Vol. 67 No. 11
I have received and accepted notice from Senator O'Higgins that, on the motion for the Adjournment of the House tonight, he proposes to raise the following matter:
The assurance given by the Minister for Transport and Power as reported at column 723 of the Seanad Debates of the 18th December, 1969 and the attitude of the Government with regard thereto as intimated to the Tribunal established by motion of Seanad Éireann on 18th December, 1969.
Might I, first of all, make it clear that I am not raising this matter in a party political sense but I am raising it because I believe it is a matter of fundamental importance to Parliament both as regards the rights of Parliament as a body, as distinguished from the rights of the Government or the Executive, and as regards the position of individual Members of Parliament in their consideration, before they come to a decision, of motions such as that which is relevant here.
I think it will be clear to the House that my remarks this evening must be very circumspect. I cannot and do not wish either to discuss the tribunal or the matters which are sub judice before the tribunal, but I think it is both relevant and of paramount importance to say with some emphasis that the establishment of this particular tribunal was a matter for Parliament and was a matter dealt with by Parliament rather than a matter dealt with by the Government. There are two things involved that I wish to discuss. First of all, what I regard as the assurance given by the Minister for Transport and Power when the establishment of this tribunal was under discussion and, secondly, the attitude of the Government with regard to that assurance as intimated to the tribunal.
As regards the assurance given by the Minister, this appears at column 723 of the Seanad Debates of 18th December last. I should like at this point again to make it clear that I am not concerned to argue the toss with the Minister, or with whoever is dealing with this discussion in the House here this evening, as to what was intended by the Minister's remarks which I regard as an assurance to the House and which I think some Senators would put possibly even stronger than that and would regard as an undertaking to the House.
I do not think there is any ambiguity whatever with regard to the words used by the Minister. There may be ambiguity with regard to the target to which those words were directed. If the Minister or his spokesman here this evening says they were directed at one target rather than another I shall, of course, accept that. However, what concerns me and what should concern the House is as to whether or not any other construction can reasonably be put on the Minister's words which could be reasonably supposed to influence Senators in their consideration of the question which was before them on 18th December and in coming to a decision with regard to the establishment of this tribunal and its terms of reference. At column 723 of the Seanad Debates of that date Senator Brugha referred to matters that had been raised previously by Senator Sheehy Skeffington. Senator Sheehy Skeffington had raised in a very definite way the possibility of people incurring penalties before the tribunal if they did not disclose sources of information. I do not want to put it any more detailed than that. Senator Brugha then said at this column:
Regarding Senator Sheehy Skeffington's reference I am glad that it has been made clear in the Dáil that the inquiry may be held in public or private as may seem necessary or desirable. I welcome this because it will enable any of those who may have to give evidence to do so in private.
There was no intervention by the Minister on that occasion. Senator Brugha was talking with the knowledge that this matter had been made clear in the Dáil. It had also, incidentally, been made clear by the Minister in his introductory remarks that the tribunal could take evidence in private and apparently there was no assurance called for by the Minister at that point and none was given. Senator Brugha then went on to what I regard as a separate although related topic and he said:
It is well known that journalists from time to time must protect their sources of information and indeed that some journalists have elected to go to prison rather than disclose information given to them in confidence.
Here was a question being raised of journalists protecting their sources of information, being prepared even to go to prison rather than disclose sources of information given them in confidence. Senator Brugha continued:
This is something I support and I presume that when this matter comes before the tribunal this principle will be upheld.
The Minister then intervened:
It will be upheld.
His words, as I say, are quite definite and unequivocal. I can see that it could be argued that those words of the Minister's refer to the taking of evidence in private and, as I said, if that is argued I accept that that was the intention of the Minister. The Minister, after all, is the only person who can say what he intended at that time. But it can hardly be in doubt that a definite assurance was given to the House by the Minister and I think what is relevant then is to consider what are the constructions that can be placed on that. I have referred to one, that it may relate to the question of the tribunal taking evidence in private. I suggest very strongly that in the minds of Senators it could also relate to the question of non-disclosure of sources of information which was the next topic dealt with by Senator Brugha, and it was immediately following this that the Minister's words were used.
It would be facetious to think that the assurance was given as to the right of journalists to go to gaol, although that might appear in a strict reading of this. It seems to me that from the timing of the assurance, following as it does the reference to the sources of information, Senators were legitimately entitled to regard that assurance as being related to that topic. As I say, there is no doubt in regard to the words used by the Minister. Consequently, as the Minister was definite in the words used it seems to me that whatever matter he was referring to was then settled beyond doubt. He was quite categoric in his statement. There was no need to refer to it again and I think it would be fair to ask did Senators regard it as necessary to refer to the matter again.
I may be misconstruing this but it seems to me that Senator Brugha in his speech did not again refer to the topic of non-disclosure of sources of information. He did, however, in the very next column, again come back to the question that he referred to as being raised by Senator Sheehy Skeffington in relation to contempt of court. At column 724 of the Official Report he is reported as saying:
I hope that the question rightly raised by Senator Sheehy Skeffington in relation to contempt of court cannot arise and that any journalist will be entitled to claim the privilege of giving evidence in private.
So that that particular matter, apparently, was not settled. I am assuming, in any event, that it was not settled in the mind of Senator Brugha by the Minister's assurance but he did not come back to the other topic of non-disclosure of sources of information. I think that Senator Brugha or anyone else is entitled to regard, on what was said here, that matter as having being settled and established by means of the assurance given by the Minister. My time is limited and what I can say is also restricted.
The second point I wanted to discuss is the attitude of the Government. In this, I am relying on newspaper reports. I make no comment on the fact that the attitude of the Executive with regard to what the Minister said was sought by the tribunal. It does seem to me that, once the query was raised, while the Executive may have felt that, as a matter of urgency, it should be answered, it should not have been answered without giving a clear indication that the matter was one for Parliament and not one for the Government.
According to the Irish Times of 24th instant, counsel for the Attorney General said:
....that he had now obtained the instructions as to the attitude of the Executive. The Tribunal is established in pursuance of resolutions of both Houses of the Oireachtas. If it had been intended that the ordinary rules of evidence were not to apply in full, provision to that effect would have been made in the terms of reference.
Chairman: The Executive did not accept that an undertaking was given by the Minister for Transport and Power in the Seanad.
To that, the counsel replied:
That would appear to be so.
I want to say that the only intention relevant with regard to this motion that was passed on 18th December, 1969, in this House was the intention of Parliament. That is the only relevant intention. To my mind, the Government have no right to interpret the intention of Parliament without consultation with Parliament. We all know that this House was not consulted with regard to its intentions before that reply was indicated to the Tribunal. It is a matter of common public knowledge that the other House of the Oireachtas has not been in session and consequently that no consultation took place with the Dáil to ascertain their intentions with regard to this matter. I would feel that this matter is of such fundamental importance that a very early opportunity should be afforded to Parliament, to both Houses of the Oireachtas, to make its intentions known, to make known what it intended in relation to this particular matter.
As I say, it is to my mind only the intention of Parliament and not the intention of the Executive that we are concerned with. I have agreed to allow five minutes of my time to Senator Miss Mary Bourke. I should like to give way to her at this stage.
I am grateful to Senator O'Higgins for the time he has allowed me this evening. I endorse most of his remarks, but regret that we speak to an empty Chair. I assume we shall get a reply from somebody on behalf of the Government. I regard the sequence of events as constituting a wrongful usurpation by the Executive of the role of Parliament. We must not minimise the consequences of this. I should like to begin at the other end from where Senator O'Higgins began and trace briefly this sequence of events. I do not want to comment on the tribunal or the evidence taking place before it because that is sub judice. One of the witnesses did not wish to disclose information. The position was put by her counsel that an undertaking had been given by the Executive, to this Seanad, that there would be a journalistic privilege not to disclose information. According to newspaper reports on Friday, 23rd January, 1970, the Chairman of the tribunal said that this undertaking had not been indicated to the tribunal. If it was given, and he wished to know whether it had been given, he asked counsel for the Attorney General to refer back to the Executive on that point. I submit it was wrong for the Executive to give its opinion of what it intended at the time. It does not matter what it intended at the time. What matters is what opinion the Seanad formed of the Executive's undertaking at the time. I would make a stronger case for what opinion we formed of this undertaking by quoting, first, the Tribunals of Enquiry (Evidence) Act, 1921, which set up the tribunal. Under this Act, it is clearly stated that the powers of the tribunal of inquiry include the power to take evidence in private. Section 2 of that Act provides:
A tribunal to which this Act is so applied as aforesaid—
(a) shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given;
In other words, there is jurisdiction in the tribunal itself to hold hearings in camera; to exclude the public and to have private hearings. May I refer here to what was said by Senator Sheehy Skeffington? He quoted part of this Act and went on to say, as reported at column 708 of the Official Report of Seanad Éireann, 18th December, 1969:
What is being done in this kind of programme is of course an operation in free inquiry, and I feel that what is implied by such a tribunal in the original Act, with which certain people have not up till now been very fully informed, implied in the 1921 Act, give to the tribunal powers which we must really realise before we pass this Motion. It would be absurd for us to set up a tribunal and to say afterwards: "We did not know that it would have these powers".
Therefore, we are assumed to know it had the power to hold evidence in private. Senator Sheehy Skeffington went on, then, in that vein. This was what was referred to by Senator Brugha in the already quoted column 723, when referring to Senator Sheehy Skeffington's remarks:
I am glad it has been made clear in the Dáil that the inquiry may be held in public or private as may seem necessary or desirable.
This is clear in the Act. Therefore the Minister, as a member of the Executive, can neither give an undertaking about it nor not do so. It is an Act of Parliament. It has nothing to do with the Minister. Therefore, the only undertaking he could give, and was understood by this House to give, was an undertaking as to the matter of journalistic privilege.
Since the case can be put as strongly as that, I submit it can be put very strongly. The point is that the Executive had no right to reply, when approached by counsel for the Attorney General and to give their subjective interpretation of what they meant. I would quote from what Mr. J.A Costello, counsel for the RTE team, said before the tribunal when he made the following comment:
The tribunal was set up by Parliament under the authority of Parliament and derives its authority from Parliament so the Minister therefore, in giving this undertaking, is giving it on behalf of Parliament and it was binding on the tribunal.
Only in this Parliament, before the Dáil and the Seanad, could the Minister either ask again or be asked again, within the confines of this House, what was meant by the undertaking, in setting up the terms of reference. It is also clear that the judges of the tribunal were prepared to accept that, if such an undertaking had been given, they would abide by the journalistic privilege.
In my estimation, the Executive have usurped the function of Parliament. The unhappy situation here is that the tribunal have not as yet used this lever which has been placed in their hands. They have not yet gone behind the journalistic privilege because they have not considered it of sufficient importance. It is a matter of intense importance. I should like to see it brought up in the Dáil as well. We ought not to allow our powers and privileges to be stripped from us in this way by the Executive by-passing what is a parliamentary function and what is essentially the role of Parliament.
I, too, unfortunately am compelled to be circumspect in my remarks but I cannot help smiling at the remarks of Senator O'Higgins and the beautiful Senator on my left here. Senator O'Higgins is very worried and says that the Government have no right to interpret the wishes of Parliament and he wants an early opportunity of making Parliament's wishes known in this matter. Senator Bourke goes one better: she says there is a usurpation by the Executive of the powers of Parliament. If those two Senators had only been as wide awake on 18th December they might have taken note of what Senator Sheehy Skeffington said and done something about it. Apparently he was the only one wide awake on that side of the House and I pay him a compliment on that.
I thank the Senator.
The Government do not in any circumstances accept that an undertaking was given by the Minister for Transport and Power in the Seanad on 18th December. This socalled assurance of which Senator O'Higgins spoke was given by the Minister during the debate on an intervention by Senator Ruairí Brugha who referred to the power of the tribunal to hold the inquiry in public or private.
He referred to more than that, surely?
Mr. Justice Butler told Mr. J.A. Costello on 22nd January that no such undertaking had been conveyed to the tribunal on the terms of reference. He said later that the Minister's interjection was given, and could be given, an interpretation that it referred only to the possibility of journalists giving their evidence in private. The judge then, as Senator Bourke said, asked counsel for the Attorney General to find out if an undertaking had been given by the Government and at the end of the proceedings of the tribunal on Friday, 23rd January, counsel for the Attorney General informed the tribunal that the Government had given no such undertaking.
We have heard so much tosh here about the usurpation of the powers of Parliament and the desirability of another session to deal with this matter that perhaps we should restate the facts. This tribunal, as Senator O'Higgins quite correctly observed, was set up by decision of both Houses of the Oireachtas. It was not set up by the Government or by an outside agency.
It was set up pursuant to resolutions passed by both Houses. It was appointed by the Government.
It was set up by the Houses of the Oireachtas and do not quibble with the facts. The terms of reference were laid before the Oireachtas——
On representation made by a member of the Executive.
They were passed by both Houses of the Oireachtas.
The Senator has ten minutes to reply and he should be allowed to speak.
If the ordinary rules of evidence as governed by the Tribunals of Enquiry (Evidence) Act, 1921, were not going to be applied in full then provision to that effect would have been made in the terms of reference. Any Member of either House of the Oireachtas who was as wide awake as Senator Sheehy Skeffington and who had the fears which Senators over there are now expressing could have seen to it by way of motion, amendment or resolution that the terms of reference were amended to exempt any class or classes from having to give evidence or having to divulge the source of their information. However, nobody in the Seanad or Dáil did any such thing.
We trusted the Minister. We believed Deputy Brian Lenihan.
This House had not the power to do that.
You are not going to shout me down; I am too old at this game. We were told the Government usurped the power of Parliament. I want to tell you that the Government have no right to tell the tribunal about its business, how to do its business or the way to conduct its proceedings. The Government had no desire, have no desire, and have no intention of doing that. The tribunal was set up by the Oireachtas with its terms of reference. It is carrying out its duty and I wish to say that in my opinion this was not the best nor the proper time to bring a motion of this kind before the Seanad.
I hope such a thing will not occur again, particularly since Senators had an opportunity during the debate on the terms of reference and on the motion to cover the points about which they now appear so worried.
We were reassured by the Minister.
The interpretation of what the Minister said was very adroitly word-changed and shortchanged by the Fine Gael lawyers——
There are plenty of lawyers on your own side. Look around you.
You are not on Telefís Éireann now. I am here to answer——
You should give the people a treat and go on yourself some time.
The Senator should be allowed to proceed with his speech.
These people who could have dealt with this matter are sitting here and they are now quibbling and crying. I advise them in future when they see something like this coming to be wide awake. They are very wide awake on the Health Bill but it seems to me it only occurred to them after this happened that there was possibly a little political propaganda to be got out of it and so they began to juggle with the words, to try to put the Minister in the wrong——
What did the Minister mean?
I object to being referred to as a Fine Gael lawyer
——but in fact they did nothing except amuse the general public. That is all I have to say on this matter.
The Seanad adjourned at 10 p.m. until 10 a.m. on Thursday, 29th January, 1970.
