the case, shame on this Government that came into office on the basis that it would reform the institutions of State to render them more relevant to the electorate. It would be a disgraceful move to prevent journalistic privilege being included in this Bill. I hope journalists are taking note of the fact that this Government is not acceding to this request, thus demonstrating for ever more the fallacy that it is open, transparent and accountable.

We are not doing ourselves any favour if we allow circumstances to arise in which we may find ourselves in weekly confrontation with journalists at committees on whether they should be forced to reveal their sources. Perhaps the Minister will explain why the Government is not accepting this amendment, why it is insisting that any journalist who comes before this committee will be obliged to reveal his or her sources.

Mrs. Doyle

This subsection provides for protection of sources used by elected representatives and was framed in the light of the High Court finding in the case of the beef tribunal that such sources could remain confidential.

Mr. D. Ahern

We are talking about amendment No. 47.

Mrs. Doyle

I am addressing the section overall. The intention of this amendment is to extend the absolute privilege of protection of sources to journalists as well as to Members of the Oireachtas. As the proposal would put journalists on a par with elected Members of the Oireachtas and afford them a higher level of protection than that of a High Court witness, I cannot accept the amendment.

The position is being examined by the Department of Justice in the light of a report of the Law Reform Commission and a European Court case. Any consideration that we might be in violation of Article 10 of the European Convention on Human Rights will result in an adjustment of this Bill in line with any arrangements introduced for the courts, but we cannot move ahead of the courts on this issue.

The important point is to achieve a balance. A journalist may be granted exactly the same immunity and privilege as any other citizen; we are not offering anything less to journalists. However, we do not propose to go beyond the privileges and immunities journalists have as witnesses in a court. I fully acknowledge the important role of journalists in preserving and defending political, civil and human rights. However, this Bill is not the right vehicle within which to adjust the legislative protection given to journalists with respect to confidentiality of their sources. That is for another Bill and another day and I am not in a position to accept this amendment.

If we were to concede this point to journalists ahead of adjustment of legislative provisions for the courts, a question might be posed about other professionals and their right to protect sources. I have in mind people such as teachers, social workers and others who may know quite a lot about child abuse and problems within families but who have no privilege in this area. They may be privy to a lot of local happenings and issues, but cannot protect their sources. This question might be extended to the media generally, apart from journalists specifically. If and when legislation is changed elsewhere, this Bill will be amended to bring it into line.

Mr. D. Ahern

I do not accept that we should wait for the Department of Justice to move on this subject. That Department has sufficient reports on the matter, including the report of the Commission on the Review of the Constitution and sufficient cases and precedents within Europe to make it quite feasible for someone in that Department, if he or she so wished, to propose an amendment of this or any other Bill to take care of this issue.

Neither do I accept that teachers and other professionals are on a par with journalists. Journalists play a particular role in society which may sometimes be taken for granted. Recent history has shown that members of the journalistic profession have entered into areas where the arm of the State would never have reached.

We have only to look at the hepatitis C scandal, much of which was made known by investigative journalists. Recent history is littered with examples where, were it not for journalists, issues would not have come to the fore. There is a heavy onus on them not to be scurrilous but even-handed in their reporting. The Bill gives Members of the Oireachtas those privileges and we have an opportunity to give journalists the same facilities because of their special investigative role.

One of the reasons we are giving the committees these powers of compellability balanced with privilege is that, over the years, many Members have said we do not have the power, as an Oireachtas, to fully investigate issues. Apart from giving ourselves increased compellability powers what better way to protect that profession which does most in regard to investigating issues which are of concern to those of us on those side who would wish this House to be more than just a Legislature which, according to the Constitution, has a role in keeping tabs on the Executive? That is one of the main reasons I proposed this amendment.

I am disappointed at the Minister's refusal to accept my amendment. It runs counter to what the Government has said in regard to letting in the light and being open and transparent. Its refusal to accept this amendment will make journalists much more circumspect in the way in which they will deal with committees of the House when they come before them.

Amendment put.

The Dáil divided: Tá, 52; Níl, 68.

Tá

• Ahern, Dermot.
• Ahern, Michael.
• Ahern, Noel.
• Aylward, Liam.
• Brennan, Matt.
• Brennan, Séamus.
• Briscoe, Ben.
• Browne, John(Wexford).
• Burke, Raphael.
• Byrne, Hugh.
• Callely, Ivor.
• Connolly, Ger.
• Coughlan, Mary.
• Cowen, Brian.
• Davern, Noel.
• de Valera, Síle.
• Doherty, Seán.
• Ellis, John.
• Fitzgerald, Liam.
• Flood, Chris.
• Foley, Denis.
• Fox, Mildred.
• Haughey, Seán.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kenneally, Brendan.
• Keogh, Helen.
• Killeen, Tony.
• Kirk, Séamus.
• Kitt, Michael.
• Lawlor, Liam.
• Lenihan, Brian.
• Leonard, Jimmy.
• Martin, Micheál.
• McCreevy, Charlie.
• McDaid, James.
• Moffatt, Tom.
• Molloy, Robert.
• Moynihan, Donal.
• Nolan, M.J.
• Ó Cuív, Éamon.
• O'Donnell, Liz.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Ned.
• O'Leary, John.
• Power, Seán.
• Smith, Brendan.
• Treacy, Noel.
• Wallace, Dan.
• Walsh, Joe.
• Woods, Michael.

Níl

• Ahearn, Theresa.
• Allen, Bernard.
• Barry, Peter.
• Bell, Michael.
• Bhamjee, Moosajee.
• Boylan, Andrew.
• Bradford, Paul.
• Bree, Declan.
• Broughan, Thomas.
• Browne, John (Carlow-Kilkenny).
• Bruton, Richard.
• Burke, Liam.
• Burton, Joan.
• Byrne, Eric.
• Carey, Donal.
• Connaughton, Paul.
• Costello, Joe.
• Coveney, Hugh.
• Crawford, Seymour.
• Creed, Michael.
• Crowley, Frank.
• McGahon, Brendan.
• McGinley, Dinny.
• McManus, Liz.
• Mitchell, Gay.
• Mitchell, Jim.
• Mulvihill, John.
• Nealon, Ted.
• O'Keeffe, Jim.
• O'Shea, Brian.
• O'Sullivan, Toddy.
• Owen, Nora.
• Pattison, Séamus.
• Penrose, William.
• Currie, Austin.
• Deasy, Austin.
• Deenihan, Jimmy.
• Doyle, Avril.
• Durkan, Bernard.
• Finucane, Michael.
• Fitzgerald, Brian.
• Fitzgerald, Frances.
• Flaherty, Mary.
• Flanagan, Charles.
• Gallagher, Pat(Laoighis-Offaly).
• Gilmore, Éamon.
• Harte, Paddy.
• Higgins, Michael.
• Hogan, Philip.
• Kavanagh, Liam.
• Kemmy, Jim.
• Kenny, Seán.
• Lynch, Kathleen.
• McCormack, Pádraic.
• McDowell, Derek.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Ryan, John.
• Ryan, Seán.
• Shatter, Alan.
• Sheehan, P.J.
• Shortall, Róisín.
• Stagg, Emmet.
• Taylor, Mervyn.
• Timmins, Godfrey.
• Upton, Pat.
• Walsh, Éamon.
• Yates, Ivan.

Tellers: Tá, Deputies D. Ahern and Callely; Níl, Deputies Durkan and B. Fitzgerald.

Amendment declared lost.

Mr. D. Ahern

I move amendment No. 48:

In page 6, between lines 40 and 41, to insert the following:

"6.—(1) No action or proceeding whatsoever shall lie against either House of the Oireachtas or any member thereof, any committee or any member thereof, or any officer, servant or agent of either House of the Oireachtas or of any committee arising from, or in connection with, the broadcasting, or rebroadcasting by any person whatsoever of the proceedings of either House or of a committee referred to in section 2, or any portion of such proceedings.

(2) Subsection (1) shall have effect notwithstanding that the broadcasting, or rebroadcasting, concern was authorised by, or on behalf of, the Houses of the Oireachtas or either of them or by a committee whether in consideration of the payment of a fee or otherwise.

(3) In this section—"broadcasting" means the transmission, relaying or distributing of communication, sounds, signals, visual images or signals by means of any form of wireless, telegraphy (including satellite) or by means of wire or cable relay whether or not such communication, sounds, signs, visual images or signals are encoded and whether or not such communications, sounds, signs, visual images or signals are intended for reception by the general public;

"Wireless telegraphy" has the meaning assigned to it by section 2 of the Wireless Telegraphy Act 1926 (as substituted by section 2 of the Wireless Telegraphy Act, 1926) (as substituted by section 2(1)(b) of the Broadcasting and Wireless Telegraphy Act 1988).".

This amendment has been drafted on behalf of the Broadcasting Control Committee and has been the subject of considerable discussion by the committee. It deals with the possibility of Members or officials of the Houses of the Oireachtas being sued for defamation in respect of defamatory utterances made by witnesses before committees.

The amendment deals with two contexts. The first is in respect of the in-house transmission of the signal from the Houses and, in this instance, the committees. The second is in respect of the provision of footage from committee meetings by the Broadcasting Control Committee to RTE or other stations.

Article 15.12 of the Constitution states:

All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.

Article 15.13 states:

The members of each House of the Oireachtas ... shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.

This, and the advent of broadcasting technology for the Oireachtas, present legal problems to Members and the institutions of the Houses of the Oireachtas. There would be a difficulty if a person took proceedings against a Member in relation to defamatory utterances.

My amendment is based on the recommendation of the senior counsel attached to the committee on broadcasting. A number of Bills, which tried to address the issue of privilege over the years, glossed over this aspect. Given the advent of the televising of Dáil proceedings, the Bill provides an opportunity to ensure that Deputies, the Houses of the Oireachtas and officials of the Houses are protected.

I attempted to raise this issue in the context of the case involving Deputy Foley in amendment No. 33. I wanted the Minister to provide full indemnity to any Member of either House of the Oireachtas while acting in their position as chairman of a committee in respect of any damages or awards made against them as a result of items which arose in the discharge of their duty. However, the amendment was ruled out of order as it involved a potential charge on the Exchequer. A solution would have been if the Minister of State had acceded to this request on Committee Stage and introduced a Report Stage amendment.

The ludicrous position is that Deputy Foley, who is the chairman of a committee, is being sued in a personal capacity by an outside person as a result of issues which arose during the deliberations of a committee. Deputy Foley as the chairman of the committee was asked by officials to respond by letter to an article published in a newspaper. He did so on the advice of the officials. They drafted the document which he signed and the letter was published in the newspaper. However, Deputy Foley is being sued in a personal capacity for defamation by the person implicated in the letter. Despite our best efforts to secure indemnity from the permanent government with regard to his exposure in that respect, the Deputy is in the middle of a full blown High Court action for defamation which he must defend. If the party is successful, he will have to pay damages and all the costs himself. No Deputy should be exposed in that way.

This matter is related to broadcasting in terms of protecting ourselves during deliberations of committees. I accept Deputies have absolute privilege with regard to utterances at committee meetings or in the House. However, this complex issue needs to be addressed. As I said on Second and Committee Stages, the Bill provides an opportunity to address these aspects. That opportunity still exists, but for some unknown reason the transient Government — which hopefully will be gone soon — or the permanent government is objecting to moves in this direction which would protect Members of the House. The Minister of State should accept the amendment, which was recommended by the broadcasting committee and drafted by the senior counsel attached to it.

Mrs. Doyle

I am not in a position to accept the amendment on two grounds. First, the matters dealt with by the amendment have a wider application. It provides a particular definition of broadcasting and the implications of the provisions in the amendment extend beyond the matters specifically addressed in the Bill. These provisions do not belong in this Bill, which is concerned with the power of committees of Houses of the Oireachtas acting within their terms of reference to compel witnesses and provide privilege and immunity and not directly with the implications of the broadcasting of proceedings of those committees.

Second, I am advised that broadcasting of committee proceedings is sufficiently covered under Article 15 of the Constitution and existing legislation, the Procedure and Privileges Act, 1976. I am not sure there is any need to prevent an action being taken against the Houses of the Oireachtas. Only one such action has been taken. That was at the start of this Dáil and the High Court judge ruled that the Houses could not be sued. I am concerned that the exemption proposed in the amendment in relation to a specific aspect of Oireachtas activities could be cited in the future to overturn that High Court ruling. It might have the opposite effect to what Deputy Ahern seeks to achieve.

Members are protected in respect of their utterances and Deputy Ahern's point in relation to indemnity of committee members and chairmen is well made. More protracted debate on this aspect was not possible earlier because the relevant amendment was technically out of order. This issue arises from specific difficulties encountered by Deputy Foley, the Chairman of the Committee of Public Accounts, as a result of the publication of an article in The Irish Times on an issue which arose before the committee. Deputy Foley's publication was retrospectively approved by the committee.

While I do not wish to deal with the circumstances or merits of a particular case on which litigation may be pending as it would be extremely unwise of me to do so, I cannot conceive of provisions in the Bill which would in effect put a committee in a position to define, even retrospectively, whether an action by a member fell within the definition of his or her duties. This could have serious implications for the rights of other persons outside the House, particularly the right to their good name which the State is bound by the Constitution to vindicate. To provide for an indemnity by the Minister for committee members against any action taken against them in the discharge of their duties as committee members, including an order for costs, would not be appropriate. As Members currently have absolute privilege in respect of utterances made in the Oireachtas or in committees, I suggest there is no need to specifically indemnify them against action taken against them.

Mr. D. Ahern

The Minister of State should ask Deputy Foley.

Mrs. Doyle

I sympathise with Deputy Ahern's point in relation to Deputy Foley. None of us would wish a colleague of whatever political persuasion to find themselves inadvertently in the position in which Deputy Foley finds himself. However, we cannot legislate to allow retrospective validation of what is said before committees. That would have serious implications for the right of persons outside the House to their good name, which the State is bound by the Constitution to vindicate.

Mr. Lenihan

I take the Minister of State's point that it might not be wise to personify the Houses of the Oireachtas in an amendment because it might constitute them as a defendant and they are not yet recognised as such. However, before the Bill goes to the other House, will the Minister of State consider this issue? The issue of broadcasting could be easily addressed by extending the current constitutional provision and expressly stating that it also applies to broadcasting.

Mrs. Doyle

Is the Deputy suggesting a referendum?

Mr. Lenihan

No, although a referendum already appears to be on the way.

Mrs. Doyle

What does the Deputy mean by extending the constitutional provision?

Mr. Lenihan

It would be possible to extend the current constitutional protection to broadcasting. There is no objection to doing that by statute and it might be a preferable way of drafting the section to overcome the objection raised by the Minister of State about the personification of the Houses of the Oireachtas. That would allow the matter to be addressed. While I accept it does not strictly arise under the Bill, it would be a desirable change.

Mrs. Doyle

I will consider the point made by the Deputy.

Mr. D. Ahern

Members of committees and witnesses appearing before committees, the proceedings of which are broadcast, are sometimes put on the spot and have to give an immediate answer. They may find themselves exposed as a consequence. The Chief Whips and members of the broadcasting committee recently visited another parliament to investigate how it deals with this matter. As the definition of broadcasting has been broadened to include advances such as the Internet, we find we are being exposed more and more. I do not accept, therefore, that the amendment is not necessary or that it would impose restrictions, rather it would protect witnesses appearing before committees.

It may be highly unlikely that anyone would succeed in an action but we did not envisage the scenario in which Deputy Denis Foley was involved. He has had to bear the consequences. The Department of Finance is, in effect, stating that the amendment would allow carte blanche but I do not accept this. In Deputy Foley's case, where there was retrospective acceptance and acknowledgment by all members of the committee that what he did was right in the circumstances, he still found himself exposed.

All these issues are interwined. There is now a quicker reaction to the way we do our business in the House. As a consequence, we need protection. It may well be the case that the broadcasting committee will have to make recommendations to the Committee on Procedure and Privileges which, in turn, will have to make recommendations to a future Government which will have to introduce legislation to deal with the matter.

Amendment put and declared lost.

An Leas-Cheann Comhairle

We now proceed to amendment No. 49. Amendments Nos. 49a to 53, inclusive, and 55 to 60, inclusive, are related. Amendment No. 54 is an alternative to amendment No. 53. It is suggested, therefore, that amendments Nos. 49 to 60, inclusive, be taken together. Is that agreed? Agreed.

Mrs. Doyle

I move amendment No. 49:

In page 6, to delete lines 45 and 46 and substitute the following:

"(b) is of opinion that, by virtue of section 11(1), he or she is entitled to disobey the direction,”.

This section provides for a witness to inform a committee, either orally or in writing, that his or her opinion is that the committee's direction relates to a category of information exempt from compellability by virtue of High Court privilege. In providing this amendment, the Government has shown that it was persuaded by the arguments made on Committee Stage that the High Court should be the sole determinant on the issue of whether questions relate to High Court privilege and that there should be no distinction between public service and non-public service witnesses.

The amendment is the mechanism which the Government has decided upon to remove the categories listed in section 6(2)(9) of the text debated on Committee Stage. These categories provided exemption from compellability in particular circumstances. The amendment means that witnesses will be obliged to answer questions, unless they relate to a category covered by High Court privilege.

Amendments Nos. 50, 53 and 55 provide that the High Court will decide whether questions are covered by that court's privilege. The combination of these amendments means that the separate adjudication procedures for public service and non-public service witnesses set out in the previous text have been removed. Therefore, provisions on the role of the Public Offices Commission and provision of declarations by the Taoiseach in sections 6 and 7, respectively, have been removed in amendments Nos. 57, 60, 61 and 64.

In relation to amendment No. 49a, as amendment No. 57 deletes section 6(3), as amended on Committee Stage, there is no longer any need to mention that subsection in section 6(2). The amendment deletes the reference to section 6(3) from section 6(2). It is a drafting amendment and does not alter the meaning of the subsection.

Amendments Nos. 50, 53 and 55 remove the roles of the Taoiseach and the Public Offices Commission in what was a separate adjudication procedure for public service witnesses. As there will no longer be such a procedure, the amendments provide for the principle of amendments Nos. 51, 52, 54 and 56. I appreciate fully the concerns of Opposition Deputies which gave rise to their amendments. I am happy to be in a position to meet their concerns. I hope they will agree that, as a consequence of the amendments in my name, their proposals are no longer necessary.

These amendments provide for a committee to apply to the High Court for a decision as to whether questions asked of a witness under direction relate to High Court privilege. If the High Court decides that the questions do so relate, the committee shall withdraw the direction. If not, the witness will be obliged to answer the questions. As the High Court alone is to determine this issue, the roles set out in the earlier text for the Public Offices Commission and the Taoiseach are no longer relevant and have been deleted.

Amendment No. 51 would remove the distinction between public service and non-public service witnesses in informing committees that their opinion is they are exempt from following certain directions given by the committee. As amendment No. 50 provides for the High Court only to adjudicate in cases of dispute, the principle of the amendment is met. There is no need, therefore, for a separate amendment on this point.

Amendment No. 52 would remove the option for a public service witness to furnish a committee with a declaration from the Taoiseach that questions asked are to be exempt from compellability. Amendment No. 50 covers this point also as it removes from the text references to the Taoiseach's powers to make declarations in this area. There is no need, therefore, for a separate amendment on this point.

Amendment No. 54 would remove the provision that witnesses who seek declarations from the Taoiseach have 30 days to do so. As it is almost identical in wording to amendment No. 53, the principle is covered.

Amendment No. 56 would remove the requirement in section 6(2)(d) for a committee to withdraw a direction where a witness furnishes a declaration from the Taoiseach that the information sought is exempt from compellability. As amendment No. 55 deletes that subsection entirely, there is no need for a separate amendment on this point.

Amendment No. 57 follows from amendments Nos. 50, 53 and 55 which give the High Court sole power of adjudication as to whether a witness is entitled to disobey a direction. It effectively deletes the text of section 6 as debated on Committee Stage, apart from subsections (1) and (2).

Amendment No. 58 would provide that the categories of information which a witness can refuse to provide, that is, private life, information given in confidence, information prejudicial to business of a third party and information prejudicial to relations with another state, would be substituted by a single category of information, that is, information which would not have to be disclosed in the High Court.

As Government amendment No. 49 provides that a witness may refuse to obey a direction if it relates to categories of information covered by High Court privilege the thrust of this amendment is met and there is no longer any need for a separate amendment on this point.

Amendment No. 59 in the names of Deputies Ahern and McDowell would allow information given in confidence to be disclosed unless it came within the categories of information which would be privileged in High Court proceedings. As Government amendment No. 49 allows witnesses the defence of High Court privilege in relation to directions from committees the thrust of this amendment is met and there is no longer any need for a separate amendment on this point.

Amendment No. 60 deletes section 6(11) of the earlier text which provided that the terms of the section would not apply to directions which witnesses would be entitled to disobey on the grounds that they relate to matters covered by High Court privilege. The thrust of this subsection is contained in section 6(1) as amended by Government amendment No. 49. The amendment also deletes section 6(12) of the earlier text which deals with the Public Offices Commission. As the role of the commission has been removed by this amendment and by Government amendment No. 57 there is no longer any need to provide for it. In other words, this amendment is consequential on the earlier amendments.

Mr. D. Ahern

I accept that the Minister has taken considerable steps to amend section 6 which caused extreme difficulties because of the proposed restrictions. Section 6(9) basically provided that information given to, or received by, a person in confidence, information relating to a business or profession, information relating to the family life or private affairs of a person and information whose disclosure would be prejudicial to the State could not be inquired into. It was generally accepted that this section was too restrictive and that ultimately such matters should be determined by the High Court.

There may be no legislation under which the High Court can be directed to make a determination and it may be entering uncharted waters. Nevertheless this is better than setting out the information which is exempted, only to find later that we have omitted certain information or included other information which may cause a difficulty. I accept the reasons put forward by the Minister for these amendments.

Mr. Lenihan

I accept that the Minister has met the objectives of Deputies Ahern and McDowell but I see a difficulty in simply saying that it is as if this matter is before the High Court. A parliamentary committee is not the High Court, which developed its law and jurisprudence on the question of privilege on the basis of adjudicating in a private dispute between, say, two citizens or a company and a citizen. What the High Court has said is that one can claim privilege and that, while there is a public interest in the production to it of all relevant information, if one can establish a competing public privilege in the non-disclosure of the evidence which would prevail over it then one has a privilege. However, we are now saying to the High Court that in relation to a parliamentary committee it must make a determination on the public interests involved. A parliamentary investigation into a matter of public interest is different from a private dispute in the High Court. One assumes there is a public interest in having all relevant material put before the committee and the High Court will have to determine what competing public interest should prevail against that.

In the Bill as drafted very widely drawn interests were covered. We objected to these and the Minister has, in effect, left it to the High Court to decide in appropriate cases what the competing public interest is without any guidance from the Legislature. Perhaps there should be some guidance, and I ask the Minister to reflect on this. I do not want to be taken to disagree with the points made by Deputies Ahern and McDowell on Committee Stage that the section was too widely drawn but I query whether the High Court should be left to decide the matter without any guidance.

Mr. D. Ahern

We all want to ensure that we enact good legislation. If I read the section correctly, a person directed by a committee to give evidence who decides, by virtue of section 11, that he is entitled to disobey that direction must inform the committee which must, if necessary, ask the High Court to make a determination on the matter. Section 11(1) states that a person whose evidence has been, is being or is to be given before a committee shall be entitled to the same privileges and immunities as if he was a witness before the High Court. In other words, a person who believes he is not being given High Court "privilege"——

Mrs. Doyle

The equivalent of.

Mr. D. Ahern

——may decide that he is entitled to disobey the direction of the committee which must then get a determination from the High Court. When the matter goes to the High Court the committee shall adjourn the proceedings until such time as the High Court makes a determination. I am concerned that we could end up going around the mulberry bush a few times before we finally get a decision. The High Court will probably deal expeditiously with urgent cases but I foresee a problem. Maybe there is no other way of getting around the matter.

Mrs. Doyle

I do not think there is.

Mr. D. Ahern

The way the matter was dealt with previously was extremely convoluted. It was proposed in the Bill as drafted that the ordinary citizen should be treated differently from civil servants, members of the Defence Forces and the Garda Síochána and that in the latter case the Taoiseach could make a determination. I am glad this has been changed and that everyone will now be treated equally. Perhaps this is the best way of dealing with the matter in the circumstances.

Amendment agreed to.

Mrs. Doyle

I move amendment No. 49a:

In page 7, line 5, to delete "Subject to subsection (3), if" and substitute "If".

Amendment agreed to.

Mrs. Doyle

I move amendment No. 50:

In page 7, to delete lines 8 to 18 and substitute the following:

"(a) the committee shall apply to the High Court in a summary manner for the determination of the question whether the person is entitled, by virtue of section 11(1), to disobey the direction,".

Amendment agreed to.

Amendments Nos. 51 and 52 not moved.

Mrs. Doyle

I move amendment No. 53:

In page 7, lines 23 to 30, to delete from and including "and" in line 23 down to and including "requisite" in line 30.

Amendment agreed to.

Amendment No. 54 not moved.

Mrs. Doyle

I move amendment No. 55:

In page 7, to delete lines 31 to 35 and substitute the following:

"(d) if the High Court determines that the person is entitled, by virtue of section 11(1), to disobey the direction, the committee shall withdraw the direction.".

Amendment agreed to.

Amendment No. 56 not moved.

Mrs. Doyle

I move amendment No. 57:

In page 7, to delete lines 36 to 50 and in page 8, to delete lines 1 to 53.

Amendment agreed to.

Amendments Nos. 58 and 59 not moved.

Mrs. Doyle

I move amendment No. 60:

In page 9, to delete lines 7 to 10.

Amendment agreed to.

Debate adjourned.