Amendment No. 1 is in the name of the Minister.
Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Bill, 1995: Report Stage.
The Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Bill, which we bring to Report Stage, is a much changed Bill compared to that debated on Second Stage. This is as a result of a long, difficult, detailed but ultimately rewarding Committee Stage debate. I take this opportunity to thank the chairman of the Committee on Finance and General Affairs, Deputy Jim Mitchell, and members of the committee from all sides of the House for their outstanding contributions on the Bill. My colleague, the Minister for Finance, in introducing the Bill on Second Stage, indicated our openness to constructive debate on the provisions of the Bill and our willingness to accept improvements by way of amendments from all sides of the House.
Legislation is properly the principal concern of the Houses of the Oireachtas, in particular a Bill like this which will have a profound impact on the way Members of Dáil Éireann and Seanad Éireann investigate matters of national importance. I am happy I have been able to deliver on many of the key concerns of Deputies as expressed, sometimes trenchantly, on Committee Stage.
Before the Minister of State moves the amendment, I acknowledge the assistance given by her and her officials on Committee Stage in relation to this extremely complicated Bill. Those of us on this side of the House did not see this as a political issue between Government and Opposition. We saw this as an issue which will have ramifications for this House into the future. It is a Bill which has been in gestation for nearly 20 years and with which previous governments have struggled. I thank the Minister for at least putting it forward.
I do not wish to sound a sour note, but one of the Government Deputies, not a Deputy from the Minister's own party, Deputy Broughan, accused me and the Opposition on a radio station of filibustering on Committee Stage of this Bill. I ask the Minister to acknowledge that there was no filibustering by the Opposition. This is important because it was said on the public airwaves.
I accept what Deputy Ahern says. We had a long and protracted debate which was difficult and at times trenchant, but it was above all constructive. I accept that the issues are not political. One does not know on which side of the House one might find oneself in years to come, and it is extremely important that the procedures we put in place, to enable the Houses of the Oireachtas to investigate matters of national importance, are operable and that natural justice is done and seen to be done to all concerned. I accept the good faith of Deputy Ahern and his party in the interest shown in the debate on this Bill. The contributions of my colleagues, particularly the chairman of the committee, and the sub-committee set up to deal with Committee Stage on this were extremely constructive and helped to progress debate. I hope their contributions allowed us to reach the position where we have a much better Bill that will be able to do what we originally set out to do.
I move amendment No. 1:
In page 3, between lines 15 and 16, to insert the following:
"‘the appropriate subcommittee'——
(a) in relation to a committee appointed by either House of the Oireachtas or a sub-committee of such a committee, means a sub-committee of the Committee on Procedure and Privileges of that House,
(b) in relation to a committee appointed jointly by both Houses of the Oireachtas or a subcommittee of such a committee, means a subcommittee appointed jointly by the Committee on Procedure and Privileges of each such House,
that is authorised by the Committee or Committees aforesaid by which it is appointed to perform the functions conferred on it by this Act;".
This amendment provides for a sub-committee of the Committee on Procedure and Privileges to decide if the powers conferred by this Bill should be invoked by an investigating committee. During a thorough and wide-ranging debate on Committee Stage on amendment No. 7 in the name of Deputy Dermot Ahern on whether a subcommittee of the Committee on Procedure and Privileges should decide if powers conferred by this Bill should be invoked by an investigating committee, I was persuaded that we should examine this proposal, and I thank Deputy Ahern for his contribution. Accordingly, I accepted the principle of Deputy Ahern's amendment at the time and, following detailed consideration by my officials and the preparation of the text by the parliamentary draftsman, I believe the Bill would be improved by the introduction of the kind of mechanism suggested by Deputy Ahern. This was subsequently agreed by the Government and is incorporated in amendment No. 1.
I thank the Minister for accepting this, and I agree to the amendment.
Amendment agreed to.
We come to amendment No. 2 in the name of Deputies Dermot Ahern and Michael McDowell. I observe that amendment No. 3 is an alternative. I suggest, therefore, that we discuss amendments Nos. 2 and 3 together.
I move amendment No. 2:
In page 3, line 17, after "Oireachtas" where it secondly occurs, to insert "and any sub-committee validly set up by the committee under the terms of reference of that particular committee".
I tabled this amendment to allow all committees of the House, including subcommittees, to benefit from this Bill. Members on this side of the House felt that if there was no reference to subcommittees they would not have the benefit of the privileges and immunities conferred by this Bill.
This subsection defined a committee for the purposes of the Bill as all Oireachtas committees apart from the Select Committee on Members' Interests. That committee is excluded because of the powers conferred on it by the Ethics in Public Office Act, 1995, which allow the committee to investigate allegations of wrongdoing against Oireachtas Members. This definition of committee will apply throughout the Bill except where otherwise specified. The powers of compellability provided for in the Bill are to apply only to those committees which have the power to call persons and papers specified in their terms of reference. As the sub-committee does not have this power in its terms of reference it cannot, therefore, use the compellability provisions of the Bill. As amendments to an Oireachtas committee's terms of reference are the responsibility of the relevant House of the Oireachtas, it is a matter for the Oireachtas to decide when these amendments should be made. Moreover, I undertook on Committee Stage to introduce a Government amendment to give effect to the proposal made by Deputy Ahern to provide that the definition of a committee would include sub-committees. The text of amendment No. 3 fulfils that commitment. Accordingly, I am not in a position to accept amendment No. 2. I will, when called on, move amendment No. 3 which deals with the substance of the matter.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 3, lines 17 to 19, to delete all words from and including "but" in line 17 down to and including line 19 and substitute "(other than the Committee on Members' Interests of Dáil Éireann or the Committee on Members' Interests of Seanad Éireann) or a subcommittee of such a committee;".
Perhaps the Minister will elaborate on the amendment.
I covered that in my response to amendment No. 2. I gave a commitment on Committee Stage to introduce an amendment which would give effect to the Deputy's proposal that the definition of a committee would include sub-committees. That is what amendment No. 3 does.
Excluding the Select Committee on Members' Interests?
Yes, because it is dealt with elsewhere. I will reiterate the point I made, because it is quite convoluted. This subsection defined a committee for the purposes of the Bill as all Oireachtas committees apart from the Select Committee on Members' Interests. That committee is excluded because of the particular powers conferred on it by the Ethics in Public Office Act, 1995. Those powers allow that committee to investigate allegations of wrongdoing against Oireachtas Members.
Does it mean in effect that because the Select Committee on Members' Interests deals only with Oireachtas Members it cannot call witnesses from outside?
That is correct.
I am not altogether sure that is a great idea but perhaps it could be addressed later.
Maybe we will revisit the legislation relating to that committee.
Amendment agreed to.
I move amendment No. 4:
In page 3, to delete line 24 and substitute the following:
"‘document' includes any class or description of document and also includes thing;".
The definition of a document was included in the Bill to ensure that there is no ambiguity about what this reference is intended to convey. However, discussion on Committee Stage raised the possibility that the definition of a document as a "thing" might not embrace documents. To cover this point the Government amendment broadens the definition of "thing" to make it explicit that the definition includes all documents forming part of an investigation.
Do I take it that includes all computer discs and other such matters?
That is correct.
Amendment agreed to.
I move amendment No. 5:
In page 4, line 1, to delete "Sections 3 to 14 and 17" and substitute "This Act shall".
This was the subject of much discussion on Committee Stage. I will not repeat everything that was said then. However, we on this side of the House could not see why the Minister was proposing that the provisions of the Bill would relate only to certain matters. We were of the view that the whole Act should apply to all committees, not just sections of the Act. There are provisions in the Bill which would be relevant to all committees of the House. I cannot see why the Minister has limited it to certain sections.
We had a comprehensive debate on Committee Stage on this point. Deputy Ahern could probably pre-empt the response I will give him. Most of the Bill applies only to those committees which are empowered to send for persons and papers, a category which currently excludes, inter alia, the select committees, other than the Joint Committee on Foreign Affairs.
Section 16 forbids a civil servant, garda or member of the Defence Forces from commenting on the merits of Government policy. This exception applies to all committees. The effect of the Opposition amendment moved by Deputy Ahern would be to confine the prohibition on public servants commenting on the merits of Government policy to committees empowered to send for persons and papers. Thus it would remove the prohibition in regard to select committees and would permit public servants to make such comments before those committees. To allow public servants to comment on the merits of Government policy would undermine the traditional neutrality of the public service in providing objective advice to Ministers. For those reasons I cannot accept the amendment.
Is it not the case that under the Bill the terms of reference of a committee may be amended by resolution of the House to allow the committee to send for papers and, therefore, it would be possible for most committees of the House to have that power?
That is correct.
Is the Minister saying that the amendment would muzzle civil servants coming before committees? Section 16 — I am not sure which amendment relates to that section — restricts civil servants, members of the PDF and the Garda Síochána appearing before committees as far as expressing opinions on policy is concerned. We had a long discussion on that matter on Committee Stage and the view was expressed that civil servants and members of the Garda Síochána and the Permanent Defence Forces, perhaps in an effort to defend themselves against issues that arise from time to time, may be required from a historical point of view to give evidence before a committee and express an opinion on a particular policy at that time. There are examples of difficulties in that regard.
We are endeavouring to strike a balance here. A disgruntled civil servant may have a gripe against a Minister or a Department, perhaps because he believed he did not get his proper rights when he retired, but that person should have the right to defend himself. I accept a difficulty would arise in that a person, who may be involved in an investigation, may wish to get his own back on the Department by expressing a certain opinion, but we want to ensure that the person is given an opportunity to defend himself while at the same time ensuring there is no vindictiveness.
Retired civil servants, gardaí and members of the Defence Forces are not covered by this amendment since they are no longer civil or public servants. I understand Deputy Ahern's point, we must be absolutely sure we provide for natural justice in all cases. Civil servants, gardaí and members of the Defence Forces would have to make their case through the relevant Minister. The balance of advantage in terms of the common good lies in ensuring that the traditional neutrality of the public service in providing objective advice to Ministers remains as it has been.
The effect of the amendment would be to confine the prohibition on public servants commenting on the merits of Government policy to committees empowered to send for persons and papers. The amendment would remove the prohibition in relation to select committees and would permit public servants to make such comments before those committees. While I understand the point the Deputy is making, I am not sure the amendment, even if I was in a position to accept it, would provide for that case. I requested Government to consider this matter and there is no way in which we can accede to the amendment. The common good is best maintained by ensuring the traditional neutrality of the public service, and we must come down on that side.
I cannot understand——
Let us not forget the procedures at this time. We seem to be drifting into Committee Stage procedure. The Chair wishes to facilitate an exchange of views and elucidation, but let us be careful not to assume we are on Committee rather than Report Stage.
The Minister is restricting the powers in regard to committees to certain sections and is excluding section 16, under which civil servants may appear before committees. I am endeavouring to ensure that civil servants are allowed express opinions, although not in a vindictive way. My proposal is the best way forward and I intend to press the amendment.
Section 16 will be dealt with extensively. I have moved considerably on that matter in line with the views expressed by the Select Committee on Finance and General Affairs. Civil servants may appear before such committees covered by the Bill, but they are prohibited from commenting on the merits of Government policy.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
We now come to amendment No. 6 in the name of the Minister. Amendment No. 7 is related and I suggest that amendments Nos. 6 and 7 be discussed together.
I move amendment No. 6:
In page 4, line 3, to delete "resolution of".
Amendments Nos. 6 and 7 are drafting amendments introduced in response to comments made during Committee Stage that committees are not appointed by resolution. In order to remove ambiguity, it is proposed to remove the words "by resolution" from the section. There is no other substantive change in the section.
On the list of amendments it is proposed to delete "resolution of" rather than "by resolution".
I am advised that the Deputy is correct. The amendments propose the deletion of the words "resolution of" rather than "by resolution". I thank the Deputy for pointing that out.
If the words "by resolution of" are deleted the section then reads "...persons, papers and records is conferred the House". Should that not read "on the House"?
The word "by" is not deleted. The amendment proposes to delete "resolution of". I will, however, have the matter checked to ensure it is right.
Amendment agreed to.
I move amendment No. 7:
In page 4, line 6, to delete "resolution of".
Amendment agreed to.
I move amendment No. 8:
In page 4, between lines 6 and 7 to insert the following:
"and shall include all Select Committees of the Dáil".
This amendment proposes that all select committees of the Dáil should be included under the provisions of the Bill.
This amendment, which is a reintroduction of amendment No. 4 tabled on Committee Stage, would give compellability powers to all select committees. In the interest of natural justice, witnesses should be compellable only to those committees with the power in their terms of reference to call persons and papers before them. As the Oireachtas can determine which committees have those powers, by determining the terms of reference of committees, it is neither necessary nor desirable to provide in legislation who should have those powers. It is up to the Houses of the Oireachtas to decide the terms of reference of committees. Section 16, which provides that civil servants, members of the Defence Forces or the Garda Síochána shall not express an opinion on policy matters, is an exception to this rule. This exception is to apply to all committees and not merely to those with the powers to compel persons and documents to be brought before them. Therefore, I am not in a position to accept the Deputy's amendment.
The Minister is being over-restrictive in not accepting this amendment. My amendment would open up the provisions of the Bill to all committees of the House. It is a question of the division between the Executive and the Government. As the Minister of State is aware, the Government can force through or reject a resolution to include a committee if it so wishes. It is important that all committees have the powers proposed in the Bill. Otherwise, we will have to painstakingly go through all the committees to give them those powers or wait for an issue to arise to do so. If a political issue arises, the Government could refuse to pass a resolution to give the relevant committee the powers provided under this legislation. This is particularly relevant having regard to the plethora of committees that have been set up. The Government is being over-restrictive in not extending the provisions of the Bill to all committees.
In the interest of natural justice, witnesses should be compellable only to those committees which have been given explicit powers to compel people to appear before them. That is an important power. It is not necessary to go into compellability mode and provide a blanket provision in this case. We do not expect committees to need this requirement on a regular basis.
What committees are included under the provisions of the Bill?
That has yet to be decided.
We know the committees that have the power to compel.
Every committee can go into this mode if necessary, but it is envisaged that, in practice, not many will need to. A special committee might be set up to deal with these requirements. I will discuss the matter with the Deputy in more detail at a later stage.
We are somewhat restricted in the latitude we can afford Members on Report Stage. I tend to show flexibility in these matters, but I ask for the co-operation of the Minister of State and the Deputy in this case.
Would the Chair prefer if I did not reply to the Deputy?
We had an extensive debate on Committee Stage and many of the points raised needed to be teased out further. Report Stage does not lend itself to that type of debate. I ask for co-operation in this regard.
I have no objection to answering questions from the Opposition but, to be more orderly, I will include answers when replying to the following amendments, if that keeps the Chair happy.
Amendment put and declared lost.
I move amendment No. 9:
In page 4, between lines 6 and 7, to insert the following:
"3—In all its deliberations under this Act, it shall be the duty of a Committee to take all necessary steps in order to protect and vindicate the good name of any person appearing as a witness or otherwise before the Committee.".
This matter was deliberated on when legislation was introduced to deal with the difficulties experienced by the Government in November 1994. The Opposition, of which the Minister of State was a member, believed this type of amendment should have been included in that legislation. The amendment proposes to give the committee a duty to take the necessary steps to protect and vindicate the good name of any person appearing as a witness or otherwise before the committee. We were trying to include the principles of the Jock Haughey case whereby any tribunal has a requirement to allow a person to vindicate his or her good name. The four principles of that legislation apply to anyone appearing before a court or tribunal and they should be specifically mentioned in this legislation. I commend the amendment to the Minister of State. On Committee Stage she stated an unwritten rule already exists in this regard, but these principles should be included in the legislation. While she may claim people appearing before committees could take advantage of this section, I do not believe that would be the case. It is important that people appearing before committees have such a reassurance in writing.
This is similar to amendment No. 5 which was tabled on Committee Stage and withdrawn so that I could examine the matter in more detail. This amendment would put the onus on an investigating committee to protect the good name of a witness appearing before it. I do not accept the need for such an amendment as section 10 already provides a redress procedure for a citizen who feels his or her good name has been compromised. Such an individual is given rights of audience and an opportunity to rebut an allegation he or she finds offensive. Moreover, I am advised the amendment is unnecessary given the constitutional protection afforded by article 40.3.2º of the Constitution which provides:
The State shall, in particular, by its laws, protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.
Therefore, the protection of the good name of any citizen is already guaranteed. As the amendment proposes to put in legislation what is in effect already provided for in section 10 and as it refers to rights which are already protected by the Constitution, I deem it to be unnecessary. Accordingly, I am not in a position to accept this amendment.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 4, line 7, to delete "Subject" and substitute the following:
"Where a person has refused to give evidence, or to produce or send a document to a Committee, or to attend before a Committee to give evidence or to produce a document, and subject".
The inclusion of this amendment would improve the section. This issue was discussed extensively on Committee Stage. For her own reasons the Minister rejected the amendment, but I recommend this amendment to the House. It proposes that the powers of the committee will be brought into play in the event of a person refusing to give evidence and it has implications for later sections. I strongly recommend that the Minister accept it.
This is the reintroduction of a Fianna Fáil amendment No. 6 on Committee Stage. It proposes the introduction of a new procedure where witnesses would initially be invited to attend before a committee and would only be compelled to attend if the initial invitation was refused. My legal advice is that if informal questioning, which would not involve a direction under paragraph (a), failed to elicit the required information from a witness, the formal procedure outlined in the Bill would then be invoked. As this formal procedure would involve a direction under paragraph (a), fairness to witnesses dictates that this direction is used in all cases, irrespective of whether informal questioning has already taken place. The introduction of preliminary voluntary attendance is unnecessary as all attendance can be covered under formal directions. Therefore, I am not in a position to accept the amendment.
The section states that a committee "may direct". It is possible that there may be some preliminary examination before the committee directs. My amendment proposes that in the event of somebody refusing to give evidence the provisions of the direction would come into play.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 11 is in the name of the Minister, amendment No. 30 is related, amendment No. 12 is an alternative to amendment No. 11 and amendment No. 15 is related to amendment No. 12. It is proposed to take amendments Nos. 11, 12, 15 and 30 together by agreement.
I move amendment No. 11:
In page 4, line 7, after "may" to insert "with (if, immediately before the giving of the direction concerned, the appropriate subcommittee stands appointed) the consent of the appropriate subcommittee".
Amendment No. 11 provides for the consent of the sub-committee of the Committee on Procedure and Privileges to be obtained by investigating committees before the powers of directions set out in the subsection are invoked. It is a natural consequence of amendment No. 1 which provides for the establishment of the sub-committee. The principle of the matter has been discussed and I will not repeat those arguments. This is a technical corollary of changes to the Bill effected by amendment No. 1.
Amendment No. 30 deals with the question of a consent given by the compellability sub-committee provided through amendment No. 1 to an investigating committee to invoke the powers of the Bill. Such a consent shall be given in writing by the chairman or acting chairman and shall specify the directions of the investigating committee to which the consent shall apply and list any conditions linked to those directions. A document produced by the chairman or acting chairperson at a committee meeting or in court shall be evidence of the consent given and any limitations applying to it. This is to clarify the conditions under which committees can conduct investigations.
Amendment No. 12 is the reintroduction of Fianna Fáil Committee Stage amendments Nos. 7 and 9 which were withdrawn. Deputies will recall that on Committee Stage I signalled my intention to consider the introduction of a Report Stage amendment providing for an overseeing committee. Report Stage amendment No. 1 provides for the overseeing sub-committee as promised. As I understand it, amendment No. 12 provides a compellability of witness would be decided by a new sub-committee on compellability and amendment No. 15 provides for the establishment of that new sub-committee.
As the essence of these amendments has been realised by amendment No. 1, I do not see a need for them and, therefore, I will not be in the position to accept them.
I agree that on amendment No. 1 being accepted, my amendments Nos. 12 and 15 fall. I support amendment No. 11.
Amendment agreed to.
Amendment No. 12 not moved.
Acting Chairman
Amendment No. 13 is in the name of the Minister, amendments Nos. 27 and 28 are related and amendment No. 14 is an alternative to amendment No. 13. It is proposed that amendments Nos. 13, 14, 27 and 28 be taken together by agreement.
I move amendment No. 13:
In page 4, between lines 19 and 20, to insert the following:
"(d) direct in writing any person to make discovery on oath of any documents that are or have been in that person's possession or power relating to any matter relevant to the proceedings of the committee and to specify in the affidavit of documents concerned any documents mentioned therein which he or she objects to produce to the committee and the grounds for the objection, and the rules of court relating to the discovery of documents in proceedings in the High Court shall apply in relation to the discovery of documents pursuant to this paragraph with any necessary modifications,".
This amendment provides for a procedure to allow for the discovery of documents. Amendment No. 14 also makes that provision. Both amendments relate to discovery of documents procedure, which means that if so instructed by a court a person is obliged to swear under oath that he or she will provide all documents at his or her disposal relevant to the proceedings in question. The wording in the Bill in relation to compellability of documents is that a person will obey a direction from a committee in relation to documents in his or her possession and that there is no obligation on a person to produce relevant documents which are not specified by the committee.
Deputies Ahern and McDowell made significant contributions to the debate on Committee Stage following which I agreed to bring forward an amendment on Report Stage which would provide for the discovery of documents procedure to be applied through this Bill. The text of amendment No. 13 gives effect to that.
As the essence of amendment No. 14 is covered by my amendment No. 13, I am not in a position to accept amendment No. 14.
It is desirable that the committees of the House should have access to this mode of discovery. That is why we proposed amendment No. 14. The Minister's amendment is more detailed and I support it. Will the Minister give more detail on amendments Nos. 27 and 28?
Amendments Nos. 27 and 28 are a direct consequence of Government amendment No. 13 which provides for the introduction of discovery of documents procedure in section 3(1)(d) of the Bill. Amendment No. 28 provides that a witness who fails to comply with the committee's direction in relation to the discovery of documents will be guilty of an offence. Amendment No. 27 is technical to allow for the inclusion of the additional provision set out in amendment No. 28. Since section 3(7)(c) is no longer the penultimate part of the subsection, there is no longer any need for the word "or" at its end.
I welcome the inclusion of discovery powers in the panoply of powers that will be given to committees. Although Deputy Ahern and I spoke strongly in favour of including this power, he and I would counsel our successors in this House and its committees that it is not a power to be used in the way snuff is flung around at a wake. It is an onerous power and should not become customary. I imagine guidelines for committees would stress it was to be used as a last resort in substitution for voluntary informal discovery.
One fundamental point has struck me since Committee Stage and it can be applied to all the amendments equally. Is the Seanad to be equally competent in establishing committees to investigate the same matters as this House? Under the Bill, the answer is yes. Is this desirable? It was assumed these powers should be given to Dáil committees and, therefore, to Seanad and joint Oireachtas committees. A question mark is left over whether it is a good idea to give the Seanad the power to investigate anything the Dáil does on its own volition with its own powers. It could summon the same witnesses before it as the Dáil, ask the same or different questions and come to the same or different conclusions. This has been assumed during the debate but has not been addressed thoroughly. What happens if the Seanad decides to investigate one matter rather than another? Should there be an acceptance that the Dáil takes precedence in relation to investigatory matters? I am not saying this to belittle the Seanad. Should there be an acceptance that if there is a conflict between two committees the requirements of the Dáil come first?
That is a very good point.
My understanding of the Seanad is that it is not a House of public representatives, although under the Constitution it is a separate House of the Oireachtas and is given legislative competence. The public representative role accorded by the Constitution to the Dáil and the answerability of the Government and the Executive to the Dáil as opposed to the Seanad should confer a much different status and function on committees established by the Dáil rather than those established by the Seanad. I am most unhappy that the Seanad, whose role is not representative and not to hold the Executive accountable to public representatives, is being given the same powers and functions and certain overlapping powers and competence in respect of virtually any matter it chooses to arrogate to itself.
The Bill will go to the Seanad and my point will not be flavour of the month. Perhaps it should have been made here on Second Stage. We did not debate it, although it may have been discussed privately. One can take the example of the Fr. Brendan Smyth affair. I have a grave difficulty with the notion that the Seanad could decide to investigate a case such as that. For instance, Senator Norris or any other Senator could establish a committee and come up with a report on X or Y so that the Seanad could satisfy itself that a Dáil committee was wrong. It could summon the same witnesses, seek discovery of the same documents, demand production of the same material and come to a separate conclusion. That is most undesirable but there is no notion of co-ordination between the competence of both Houses in the Bill. If one House directs discovery and the other House does not, there will be clashes and overlaps of jurisdiction which have not been thought out properly in this legislation.
Acting Chairman
There is a difficulty with the Deputy's point but there seems to be interest in it and the Minister of State may want to have a more detailed discussion on it. It might be advisable to consider recommital of the amendment.
I will address all questions raised and will build replies in on subsequent amendments or on Final Stage. The Seanad has the same powers as the Dáil but the Deputy's points are extremely well made. We cannot have duplication or competition between both Houses or two lines of inquiry into the one issue. That would be totally unacceptable. I will give a more considered reply later but I agree strongly with the thrust of the Deputy's contribution. It is not the intention of the Bill to allow that scenario to develop. Ultimately, it is up to the Houses of the Oireachtas to decide which committees can have the power of compellability, and at that point, they will be in control of who does what.
Amendment agreed to.
Amendments Nos. 14 and 15 not moved.
I move amendment No. 16:
In page 4, to delete lines 23 to 28 and substitute the following:
"(2) The reasonable expenses of a person who—
(a) pursuant to a direction, attends before a committee, or
(b) pursuant to subsection (1) of section 10, appears before a committee or gives evidence to a committee that the committee considers was, in the interests of justice, necessary or expedient for any of the purposes specified in the said subsection (1),
shall be paid out of moneys provided by the Oireachtas.".
This is a drafting amendment for the purpose of clarity and does not alter in any way the provision that the Oireachtas will pay reasonable witness expenses of persons who exercise their right under section 10 to attend committee meetings where they have been identified.
This amendment resulted from discussion on Committee Stage where it was pointed out that a person who would come as a witness but would not necessarily have been directed would not be entitled expenses whereas a person who is directed would be so entitled.
Amendment agreed to.
I move amendment No. 17:
In page 4, line 38, after "Special Criminal Court" to insert "the Ceann Comhairle, the Leas-Cheann Comhairle, the Cathaoirleach of the Seanad and the Leas-Chathaoirleach of the Seanad".
The Chief Justice, the President of the High Court and the President of the Circuit Court are already excluded from the provisions of the Bill. This amendment will also exclude An Ceann Comhairle, An Leas-Cheann Comhairle, An Cathaoirleach and An Leas Cathaoirleach. They are people of a particular stature within the Houses of the Oireachtas and it would be inimical to the procedure of the Houses if a committee were entitled to direct them to come before it. It would be far better to deal with this within the rules of the Houses. A major talking point on Committee Stage was that much of the Bill goes further than the ability of the House to make its own rules under the Constitution. That is why I propose these further exclusions.
I am not in a position to agree to this amendment. I understand it stems from comments in the document prepared by the sub-committee of the Select Committee on Finance and General Affairs that An Ceann Comhairle, An Leas-Cheann Comhairle, An Cathaoirleach and An Leas-Chathaoirleach should be exempt from compellability. While it is unlikely that the chairpersons and deputy chairpersons of the Houses would be subject to investigation in that capacity, all other Dáil and Seanad representatives are to be compellable. Accordingly, I do not see valid grounds for making an exception for chairpersons.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 18 and 19 are related and may be discussed together by agreement.
I move amendment No. 18:
In page 4, line 42, to delete ", and" and substitute "or any one of the Select Committees of the Dáil.".
This issue also caused much discussion on Committee Stage. The Government endeavoured to restrict the remit of the Bill as it applied to the Attorney General and the Director of Public Prosecutions, to make them different from other personages. The Minister allowed some leeway as to the DPP but not as regards the Attorney General. The tenet of these amendments is that the Attorney General should be referable to this legislation. I know the Minister has a difficulty on this point but, on the broad principle of the Attorney General being directed to come before committees, there have been instances when he should have been amenable to committees of this House. The Government, for some unknown reason, wishes to cloud that in restriction.
There is also the issue of who gave legal advice on this Bill. I do not impugn the Attorney General in any way but it is up to us rather than to officials to decide who we want to come before committees and under what terms they do so. The Government is listening to the view of officials in the office of the Attorney General as to how they should be treated but I do not accept that. We should insist that committees of the House should have the same opportunity to bring the Attorney General and his officers before them as to bring others. They should talk not only of issues of general administration but of specific matters which might arise from time to time. The Bill provides that the Attorney General should come before the Committee of Public Accounts and no other committee. That is not acceptable because all that takes place there is investigation of Estimates.
I may return on this point. These amendments were only received this morning and the Minister may have an alternative amendment which may deal with problems we have had on this side of the House.
Confinement of the compellability of the Attorney General to the general administration of his office is necessary to protect the client confidentiality of the Attorney General in specific cases. Compellability is being confined to the Committee of Public Accounts only. That is the committee to which accounting officers — that is, Secretaries of Departments and Heads of Offices — are accountable in their capacities as administrative heads of their areas of responsibility. The Government has decided this is the most appropriate form of accountability for the Attorney General and the most that can realistically be expected of him. This is because his work in his capacity as legal adviser to the Government must remain confidential. As officers of the Attorney General would answer questions on his or her behalf, it is logical that their accountability is the same as that of the Attorney General.
The Attorney General is an independent constitutional officer whose authority derives from the Constitution. As Members of this Dáil have been reminded often enough, his accountability is to the Taoiseach by whom he is appointed rather than to Dáil Éireann. It is possible to distinguish between those actions which an Attorney General takes as guardian of the public interest and those he takes as adviser to the Government. The possibility of embodying that distinction in the Bill in a manner which widened the area of compellability applying to the Attorney General was explored. In that context we were conscious of the interest expressed in the House about the initiatives taken as guardian of the public interest by a previous Attorney General on the X case and Cabinet confidentiality. However, we were strongly advised that such initiatives were intrinsically connected with the independent status of the Attorney General's office and that the application of a compellability provision to them would impinge on that independence. In the circumstances, it is not open to me to agree to any change in this regard.
Amendment No. 18 would make the Attorney General and his officers compellable to any committee. For the reasons already given I cannot accept this. As this amendment would also make officers of the Attorney General accountable for a full range of business carried out at that office it cannot be accepted. It could lead to such officers being questioned about specific legal cases. It would also lead to a greater degree of compellability for the officers of the Attorney General than for the Attorney General and that would not be acceptable.
Neither can I accept amendment No. 19 which would remove the provisions which currently confine the compellability of the Attorney General and his officers to the general administration of his office. As this would allow him or her to be questioned on specific cases or his or her capacity as legal adviser to the Government, it cannot be accepted. With regard to the officers of the Attorney General, as I already said I cannot accept this amendment.
This is an important amendment because, as was said on Committee Stage, this is a key issue in the legislation. It goes to the core of the division of powers under our Constitution — the Minister is nodding but unfortunately she is not accepting our proposal. It was suggested that the Office of the Attorney General should be split into two offices, one for matters connected with his role as legal adviser to the Government and one for his role as protector of the public interest in the courts. That is a valid distinction which should be made. It is difficult for any Attorney General to look dispassionately at issues as he has been appointed by and is legal adviser to a Government. At the same time he has a duty to the public interest. A former Attorney General was verbally abused politically and publicly for actions he took in the interests of the public. The passage of time has shown that he acted totally independently but at the time it was suggested that he had acted in a covert, political way.
Regarding whether the Attorney General and his officers should come before committees, we have had many recent occasions on which the Attorney General refused to attend committees. I was a member of a committee when the Attorney General would only allow a file to be tendered when certain portions of it were excluded from the committee's deliberations. We reached farce when, at one stage, it was suggested that the committee's legal adviser see those sections of the file that the Attorney General wanted to exclude so that he could be satisfied as to whether the committee members should see them. It was a crucial issue as we were trying to determine the connection between the Attorney General and his British counterpart regarding the extradition application concerning Fr. Brendan Smyth.
For those reasons, it is quite justifiable for us to ask that the Attorney General to come before committees. I do not accept the Minister of State's point that an amendment might have the result of bringing the Attorney General and his officers to all the committees of the House. It is not beyond the intelligence of the Attorney General and his officers to come up with an amendment which would take care of that and would allow him to come before a committee to deal with issues on a broad basis, not on a specific case by case basis. The Minister of State accepted our bona fides that the Attorney General would not be asked or be allowed to be asked about specific cases. That is not our aim. We want to allow Members to hold people accountable, as is our constitutional duty. To do so, we need to bring people like the Attorney General before the House. The Government is restricting that issue with this section.
We have had a litany of instances of the Attorney General's office being discussed in the House. Different Taoisigh have had difficulties with the Attorney General's office and the House has not been able to investigate the matter properly because the Attorney General takes a "hands-off" approach. Rather than listening to the advice of the Attorney General, the Government should look at this matter in a broader context. This is a Bill for the Houses of the Oireachtas, not the Government. There is an important distinction in the separation of powers relating to whether the executive is to be held accountable by the Legislature under the Constitution. That is why, by restricting the Attorney General's power to come before the Committee of Public Accounts to talk about accounts and the general administration of his office, similar to the Minister of State's recently released strategic plan, which is an aspirational document it does not deal with key issues of interest to Members that might arise but that we have been unable to investigate properly. For a Government that has espoused openness and transparency, this section is wrong and does a disservice to it.
There should be a collegiate approach to this, taking all points of view into account. We should determine who comes before committees, not the Attorney General. If the Government had any wit, it would have come up with an amendment to take care of some of the problems with the Attorney General attending committees.
The Government has plenty of wit, but even if I accepted the bona fides of Deputy Ahern's case, I cannot accept the amendment.
There is wit but no willingness.
The Deputy suggested splitting the functions of the Attorney General's office, and perhaps there should be time for that debate. However, it is not appropriate to Report Stage of this Bill and it is not for me to decide now that some of that division of labour should be compellable in relation to the powers this Bill confers.
The Deputy knows the Attorney General has three roles. He is the legal adviser to the Government; he is the defender of the public interest; and his third role relates to the administration of his office. He will only be compellable to the Committee of Public Accounts in relation to his third role. I cannot concede otherwise to the Deputy.
Lest anyone think it intransigence or stubbornness on my or the Government's part, the Attorney General is one of a number of constitutional officers of the State whose positions are created by the Constitution and not by the Houses of the Oireachtas. Under the Constitution, the Attorney General is not responsible to the Oireachtas for anything. He is responsible to the Taoiseach in the sense that the Taoiseach appoints him and may dismiss him at will. The Attorney General cannot therefore be made subject to the Oireachtas or its committees for the way in which he discharges any of his legal functions, nor can he be placed in a position where he might be called upon to give information to the Oireachtas about the discharge of his legal functions in individual cases. To attempt to do so would be to compromise his independence, which has been recognised by the courts, and would contravene the Constitution.
The Constitutional Review Group is an independent body removed from the political scene.
Is the Attorney General part of it?
Its report last year recommended that the Attorney General's relationship to the Government should not entail accountability to the Houses of the Oireachtas. The report also recommended no change in the law concerning the independence and accountability of the Attorney General in respect of the discharge any of his legal functions.
Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 69; Níl, 51.
Tá
- Ahearn, Theresa.
- Allen, Bernard.
- Bell, Michael.
- Bhamjee, Moosajee.
- Boylan, Andrew.
- Bradford, Paul.
- Bree, Declan.
- Broughan, Thomas.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Bruton, Richard.
- Burke, Liam.
- Burton, Joan.
- Fitzgerald, Brian.
- Fitzgerald, Frances.
- Flaherty, Mary.
- Flanagan, Charles.
- Gallagher, Pat (Laoighis-Offaly).
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Michael.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Seán.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McDowell, Derek.
- McGahon, Brendan.
- McGinley, Dinny.
- McGrath, Paul.
- McManus, Liz.
- Mitchell, Gay.
- Mulvihill, John.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Costello, Joe.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- De Rossa, Proinsias.
- Doyle, Avril.
- Dukes, Alan.
- Durkan, Bernard.
- Ferris, Michael.
- Finucane, Michael.
- Nealon, Ted.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Toddy.
- Owen, Nora.
- Pattison, Séamus.
- Penrose, William.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ring, Michael.
- Ryan, John.
- Ryan, Seán.
- Shatter, Alan.
- Sheehan, P.J.
- Shortall, Róisín.
- Stagg, Emmet.
- Taylor, Mervyn.
- Timmins, Godfrey.
- Upton, Pat.
- Walsh, Éamon.
- Yates, Ivan.
Níl
- Ahern, Bertie.
- 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.
- Davern, Noel.
- de Valera, Síle.
- Dempsey, Noel.
- Ellis, John.
- Fitzgerald, Liam.
- Fox, Mildred.
- 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'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Rourke, Mary.
- Power, Seán.
- Quill, Máirín.
- Ryan, Eoin.
- Smith, Brendan.
- Treacy, Noel.
- Walsh, Joe.
- Woods, Michael.
Tellers: Tá, Deputies Durkan and B. Fitzgerald; Níl, Deputies D. Ahern and Callely.
Question declared carried.
Amendment declared lost.
I move amendment No. 19:
In page 4, to delete lines 43 to 46.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 20. Amendments Nos. 21, 22, 24 and 25 are related and I suggest they be discussed together.
Amendment No. 20 not moved.
I move amendment No. 21:
In page 5, line 2, to delete "or an officer of the Director of Public Prosecutions".
The principle is the same as in the previous amendment. The Government is endeavouring to restrict the Director of Public Prosecutions and the officers of the Director of Public Prosecutions coming before the committees of the House. This was the subject of substantial discussion on Committee Stage.
When the Bill was published the Government endeavoured to exclude the Director of Public Prosecutions completely from the remit of the Bill, something to which we objected. Between publication and the subsequent taking of the Bill, when there was a considerable time lapse, the Director of Public Prosecutions answered questions on the Marian Finucane radio programme. Obviously the Government was obliged to accept some amendments in regard to having the Director of Public Prosecutions come before committees of the House. For that reason we pushed the matter strongly. How could a Director of Public Prosecutions go on the airwaves and answer questions from the public when he was not allowed to come before committees of this House, under this Bill by the Government, which came into office on the pretext of openness, transparency and accountability, and voted down the amendment in regard to restricting the Attorney General to coming before the Committee of Public Accounts and only then in relation to the general administration of his office? The Director of Public Prosecutions is entitled to come before a committee of the House, the Committee of Public Accounts, but only in relation to general administration and statistics relevant to his office and is not allowed go before any of the other committees of the House.
For instance, the Select Committee on Legislation and Security might want to know why a particular direction was given to the Garda in relation to prosecution or non-prosecution of offences. From time to time the Director of Public Prosecutions issues directions. Recently he issued a direction in regard to the non-prosecution of offences, the non-holding of people in custody pending charges. Perhaps the Dáil or a committee would like to know the rationale behind that decision. We are not asking that the Director of Public Prosecutions be asked about specific cases. Recently I raised an issue with the Taoiseach concerning families one of whose children had been abused. I had some child sexual abuse cases where no prosecution was taken. There was no proper communication between the Director of Public Prosecutions and the family. The communication was through the Garda Síochána and it was somewhat impersonal. I asked the Taoiseach if there was some avenue through which there could be a better interlinking with the family to try to explain why a prosecution was not taking place.
The DPP, whose actions impinge on the lives of citizens, should be made amenable to the Houses of the Oireachtas, although not with regard to specific cases. However, the Bill shall not apply to the DPP or officers of the DPP, except in respect of the Committee of Public Accounts, which is only concerned with public accounts and then only in respect of evidence, documents or statistics in the possession of the DPP regarding the general administration of his office. Better statistics have only recently been made available. The Government was reluctantly compelled to include this in the Bill mainly because the DPP appeared on the "Marian Finucane Show". However, only minimalist amendments were allowed, which do not enable the House to do its duty under the Constitution and make officers of the State more amenable.
While I accept that the DPP can never be other than fully independent he must become more directly involved. For example, he and his officers make directions to the Garda Síochána in respect of files they receive and it has been suggested that in sexual abuse case this led to matters being handled very impersonally. He should be made more amenable, not only to the Committee of Public Accounts but to other committees, such as the Select Committee on Legislation and Security.
I am disappointed that the Minister of State has not seen fit to allow this amendment. It goes against the commitment by the Government, set out in the opening paragraphs of its programme, A Government of Renewal, to openness and to change the institutions of the State to make them more amenable and responsible. People believed this rubbish for a time until the more perceptive commentators and independent observers concluded that this was the most secretive Government in the history of the State. It was a Government whose members made their name on an issue in November 1994 about which people in my party knew nothing.
However, nothing has happened. In its first document on Dáil reform the Government proposed that matters of concern could be raised in the House, yet it quickly did a U-turn. The Cabinet is highly secretive and wishes to suppress any ability the House may have to investigate issues that affect people, such as a direction from the DPP, which goes to all Garda stations, and the Office of the Chief State Solicitor, issues which impinge on the daily interaction by the public with the law. If the DPP is prepared to appear on the "Marian Finucane Show" he should be prepared to appear before a relevant Dáil committee, which is not necessarily the Committee of Public Accounts. The Minister of State can act only on the direction of the Cabinet, whose record in this area is worse than that of previous Governments. One political correspondent referred to it as the most secretive Government in the history of the State.
I agree with amendment No. 20 in the name of Deputy Michael McDowell. The purpose of the amendments in my name is more restrictive than the stipulations proposed for the Attorney General. While they provide that the DPP may appear before all committees of the House, if the Government had been willing to accommodate the view of this side of the House it would have been able to produce an amendment restricting the DPP to appearing before specific committees, for example, the Select Committee on Legislation and Security and some of the more important committees. The Government agreed to reconsider these issues on Report Stage. Officials are occasionally blamed for the restrictions they place on these issues. However, in this case, members of the Government are being overly restrictive with regard to the attendance of the Attorney General and the Director of Public Prosecutions before committees.
The Bill was launched with a fanfare and the Minister for Finance, Deputy Quinn, said it would open up the institutions of the State. The original legislation contained more exemptions than any other Bill for many years. The Government was forced to amend the position in relation to the Director of Public Prosecutions but it only made minuscule changes. Who is pulling the strings? Under the Constitution, the House has a right to ensure on behalf of the people that the Government and officers of the State are amenable to Parliament. However, that is not facilitated in the legislation. The measures are wrong, and I would say that if my party was in Government. The House should be more open.
I do not understand why Oireachtas Members, who are public representatives, should be compelled to appear, as members of my party were forced to do a couple of years ago, and answer for mistakes made by others of which they were not aware. That should not happen. The Minister of State will mention the strategic management initiative but Deputies should not be held responsible for the mistakes, wrong doings and negligence of others.
Members should give themselves more power to make people outside the House more accountable to it. That is what the Constitution intended and, although I am probably wasting my breath, I implore the Minister of State to reconsider this matter. Members of the Government may find themselves on the Opposition side in the future and they may take the view then that this is necessary. When I was on the Government side of the House, my area of responsibility included Dáil reform and I always took the view that procedures should be more open. There were proposals at that time for more openness and reforms were, by and large, implemented by a Fianna Fáil led Government. Unfortunately, Government Deputies have shown that, once they get into positions of power, they take a different view from the one they held in Opposition.
The provisions in the section are wrong. It would be much better if, even in a limited way, the Director of Public Prosecutions could be called to appear before committees other than the Committee of Public Accounts and queried on policy in terms of the administration of the courts rather than general administration and statistics. Deputies should have a say in that area. I accept the independence of the Office of the Director of Public Prosecutions. This office is probably more independent than the Office of the Attorney General. The Attorney General is a political appointee and is more involved in the day to day running of Government because he sits at the Cabinet table. However, the Government's proposals in these areas are wrong and I ask the Minister of State to reconsider them.
It is disappointing that a debate, which heretofore avoided political charge, appears to be descending into party political broadcasts. I should not be surprised, given that there will be a general election some time this year. In the usual adversarial fashion of the House, opportunities are taken by both sides to have a go at each other.
They are facts.
That is the way the game has been played. However, this debate involves serious issues and I am disappointed at the Deputy because he has been constructive up to now in relation to this difficult legislation.
The Deputy stated in his political broadcast that senior members of the previous Government were expected to answer questions on matters to which they could not respond. I presume the Deputy was referring in particular to the most senior member of that Government, the Taoiseach, in relation to the matter of the Office of the Attorney General. It is shocking that a Taoiseach of any political complexion would not be in a position to respond to questions and charges in the House in relation to the Attorney General or his office at any stage. The Taoiseach appoints the Attorney General and is answerable to the House regarding the performance of the Attorney General and related matters.
That is not the case with the current Taoiseach. He obfuscates all the time.
I do not accept that anybody is fit to be Taoiseach unless he or she is in a position to answer such questions.
The Minister of State is aware that was a unique situation. My point was general.
The Deputy said senior members of the previous Government were asked to reply to questions in the House for which they did not have answers. He made a political broadcast.
I understand the frustration and annoyance of Deputies about the fact that the Director of Public Prosecutions chose to take part in a popular radio 'phone in programme and talk his heart out within weeks of refusing to appear before a committee. I was also taken aback by his decision. However, the Government has responded to that position to the maximum appropriate extent.
I would put money on it that the Deputy, if he was on this side and his party was part of a Government steering this legislation through the House, would do exactly what this Government is doing in this area. It is possible he would not have gone as far in relation to the Director of Public Prosecutions. I make this unequivocal point on the basis of the source of the advice I received, which is similar to the advice which would be available to the Deputy's party if it was in Government. However, I understand Members' frustration and the Government responded to it by making the Director of Public Prosecutions compellable in almost exactly the same manner as the Attorney General is compellable before the Committee of Public Accounts.
As the Deputy will recall, that was not the original intention but the Government immediately moved on that aspect. This is as far as the Constitution allows the Government to go. Ultimately, all legislation is circumscribed by what the Constitution directs. This is the point in this area and we must be careful that all legislation meets the spirit and letter of the Constitution. We must not jeopardise the independence of the Office of the Director of Public Prosecutions by our actions in relation to the Bill. The Government has moved significantly in terms of the position of the Director of Public Prosecutions in the original Bill where he or she was not compellable at all.
The amendments are re-entered versions of Committee Stage amendments Nos. 17, 18, 21 and 22 relating to the compellability of the Director of Public Prosecutions and his officers. The Deputy will recall from the Committee Stage debate that the Government decided that compellability should be the same for the Director of Public Prosecutions as the Attorney General. As officers of the Director of Public Prosecutions and the Attorney General could answer questions on their behalf, it is logical that accountability of staff of both offices should be the same as for those offices themselves.
Accountability of the Attorney General to the Committee of Public Accounts in his capacity as head of his office is acceptable. However, as the Deputy is aware, the Attorney General is not accountable to the Oireachtas but to the Taoiseach. As senior law officers of the State, the arguments for having the offices of the Director of Public Prosecutions and the Attorney General treated similarly are compelling. The Government has decided this is the best and most logical way to provide for compellability of the Director of Public Prosecutions. Regarding amendment No. 21, this would remove the exemption previously given to officers of the Director of Public Prosecutions. As it is logical that accountability of staff of both the Attorney General and the Director of Public Prosecutions should be the same as those for the offices, I am not in a position to accept the amendment.
Amendment No. 22 would make the Director of Public Prosecutions compellable by any select committee. As this would mean different levels of compellability for the Director of Public Prosecutions and the Attorney General, I cannot agree to it.
Amendment No. 24 would have the same effect as a combination of amendments Nos. 21 and 22. The same reasons for opposing those amendments apply.
Amendment No. 25 would make officers of the Director of Public Prosecutions compellable by the Committee of Public Accounts or any select committee. As it would make officers of the Director of Public Prosecutions accountable for the full range of business carried out in that office, it cannot be accepted as it could lead to such officers being questioned about specific legal cases. It would also lead to a greater degree of compellability for officers of the Director of Public Prosecutions than for the director himself. This would be unacceptable.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 22 not moved.
Acting Chairman
We now proceed to amendment No. 23. Amendment No. 26 is an alternative. It is proposed that they be taken together. Is that agreed? Agreed.
I move amendment No. 23:
In page 5, between lines 12 and 13, to insert the following:
"(7) Where a person disobeys a direction, the High Court may, on application to it in a summary manner in that behalf by the chairman of the committee concerned on behalf of the committee, order the person to comply with the direction and make such other (if any) order as it considers necessary and just to enable the direction to have full effect.".
On Committee Stage I undertook to introduce on Report Stage an amendment which would provide a means to speed up High Court action against reluctant witnesses. This amendment provides for committees to apply in a summary manner to the High Court for an order compelling the witness to comply with the committee's direction. The principle of amendment No. 26, has, therefore, been met, although I appreciate fully what the Deputy is trying to achieve. This amendment deals with the issue adequately.
This amendment, which I accept, is more restrictive than amendment No. 26 which would allow the High Court to make such interim or interlocutory order or ancillary order as it may deem necessary. This legislation will place a huge onus on Members of the Oireachtas, in particular chairpersons of committees who may be obliged to take action on foot of the deliberations of the committee concerned. Will the Minister of State clarify that the chairperson of a committee will be indemnified where he or she is unsuccessful in the High Court in having a person directed to comply with the committee's direction?
We will deal with the matter of the indemnity of chairpersons when we come to amendment No. 31.
Amendment agreed to.
I move amendment No. 24:
In page 5, between lines 12 and 13, to insert the following:
"(7) Subsection (1) shall not apply to the Director of Public Prosecutions except where the committee is the Committee of Public Accounts or any one of the Select Committees of the Dáil.”.
Amendment put.
The Dáil divided: Tá, 48; Níl, 65.
Tá
- Ahern, Bertie.
- 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.
- Davern, Noel.
- de Valera, Síle.
- Dempsey, Noel.
- Ellis, John.
- Fitzgerald, Liam.
- Haughey, Seán.
- Hughes, Séamus.
- Jacob, Joe.
- Keaveney, Cecilia.
- Kenneally, Brendan.
- Keogh, Helen.
- Killeen, Tony.
- Kirk, Séamus.
- Kitt, Michael.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Martin, Micheál.
- Moffatt, Tom.
- Moynihan, Donal.
- Nolan, M.J.
- Ó Cuív, Éamon.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Rourke, Mary.
- Power, Seán.
- Quill, Máirín.
- Ryan, Eoin.
- Smith, Brendan.
- Treacy, Noel.
- 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.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- De Rossa, Proinsias.
- Doyle, Avril.
- Durkan, Bernard.
- Ferris, Michael.
- Finucane, Michael.
- Fitzgerald, Brian.
- Fitzgerald, Frances.
- Flaherty, Mary.
- Flanagan, Charles.
- Gallagher, Pat (Laoighis-Offaly).
- Gilmore, Eamon.
- Higgins, Michael.
- Hogan, Philip.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Seán.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McDowell, Derek.
- McGahon, Brendan.
- McGinley, Dinny.
- McGrath, Paul.
- McManus, Liz.
- Mitchell, Gay.
- Mulvihill, John.
- Nealon, Ted.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Toddy.
- Owen, Nora.
- Pattison, Séamus.
- Penrose, William.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ring, Michael.
- Ryan, John.
- Ryan, Seán.
- Shatter, Alan.
- Sheehan, P.J.
- Shortall, Róisín.
- Stagg, Emmet.
- Taylor, Mervyn.
- Timmins, Godfrey.
- Walsh, Éamon.
- Yates, Ivan.
Tellers: Tá, Deputies D. Ahern and Callely; Níl, Deputies Durkan and B. Fitzgerald.
Amendment declared lost.
I move amendment No. 25:
In page 5, between lines 12 and 13, to insert the following:
"(7) Subsection (1) shall not apply to an officer of the Director of Public Prosecutions except where the committee is the Committee of Public Accounts or any of the Select Committees of the Dáil.”.
Amendment put and declared lost.
Amendment No. 26 not moved.
I move amendment No. 27:
In page 5, to delete line 27 and substitute "paragraph (b), (c), (d) or (e) of subsection (1),".
Amendment agreed to.
I move amendment No. 28:
In page 5, between lines 27 and 28, to insert the following:
"(d) in relation to the discovery of documents pursuant to paragraph (d) of subsection (1), contravenes a rule of court referred to in that paragraph, or".
Amendment agreed to.
I move amendment No. 29:
In page 5, line 30, after "the court" to insert "or any other person".
This amendment is in response to comments made by several speakers on Committee Stage. The original wording of the section provided that witnesses behaving in a manner which would amount to contempt of court should be guilty of an offence. The amendment adds to the original wording the phrase "or any other person" to provide a similar protection to individual persons, and that witnesses who engaged in behaviour that amounted to contempt of a person would also be guilty of an offence.
Amendment agreed to.
I move amendment No. 30:
In page 5, between lines 32 and 33, to insert the following:
"(8) (a) A consent of the appropriate sub-committee under subsection (1) (`a consent') shall be in writing and the document containing it shall be signed by the chairman of the subcommittee or by another member of the subcommittee duly authorised in that behalf by such chairman.
(b) A consent shall relate to a specified committee and specified functions of that committee and may relate, as may be specified in the consent, to one or more specified directions or classes of directions, or all directions, in relation to a specified person or matter or persons or matters generally and shall be subject to such restrictions, limitations or other conditions (if any) as may be specified in the consent.
(c) A document—
(i) produced at a meeting of a committee by the chairman of the committee or another member of the committee who is acting as chairman thereof, or
(ii) produced in a court by the chairman of a committee or another member of the committee duly authorised in that behalf by such chairman,
and purporting to comply with paragraph (a) and to contain a consent relating to that committee shall, unless the contrary is shown, be evidence—
(I) of the consent and that it relates to that committee, to the functions of that committee specified in the consent and to the directions or classes of directions so specified and that those directions or classes of directions relate to the persons or matters so specified, and
(II) of any restrictions, limitations or other conditions so specified to which the consent is subject.".
Amendment agreed to.
I move amendment No. 31:
In page 5, between lines 36 and 37, to insert the following:
"(9) In this section—
(a) a reference to the President, the Attorney General, the Director of Public Prosecutions or a judge of the Supreme Court, the High Court, the Circuit Court, the District Court or the Special Criminal Court is a reference to a person who holds or held that office in his or her capacity as such holder, and
(b) a reference to an officer, in relation to the President, the Attorney General or the Director or Public Prosecutions, is a reference to a person who is or was an officer of the President, the Attorney General or the Director of Public Prosecutions in his or her capacity as such an officer, and includes a reference to a person who provides or provided professional legal services to the Attorney General or the Director of Public Prosecutions under a contract for services in his or her capacity as such a provider.".
This amendment is in response to comments made by Deputy McDowell and others on Committee Stage that Civil Service managers could prevent a civil servant from being questioned by spuriously transferring him or her to the Office of the President, the Attorney General or the DPP. Such civil servants would then be immune from compellability, except in the circumstances provided for the Attorney General and the DPP in the Bill. Inclusion of the phrase "in such capacity" means that civil servants could only avail of the special provisions on compellability for those offices for the time they spent working there. If a civil servant was transferred to one of those offices, he would still be compellable in the normal way for his previous employments. The reference to the professional legal services under a contract for services is to cover personnel in the offices of the Attorney General and the DPP engaged on terms different from those of civil servants.
Will the Minister of State clarify the special provisions for civil servants?
We will deal with that extensively in section 16 when we can have a long discussion on it.
I understand the Minister has agreed to substantially amend section 16.
Yes.
Amendment agreed to.
I move amendment No. 32:
In page 5, between lines 36 and 37, to insert the following:
"4.— To remove doubt in so far as the procedures of committees may be materially affected by the provisions of this Act they shall continue to be regulated by application of the rules and Standing Orders of Dáil Éireann or Seanad Éireann, as the case may be, and in such application due observance shall be taken of section 3 of this Act.”.
I tabled this amendment to remove any doubt about the procedures of this House. The effect of the amendment is to maintain the supremacy of the House to regulate its own procedures under Article 15.10 of the Constitution. It is important that we allow the internal procedures of the House be regulated by our Standing Orders and that Members dictate their own regulations rather than constantly having to refer to this legislation. The Minister of State may say the amendment is not necessary but it gives an emphasis in regard to the rules of the House, which is important.
This proposed new section provides that procedures of committees would be regulated by Standing Orders with due regard to the powers of compellability set out in the Bill. As there is no need to make these provisions in legislation, effectively the House can order its own affairs through its committees and Standing Orders, I am not in a position to agree to the amendment. It is superfluous and the balance of advantage lies in not creating a precedent whereby we legislate for what the House can already do. I am sure the Deputy will agree with me that the House and committees of the House should regulate their own affairs.
Amendment, by leave, withdrawn.
Amendment No. 33 is out of order as it involves a potential charge on the revenue.
Amendment No. 33 not moved.
I realise this amendment cannot be moved as it is out of order but I had indicated to Deputy Ahern in the discussion on amendments Nos. 23 and 26 that I would address the question of indemnity of committee members and chairpersons when we reached this amendment. This question arises from specific difficulties encountered by Deputy Foley, the chairman of the Committee of Public Accounts, as a result of his publishing an article in The Irish Times.
Acting Chairman
The Minister of State cannot discuss the amendment as it is out of order.
Will the Chair allow me some latitude because I may have inadvertently misled Deputy Ahern in saying I would return to the point when we reached this amendment?
Acting Chairman
We will adjourn the debate in one minute.
I would like to comment on the generality of——
Acting Chairman
We must follow procedure. The amendment cannot be discussed.
Perhaps the Chair might indicate whether I will have another opportunity to respond to this specific point.
This is unacceptable. The Minister of State is quite willing to say a few words on this amendment. I asked her a question earlier in relation to the indemnity, an issue which has implications for all of us. The Minister of State might have approved this if she had addressed the matter in some way in her own amendment.
Acting Chairman
We cannot circumvent the rules of the House.
In my Final Stage remarks I will specifically refer to this point. I thought I would have been in a position to address it now but Deputy Ahern and I are both out of order.
I intend to refer to it when discussing some other amendment because it is important.
Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.