That leave be granted to introduce a Bill entitled an Act to amend the Commissions of Investigation Act 2004 to permit the disclosure or publication of evidence given or the contents of any document produced by a witness giving evidence in private to a Commission of Investigation.
The purpose of the Bill is to amend the 2004 Commissions of Investigation Act to permit the disclosure or publication of evidence given or the contents of any document produced by a witness giving evidence in private to a commission of investigation. The reason for the Bill is because in June 2016 the Tánaiste directed the Garda Síochána Ombudsman Commission, GSOC, to carry out an investigation regarding matters connected with evidence given to the commission of inquiry conducted by Mr. Justice O'Higgins. We learned in October of this year, however, that the Garda Síochána Ombudsman Commission had difficulty in respect of that investigation because it could not gain access to the transcripts of evidence from the O'Higgins commission. The reason GSOC could not obtain access to the transcripts was because of the provisions of section 11 of the Commissions of Investigation Act 2004. That section states that evidence which is given to a commission of inquiry shall not be published or disclosed. In fact, it makes it a criminal offence to publish or disclose such evidence as it is given.
There are, however, four exceptions within section 11(3) that allow the disclosure or publication of evidence given to a commission of investigation. They are, first, where it is directed by a court; second, where it is necessary to inform other witnesses coming in to give evidence to a commission of investigation; third, where it is necessary for fair procedures; and fourth, where it is sought by a tribunal of inquiry. The purpose of the Bill is to introduce a fifth exemption, which would be that the material and evidence can be provided to GSOC where it is carrying out an investigation under Part 4 of the Garda Síochána Acts 2005 to 2015.
I have written to the Tánaiste in respect to this matter and I acknowledge that she replied to me. She stated that she is not inclined to proceed with such a Bill at present because the advice she has been given is that it would be preferable to make an application to court. I have my own concerns in respect of that. I do not know whether the court would adopt such a creative attitude that it would allow itself to broaden out the grounds upon which it can grant a disclosure of transcripts. Irrespective of the Tánaiste's plan to go to court, although I do not know who the parties would be, it would be appropriate if the Bill could be introduced as it would provide a definite mechanism whereby GSOC could continue with this inquiry.