Standing Orders: Motion

I move:

That, pursuant to Standing Order 99(1)(a), the Committee on Procedure and Privileges recommends that the Standing Orders of Dáil Éireann relative to Public Business be amended as follows:

(a) New functions of CPP

In Standing Order 99, by the insertion of the following subparagraphs after paragraph (1)(g):

(h) perform the functions conferred on it by Standing Orders 114B and 114C in relation to giving effect to Article 15.10 of the Constitution in so far as that Article provides for the protection of the official documents of the Dáil and the private papers of its members, and

(i) perform the functions conferred on the Part 10 committee and the Part 11 committee by the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, pursuant to Standing Orders 114D and 114E.”;

(b) Amendment of Standing Order 111

In Standing Order 111, by the insertion of “, except as otherwise provided for in these Standing Orders” after “without the express leave or order of the Dáil”;

and

(c) Official documents, private papers and confidential communications

By the adoption of the following additional Standing Orders and Schedule to the Standing Orders:

Standing Order 114A

114A. (1) Unless the context otherwise requires:

(a) an “official document” in Standing Order 114B means an official document for the purposes of that Standing Order, and in Standing Order 114D means an official document as defined in section 112(1) of the 2013 Act;

(b) any reference to Standing Order 114B includes a reference to the Schedule to these Standing Orders;

(c) a “private paper” in Standing Order 114C means a private paper for the purposes of that Standing Order;

(d) the “2013 Act” in this Standing Order and in Standing Orders 114D and 114E means the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013; and

(e) in Standing Order 114C and the Schedule to these Standing Orders “office-holder” means the Taoiseach, the Tánaiste, a Minister of the Government, a Minister of State, or a member who is the Attorney-General.

(2) The conferral of protection on a document by or by virtue of Standing Order 114B or 114C does not waive or prejudice the entitlement of any person (including the Dáil or any of its Committees) to invoke any other privilege or immunity, for example, legal professional privilege or public interest immunity, that may attach, or may arguably attach, to the document.

(3) In the Schedule to these Standing Orders, an “officer of the Dáil” means the Ceann Comhairle, the Leas-Cheann Comhairle, any temporary Chairman, the Chairman or vice-Chairman of any Committee of the Dáil, the Clerk, and the Clerk-Assistant, and the clerk of any Committee of the Dáil, and anything done by or to some person on a member’s staff in that person’s capacity as such is to be treated as having been done by or to the member.

(4) A document which is an official document for the purposes of Standing Order 114B or a private paper for the purposes of Standing Order 114C, must be treated as confidential, and is required by these Standing Orders to be kept confidential.

(5) In Standing Orders 114B and 114C “document” imports the definition contained in section 2(1) of the 2013 Act, and extends to a copy of the document at any remove.

Standing Order 114B

114B. (1) This Standing Order is made for the purposes of giving effect to Article 15.10 of the Constitution in so far as it provides for the protection of the official documents of the Dáil.

(2) For the purpose of this Standing Order, official documents are all documents in the custody of, or belonging to, the Dáil or a Committee of the Dáil, or over which the Dáil or Committee exercises control, and which:

(a) are or have been prepared for the purposes of, or purposes incidental to, transacting any business of the Dáil or of such a Committee,

(b) are or have been created by or pursuant to these Standing Orders, or to an order or direction of the Dáil or of such a Committee,

(c) are or have been given in evidence to the Dáil or to such a Committee, or

(d) are or have been presented or submitted to the Dáil or to such a Committee:

unless the document has been, or is presently to be, laid before the Dáil or has been, or is presently to be, otherwise lawfully placed in the public domain.

(3) (a) The categories of documents in the Schedule to these Standing Orders are, subject to subparagraph (d) of this paragraph, to be treated as falling within the scope of paragraph (2)(a) or (2)(b).

(b) The Committee on Procedure and Privileges may, subject to this Standing Order, designate other categories of documents that are to be treated as falling within paragraph (2)(a) or (2)(b), and may at any time vary or revoke that designation.

(c) Any designation, variation, or revocation referred to in subparagraph (b) of this paragraph must be published as soon as practicable after it is made.

(d) Documents proffered to the clerk of a Committee of the Dáil but which the Committee declines to receive, and documents given to such a Committee but which have ceased by decision of the Committee in accordance with statute to be documents of that Committee, are not, and are to be treated as never having been, official documents, unless they qualify on some other ground.

(4) The Clerk must not afford access to, or allow disclosure of, an official document unless, and to the extent that, that access or disclosure is provided for in or under paragraph (5) or (6) or otherwise in or under these Standing Orders.

(5) (a) At any time, access to a specified official document, or specified official documents, may be afforded, or disclosure of it or them allowed, whether generally or for a specific purpose, and whether unconditionally or on terms:

(i) by Resolution of the Dáil; or

(ii) by the Committee on Procedure and Privileges on behalf of the Dáil.

(b) Should the Dáil be adjourned for any period longer than a week, the function exercisable by the Committee on Procedure and Privileges or the Dáil under subparagraph (a) may be exercised by the Ceann Comhairle who must report his or her having done so to the Dáil once it reassembles.

(c) The Committee on Procedure and Privileges, the Dáil, or the Ceann Comhairle must, in exercising their powers under subparagraphs (a) or (b), have regard to:

(i) the extent to which the document or documents relates or relate to a matter of public importance or public interest;

(ii) the rights and interests of any person affected; and

(iii) any other relevant circumstances.

(6) (a) The grant of access to, or the disclosure of, an official document afforded by or on behalf of the Dáil or a Committee of the Dáil, to the Houses of the Oireachtas Commission or its staff, for the purpose of enabling either that Commission or the Houses of the Oireachtas Service to discharge its statutory functions:

(i) does not require any consent provided for in or under paragraph (5), any leave or order under Standing Order 111, or any other permission under these Standing Orders however described;

(ii) does not place the document in the public domain, or otherwise impinge on its confidentiality; and

(iii) does not deprive the document of its status as an official document.

(b) A member who has possession of, or access to, an official document in accordance with these Standing Orders or by other lawful authority may use, without any consent provided for in or under paragraph (5) or otherwise in or under these Standing Orders, the official document for the purposes of, or purposes incidental to, transacting any business of the Dáil or of a Committee of the Dáil, once that use is contemplated by these Standing Orders, and even if the document comes into the public domain as a result.

(7) The leave or order contemplated by Standing Order 111 must not in respect of an official document be granted or made other than in accordance with this Standing Order.

(8) A member must not, except as provided for in or under paragraph (5) or (6) or otherwise in or under these Standing Orders, disclose in public any official document or the contents of that document. Disclosure by any member, in breach of this paragraph, of an official document or its contents, is prima facie an abuse of privilege.

(9) (a) This Standing Order’s protection extends to documents in the custody of, or belonging to, both Houses of the Oireachtas or a Joint Committee, or over which both Houses or a Joint Committee exercise control, provided that the terms of this Standing Order affording that protection have a counterpart in the Standing Orders of the Seanad.

(b) The grant of access to, or disclosure of, an official document described in subparagraph (a) may be allowed or afforded where:

(i) the provision in this Standing Order for affording that access or allowing that disclosure has a counterpart in the Standing Orders of the Seanad; and

(ii) if consent provided for in or under paragraph (5) or otherwise in or under these Standing Orders is required for that access or disclosure, concurring consents are granted by both Houses.

Standing Order 114C

114C. (1) This Standing Order is made for the purposes of giving effect to Article 15.10 of the Constitution in so far as it provides for the protection of the private papers of members.

(2) For the purpose of this Standing Order, the private papers of a member are all documents concerning which the member has a reasonable expectation of privacy, and:

(a) which are prepared for the purposes of, or purposes incidental to:

(i) transacting any business of the Dáil or any Committee of the Dáil; or

(ii) the member’s role as public representative; but

(b) which are not:

(i) where the member is an office-holder, documents relating to the member’s functions as office-holder (whether those documents are held by the member, by the office-holder’s Department or Office, by any of his or her special advisers, or by some other person); or

(ii) lawfully in the public domain.

(3) A reference to a member in this Standing Order includes:

(a) where the context admits, a former member in his or her capacity as a former member, and

(b) where the context requires, a deceased member, as well as his or her executors or administrators in their capacity as executors or administrators.

(4) A member is entitled to refuse a request for access to, or disclosure of, any of his or her private papers, and if the request is made in the first instance to the Dáil, to any of its Committees, or to the Clerk, the Clerk must refuse the request and without delay inform the member that it has been made.

(5) A member must not disclose in public the private paper of any other member or the contents of that private paper other than with the express consent of that other member. Disclosure by any member, in breach of this paragraph, of another member’s private paper or its contents, is prima facie an abuse of privilege.

Standing Order 114D

114D. (1) This Standing Order is made to give further effect to Part 11 of the 2013 Act in respect of the official documents of the Dáil.

(2) On the approval of this Standing Order by the Dáil, the Committee on Procedure and Privileges stands appointed as the Part 11 committee provided for in Part 11 of the 2013 Act.

(3) The Part 11 committee may at any time, either of its own motion or on application by any member, give, vary, or revoke a direction pursuant to section 113(1) of the 2013 Act specifying the categories of documents which are to be official documents, and any such direction, variation, or revocation must be published as soon as practicable after it is made.

(4) Where a document is held jointly by the Dáil and the Seanad, that document is not an official document of either House for the purposes of the 2013 Act unless there is in force a direction of the Part 11 committees of both Houses that the category of documents to which the document belongs stands designated as official documents.

(5) (a) The Part 11 committee may consider an application for access to, or disclosure of, an official document or official documents, and may make a recommendation to the Dáil in respect of that application.

(b) The Dáil may, subject to subparagraph (c), by Resolution consent fully or in part to such an application, and that Resolution is the consent in writing of the Dáil given in accordance with these Standing Orders as contemplated by section 114(1)(a) of the 2013 Act.

(c) Access to, or disclosure of, an official document of both Houses requires the concurring consents in writing of both Houses.

(d) A consent under subparagraph (b) may either be general or for a specific purpose, and may be unconditional or on terms.

Standing Order 114E

114E. (1) This Standing Order is made to give further effect to Part 10 of the 2013 Act in respect of the private papers and confidential communications of any member.

(2) On the approval of this Standing Order by the Dáil, the Committee on Procedure and Privileges stands appointed as the Part 10 committee provided for in Part 10 of the 2013 Act.

(3) The Part 10 committee may prepare guidelines and protocols as contemplated by section 108 of the 2013 Act and recommend their adoption by the Dáil.

SCHEDULE:

Categories of document designated by these Standing Orders for the purposes of Standing Order 114B(2)(a) and (b):

(a) Imeachtaí Dháil Éireann (“clerk sheets”).

(b) Briefings regarding legislation or other proceedings before the Dáil.

(c) Working papers of the Dáil or any of its Committees.

(d) The following documents in respect of Dáil Committee meetings –

(i) agendas,

(ii) briefings,

(iii) minutes, and

(iv) transcripts.

(e) Research papers prepared by the Library and Research Service, or any replacement for that facility, at the instance of the Dáil or a Committee of the Dáil.

(f) Advices to members from officers of the Dáil or members of the joint staff.

(g) Opinions, advice, recommendations, or the results of consultations, considered by the Dáil or a Committee of the Dáil, or prepared for that consideration.

(h) Documents constituting or evidencing communications between members and officers of the Dáil, or communications between officers of the Dáil.

(i) Documents constituting or evidencing communications between officers of the Dáil or members of the joint staff, on the one hand, and any office-holder or his or her Department or Office, and any officers, staff, or agencies of the Government, on the other, in direct relation to any of the business referred to in Standing Order 114B(2)(a).

(j) Documents constituting or evidencing communications from a Committee of the Dáil that solicit information for the purposes of Committee business and any response (not being one the Committee has declined to receive, or one the documents constituting which have ceased by decision of the Committee in accordance with statute to be documents of the Committee) forwarded to and accepted by the Committee.

(k) Documents created in relation to how parliamentary business is regulated between parties or groups as provided for in these Standing Orders including with regard to the appointment of members to a Committee.

(l) Documents concerning disciplinary issues relevant to the Dáil or its Committees.

(m) Without limiting the next preceding category, documents constituting or evidencing communications pursuant to statute between an officer of the Dáil or a member of either House of the Oireachtas, on the one hand, and a Committee of the Dáil, on the other, in relation to the conduct or alleged conduct of a member of the Dáil.

(n) A response by a non-member to matter in the nature of being defamatory received by or on behalf of the Committee on Procedure and Privileges in accordance with these Standing Orders until that Committee decides that the terms of the response are such that it should be published or laid before the Dáil.

(o) Drafts not intended for publication of official documents.

(p) In respect of a document falling outside Standing Order 114B(2) solely because it is in the public domain or has been laid before the Dáil or is presently to be published or so laid, drafts not intended for publication or not intended to be so laid.

(q) Documents relating to an assent referred to in Article 15.8.2° of the Constitution and to any sitting of the Dáil pursuant to that assent.”.”.

Question put and agreed to.