Seanad Éireann debate -
Tuesday, 13 Dec 1994

Vol. 141 No. 11

Select Committee on Legislation and Security of Dáil Éireann (Privilege and Immunity) Bill, 1994: Committee and Final Stages.

Sections 1 and 2 agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Mr. Roche

Is advice available to the Minister of State which suggests that this section provides the constitutional protection to which a person is entitled? The section reads:

The committee shall take all steps which in the opinion of the committee are necessary to protect and vindicate the good name, character and other constitutional rights of witnesses and other citizens.

That is almost bound to be struck down. I agree with Senator Quinn that we should not pass laws without at least flagging our concerns about them. I certainly do not wish to delay this Bill.

The original sections 3, 4, and 5 were imperfect and I pointed out earlier five disadvantages of the original proposal. However, this is so constitutionally infirm, we could be back here in a short time. My concern is not to prove who is right and who is wrong but if we pass legislation which purports to do something and which we know is unconstitutional, we will find ourselves with an even worse delay in getting to the truth.

I agree with Senator Manning and I do not know any Member of either House who does not want to get to the truth, resolve this issue and give a reasonable explanation to the people as soon as possible. My personal concern is that what we are doing will actually delay rather than expendite the process. I accept the bona fides of the Deputies who proposed this amendment; they believe it will expedite the issue. Is there advice to suggest that this proposal is constitutional?

Minister of State at the Department of Justice (Mr. O'Dea)

The problem is that the section was inserted on Committee Stage today in the Dáil and I do not have any advice on it yet. It is intended to ensure that the committee protects the constitutional rights of witnesses and third parties who may be mentioned by name or in a manner which makes them easily identifiable in documents furnished or evidence given before the committee.

The various rights involved were identified in a 1970s court judgment on foot of a challenge to an Oireachtas committee decision by Mr. Padraig Haughey and include: the right to examine witnesses, see relevant documentation and the right to legal representation. While the Government has doubts about the adequacy of this provision, which leaves it to the committee to form the opinion as to what steps are necessary to vindicate a person's rights, it assumes, in light of previous experience of Oireachtas committees and litigation, that the committee will act responsibly.

Question put and agreed to.

Sections 4 and 5 agreed to.

SCHEDULE.

Question proposed: "That the Schedule be the Schedule to the Bill."

Mr. Roche

I do not understand why this was introduced. I have the same question as other Senators. Paragraph (a) deals with the appointment of President of the High Court on Friday, 11 November. I believe that paragraph (a) should have dealt with the extraordinary dealy in the handling of the extradition of a paedophile. This was the most important issue and I know Senators on all sides agree. Does the fact that it is not specifically mentioned in the Schedule have any significance? It may not.

Mr. O'Dea

The Schedule is included as a result of an amendment introduced in the Dáil today by Deputy O'Malley who believed that the order setting up the committee should be read with the legislation. His method of doing so was to insert a Schedule containing a copy of the order. The House agreed the subject matter for investigation by the committee. I was not party to the decision and I was not one of the people who drafted the Schedule. I know nothing about the debate on it or how those involved arrived at the conclusion that this should be investigated rather than something else. However, that is a decision of the Dáil and it cannot be changed at this stage.

Mr. Roche

With respect it could; the Seanad could vote and reject this and send it back to the Lower House. This is a profound point. I do not want this Schedule and these terms of reference to be used to preclude any investigation of why that scandalous delay was allowed to occur. I do not believe it was intended to do this.

We are interested in all the other questions and several Senators on the other side of the House made that point. That was the core of Senator Henry's contribution in particular and it made a profound impact on me. I want an assurance that we are agreeing to something which will prevent that issue being examined.

Ms Kelly

Paragraph (b) states:

... the request on Sunday, 13th November, 1994 from the Taoiseach and the Minister for Justice to the Attorney General to re-examine all details of the Brendan Smyth case ...

The phrase "all details" covers everything about the Brendan Smyth case including the delay.

Mr. Manning

I agree with Senator Kelly who has made a common sense point. We have to rely on the common sense of our colleagues and my interpretation is the same as that of Senator Kelly. I agree with Senator Roche that there is a central question to be answered. I regret that Members of the Seanad are not on the committee and I hope that, as a measure of Oireachtas reform, Senators will have the opportunity to serve on these committees. However, that is another day's work. Senator Kelly has made the point. The question Senator Roche raised should be a central concern of this committee.

Mrs. McGennis

I raised this matter on Second Stage but I am still not satisfied. The Schedule states: "That the Standing Orders of Dáil Éireann relative to Public Business be suspended today" to question the Taoiseach and each Minister involved in meetings of Ministers on 11, 13 and 14 November "on the circumstances surrounding... the request on Sunday, 13th November, 1994, from the Taoiseach and the Minister for Justice to the Attorney General to re-examine ...". This appears to suggest that the circumstances under which that was done should be uncovered.

I am not a lawyer but it has been said that this Bill can be subject to constitutional challenge. My reading of this section is that it does not empower the committee to find out the reason for the delay. It simply empowers it to find out from the Taoiseach and the Minister for Justice the circumstances surrounding the request to the Attorney General to re-examine the details. It does not request the committee to examine the delay.

We will not amend the Bill now but it will not achieve its objective.

Mr. O'Dea

The order made by the Dáil on 6 December expired last Thursday. Section 1 states:

"the committee" means the Select Committee on Legislation and Security of Dáil Éireann while engaged in the performance of the functions specified in relation to it in an order of Dáil Éireann made on the 6th day of December, 1994, the text of which order is set out in the Schedule to this Act, or any other functions relating to those functions specified in relation to it in an order of Dáil Éireann;

We can widen the terms of reference when the new order is made and I will make representations accordingly.

Mr. Roche

I accept Senator Manning's remarks regarding common sense. There would be uproar in this country if this legislation was read in a pedantic and narrow way. We have had some interesting examples of pedantic and narrow reading by legal gentlemen——

Mrs. McGennis

——and not much common sense.

Mr. Roche

——in the not too distant past. As long as the common sense approach prevails I will have no problem with this; I will certainly not delay it. I take solace from the Minister's statement that in making the order this matter will be refined. It should be refined to reflect the concern of everybody in the Seanad—that is, the first priority is to get an acceptable explanation for the delay.

Question put and agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Minister of State at the Department of Justice (Mr. O'Dea)

I thank the Senators for their constructive contributions. Our objective is to get this committee doing its work as quickly as possible. I hope that the changes made in the Lower House will not prove to be an obstacle. Those who proposed the changes genuinely wanted to circumvent cumbersome procedures and to get matters moving as quickly as possible. I sincerely hope — and I speak on behalf of everybody in my party — that those changes will not have the opposite effect.

Mr. Manning

The Cathaoirleach's timing today was not great as he has already confessed. However, it was not a hanging offence. I thank the Minister. It is a difficult Bill introduced at a difficult time. The Minister handled it extremely well and he was open and fair. We all recognise that this Bill is not partisan; in a way it is part of a developing system of new ways. When the history is written, we will be able to face historians with a reasonable degree of certainty that at least we did the right thing.

Mr. Magner

I echo Senator Manning's comments. I compliment the Minister on the way he steered the Bill through the House. He did so with good humour and he was most instructive. I listened to him in the Dáil today and he was equally instructive there.

Mr. O'Dea

Destructive.

Mr. Magner

No, instructive. As we approach the changing of the guard, I compliment and congratulate the Minister. I wish him well in the future.

Ms Kelly

I also thank the Minister. He might have learned much tonight; I, too, have learned a good deal from this debate.

Mr. Roche

I commend the Minister. He has always introduced legislation with panache and good humour. I also commend the good grace of Senator Manning and Senator Magner in generously recognising the Minister's difficulties with this Bill — a Bill for which he is not responsible. It augurs well for the first constitutional change of the guard in mid-term in rather unique circumstances. Not only will constitutional history have been made but the transition will be less traumatic if we will observe it with the same good humour as it was observed tonight.

I wish the Minister well. I have no doubt that he will be around for a long time when the guard changes again.

Mr. Neville

I thank the Minister for his work in the Seanad during his term of office. We have had many debates in this Chamber and, as my party's spokesman on Justice, I always found the Minister to be positive and a good listener. As a fellow Limerick man, I thank him.

An Cathaoirleach

I, too, thank the Minister for his work in the Seanad. He has been here many times and we have enjoyed his company.

Mr. O'Dea

Thank you.

Question put and agreed to.