JOINT COMMITTEE ON THE CONSTITUTION debate

Chairman

I welcome members to the first substantive meeting of the Joint Committee on the Constitution. I pay tribute to the very valuable work done by our predecessors on the All-Party Committee on the Constitution and I acknowledge the sterling contribution made by Senator O'Donovan as Chairperson and his fellow members of the committee. I also pay tribute to all former Chairpersons, including Deputy Jim O'Keeffe, for advancing the important work of examining the detail of our Constitution with a view to making such changes or refinements as may, in the future, be considered necessary.

I also mention Dr. Jim O'Donnell, who was a very good and able adviser to the committee. I understand he was the linchpin in ensuring the all-party committee fulfilled its remit in a highly professional manner. I look forward with confidence to continuing in that tradition of assiduous attention to the subtle nuances and possibilities thrown up by the text of the Constitution, which has served us so well over the years.

Our purpose today is to consider a number of items. No. 1 is the current work on hand, arising from the work of the previous All-Party Committee on the Constitution and, in particular, the briefing documentation on freedom of expression, which has been circulated to members. No. 2 is consideration of the way forward in tracking the structure set by the constitutional review group and any other business.

A booklet has been circulated to members with information including the briefing on freedom of expression. I appreciate members receive so much information through the post and in their pigeonholes that it is not easy to go through everything but I hope they have had an opportunity to look through this booklet. Dr. Gerard Hogan, the renowned constitutional barrister, has put together a draft outline report on freedom of expression, freedom of assembly and freedom of association. The part dealing with freedom of expression which appears to be the major part of the work was recently circulated to members. It extends to 61 pages and is a concise analysis of the paragraph in the Constitution on the general freedom of expression. The work on the other two parts, freedom of assembly and freedom of association, together take up only 42 pages.

In the Constitution freedom of expression is subject to public order and morality, and it is that wording which gives rise to the discussion and argument. There is a great deal of case law on the proportionality to be used and whether the relevant words should be removed. In the first instance, we are looking at the paragraph on freedom of expression, the question of whether it should be qualified and is in line with the European Convention on Human Rights, particularly Article 10 which deals with the issue.

Deputy Jim O’Keeffe

Does the Chairman wish to go through each of the issues and recommendations in detail, or would he prefer to hear a brief preliminary comment on the document? I would prefer the latter course. I read the document yesterday and if we were to advise on the drafting of a constitution today, I do not think we would use the expression "subject to public order and morality".

Chairman

It is unlikely.

Deputy Jim O’Keeffe

The question is whether, because of the judicial interpretation of the paragraph in the meantime, we can run with the current judicial interpretation and not opt for a change.

Chairman

The normal mode of doing things is to hold hearings to which we can invite interested parties such as the media and other groups active in civic society generally which like to express themselves freely and might believe this paragraph is a burden. Should we invite interested parties to set out their thinking on this article of the Constitution, how it affects them and indicate if they wish to suggest improvements to it? We have a long way to go before we come to a conclusion on whether the words "subject to public order and morality" should be in the Constitution.

Deputy Jim O’Keeffe

I am delighted we are on that track. Given the substantial amount of work the previous committee completed on this issue, it was my understanding we would deal with the issue in a summary fashion by either approving or rejecting the draft report. For this reason, I am strongly in favour of the Chairman's proposal.

To return to my earlier point, I put down a strong marker on one area of the draft report. I do not agree with its recommendation on privacy law.

Chairman

On what page is the recommendation?

Deputy Jim O’Keeffe

It is at the very end of the section on privacy which begins on page 55. Essentially, the document recommends that the Privacy Bill should be resuscitated at the earliest opportunity. I oppose the Bill which should not be resuscitated but allowed to die a decent death. While I supported the establishment of the Press Council and the Defamation Bill, the third leg of the approach to this issue, the Privacy Bill, was unnecessary because the issue is fully covered under the Constitution, as it stands, and the European Convention on Human Rights.

Chairman

Decisions will be not be taken on the issue until a great deal of further discussion has been completed.

Deputy Jim O’Keeffe

I welcome the Chairman's proposal that we take our time and hold hearings on the issue.

Senator Denis O’Donovan

Given my absence during the previous meeting of the joint committee, I congratulate Deputy Ardagh on his elevation to the Chair. I welcome the decision to hold meetings of the Joint Committee on the Constitution in-house. The committee was established by the then Taoiseach, John Bruton, in 1996 and chaired by the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, from 1997 to 2002 and by me from 2002 until the previous general election. Certain restrictions applied when we held public hearings on abortion and property rights, although the powers of the committee were temporarily extended where groups appeared before us to give evidence. We then returned to Phoenix House.

The joint committee encountered a further difficulty in that it was viewed as being within the remit of the Taoiseach. The decision to relocate meetings to Leinster House gives us greater independence and more teeth. The fact that the Department of the Taoiseach financed the joint committee curtailed us in some sense. At any rate, that was the view of many.

On Deputy O'Keeffe's comments regarding the joint committee's most recent tranche of work on the issues of freedom of expression, freedom of assembly and so forth, although the previous committee commenced work on this issue, little had been done on it. As general elections approach, committee work tends to slow down because it becomes difficult to maintain enthusiasm in the months preceding an election. For this reason, the Deputy's proposal to reopen the issue has merit.

The joint committee did not issue the recommendations to which Deputy O'Keeffe referred. They were made by Dr. Gerard Hogan and a number of his colleagues in the legal profession who assisted him in producing the report in question. Dr. Hogan did wonderful work on behalf of the joint committee and was under immense pressure, given his own workload in the six months preceding the previous general election.

I agree that we should invite interested parties to appear before us. Members should not feel constrained by the recommendations. While it would have been difficult to roll back an agreement made by the previous committee to accept the report's recommendations, no such agreement was reached. The Chairman, therefore, has considerable latitude.

Chairman

I thank Senator O'Donovan. We will treat the report as a draft document and its conclusions will be examined by the joint committee in the same way it takes all other advice it receives. The bones of the report provide an excellent basis on which to proceed, regardless of whether our final conclusions diverge from those of the report. We will use its excellent work on case law and its analysis of the Constitution.

Deputy Brendan Howlin

As I did not attend the first meeting, I want to talk briefly about the work programme methodology and how we will advance matters. I commend the former Chairman, Senator O'Donovan, for his sterling work. It is a salient comment for us that the work done in the Houses, particularly the drudgery of hard committee work, is not always appreciated by the public. That said, genuinely exemplary work was done by Senator O'Donovan.

I had assumed that this committee would set its own work programme rather than inheriting one. Clearly, there is valuable work in progress as regards the document before us which I confess I have scanned but not read. I want to read it in some detail before coming to any conclusions. Will there be an opportunity for us to determine priorities for our own work upon which we will embark, as opposed to the unfinished work of the previous committee? I have ideas about issues that I would regard as urgent to be examined from a constitutional perspective.

As regards the document before us, I have not only views but also direct experience of the courts regarding freedom of expression. I worked with Gerard Hogan who was my senior counsel in the Supreme Court appeal on protecting sources and the rights of individual citizens to have private communications with their elected representatives. There is unfinished work as regards what needs to be done on that front which, if the committee is so minded, I would like to capture in the purview of examining freedom of expression. It is no less important than a journalist's right, which is being tested, to protect sources and ensure proper scrutiny. There is an even more compelling case to be made for parliamentarians to have the right to receive information and hold agents of the State to account without putting the informant at hazardous risk which, in some cases, could be a grievous risk.

I hope we will make provision for a general discussion on important issues on which we might embark as a committee. We might also discuss what resources should be available to it. Will we engage somebody like Gerard Hogan, SC, to work with us? I do not know if that was the practice of the previous committee, of which I was not a member. Will there be a legal adviser to the committee on an issue by issue basis, or on a general retainer basis? How will this be structured? How will our work programme be determined?

Deputy Denis Naughten

I want to comment briefly on freedom of expression. This debate is taking place not only in Ireland but also in many other European countries. Our neighbours in the United Kingdom have been examining the matter. It is important not only to consider it in an Irish context which would have been the case up to a few years ago but, given what has occurred elsewhere, also to be conscious of foreign trends. We must get the balance right. We should examine what is happening in other countries which have similar legal structures, as well as reforms in the area of freedom of expression, because of current challenges which are different from those met some years ago.

Deputy Michael Kennedy

I received the document yesterday and scanned it, like Deputy Howlin. It does not make for easy reading, as it is legalistic. While I realise it would entail more work, might it be possible to have an executive summary of the salient points of the report? If we could have a couple of simple paragraphs on its contents, we would have a better opportunity to grasp the full context. When I began reading it, I quickly became tired because it uses highly technical language. An executive summary would be useful for the future.

Chairman

Members will note there is a brief summary on tab 4 which-----

Deputy Michael Kennedy

It would be preferable if we received a letter explaining the salient features of the document.

Chairman

We can arrange that.

Deputy Michael Kennedy

I do not have any issues with regard to the scheduled work we should discuss or with the privacy issue. There was an interesting court decision on privacy yesterday, where ten students living in a flat had been recorded on video. One of the students took a legal challenge against the landlady and the others followed suit. The court awarded a substantial sum for invasion of privacy. In terms of the committee's discussions in this regard, that court case set down a marker in terms of the right of any citizen to privacy.

I would like to have a summary, perhaps at the next meeting, of the work that was being undertaken by the previous committee. As Deputy Howlin noted, we might then decide what issues we want to prioritise and discuss, and whether we want to follow on from the previous issues or deal with new ones.

Chairman

Such a summary is available. It may have been circulated but it will be circulated again to the Deputy.

Deputy Michael Woods

We are dealing with questions of freedom of expression, the right to privacy and what constitutes indecency. These are broad issues which need a good deal of consideration. If we tease them out a little, we can then come to conclusions and have discussions with those who might be helpful to the committee.

These issues have been around for some time and people have been making an occasional stab at them. However, we want to pull together as comprehensively as is possible the modern position on these kinds of issues. To take some of the issues referred to, such as freedom of expression, it would be helpful to carry on the work that has been done and try to tease it out and draw conclusions. If we do not begin dealing with particular articles of the Constitution, we could be going around in circles for a while.

This involves a serious legal and practical matter which has not proved easy to resolve up to this stage. If it had been possible, it would have been resolved and there would be agreement on the issues. We should focus on some of the issues, gather information and then discuss them with a view to drawing conclusions.

Deputy Michael D’Arcy

With regard to Deputy Kennedy's comment on the executive summary, I only got to it after I had read the report. It is relevant to new committee members that we are brought up to speed on exactly what work has been done. There was a document with some details, but a print-off from the Internet is not really sufficient. It was the first material we received and it was broad and detailed. I would like us — particularly new members — to receive an executive document demonstrating what was done and recommended by previous committees, back to the establishment of the first Joint Committee on the Constitution. I do not mean a 3 inch booklet, but a document demonstrating the work done, its benefits and whether any recommendations have been implemented.

Chairman

That is a good point. It may be possible for us to ask Dr. Jim O'Donnell who was assistant secretary-----

Deputy Brendan Howlin

What was he?

Chairman

He was an assistant secretary on the secretariat for the Oireachtas All-Party Committee on the Constitution and liaised between the Department of the Taoiseach and the committee.

Deputy Brendan Howlin

I understood the secretariat for the previous committee was provided by the Department of the Taoiseach.

Senator Denis O’Donovan

While I understand the Department of the Taoiseach funded it, Dr. Jim O'Donnell who was attached to the IPA was seconded to the committee, where he did a wonderful independent-minded job. Ten reports were produced. A summary of the work done may be useful to this committee, particularly new members. We all remember the reports on the abortion issue and the property rights of families. While it is important to look at what has been achieved, it is not necessary to go back over all the reports. If possible, we should get Dr. O'Donnell in for an hour or so to brief us on what was done from the initiation of the committee in 1986 up to the most recent general election in order that we can see what issues have been discussed, determine where we should go from here or what new avenues the Chairman and the committee would like to explore. That would be a good idea.

Deputy Brendan Howlin

The structure and the support we receive are the nub of the issue as we must compete with 20 other committees for resources. What resources have been allocated? Will this committee suffer with less support than the previous committee on the basis that it is now just another committee of the Houses?

Chairman

This is now another committee of the Houses. My understanding is that, like all other committees, we must fight for the resources that we need.

Deputy Brendan Howlin

To develop the point, the previous committee which dealt with the issue of child protection received extensive support, by agreement, because it was examining a constitutional issue. If our remit is entirely constitutional, we will require support.

Chairman

There are significant funds available for the seeking of legal advice and getting someone to assist on a legal basis on issues such as this.

Deputy Brendan Howlin

To give an example, the committee which dealt with the issue of child protection had full-time senior and junior counsel. Each grouping had another funded legal adviser available to it.

Chairman

It is unlikely anything like that will be needed. That committee was dealing with an important issue of public concern which had to be decided quickly.

Deputy Brendan Howlin

It was very efficient. A comprehensive report with key recommendations was issued within a timeframe of four months.

Deputy Jim O’Keeffe

I possibly fall half way between the two positions. I was founding Chairman of this committee. The previous committee was associated with and funded separately by the Department of the Taoiseach and, whatever the upside or downside, we had no difficulty in obtaining legal advice at any time. It is crucial the committee should be able to do this, given that many members are not lawyers and that those who are, like me, may be rusty.

Deputy Brendan Howlin

Some of them are distinguished lawyers.

Deputy Jim O’Keeffe

Even as a practising lawyer, I did not engage in constitutional issues. The need to seek legal advice is paramount in dealing with what are sometimes complex legal issues. I also served as a member of the committee which dealt with the issue of child protection and which had access to legal advice at all levels when under pressure to produce a report on a specific political topic. It did so within the time prescribed. It was necessary to have available on tap legal advice to enable us to carefully analyse and consider the 60 recommendations drawn up.

I find myself suggesting a halfway house approach. We should make a strong claim to those responsible for the distribution of resources, given that the committee no longer comes within the remit of the Department of the Taoiseach, for access to top class constitutional legal advice whenever necessary.

Deputy Michael Woods

Has the budget from the Department of the Taoiseach been transferred to the committee?

Chairman

No, that will not happen, as the committee is now a committee of the Oireachtas, like all others.

Deputy Michael Woods

That is not satisfactory, as the other committees are already stretched. The points made in respect of legal representation and advice are relevant to this committee. We should seek to have the budget allocated to the Department of the Taoiseach transferred to this committee or the commission on its behalf.

Chairman

The budget represented the cost of employing a senior official and secretariat. It also provided funding to cover the cost of printing reports and obtaining legal advice. I have no doubt the committee will not receive the budget in respect of the senior official. The secretariat is now playing that role and does so effectively. The cost of printing reports will continue to be met by the commission. From my experience as a member of the Joint Committee on Justice, Equality, Defence and Women's Rights and other committees, I have no doubt funding in respect of legal advice and so on will be forthcoming. I do not believe this committee will be disadvantaged in not having the budget of the previous committee transferred to it.

Deputy Michael Kennedy

Given that this committee is charged with dealing with constitutional matters which may require the commissioning of legal advice, be it from senior or junior counsel, it would be totally irrational if we were not given the necessary resources. We should be in a position to make a case when discussing a particular issue on which we require legal advice to bring forth a report.

Chairman

I do not believe there will be a difficulty in that regard.

Senator Alex White

I apologise for being a few minutes late. I understand the committee's approach will be to examine the relevant articles of the Constitution and take submissions from members of the public and others in regard to those articles. Is that a practical approach?

While the question of legal advice and so on is relevant, it would be most interesting for this committee to engage in a process of elaboration, elucidation and explanation to the public of what exactly is in the Constitution. There is a very significant body of case law in Europe and in the United States that could be examined, explained and debated publicly. I hope that will be the role of this committee, rather than examining which articles need immediate amendment. Without wishing to pre-empt any discussions that may take place here, to which I look forward, my view is that in the area of the Constitution more than in any other area, the provisions are just about right. Perhaps other members will convince me that I am wrong

Chairman

The work programme will be teased out over a few meetings. Deputy Howlin has expressed a view on that issue. I agree with him that we must consider that very carefully. There has been a request that the work done to date be fully elucidated and reviewed. At this point we suggest that the previous consultant and secretariat come to a private meeting of the committee to review what has been done. At that point we will also go over the work programme for the future. We agreed at the last meeting to work, for the time being, with the issue of freedom of expression. That is one issue with which we can deal because we have a report on it. It is up and running and we can move with it immediately.

It will take a while for everybody to be fully briefed and to get up and running in regard to the committee and what it can do, apart from certain lawyers who may be fully au fait with constitutional law. I suggest that we proceed on the basis of reviewing what has been done to date and decide on a work programme for the future.

In regard to freedom of expression, I suggest that we get agreement to include a brief review of international trends and that we get agreement to ask Dr. Hogan to continue working with us on an ad hoc basis. One of the first things we might do is ask Dr. Hogan to come in on a one-off basis and go through these 61 pages on freedom of expression, which would not take too long, and take some brief questions on it, and then retain an experienced junior counsel, initially on a pilot basis.

Deputy Brendan Howlin

Before we leave the issue of asking Dr. Hogan to attend in regard to freedom of expression, could he be asked to include in his presentation the issues that arose in the constitutional case in which I was involved?

Chairman

Absolutely. They are very pertinent to all Members of the Oireachtas.

Deputy Brendan Howlin

Since he was counsel in the case, the issues would not be difficult for him.

Chairman

We will have to check with Dr. Hogan because he may have had a particular-----

Deputy Brendan Howlin

He was my counsel.

Chairman

He was Deputy Howlin's counsel so we will have to discuss the issue with him to see what is involved.

Deputy Jim O’Keeffe

Was it a freedom of expression issue? I know there were serious issues involved.

Deputy Brendan Howlin

Captured in the freedom of expression issue is the right of newspapers to express views. It is related. It is a pertinent issue because recommendations flowed from it that have not gone anywhere. I would like to see it discussed as soon as possible.

Chairman

The parliamentary legal adviser, Deputy Howlin and I will liaise with Dr. Hogan. I would like to have this matter dealt with in public session. Dr. Hogan would advise whether it would be possible, feasible and legally permissible. I would like to examine that issue.

Deputy Michael D’Arcy

The document contains several references to the European Convention on Human Rights. Can a copy be sent to each member?

Chairman

A copy will be sent to each member.

Deputy Michael D’Arcy

Can a copy of the European Convention on Human Rights Act 2003 also be sent to each member?

Chairman

I am sure that is available. A copy will be sent to members.

I propose that we retain an experienced junior counsel on a pilot basis initially to assist the committee in the consultation with Dr. Hogan and also to bring together the report from the existing draft. The person concerned would assist us in that regard. He or she would probably be an academic and at the Bar for five or six years.

Deputy Jim O’Keeffe

I liked the Chairman's earlier suggestion of holding hearings with interested parties.

Chairman

I also suggest that at the next meeting we agree an advertisement inviting submissions. Arising from those submissions we would hold hearings in January and February 2008.

Deputy Jim O’Keeffe

Would we invite written submissions and then select the parties to be invited to public hearings?

Chairman

Is it agreed that a proposed schedule of hearings be drawn up for consideration at the next meeting in relation to freedom of expression? Is it agreed that a provisional list of invitees and interested parties be drawn up for consideration?

Deputy Jim O’Keeffe

Can we do that or should we look for submissions first?

Chairman

Is it further agreed that we draw up a proposed text of an advertisement for approval by the committee at our next meeting?

Deputy Mary O’Rourke

I suggest stating in the advertisement that written submissions are invited, reviewing those written submissions and deciding which would be the most useful. We cannot meet everyone but we could select those who would be of most value to the committee.

Chairman

It has been normal to do a trawl of those whom we would reasonably expect to have an opinion on the matter to be examined. We also try to ensure such persons are fully advised of the invitation.

Deputy Mary O’Rourke

The written submissions will show that. That will be the first step.

Deputy Michael Kennedy

Will we invite written submissions on a particular topic or topics, or will it be open season on written submissions?

Deputy O’Rourke

The submissions will be on this topic.

Deputy Michael Kennedy

Will that be the case for future meetings and topics?

Deputy Brendan Howlin

We will decide ourselves first.

Deputy Michael Kennedy

We will decide.

Deputy Jim O’Keeffe

How will we deal with matters such as the case before the Supreme Court regarding the Mahon tribunal and The Irish Times? Some of the issues arising in that case are relevant to our discussions.

Deputy Brendan Howlin

We do not handle it.

Chairman

Before the hearings are held we will have taken advice. We will deal with those issues. Are my three proposals agreed to? Agreed.

We are trying to find our way.

Deputy Brendan Howlin

Is it possible for members to suggest future topics?

Chairman

Absolutely.

Deputy Brendan Howlin

We could put suggestions in writing.

Chairman

If members want to make suggestions for future topics they should submit them to the clerk to the committee so that we can circulate them. She can then list the topics and we can consider them at the following meeting.

Deputy Brendan Howlin

We will need to elaborate as to why the topics are considered worth discussing.

Chairman

Whatever a member wishes to include in the suggestion it will be circulated before the following meeting so that we can consider it. Members should ensure the clerk receives suggestions no later than the Friday before a meeting, so that she has time to add them to the agenda.

I understand the working group of committee chairpersons will meet within the next three weeks. Is it agreed that I attend that meeting to represent the best interests of this committee in securing the requisite resources to fulfil our important remit? Agreed. Is it agreed the clerk to this committee should continue to liaise with the former secretaries of the All-Party Committee on the Constitution? Agreed. Is there any other business?

Deputy Michael D’Arcy

How often do we intend to meet? Will it be weekly and will it be while the Dáil is sitting? Will it be every fortnight?

Chairman

At the moment it is scheduled to be every fortnight but if a matter of serious public concern arises or is of great interest, our meetings will be more frequent.

Deputy Michael D’Arcy

The standard schedule is every fortnight.

Deputy Jim O’Keeffe

Will meetings be held at 9.30 a.m?

Chairman

Yes, starting in two weeks.

Deputy Brendan Howlin

Is this our fixed slot? It suits me very well if it is.

Chairman

Yes. Hopefully this will be a fixed slot.

Deputy Michael Kennedy

That means meetings will be held on the second and fourth Wednesday in the month.

Chairman

Sometimes there are three Wednesdays in a month.

Deputy Mary O’Rourke

They will be held every other week.

Deputy Jim O’Keeffe

That might change during a recess.

Chairman

The situation might also change when hearings are being held as we may need longer meetings or different slots. For the time being meetings will be held every second Wednesday.

Deputy Michael Kennedy

I do not want to appear awkward but it would be better if we knew there would be a meeting every second and fourth Wednesday, so that we could make an entry in our diaries accordingly. Otherwise we will need to ask whether the second Wednesday is, for example, in this or the following month.

Deputy Mary O’Rourke

The schedule will not always accord with the calendar in that way.

Chairman

We willnotify members accordingly. That is the way the Houses of the Oireachtas have operated for a long time.

JOINT COMMITTEE ON THE CONSTITUTION debate - Wednesday, 14 Nov 2007

Business of Joint Committee.

JOINT COMMITTEE ON THE CONSTITUTION debate -
Wednesday, 14 Nov 2007