The present Government initially planned to introduce a somewhat different Bill to this House to deal with privilege of witnesses before Oireachtas committees and related matters. That Bill was much wider in its scope than the measure initially introduced in Dáil Éireann. While the complex issues involved in such legislation have been considered in depth both by my Department and the Attorney General's Office, a final text had not come to hand when other events came into play. There are few Members of the House who have held ministerial office who will not understand the exasperation I feel at introducing a rapidly produced measure on the same subject to cope with a transient problem.
The Bill before this House today is not designed for posterity; it is tailored to an immediate issue now and has a simple purpose — to ensure that witnesses before a specific Oireachtas committee who do not already enjoy the absolute privilege accorded to Members of the Oireachtas at a meeting of an Oireachtas committee are accorded protection from the hazards of litigation arising from the evidence they give to the Dáil's Select Committee on Legislation and Security in the inquiry it is currently undertaking.
The Bill relates only to the particular inquiry initiated on the sixth day of this month. Since the mandate then given has lapsed to whatever new order is made by the Dáil for its continuance, it has no application beyond that. Generally Acts are brought into operation by ministerial order. In this case, because of the Dáil's right under the Constitution to regulate its own procedures, a different mechanism is required. Therefore the Bill, if enacted, will be brought into operation by resolution of Dáil Éireann.
The Chairman of the Dáil committee has already listed to that House a number of people who are not Members of the Oireachtas from whom evidence is to be sought. They include public servants and the Attorney General who is a constitutional officer.
The Attorney General has indicated that he is prepared to give evidence to the committee. A crucial condition — the grant of unqualified privilege — was not within the Government's gift and can only be conferred by an Act of the Oireachtas. The Bill is designed, inter alia, to do so. What the Attorney General's approach ensured was that the issue would be dealt with before evidence taking commenced rather than, as in the past, during or subsequent to that process.
The fundamental thrust of the Bill is to confer privilege on witnesses. The projected Bill in its initial form contained a basic provision giving witnesses the same privilege afforded to witnesses giving evidence in the High Court. This is not an absolute privilege. If a witness in the High Court was to take advantage of his or her position to utter something defamatory, having no reference to the cause or matter of inquiry but introduced maliciously for his or her own purpose, no privilege or immunity would attach. The privilege provided for in the Act will be similarly limited.
Privilege applies not only to evidence given before the committee but also to any document or thing — the most obvious example being a tape recording or video — produced or sent to the committee at its request. It protects the witness not only from civil but also from criminal proceedings.
Doubts have been expressed about the impact on privilege of the presence at committee hearings of the public, press or broadcasting. The Bill seeks to put this beyond all possible doubt by providing that their presence will not diminish the privilege which it is intended to confer on witnesses.
The Taoiseach and the Tánaiste have already emphasised to the Dáil that it is not within the power of the Oireachtas, even when its Members are animated by the most high minded of motives, to deprive citizens of this State of certain fundamental rights which derive from the Constitution. Failure in the past by a committee to pay due regard to those rights culminated in its actions being set aside in the courts. These purport to be met by section 3 of the Bill which replaced specific sections recommended by the Attorney General.
The Bill initially provided for the payment of reasonable costs to a person appearing, either in person or through a legal representative, before the committee or furnishing evidence. This requirement, too, arises from a specific High Court judgment based on the Haughey case which recognised that inquiries by an Oireachtas committee or tribunal could put a witness in "a position more analogous to that of a person accused of a criminal offence than to that of a witness to facts" and therefore entitled to legal representation and to "be indemnified by the State against the expense incurred for such legal representation".
Members of all parties in the House will be aware that this Bill was the subject of inter-party consultation. The text which has been produced attempts to address the various concerns expressed in those discussions. One point repeatedly made to Ministers when the original Bill underwent the scrutiny of Ministers and civil servants was that changes in the power of committees could not leave us with committees functioning as they had before being invested with a new authority. Changes in the relationship between a committee and its witnesses, I was told, had to bring about fundamental changes in the way in which committees worked. Anybody who believed that committees with an inquisitorial dimension could function in the same way as a court or a tribunal without the checks and balances built into the operation of those institutions, I was informed, had got things totally wrong. For, once a committee sets out upon an investigative road involving witnesses making privileged statements and a compulsion on witnesses to attend, the basic concepts of natural justice which underpin our Constitution come automatically into play.
The change means that the free ranging spontaneous line of questioning initiated by a member as the spirit moves him or her must be reviewed so that a witness has a clear indication of the matters about which he or she is to be questioned. The latitude traditionally and often productively accorded to committee members in interpreting the terms of reference of their committee will have to be reined in. Most of all, it will require that members abandon at the door of the committee room the preconceptions which they might bring to bear on the same issue before the whole House.
This places a particular burden of responsibility on the Chair, but it does not stop there. Even the most astute and vigilant chairperson will find it impossible to predict whether a particular line of questioning initiated by a member will elicit a reply improperly damaging to a third party. It is true that mechanisms to correct or rebut such statements can be put in place but, if, as the proverb states "The spoken word cannot be recalled", the immediate impact of a sound bite on a live broadcast of committee proceedings is even less susceptible to effective correction. This fact alone shifts the burden of responsibility from chairpersons towards the individual member and from my own experience as a committee member, I am conscious of the difficulty of shedding old and valued modes of working. However, there must be change.
I mentioned the difficult task facing chairpersons in controlling the contribution of members whose quirks and proclivities they know from working in the intimacy of a committee. These difficulties are increased immeasurably when, as in the present instance, non members of a committee exercise their right to attend and be heard. I suspect that in the transition the committees questioning privileged witnesses or functioning in an investigating mode, the right to participate will, in the interests of effective operation, have to be curtailed in some way. Witnesses are now to be invested with privilege and rendered substantially, if not totally, unamenable to the law for what they say or transmit. This is unusual and it is essential that the privilege now confirmed be balanced by a clear recognition that they as members have clear responsibilities.
One, hopefully hypothetical, danger, with which the Bill in its present state does not deal is the possibility of a witness coming before this committee making allegations and then withdrawing when his or her statement is to be put to the test of cross-examination. Ideally, some sanction should be available to prevent such an occurrence. The Bill, which we earlier planned to bring before the House, addressed this problem. It provided a "trade off" between compellability of witnesses and the grant of privilege. A witness could be compelled under strict penalties to come before certain committees or produce certain documentation which in normal circumstances could bring adverse legal consequences on their head. In these circumstances, it was obviously essential to provide a corresponding level of immunity from the law. Such is a balance is absent from this Bill and the thinking which influenced the Government in this regard will be evident to all.
Compellability involves, as those who read the preliminary draft text will appreciate, a recognition that certain categories of information or even certain categories of person be exempted. Clearly, the choices which this or any Government envisages in that respect will be a matter at any time of legitimate political controversy. However, since this measure is purpose built for one inquiry only and the persons which the committee wishes to question would be expected to be co-operative, once their constitutional rights were adequately protected, it is presumed that compellability is not essential.
I began by referring to another Bill which I had for some time hoped and expected to bring before the House in the present session. While this measure falls short of that, it does afford an opportunity to see how elements of what I wished to introduce might work in practice. Manufacturers and marketers use trial runs to see how innovations can be improved; it is rare that a Legislature has an opportunity to test drive a new process. It is vital for the future development of our committees that this particular exercise be approached with the sense of justice, fairness and non-partisanship which for so long characterised the committees of the House.
It is normal for a Minister introducing a Bill to commend it to the House. This is a formula which, unfortunately, I will not use tonight. The Bill in its original form was introduced to Dáil Éireann as a bipartisan measure, designed for a limited purpose, but, in the course of its progress through that House, suffered serious evisceration. What remains may still perform to some degree the task required of it but the changes made to it give me strong reasons for doubting its capacity to pass the various tests of constitutionality which apply to legislation in terms of its text and application.
