Amendments Nos. 1 to 6, inclusive, 9 to 11, inclusive, 29 to 34, inclusive, 36 to 41, inclusive, and 43 to 45, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
Commissions of Investigation Bill 2003: Committee Stage.
Sections 1 and 2 agreed to.
SECTION 3.
I move amendment No. 1:
In page 6, subsection (1), line 32, to delete "Government" and substitute "Houses of the Oireachtas".
I welcome the Minister of State to the House. This grouping of amendments encompasses one issue on which, I suspect, we will need to spend some time.
My party has welcomed the publication of this Bill and we see the operation of the new commission as an important new investigative tool at the State's disposal in putting in place cost efficient inquiries and ensuring a rapid conclusion to issues of public interest brought to the attention of the commission and fair play for all parties represented there. It is important that we take our time on this matter and get it right. We welcome the Bill in that context.
The purpose of this group of amendments is clear. Since the Minister for Justice, Equality and Law Reform published the heads of the Bill, my party has concentrated on the question of who will own the commission when it is established. As the Minister of State knows, the previous tribunals of inquiry have been animals of the Oireachtas established by joint resolution of both Houses. A tribunal, in effect, becomes the perennial responsibility of the Oireachtas.
In the newly proposed commission, as put forward in the Bill, the Government is attempting a new departure. The establishment of the commission should be a matter for the Oireachtas and not for a Minister or for the Government. This is my party's major reservation regarding the Bill.
Let us suppose a politically sensitive issue arises, a charge is made against a Minister on a television programme and there is a view in the Government that a commission of inquiry should be established to look into the matter and report thereon. When such a charge is made against a leading politician, is it proper that a Minister should be directly responsible for establishing the commission, setting out its terms of reference, appointing its members, receiving its report directly and revising the terms of reference from time to time? We are giving a substantial power to a Minister or to the Government itself. Considering the principle of the separation of powers, is it wise that a commission should be answerable to a Minister in his or her respective area of responsibility? We say it is not.
When we look at the role of all-party committees of the Houses — and we have seen substantial progress in this area in recent years — it makes more sense that the establishment, ownership and appointment of members of the commission should be under the direct control of a joint committee of the Houses, or of each House, which would be responsible for the work of the commission and for its reporting back. As currently constituted, the Bill is an infringement of the separation of powers and gives far too much control to one Minister as against the Government itself.
With that in mind Fine Gael makes these proposals. All of the Fine Gael amendments attempt to remove the word "Government" and substitute the words "Houses of the Oireachtas" as a means of showing that the ownership of this very important new model of investigation should be vested in these Houses and not in a Minister.
The Labour Party amendments raise a similar point to that raised by Senator Brian Hayes. Amendment No. 2 proposes that the commission's terms of reference be approved by a resolution of both Houses of the Oireachtas. Amendment No. 3 proposes that the terms of reference may be amended by a resolution of both Houses of the Oireachtas. Our amendments have the same objective as that outlined by Senator Hayes.
According to the Bill, the Government need only make a draft order establishing a commission and this cannot be amended. The order is then approved by both Houses of the Oireachtas. This leaves the fixing of the terms of reference entirely up to the Government. Our amendment would require the Dáil and Seanad to pass a motion specifying the terms of reference. This would leave the matter open to amendment by and suggestions from the Opposition rather than have the Government simply put down the proposal on a take it or leave it basis.
The commission will be an independent body. If we want the commission to work it must have the backing and authority of both Houses of the Oireachtas, not just of the Government.
I thank the Senators. Senator Brian Hayes referred to all-party committees, which have been effective and efficient. I agree with him. My view has always been that the committees of both Houses have been much more effective, efficient and capable of getting to the bottom of matters than some of the tribunals, which seem to drag on forever. The Senator also referred to the tribunals as animals of the Oireachtas. He might have more benignly referred to them as children of the Oireachtas, although, given the desultory performance of one or two of them, it is amazing that anyone will claim parentage.
The points made by Senators Brian Hayes and Tuffy were key to the debate in the Dáil. The Minister for Justice, Equality and Law Reform stated that we are trying to create something which is essentially different from tribunals of inquiry and which will not be deployed as a simple substitute for them. They will still exist because this is not simply a question of implementing plan B.
These amendments would change the roles proposed by the Government and the specified Minister — Senator Brian Hayes said that was the essence of the issue. The issue was debated at length on Second Stage and in the other House and I recognise that the amendments reflect strongly held views. In addressing them, however, we must understand the point the Minister was making when he said this is a completely different type of animal.
The Bill arose from a need to provide a different mechanism for investigations that is quick, cost effective, flexible, and reassuring to the public about how matters of major concern are to be investigated. The Bill attempts to create an antidote to the present arrangements which are not quick, cost effective, flexible or reassuring in the way we hoped when they were established. It creates an alternative system of investigation. The Bill does not replicate arrangements that contributed to the present difficulties. That is the key issue — the manner in which the terms of reference were previously created left them loose and that has been the source of our current difficulties. The arrangements in the Bill must be read as a new mechanism.
The Government is anxious that the Oireachtas should continue to play an important role in the establishment of commissions. The Bill provides, therefore, that a commission must be established by government order but only after the order has been approved by the Houses of the Oireachtas. It is untrue to say this is being established by diktat, the Houses have a meaningful role. The draft order must be accompanied by a reasoned statement on the need for the commission and both Houses would have a clear idea of the likely terms of reference at the conclusion of the debate on the establishing order. The establishment of commissioners and the setting of their terms of reference will not take place in a vacuum that excludes Members of the Oireachtas. The opposite is the case, the Oireachtas and its Members will have a meaningful role.
Section 4 provides that the terms of reference will be set by the specified Minister or by the Government and amendments to the terms of reference will be carried out in conjunction with and the consent of the commission. It is not simply a ministerial diktat.
The provisions of the Bill for the establishment of the commissions and the setting of the terms of reference are different from the current arrangements, but that is positive. The current arrangements for tribunals of inquiry have not been models of speed, efficiency or effectiveness. There is a fundamental need for tight and focused terms of reference and one of the problems in the existing arrangements is that these have not been provided. The Oireachtas gave terms of reference to tribunals in the past that contributed to the extraordinary delays and mind blowing costs. No one at the outset of the current set of tribunals could conceivably have imagined the telephone number sums that are being paid in costs.
The proposals in the Bill take account of views expressed in the report prepared after the DIRT inquiry by the Office of the Attorney General and the Department of Finance and quoted in the Law Reform Commission's consultation paper. We should remind ourselves that the DIRT inquiry, which was initiated in a committee of the Houses, was efficient and got on with the job.
The proposals in the Bill result in tighter terms of reference than might arise if the terms were set under current arrangements. These proposals are to be preferred and I am not in a position to accept the Opposition amendments. Having been briefed on this by the Department, I am convinced that the arguments being put forward by the Department and the Minister are cogent and bear scrutiny.
The arrangements for the establishment of tribunals are not being altered in any way. The tribunal process exists, the fact that the different arrangements are being applied in the case of commissions underlines the fact that they are different mechanisms. We are not creating, as the Minister said in the Dáil, "tribunals-lite", we are creating a different form of body to carry out investigations. They are designed to achieve different ends and they apply different procedures. It is appropriate, therefore, that the terms of reference should be set in a way that allows for a tighter focus.
Senator Brian Hayes mentioned that the Minister would establish the commissions and would draft their terms of reference. Under section 38(i)(a), the Minister is under a statutory duty to publish a report as soon as possible after receiving it, subject to the need to avoid any intrusion into ongoing or proposed criminal proceedings. We all accept that. It will be available to the Oireachtas and may be the subject of questions or Adjournment debates or be taken up by a committee. The hearings on the Barron report by the Oireachtas Committee on Justice, Equality, Defence and Women’s Rights are an example of such practice.
The Minister has given thought to the points made and the issue was discussed at length. He has come down in favour of the existing proposals because the arguments in favour outweigh the points made by the Senators. We are not simply modifying the tribunals, we are establishing a mechanism that is more efficient and will produce timely reports and be better focused. Even if one does not subscribe to the view that barristers and lawyers will write their own terms of reference when they get into these mechanisms, we are creating a focused system that will give a timely response on issues under discussion. This does not create something to displace the existing tribunal mechanism. There may be a case for those being used but this is a different system working in different circumstances to produce something that is more focused and produces its work in a more rapid and cost effective manner. I thank Senators for their amendments but I cannot accept them.
The Minister of State is right that this matter was discussed at length on Committee Stage in the other House. The views we have outlined are genuinely thought out and it is appropriate that the establishment of these new commissions should be within the remit of the Houses of the Oireachtas.
We are establishing a new set of inquiries which hopefully will have more political effect in resolving many of the difficulties that have been left unresolved by the tribunals.
The Oireachtas established the terms of reference for the existing tribunals. If any fault is to be laid, Members of both Houses must take their fair share of the responsibility. The terms of reference have been so broad and flexible as to allow the tribunals to investigate every matter that comes to their attention. The fourth interim report of Judge Mahon and his colleagues in the planning tribunal is clearly a cry for help in respect of the outstanding matters yet to be investigated.
If the Oireachtas pools its responsibility for the establishment of these commissions and particularly for the terms of reference, there will be a much greater sense of ownership of that process when it gets under way. The private nature of the investigations can be discussed later.
The natural tick-tacking that goes on between Government and Opposition before a terms of reference is proposed in respect of any of the existing tribunals will be lost once these new commissions fall within the responsibility of a Minister. The following situation may arise where the all-party approach is not beneficial. Where a political charge is made against a Minister, Minister of State or politician, it is only right and proper that the people who investigate that charge are from outside these Houses. Once a charge is made, all kinds of party political implications must be considered.
What happens if a Minister, who is responsible for a Department and who must establish these commissions, is the subject of a charge or allegation in respect of any third party from outside the Houses of the Oireachtas who could make such a charge? In that circumstance, the Minister and the Government are leaving themselves open to the charge of establishing an investigation with their own terms of reference and reportage. This may well happen in the future. The committee system in the Houses of the Oireachtas cannot make such an investigation because of its party political nature, unlike the situation in the United States Congress where people serve independently on a committee. That culture does not exist in this country, particularly when it comes to politically motivated charges. There is a distinct difference between that and the policy implications resulting from the Abbeylara case. I and my party contend that it would have been a more useful exercise had the Government chosen to work with all parties in both Houses of the Oireachtas to bring about the establishment of these commissions, their terms of reference and their functions.
The Minister of State has stated that once a report comes back from a commission, the Minister must publish it as soon as possible. I make the point that where a report comes back, particularly about a politically sensitive issue, it should be laid before both Houses of the Oireachtas and placed in the Oireachtas Library. The notion that it comes to a Minister who is a member of a political party, a serving member of Government and a member of the Executive flies in the face of the notion of independence, which, in the final analysis, is what the new commissions will be about.
I ask the Minister of State to consider this proposal, even at this late stage. The House has only one opportunity to get this right. We all support the establishment of these new commissions and the means they will give to find out the truth on many matters of public concern. Some additional thought needs to be given to the exact means by which the commissions are to be established, members to be appointed and the kind of independence which we all wish to give them.
The Minister of State appears to suggest that if one allows the Oireachtas to set the terms of reference there would be less focus in drawing them up. I do not understand that reasoning. Ultimately, the Government will determine whether or not a proposal is passed in these Houses. If the Government allows the Opposition to have an input, it will mean there is a better chance of considering all the angles and producing the best terms of reference. Less blame could be laid at the Government's door if the wrong terms of reference are decided. For example, many Members on the Government side have complained about the outcome of the boundary commission dealing with Dáil constituencies. The commission had to work within its terms of reference. If it had been given a different terms of reference by the Government, it would have produced a different outcome. There is no point in Government Senators complaining about the outcome when the terms of reference were set by the Government.
As Senator Brian Hayes stated, everybody will have ownership of the terms of reference if both sides have an input and everybody has a responsibility if any problems arise. It is in the Government's interest to allow this. I do not see how it could be less focused. The Government often accepts amendments from the Opposition and these are often technical in nature. It means that more people are considering the different aspects of the proposals and suggesting better ways of dealing with a problem.
I read an article in The Sunday Tribune about the wisdom of crowds. The thesis argued by the author of a book on the issue was that the more people involved in a decision, the better the outcome will be.
There are more whipping boys if anything goes wrong.
I did not read the article so I am not sure if I agree. I am sure it was very erudite. In Plato's The Republic, there is a very cogent argument against decision-making by crowds. The fundamental argument in favour of having a second House in Parliament is that wisdom never resides with crowds and that a period of time is required for reflection ——
Perhaps a bigger crowd.
Too many cooks.
In fact, bigger crowds make for even more spoiled broth. Senator Brian Hayes is correct. The fault with tribunals and the fact that tribunals have appeared, in the opinion of many, to go off the rails, is due to the imprecision and catch-all nature of terms of reference. The Senator made a cogent argument in favour of the case I was making because he then referred to the tick-tacking that goes on in the background. I agree there has been a degree of tick-tacking in the past. We have produced the lowest common denominator as regards terms of reference rather than terms of reference which are effective and efficient. I accept that point and I acknowledge the Senator is correct. He is also correct in saying that Oireachtas committees are not good places in which to carry out political investigations although I would argue that Oireachtas committees should be used far more frequently. I was one of the advocates of the PAC carrying out the DIRT inquiry. That inquiry demonstrated what Members of both Houses can achieve if we have the self-confidence to do it.
Senator Tuffy referred to the work of the boundary commission on Dáil constituencies. The Senator is arguing against her own argument because she argues that the terms of reference which had been obnoxious to Members on all sides of the House from time to time have been produced. It was not a gerrymander effort but an effort by successive Governments, and not just from one side, to produce terms of reference which are fair and equitable. Some of the decisions made by the commission stand logic on its head but it is one person's view against another person's view.
Senator Brian Hayes may have strayed a little in discussing membership of commissions, which is dealt with in section 7(2). The provision that the Government will appoint the commission in the event that the Minister does not make appointments or it is not appropriate for him to do so creates a certain distance between the Minister and the investigation. The provision will apply if the Minister is the subject of an allegation.
I return to the point made by the Minister in the Dáil when he addressed this fundamental issue at length. He stated he was trying to create a different animal, not a tribunal light or a tribunal with slight modifications but a different form of investigation. We will have different approaches, namely, the form of investigation provided for in the Bill and investigation by parliamentary committee. The Houses of the Oireachtas have been too willing to use the tribunal system or create tribunals with ill-defined terms of reference and then complain when they do what we have prescribed.
Senators Tuffy and Brian Hayes made cogent arguments in favour of the steps the Minister is taking. Notwithstanding that I am always charmed by Members of this House, I regret I cannot accept the amendments.
I agree with the Minister of State on the need for all-party committees. People need to read the Abbeylara judgment. The Houses still have the potential to do much greater committee and investigative work. While we may not make findings of fact against individuals, we may make clear recommendations on a range of other issues related to policy, outcomes and performance. Too often, the Abbeylara judgment is used as an excuse by committees not to fully investigate matters of public concern which do not necessarily involve making findings of fact against an individual. This is a central argument in terms of the direction in which we will advance.
I am still unhappy with the notion that a serving Minister will appoint members of a commission. Will appointments to a commission be automatic or must they be ratified by the Government as a whole? It would be most dangerous and strange if a Minister were to have the sole power to appoint people to a commission without reference to his Government colleagues. I strayed because we are discussing a large number of amendments together, one of which is related to the section on appointments.
Amendment No. 10 touches on the issue.
As I will not have an opportunity to discuss my amendment later, I ask the Minister of State to clarify the position with regard to appointments. Whatever about a Minister establishing terms of reference or receiving a report from a commission, the notion that he or she would hand pick people to serve as members of a commission without reference to the Government is a step too far. I am sure the Minister of State and his officials will be able to indicate if my interpretation is correct on that point.
The Senator made a cogent point as regards the nature of the investigations to be carried out by the commissions. Commissions of inquiry will not reject contested evidence and come to a view that one person is definitely telling the truth on an issue and another definitely lying. It is specifically provided in the statute that people identified in a report of a commission of inquiry must be notified of the proposed report and so forth. The commission of inquiry, therefore, falls halfway between the two current forms of inquiry, the tribunal and the parliamentary inquiry.
The Senator is correct that amendment No. 10, which proposes to strike out words in section 7(2)(a), touches on the issue of appointments. Section 7(2) states:
Each member of a commission is to be appointed as follows:
(a) by the specified Minister, if authorised to do so by the order establishing the commission;
(b) by the Government, in any other case.
It, therefore, provides for a dual approach. The point I was making as regards section 7(2) is that the Minister will not make an appointment if it is not appropriate for him or her to do so. In circumstances where the Minister is the subject of the allegation to be investigated, it would hardly be appropriate for him or her to select and appoint. The Government would make the appointment in such circumstances and, as such, a degree of separation is provided.
I reiterate that we are trying to create a forum for investigation which has powers in excess of the limited powers available to the Houses for investigation but which is significantly different from the tribunals of inquiry. Notwithstanding the good faith in which Senators made their points on this issue, the legislation creates something different. The terms of reference and appointment procedures are also different for the simple reason that we want to ensure there is less political compromise and greater focus on terms of reference. Equally, in the appointment of the commission, the danger Senators outlined is adequately addressed in section 7(2)(b) and by my explanation.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Section 3(3) states that the "order establishing a commission shall specify" the matter to be investigated and, in paragraph (b), “the Minister responsible for overseeing administrative matters relating to the establishment of the commission, for receiving its reports and for performing any other functions given to him or her under this Act.” I presume that if a commission is established under the auspices of, for instance, the Minister for Health and Children, its cost will appear in the annual Estimate of the Department of Health and Children. Will the costs be covered by the relevant Department in the same way as the cost of the Mahon tribunal, for instance, is included in the Estimate of the Department of Environment, Heritage and Local Government?
Subsection (4) states: "A commission may be established under this section even if the matter considered by the Government to be of significant public concern arose before the passing of this Act." I presume the message the Government is sending to the House is that some of the existing workload of the tribunals could be transferred to various commissions for investigation to get a cost efficient and speedy resolution. I also presume this does not in any way preclude some matters not yet publicly aired at the tribunals from forming part of a new commission. Will the Minister of State comment? The fourth interim report by Judge Mahon makes clear that it could take 11 years to bring all matters to public attention. Whether this is a cry for help or for more precise terms of reference, I presume the Government may want to address the matter in the autumn. Is it correct that this subsection (4) gives the Oireachtas and the Government the right to establish new commissions which could assume some of the workload of the tribunals?
As regards the question on funding, the Minister for Finance would be required to sanction funds in the normal manner. The second question referred to section 3(4), which provides that a commission may be established even if the matter considered by the Government to be of significant public concern arose before the passing of this Act. This could not be clearer.
One of the commendable aspects of this Bill is that it is written in clear English. Section 3(4) does exactly what it says on the tin in clearly conferring the right to establish a commission regarding matters of public concern that arose before the enactment of this legislation.
Senator Hayes has suggested that the latest Mahon report contains some element of a cri de coeur for freedom from the burden of that tribunal, which may have to continue for another decade at least. God forbid that it should be so. The question of transferring modules from the Mahon tribunal is a decision that would have to be made at the appropriate time and I am not in a position to speculate on that matter. Nevertheless, I assume that because the Bill provides for matters of public importance which took place prior to its enactment, there is no reason such a process could not take place if it were deemed appropriate and if such a request were made. I cannot be definitive on this matter because it is a purely hypothetical issue that has not arisen and any decision would have to be taken by the Government on the basis of the facts at the appropriate time.
Senator Hayes's fundamental concern is whether a degree of retrospection in possible under the provisions of this Bill and I confirm this to be the case.
That is precisely the point because it is unusual in a legislative context for retrospection to be included in a Bill of this nature.
I take issue with Senator Hayes on that point. The reality is that we may encounter issues in the future which require more speedy treatment in the public interest than is likely to occur under existing arrangements. One can speculate as Senator Hayes did very well when he observed that there may be matters in some of the Mahon tribunal's modules that could be more appropriately examined through a commission as provided for in this Bill. The issue has not arisen but it is an entirely plausible hypothesis and a judgment call would have to be made as to the method which would best serve the public interest.
I contend that speed is of the essence in examining any allegations. Where damaging allegations have been made which traduce a person's character, it is unfair, unreasonable and democratically unacceptable that such a person might have to wait for 15 years before those allegations are confirmed as groundless. Every public representative who takes his or her job seriously is aware of the danger in steadfastly opposing a view which a miscreant constituent wishes to be proposed. Such a person can make any sort of allegation against a public representative which remains on the record for years or decades. This is unacceptable in a democratic society. We are in the area of hypothesis and Senator Hayes, although not objecting to the provision, recognises its novelty and is correct to question it. Section 3(4) clearly represents a degree of flexibility by providing that commissions may be established on matters of public concern which took place before the enactment of the legislation.
Question put and agreed to.
Amendments Nos. 3 to 5, inclusive, not moved.
Section 4 agreed to.
Amendment No. 6 not moved.
Section 5 agreed to.
SECTION 6.
Amendments Nos. 7 and 8 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 7:
In page 8, subsection (2), line 7, after "reference" to insert "so as to incorporate a particular matter".
The amendments both deal with the constraints regarding amendment of a commission's terms of reference as stipulated in section 6(2). It is necessary to include the words "so as to incorporate a particular matter" after "reference" in this subsection. One must consider the case of a person who comes before a commission and co-operates fully in his or her written statement and oral evidence, all of which will probably take place in private, but who it later transpires has some questions to answer regarding some other allegations or matters related to the original investigation. Section 6(2) rightly provides considerable protection to those who co-operate with a commission but the effective amnesty this represents could absolve such people from blame in other investigations. This provision could grant some people immunity forever.
The proposed amendment would modify section 6(2) to read as follows:
A commission may not consent to or request an amendment to its terms of reference so as to incorporate a particular matter if satisfied that the proposed amendment would prejudice the legal rights of any person who has co-operated with or provided information to the commission in the investigation.
This makes it absolutely clear that protection should only be afforded on the issue that is under investigation and not on every other matter that may come to the attention of that commission in the future. The current provision offers far too wide an immunity and is too loose. It could be the case that people who initially co-operate fully with a commission may have other questions to answer at a later date.
I was fascinated to hear the explanation of these amendments as I was unclear of their purpose but I understand Senator Hayes's point. One of the benefits of this Bill is that it written in the clearest English possible and it is easy to understand what it is all about. The term "a particular matter" which it is proposed to incorporate into section 6(2) is vague, imprecise and unfocused. In certain circumstances, the inclusion of such a phrase could have the effect of limiting the discretion of a commission or of the Minister. The amendment would not be helpful in general and could cause unnecessary difficulty and delay in the implementation of a commission's work. The proposed amendment does not achieve Senator Hayes's purpose. Conversely, it introduces a certain vagueness and ambiguity, which is something that brings glittering lights to the eyes of legal eagles. The current provision of section 6(2) is clear and succinct and the addition of the words "a particular matter" add little to it. I cannot accept the amendment.
The problem with all these matters is that they may ultimately come to the High Court or Supreme Court for decision. We only have one chance to get this right. We are all aware of some well celebrated court cases where individuals have driven a coach and four through existing legislation. It may well be the case that the format proposed in these amendments does not meet the desired end and I ask the Minister of State to consider the matter further between now and Report Stage tomorrow morning. There is a lacuna here. It is absolutely legitimate and correct that protection should be afforded to people who co-operate, particularly if that information is given in private, and it is the best way to prevent a cross-examination process that serves to increase the costs of barristers and so on. However, it should not follow automatically that where such an individual provided information, he or she should be given immunity in future. Section 6 provides for that. If the Minister of State examines this issue with his officials between now and tomorrow, that will be fine. I fully accept the amendment may not achieve the end we seek but we are flagging this as a problem that could well emerge in the future if we do not get the legislation right. I am not sure whether this issue was raised in the other House but it has been brought to our attention and it needs to be re-examined. We must ensure the immunity given to people is fair and transparent. They should not be granted immunity going forward, as this would allow people who are guilty of wrongdoing to get away with it because they co-operated in the first instance.
I acknowledge the issue involved but it would be disingenuous of me to say I will take it on board and consider it between now and tomorrow morning because that is not possible. I acknowledge the point made by the Senator but the wording of the amendments introduces dangerous levels of vagueness into a precisely drafted section.
The question of somebody being cute enough to apparently co-operate with a view to gaining immunity is dealt with elsewhere. The legislation is sufficient to prevent somebody from being a grudging supporter early on with a view to gaining greater immunity later. I would be less than honest if I were to say I would consider these points before tomorrow morning. I cannot accept the amendments.
The section deals with amending the terms of reference to provide for the consideration of other matters. According to the advice we received, the section states the terms of reference cannot be amended where to do so would prejudice the rights of any person who has co-operated or provided information to a commission. This grants immunity from further and deeper investigation to those who assist the commission, irrespective of what negative detail of their roles later becomes available. Is this a wise procedure? I do not know whether the matter was raised in the other House but it has been brought to our attention.
I encourage the Government to examine this issue because, as drafted, people could drive various wedges through the section when the matter ultimately goes before the High Court.
I take the point and I understand the Senator's concerns but the wording of the amendments will not improve matters. I cannot accept them and I do not want to give an undertaking that cannot be met.
I accept that.
I want to deal with Members and, more important, the House in good faith. I cannot accede to the request.
Amendment put and declared lost.
I move amendment No. 8:
In page 8, subsection (2), line 9, after "information" to insert "on that particular matter".
Amendment put and declared lost.
Amendment No. 9 not moved.
Question proposed: "That section 6 stand part of the Bill."
I intended to raise this issue on Second Stage but the debate clashed with a number of committee meetings and I did not have the opportunity to do so. The section, which relates to the terms of reference, resonates very much with Judge Mahon's recent report and his proposal to seek an amendment to the terms of reference of his tribunal. A commencement date is not provided for in the legislation and I cannot ascertain whether the issue of retrospection will create a difficulty. I do not ask the Minister of State to pre-empt the Government's response but, if Judge Mahon's request were to receive a positive response from the Government, would the amendment to the tribunal's terms of reference take place under this section or could it be addressed differently? In other words, what are the Government's options to deal with Judge Mahon's request to amend the tribunal's terms of reference?
The section is important, as the Oireachtas should be able to amend the terms of reference. We should not be tied to the current arrangement. Originally, Mr. Justice Flood was requested in good faith to investigate each and every allegation in public and so on and there was no disagreement in the Oireachtas about that. However, while that might have been a great idea, it has transpired that it would take 20 years, which is utterly unnecessary.
Judge Mahon has outlined the reason the terms of reference should be amended, with which I agree. I refer to the method of doing so. The Government could reject his proposal but, if it were to respond positively, could it make the amendment under this legislation, which will be passed this week, or would it have to do something outside the legislation? Is a facility provided under previous legislation to allow the Government to make the necessary amendment?
I thank the Senator for raising these two important questions. The legislation will come into force on enactment.
The second question confuses two issues. The reference to terms of reference in the section relates to the commission established under the legislation and that is separate to anything that will happen if Judge Mahon's proposal is taken up. My caustic comments about tribunals must be put in context. The Houses of the Oireachtas agreed the terms of reference for the tribunal and it seemed like a good idea at the time.
We are all equally guilty.
That issue is separate from this legislation. The reference to terms of reference relates to the commissions, not to tribunals.
In other words, the tribunal's terms of reference will be dealt with separately.
Yes. Issues relating to the tribunal are set out under its terms of reference. As Senator Brian Hayes said, an issue could come to light under those terms of reference and may fall within the remit of this section. However, there is no crossover between both terms of reference. They are separate.
Section 44(2) provides for permission to seek an amendment to the terms of reference of an established tribunal so that where a tribunal of inquiry is established to inquire into any part of a matter that is within a commission's terms of reference, those terms shall be amended by the Minister which set it up or by the Government to take account of the inquiry. I presume this is possible.
No, this refers to the commission's terms of reference and to something that may happen in the future.
If another tribunal is established?
Yes. It refers to a tribunal being appointed to examine some matter which is under investigation by the commission. To really confuse the issue, it is actually the reverse of the case Senator O'Toole mentioned. He was talking about whether we would use the powers in section 6 to deal with a situation which may or may not arise at the request of one or other of the tribunals. The answer to that is "No". In future, however, if the commission is under way and some issue arises in relation to a finding of fact which suggests that a tribunal should be established at that time, a tribunal mechanism still exists and can still be used. I hope it will be used with more precision than in the recent past or at present. That would necessitate a change in the focus of the commission's terms of reference.
Question put and agreed to.
SECTION 7.
Amendments Nos. 10 and 11 not moved.
Question proposed: "That section 7 stand part of the Bill."
This section relates to membership. One of our tribunals has three members and this was done to ensure that a number of investigations could take place at the same time. One could have three modules of the tribunal working at the same time, but that has not happened. Is it possible under subsection (2), which states that each member of a commission is to be appointed by the specified Minister or the Government of the time, that one could have two or three members of a commission established? Will they all be sole members or will there be two or three members? Is it possible that one could have a number of matters dealt with by one commission as against three or four separate commissions?
I am told the Senator's question is well focused because it means that if one appoints a commission that has three members, one will still have one commission, but the three individual members can conduct separate elements of inquiry by way of efficiency and promoting speedier inquiries.
Question put and agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
I was reading this at 11.30 p.m. last night and all these questions started to flow from the pages.
The Senator has a sad life.
I know.
The babies must have been in bed.
They were. I cannot understand the part of this section which states "(including barristers and solicitors)" regarding the advice and assistance people can get and which the chairperson of the commission can get also. Section 8(1)(a) states that persons can be appointed “with relevant qualifications and experience (including barristers and solicitors) to advise or assist the commission in relation to any matter within its terms of reference”. Why was that included in the Bill?
I am told that in other cases the senior legal people, the barristers, have had a certain monopoly in these areas. This is to make it absolutely clear that a solicitor would suffice as opposed to requiring that people in silk automatically descend on the commission.
The objective of these commissions is to require a whole range of other professional people, such as accountants. One does not need solicitors and barristers for much of this stuff anyway. When I read this last night at 11.30 p.m. with my Horlicks in one hand and the legislation in the other, I had to ask why there was a special reference to them at all. It is clear that if one appoints persons with the relevant qualifications and experience they may well be barristers. They may be household decorators for all I care. However, the notion must be challenged that the only people who can give expert advice and have qualifications are barristers and solicitors. That is nonsense. There are people in the Civil Service with vast qualifications who are more qualified than many at the Bar. They could do a much better job in terms of investigation, assistance and advice. This allows me to make the prejudicial comments I have just made and I apologise to the Minister of State in that regard. The reference to barristers and solicitors in this provision is completely out of context.
This is a belt and braces approach. There has been a feeling that when something goes to legal representation, it always seems to be barristers who become involved.
To satisfy them.
It is not to satisfy them but to make it clear that it does not need to be gowned and bewigged gentlepersons descending en masse. A more lowly form of legal eagle, the solicitor, will also suffice. I take the Senator’s point that there are many groups with qualifications and they are not necessarily people who have come through the Inns or the courts. I do not want to be facetious — this is serious legislation — but we want to make clear that legal representatives do not have to be barristers. They can also be solicitors. There may even be cases where housepainters may be the people with the relevant expertise.
Absolutely.
Question put and agreed to.
SECTION 9.
I move amendment No. 12:
In page 11, between lines 2 and 3, to insert the following subsection:
"(2) All queries and requests concerning the—
(i) composition,
(ii) terms of reference,
(iii) staffing, and
(iv) role
of a commission shall be conducted between a commission and the Clerk of each House of the Oireachtas.".
This amendment attempts to include a new subsection. It is a slight variation on the theme of the grouped amendments at the start and relates to queries and requests which may come from the commission regarding composition, terms of reference, staffing and roles. It is suggested that where a query or request is made by the commission, that query or request, as set out in amendment No. 12, would go to the Clerks of the Houses of the Oireachtas. It is a slight variation on the previous amendment and its sole purpose is to keep Members of the Oireachtas informed as to the progress of the commission and its requirements. It is a serious point. There have been cases in the past where some of the tribunals have inadvertently criticised the speed at which resources were given to them by the Minister of the day. It would be useful that where a request is made, that information would be given to all Members via the Clerks of the Houses at the same time as the Minister receives the information.
The purpose of section 9 is to provide that the commissions must be independent in the discharge of their functions. In a sense Senator Hayes is reversing some of the logic he used earlier when talking about the separation of powers.
Not for the first time.
I fully subscribe to the view that consistency is the hobgoblin of a small mind and I would never accuse my friend Senator Hayes of having a small mind or of being hobgoblinned by inconsistency.
The amendment would require all queries and requests concerning the commission to be conducted between it and the Clerks of the Houses. That is entirely inappropriate and would probably be a very unwelcome role for the Clerks. It would not be appropriate to include this provision.
I make the point again about keeping this simple and straightforward. As it stands, section 9 is unequivocal, stating that the commission shall be independent in the performance of its functions. It will be up to the commission to make absolutely certain that there is no interference with it and any commission worth its salt would actively pursue the independence conferred on it by section 9. This amendment would not add anything in that regard.
The Senator's point is more about keeping the Oireachtas informed than underpinning the independence of the commission. It would be much better to leave it at the simple statement of independence as outlined. The role of post box between the Minister and the commission would not be an appropriate one for the Clerk of either House in addition to his or her other responsibilities.
Where queries and requests come from the commission to the Minister, will the Minister automatically inform both Houses that such a request has been made? That in no way violates the objectives of the commissions, namely to get to the truth speedily. We all need to be on the one side in terms of what is required. Some commissions may require substantial resources while others may not. Some may be over in ten days because only two people are giving evidence, while others may take ten months or ten years to complete their deliberations. While I am not straying back to the first group of amendments, there is a need to involve the Oireachtas. My party's suggestion is that queries and requests regarding this matter should come to the Clerks of the Houses and consequently to all Members.
We will have to agree to differ on this point because I do not think it would be practical for all queries and requests to be channelled through the Clerks of the Houses of the Oireachtas. I can see the Senator's point that, for example, a withholding of resources would stymie the independence of the commission. That matter could be dealt with more appropriately by the commission making a report to say it did not have the necessary resources. I do not think, however, that the device the Senator is suggesting would work because it would be neither practical nor beneficial. The best guarantee of a commission's independence is that provided for in the clear language of section 9, as it stands.
Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10.
I move amendment No. 13:
In page 11, subsection (2), line 8, to delete "shall" and substitute "may".
This amendment seeks to delete the word "shall" and substitute "may" in reference to the conduct of investigations. As drafted, the section appears to make the facilitation of co-operation mandatory. This could require the commissions to travel to any destination at the request of a witness. At one stage, the Flood tribunal sat in Guernsey for a few days. The Minister of State will recall that when the tribunal returned, it had to read into the record all the information it had gleaned in Guernsey for the best part of a week or two, which seemed to be a ridiculous situation at the time. While relocating an investigation may be justified in some circumstances, I fail to understand why the commission should be compelled to facilitate co-operation without limitations. As it is currently constituted, there are virtually no limitations in respect of the notion of co-operation. The amendment seeks to give greater freedom to the commission to distinguish and determine what witnesses it wants to take evidence from. As currently drafted, it appears automatically mandatory that commissions will have to go to the four corners of the earth to interview witnesses in respect of modules that come before them. That absolute obligation should not be in the Bill. The Minister should re-examine this section.
As the Minister of State rightly said, the objective of the Bill is to give flexibility and make the new commissions realise they have an obligation to get to the truth as soon as possible. We do not want to tie their hands in such a way that they will have to follow up every single witness. As this section is currently drafted in respect of the conduct of investigations, it may well be that every witness will have to be followed up, irrespective of the weight and importance of the information he or she provides. In that context, I am moving this amendment as a means of facilitating the commission by giving it the maximum flexibility necessary to do its work. I would be interested to hear the Minister of State's reply.
As the Senator has said, this is a central part of the foundation upon which the Bill has been constructed. The section is important in so far as it sets out the approach which will be taken by the commission. The commission will be expected — and that is why the word "shall" is used — to seek the voluntary co-operation of all parties and is also expected to do all that is reasonable to bring that voluntary co-operation about. That may involve travel and if that is the case, so be it.
The proposed amendment would have the effect of diluting that requirement to facilitate the co-operation of witnesses. The result could be a major change in the whole basis of the Bill. I am not suggesting that this is the intention but, in fact, the outcome of the amendment may be just that. The legislation gives certain powers to the commission and requires the commission to seek voluntary co-operation. It expects that the commission will do all that is reasonable to bring that about. If that means travelling to Guernsey or Jersey — as in that case where a person was unwilling to deal with it, although I think the person has since passed away — and if that is the cost of getting to the truth quickly, that is the price that may have to be paid.
My advice, however, is that "shall" is a qualifying principle, and to substitute "may" would undermine the whole structure. For that reason the amendment is not being accepted. I accept that this is not the usual argument about using the word "shall" or "may".
No. It is different.
It is a different argument. Notwithstanding that, however, the use of the word "shall" in section 10 would establish it as a qualifying principle. We would damage the Bill if we were to substitute the word "may".
I understand what the Minister of State is saying but I feel that the commission needs to be given the flexibility to do its job. Inserting the word "shall" would put the onus of responsibility on the commission to follow up every single lead, particularly in respect of voluntary co-operation. I respect what the Minister of State has said, however, and in that context I will withdraw the amendment.
I thank the Senator for withdrawing the amendment but he should take note of section 10(1), which states: "A commission may, subject to this Act and the commission's rules and procedures, conduct its investigation in the manner that it considers appropriate in the circumstances of the case." I made the point earlier that it is expected to do all that is reasonable to bring about the required set of circumstances and this gives the relevant level of flexibility to the commission. It deals with the Senator's concern that somebody could put forward something which is totally unreasonable and impractical, but it would not necessarily bind the commission in those circumstances because the let-out is in section 10(1). I hope that deals with the serious point that has been made by the Senator.
Amendment, by leave, withdrawn.
Section 10 agreed to.
Amendment No. 14 not moved.
Section 11 agreed to.
SECTION 12.
Amendments Nos. 15 and 16 are related and may be discussed together by agreement.
I move amendment No. 15:
In page 12, subsection (2), line 27, to delete "require" and substitute "compel".
Section 12(1) imposes an obligation on the commission to disclose the substance of evidence to certain persons. Section 12(2) suggests that the obligation to disclose evidence does not require the disclosure of the source of that evidence. That is the distinction. The amendment seeks to bring some clarity to this matter. I want to ensure that a cautious or narrow reading would not result in a commission coming to the conclusion that it feels it must disclose the source. It should not feel so compelled. The use of the word "require" is too loose and open to misinterpretation. I suggest the word "compel" as a means of giving the commission the clarity it needs in terms of disclosing the source of the evidence. It is in that context that we propose the amendment.
I thank the Senator. We are now in the old area of disputing the differences between "will" and "may" and "may" and "shall". However, this is a new one as we are referring to the difference between the words "compel" and "require". I would have thought that the word "require" might encompass or embrace the word "compel". Section 12(1) provides that the witness is to be informed about any evidence received by a commission and that may be relevant to the witness or the evidence he or she is about to give, which we all accept is a fair and reasonable approach.
Subsection (2) provides that the commission is not required to reveal the source of information to any witness but may do so where it is in the interests of fair procedure and the investigation generally. The use of the word "compel" in these circumstances would not change the meaning of the provision.
It is a subtle difference.
I am not sure it is all that subtle but I will take the Senator's word for it. He did, after all, read this Bill at midnight last night when the rest of us were curled up in bed with our Horlicks or something else more attractive. If the Senator reads the section again, the word "require" is more appropriate. As it does not require disclosure, it provides that the commission may do so if it feels fair procedures or a better investigation would be served by providing the information.
I examined this issue because I was fascinated by the use of the words "require" and "compel" and, on balance, "require" is the better word. It is a striking feature of this Bill that it is drafted in very clear English, which is a model other Departments might emulate for once. The word "require" is the appropriate one. Subsection (1) does not require the disclosure which means it does not prevent it either.
Question, "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 16:
In page 12, subsection (3), line 34, after "evidence" to insert "and, where evidence adverse to the good name of such a person is disclosed under subsection (1), the commission shall not rely on or disclose such evidence in a report unless the person concerned has had an opportunity to challenge such evidence by cross-examination and by presenting contrary evidence whether written or oral”.
The purpose of this amendment is to ensure the legislation will be constitutional and that fair procedures are followed such as, for example, in the re Haughey case, regarding the right to cross-examine and present contrary evidence, which is not present in the legislation as it stands.
Section 12(3) provides that a person who is informed under subsection (1) about evidence already available to a commission shall have the right to comment and so forth on the evidence. This is the primary focus of the Senator's amendment which is well intentioned. However, the Government is satisfied that section 12 strikes the correct balance between ensuring confidentiality about sources and the need to allow named persons to protect their names and reputations. One must remember that evidence will have to be received in private and, therefore, the possibility of damaging anyone's good name is reduced. This section will enable persons against whom matters have been claimed to have an opportunity to answer those claims, which is the concern that underlies Senator Hayes's earlier point.
In regard to the disclosure of material in reports, there are already clear requirements that all affected persons will be given prior notice if they are to be identified or identifiable from material in a report. This is adequately covered in sections 34 and 35, which we will discuss later. The two safeguards, which the Senators correctly wish to put in place, are already in the Bill. The protection of an individual's good name is ensured by the fact that much of the evidence is taken in private in any case. Therefore, it will not be like the existing system, whereby allegations, some of which are monstrous, can be made and lie on the record for years without a person having the opportunity to deal with them. I understand this is Senator Tuffy's concern, but it is already addressed in the legislation as drafted. Therefore, I am not in a position to accept the amendment. The Senator would be surprised if I stated otherwise.
There is a big difference between being able to respond to something in written form as opposed to verbally. If a person was allowed to attend and pick into the evidence, he or she would have a much better chance of saving his or her reputation than if he or she put something on paper. This is an obvious point which explains why we have courts, evidence and cross-examination in the first place.
Senator Tuffy referred to the re Haughey case which does not apply here because it arose in very specific circumstances. It arose in the context of a very public inquiry. It is not a similar position in this legislation. The commission will decide how the person whose name is referenced in evidence can comment and the primary protection is provided by the fact that the evidence will be taken in private. Moreover, sections 34 and 35 provide for the protection that people will have prior notification if anything is to be published which would identify them. Under this section and section 12(3), which is dealt with by Senator Tuffy's amendment, one has the right to comment on the evidence and to produce counter-evidence to suggest whatever has been alleged is incorrect, invalid or simply untruthful.
Amendment, by leave, withdrawn.
Section 12 agreed to.
SECTION 13.
I move amendment No. 17:
In page 13, subsection (2), line 2, after "shall" to insert "in so far as is practicable,".
This section refers to the duty to inform witnesses of the commission's powers and to advise them of their own rights and obligations. It is important that the commission does this concerning any person who is asked to co-operate with and give evidence to the commission. However, helpful as ever, Fine Gael is attempting to make the Bill as watertight as possible. Amendment No. 17 proposes a form of words which would make the Bill more acceptable to the commission on a day to day practical level.
Legal eagles will scrutinise this legislation once it is passed. The first commission will be established and opinions will be advanced on how the commission has not performed its functions and has been in dereliction of its duties. Acceptance of amendment No. 17 would do a great service to the commission. We suggest in section 13(2) that if no legal representative is present to advise a witness, the commission shall in so far as is practicable advise the witness of his or her legal rights and obligations while giving evidence on oath or affirmation. That would make the subsection more watertight and is more straightforward. Rather than imposing sweeping obligations on the commission in the Bill we should be more precise. I predict that people will run to the High Court as soon as the commission is in operation, looking for glitches, shortcomings and the kind of sweeping obligations contained in section 13(2). I am not asking for a major concession but this would certainly make my day. I respectfully suggest that if the Minister of State were to accept this amendment he would help the commission to go about its work in as practical a way as possible. We do want not a situation to arise where a person runs to the High Court and says the commission is in dereliction of its duties, that it did not advise according to the sweeping obligations in section 13(2). If our wording is included it would give the commission the necessary protection when it is up and running.
I take the point made by the Senator but to insert those words would be to weaken the available safeguards. As section 13(2) is worded, if no legal representative is present to advise a witness, the commission shall advise the witness of his or her legal rights. That is an important protection. A commission must be clear that it has a responsibility to give the witness the necessary advice as to his or her legal rights and obligations while giving evidence on oath or affirmation. To introduce the words, "in so far as is practicable" after the word "shall" in subsection (2) would be to weaken the protection afforded to the individual in subsection (2). It would do no service to the commission and could conceivably do a disservice to the witness. As the section is drafted it is clear and unequivocal that the commission has a responsibility which it must fulfil if that is appropriate. If the commission were to be sloppy or fail to fulfil that responsibility, it would know the consequences would be dire and that people would rush to the courts where their rights would be vindicated. The section is well drafted and it is appropriate that it puts the burden of responsibility on the commission.
In addition to the witnesses having to behave in a responsible manner, it is incumbent on the commission to do likewise. The Bill makes clear the commission's responsibilities.
While I accept all of that there is another problem that must be confronted. We are not establishing a court. The tribunals of inquiry are not courts although they are judicial instruments up to a point. We have learned the lesson from the tribunal difficulties that if there is any kind of glitch, ultimately people who may have done some wrong run to the High Court and attempt to attack the tribunal. Tribunals are not courtrooms. As far as I am concerned the more of this work that is done in private the better; there will be fewer barristers and solicitors to carry out cross-examinations and people's right to their good name will be protected. I suggest our phraseology would not give an opt out clause to the commission but would make it more workable, practicable and sensible in the medium term. It is clear the Minister of State will not make my day but we will do our best.
Amendment put and declared lost.
Section 13 agreed to.
Section 14 agreed to.
SECTION 15.
I move amendment No. 18:
In page 14, subsection (5), line 22, after "them" insert "and shall publish in Iris Oifigiúil any rules and procedures adopted pursuant to this section.”
This section is defective in that it does not require publication of the rules adopted under section 14. Our amendment seeks to rectify this.
I will hardly surprise the Senator when I say I am not in a position to accept the amendment. In fact I oppose amendment No. 18 and suggest there are good reasons for doing so. Section 15 provides that a commission may establish or adapt rules and procedures especially on the taking of evidence. I am concerned that the proposal to have the rules and procedures published in Iris Oifigiúil would add a burden to the commission without, perhaps, adding greatly to the efficiency or the transparency of its operations. I am not sure what purpose would be achieved by requiring publication in Iris Oifigiúil. We must look at the totality of the arrangements being provided for in the Bill.
I begin by directing the Senator's attention to section 13(1) which requires that all witnesses are to be provided with a written statement setting out the commission's powers to give directions to attend, to answer questions, produce documents and so forth. This is provided in advance of the witness giving evidence. The witness giving evidence will have clear advance warning. I suggest clear advance warning is more appropriate than simply publishing information in Iris Oifigiúil. In addition, section 23(4) requires that all witnesses must also be provided with a copy of the guidelines on costs before giving evidence. That is a significant matter. There are other provisions, for example, in section 34 that require the commission to provide all persons being identified in a report with an opportunity to respond in advance of the report being finalised. The Minister has already provided, by way of an amendment on Report Stage in the Dáil, that rules and procedures should be made available to persons affected by them. That was in response to a proposition from the party of which the Senator is a member. That amendment, together with the other matters I have mentioned, will ensure that witnesses will be well informed about the commission’s powers and functions far in advance of their giving evidence and at a later stage of the investigation. In these circumstances, I suggest amendment No. 18 is not necessary and does not add anything to the Bill. Publication in Iris Oifigiúil would be an additional step that would not add anything to the existing protections. The spirit of the proposition made by the party of which the Senator is a member has already been taken on board in the amendment which the Minister accepted in the Dáil.
Amendment, by leave, withdrawn.
Section 15 agreed to.
SECTION 16.
Amendments Nos. 19, 20 and 23 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 19:
In page 15, subsection (6), line 40, after "member" to insert ", on notice to the person concerned,".
The purpose of these amendments is to avoid any doubt in the event of an application to the High Court to compel persons to comply with directions and that those applications be made on notice. It would be unfair if such an application were made without notifying the person concerned. The purpose of the amendment is to make it absolutely clear that this notice is required under the legislation.
I read these amendments with interest. The provisions in this section apply where a person has failed to comply with the directions of a commission. The issue at stake is whether a commission should be required to give notice where it decides to seek a High Court order for compliance with its direction. The Bill is silent on the matter on the basis that any issue arising can be dealt with by means of the rules of court.
I do not propose to accept the amendment for good and cogent reasons. While it is desirable that notice should be given to any affected party, there are occasions on which it is not necessary, possible or even desirable that this should be the case. For example, where notice of court action could produce circumstances in which evidence might be destroyed, it would not be in anybody's interests to provide it. The need to observe fair procedures will inform all of a commission's activities and I am satisfied that any gaps which become apparent can be addressed as they arise by amendments to the rules of court. It is preferable to deal with the issue in this way rather than by inserting a new provision in the Bill to oblige a commission to give notice even in cases in which notice would be impractical, impossible or result in a negative impact. I suggest that amendment No. 19 and the associated amendments, which are similar, be withdrawn.
Amendment, by leave, withdrawn.
Section 16 agreed to.
Amendment No. 20 not moved.
Sections 17 to 20, inclusive, agreed to.
SECTION 21.
Amendments Nos. 21, 22, 24 and 28 are related and may be discussed together, by agreement.
I move amendment No. 21:
In page 17, subsection (2)(a), line 39, after “information” to insert “or requires production to it of a document for the purpose of determining whether or not such document is privileged”.
The Labour Party feels the legislation is flawed in the way it deals with privileged documents. As drafted, the Bill requires in section 24(a) that a commission must examine a document to determine whether it is privileged. This is impractical and inappropriate. If implemented, the provision will result in circumstances in which an entire inquiry might become contaminated due to a commission becoming aware of a matter by looking at a privileged document. The problem is compounded by the fact that the members of a commission will not necessarily be persons with legal knowledge. Any person, regardless of whether he or she knows anything about legal or any other privilege, is entitled to be appointed to a commission.
The Labour Party is concerned that the production to a commission of a privileged document could have the effect of destroying the privilege of the commission and contaminating the minds of its members. The example of the High Court which requires documents to be submitted is apt. This is a different scenario as the High Court consists of extremely senior and eminent legal personnel who are used to dealing with these matters. The High Court is not a commission of inquiry which might take the information in a privileged document consciously or unconsciously and use it to make further inquiries. This is the reasoning behind our amendment. Subsections (4), (5) and (6) should be deleted and a commission subjected to a right of appeal to the High Court where it wishes to see a document to determine whether it is privileged. Such a provision would permit a determination of privilege without the commission having to see a document.
Amendment No. 22 deals with the same issue. The Labour Party is putting forward an alternative suggestion whereby a commission would be entitled to request to see a document and a person of whom such a request was made would be entitled to challenge it in the High Court by way of an appeal under the legislation. The commission concerned would not have to see the document.
Amendment No. 24 is an alternative amendment if the Minister of State does not accept the proposal to allow privilege to be challenged without the commission having to inspect a document. If it were believed that a commission had been contaminated, the court could use the provision proposed in the amendment to direct it to cease its inquiry or part of it.
Amendment No. 28 seeks to insert a protection for reasons of constitutional policy. Usually, legislation authorising search and seizure contains an express protection for privileged documents. The Labour Party seeks to insert such a provision in this legislation.
I thank Senator Tuffy for her explanation as the amendments are complex. As a general point, many of these matters will be under the overall direction of the High Court in any event. I will record a lengthy rationale as to why I will not be accepting the amendments.
The amendments relate to section 21 and arise from a concern that having seen and examined documents about which privilege has been claimed and which have not subsequently been entered as evidence, a commission may be considered to have contaminated the process by having knowledge of matters it may no longer consider as evidence. The mere sight of a document does not necessarily mean evidence has been contaminated. These are questions which touch on the impartiality of commissions and their processes.
The purpose of section 21 is to ensure that claims of privilege do not frustrate a commission's work while protecting genuinely privileged and confidential information. The section seeks to strike a balance. The problem identified by the amendment is a recurring difficulty for all legal and quasi-judicial bodies including the courts themselves. The problem can be overcome by reliance on the good judgment of the bodies concerned and the observation of fair procedures. One would expect a commission to exercise good judgment and be bound by fair procedures. Commissions will be subject to judicial review by anyone who feels that privileged material has not been properly handled. The protection of the individual is ensured through the judicial review process and by the fact that inquiries will be carried out in general under the direction of the High Court. It should also be recalled that evidence will have been received in private.
Several provisions are included to ensure that material cannot appear in reports without the affected person first having an opportunity to see it and seek changes if fair procedures were not followed. There is ample opportunity for an affected person to protect himself or herself from any privileged information. As the constitutional protection of the individual is the central issue touched on by Senator Tuffy, it is important to record these points. We do not propose to accept the amendments because we are satisfied that the provisions in the Bill, which were drafted with particular care and attention, strike the correct balance between, on the one hand, the need for a commission to have access to documents and, on the other, the need to reserve privilege and confidentiality. I am concerned that amendment No. 24 in particular could encourage lengthy and costly litigation, which is to be avoided at all costs, that being a central issue in the Bill.
Amendment No. 28 deals with section 28, and the provision and the procedures in section 21 concerning determination about privilege attached to documents apply also to any document that may be seized using the powers of seizure under section 28, the final point about which Senator Tuffy was concerned. The amendment seeks to provide that privileged documents would not be subject to powers of seizure etc. being exercised by an officer under section 28. The question is who determines that a document is privileged. It is important to state that it is not a matter solely for the affected person to determine whether a document attracts privilege because clearly if the affected person were to be the determinant of what is and is not privileged, the affected person would view as privileged every document that is sensitive and that reflects negatively. The Bill foresees that it is the commission working with the affected person and, if necessary, under the direction of the High Court that determines these issues.
Section 21 sets out a detailed procedure to enable a commission to identify what is a genuinely privileged or confidential document or confidential information. It involves asking the person who is claiming privilege to set out the grounds for the claim and allows the commission to examine the relevant documents. Where the claim is upheld the document is not entered into evidence, except where it is possible to extract certain relevant information from it without infringing on privilege. The section also provides provision for appeals to the High Court against a commission's determination as to the status of the document.
The provision gives, on the one hand, a clear basis for deciding where privilege exists and, on the other, provides the necessary balance and the protections to ensure that the rights of the citizen are protected but that people cannot falsely claim privilege in order to frustrate the work of the commission. Simple sight of a document does not necessarily mean that the whole evidence has been contaminated.
I accept fully the points Deputy Tuffy made, but from what I have said she will note that a considerable amount of thought has been given to them. The compelling nature of the arguments would suggest that the amendments are not acceptable.
Amendment, by leave, withdrawn.
Amendments Nos. 22 to 24, inclusive, not moved.
Section 21 agreed to.
Section 22 agreed to.
NEW SECTION.
I move amendment No. 25:
In page 19, before section 23, to insert the following new section:
23.—Within three months of the passing of this Act, the Minister in consultation with the Minister for Finance shall publish a table of the maximum level of legal fees payable by the State to barristers and solicitors engaged by witnesses or other persons appearing before or connected with a commission.".
We all hope, as per section 10, that most of this work will be heard in private, thereby reducing costs so that people will not have to cross-examine each other to prove their good name. As the Minister of State is aware, under section 10, a major power is given to witnesses who come before a commission whereby they can seek to have the commission's work heard in public in connection with their own attendance there. In view of the substantial powers given to witnesses to call the commission in public, we believe that such power could be misused. Despite the fact that we all hope that the commission's work will occur in private, we believe that much of it will end up being heard in public because if one allegation is repeated in public, presumably the person at whom the allegation is directed will want to have his or her reply in public. Although we all hope much of this will end up in the private domain allowing a speedy conclusion to be reached, because of the provisions of section 10 it may happen that much of this work will end up in the public arena, thereby ensuring that the legal eagles will have their day in the sun.
In section 23 the Minister introduced the notion of guidelines concerning the recovery of legal costs necessarily incurred by witnesses. That is a positive provision. In response to my colleague in the other House, a new section has been inserted later in the Bill in respect of tendering, which is a welcome development. People will have to tender for the work that they want to give. There is merit in the Minister of the day and the Minister for Finance publishing maximum amounts that will be given.
As the Minister of State is aware, his colleague, the Minister for Finance, at his party's conference earlier this year stated that something would be done to address the colossal fees that are now being charged by the ladies and gentlemen at the Bar who are working in the tribunals, yet some four months later nothing has been done. The Minister for Finance stated that it is his intention to move towards an annualised payment particularly if a tribunal has been sitting for over a year or two years as against the per day rate which is currently in place, but we have not seen the colour of the Minister's money in respect of that proposal. We have seen fascinating announcements, headlines and even more fascinating interviews but we have not seen action. My party is giving the Minister an opportunity to stitch into this Bill the kind of guidelines that should be published along with the other guidelines he has at his disposal, including the excellent guidelines in respect of tendering, which, in fairness to the Government, it took on board on Committee Stage. I ask the Minister to look positively on this response. This proposal will not break the bank and it is not one that will undermine the commission. If anything, it will bring greater accountability and transparency to the substantial sums of money that are being made by certain people in this country.
Eagles were once an endangered species, but legal eagles seem not to be. Senator Brian Hayes is pushing many of the right buttons in terms of prejudices.
Good.
In this regard, I believe they are close to his own prejudices, not only from the point of view of the public purse but from every other point of view. Controls on legal costs are due.
The Bill has been improved in the Dáil by the fact that the Government has taken on board some of propositions made. Senator Brian Hayes spoke about an amendment to section 8, which was inserted on Report Stage in the Dáil, to provide a tendering facility when recruiting persons to provide advice and assistance, and section 8 now provides that the specified Minister may — as opposed to the word "shall" — following consultation with the commission, direct that a competitive tendering process should be used. A direction may also be used to decide whether tendering may not be appropriate in every case. The section also provides that tendering may in certain cases be availed of for the recruitment not only of lawyers but of other specialists.
Section 8 also provides that in deciding whether to use a tendering process, the Minister will have regard to the subject of the investigation. In other words, there may be instances where the subject matter is so specialised and specific and where the pool of expertise is so small that a tendering process would not be practical. In other words, there may be instances in which the subject matter is so specialised and specific and the pool of expertise so small that a tendering process would not be practical. The timeframe for the submission of the final report, the qualifications and experience required for the appointment and the functions to be performed and the likely costs, etc., are covered in this section. We all accept that there is a problem. I am not sure how effective these section 8 provisions will be as they are untried and untested but they are nevertheless in place.
Two further sections also touch on the issue of costs. A separate regime is provided in sections 23 and 24 in respect of cases where a witness seeks to have his or her own fees paid by the commission and the Minister. The costs referred to in these sections are limited to those necessarily incurred in the protection of the person's good name and reputation.
Section 23 provides for general guidelines, including on maximum payment and the type of service to be considered. Section 24 provides for the application of specific criteria in each case where funds for fees are claimed. The guidelines under section 23 are to be prepared in advance and given to the witnesses in advance of their giving evidence. Therefore, they know what is available in terms of tariffs and will be in a position to know in advance of giving evidence how to plan their legal representation. The requirements in sections 23 and 24 address the substance of the Senator's amendment because he is suggesting that a tariff be published.
Section 17 sets up a procedure whereby when someone obstructs a commission or fails to co-operate with it so that other parties, the commissioner or other witnesses, for example, incur additional costs, that person can be held liable for those additional costs. In addition to noting these direct provisions on costs, the House must recall that the procedures to be employed will also help to reduce costs. I refer in particular to the emphasis on co-operation, private hearings and the limited opportunities for cross-examination — the very points Senator Brian Hayes has identified as comprising the essence of this legislation. These, along with other procedures, should have the effect of reducing the need for legal teams and, therefore, dramatically reduce costs and delays.
A fixed tariff has certain appeal but it is not necessarily just in all cases. I share many of the Senator's evident prejudices on the matter of over-feeding legal eagles, vultures or other avian species. However, the reality is that a number of amendments have been made to the Bill in the Dáil with a view to ensuring that they subsist on a more circumscribed diet than they have done in the recent past. Therefore, I am not in a position to accept the amendment.
On the basis that prejudice recognised is prejudice defeated, I will accept the Minister of State's word.
Amendment, by leave, withdrawn.
Section 23 agreed to.
SECTION 24.
Amendment No. 27 is related to amendment No. 26 and they may be discussed together by agreement.
I move amendment No. 26:
In page 20, subsection (2), between lines 12 and 13, to insert the following paragraph:
"(a) the witness fully and completely co-operated with the commission,”.
This deals with the recovery of legal costs necessarily incurred and certain other expenses. Section 24 should be stronger to deal with cases in which people do not co-operate with the commission. Amendments Nos. 26 and 27 seek to ensure thatwitnesses fully and completely co-operate with the commission and that the level of co-operation provided by them could constitute a reason for non-payment of costs. What is significant about this Bill, apart from section 16, is that it does not rule out the possibility of non-co-operative people being able to recover their costs. It should be absolutely explicit that certain individuals who do not co-operate with the commission will not be able to recover costs.
This is a matter of considerable public import in that Judge Mahon has issued a statement concerning those who either did not co-operate or were not fully co-operative in their dealings with the tribunal to date. There is a possibility that some of these cases may well have to go to the courts because, according to the legislation, one has to show that one has knowingly misled the tribunal. This is always a difficult charge to bring to court. We need to stitch into the legislation very clearly that where someone does not co-operate and leads the commission a merry dance, we can refuse to pay his or her costs. Both amendments to section 24 set out a definitive position on non-co-operative individuals and I ask the Minister to accept them.
Senator Brian Hayes is correct in that if somebody tries to obstruct or impede the work of a commission, he should certainly bear the cost of doing so. Section 24 deals with criteria under which fees may be recovered. The amendment proposes new criteria to be considered before payment is agreed. For example, it proposes that the extent to which a person co-operated with the commission should be a factor.
Section 24(3)(e) was inserted on Report Stage in the Dáil and it enables the commission to take account of instances where the witness fails to co-operate and does so in a manner regarded specifically as improper. It therefore takes into account cases where, for good and proper reasons, a person would prefer to be under direction before handing over documents. There could be good and proper reasons why a person would not wish to hand over documents. For example, doing so could have some prejudicial impact on the witness. Public servants covered by the Official Secrets Act could fall into this category. The amendment inserting section 24(3)(e) was introduced specifically to address such innocent reasons for a person’s wish to be directed to hand over documents before doing so. A witness who wishes to be directed before handing over documents should not automatically be assumed to have acted improperly or to have obstructed the commission.
This section permits account to be taken of cases where there is deliberate or persistent failure to co-operate and provides that a commission can make an assessment of the degree, if any, of an improper failure to co-operate with the commission when making a determination of costs. It covers some of the Senator's concerns while at the same time accepts that a person might not be fully co-operative yet is not acting improperly.
Section 17 is also important in that it provides that where there is an obstruction, the party causing the obstruction may be held liable for costs incurred by others as a result of that obstruction.
In light of section 24(3)(e), amendments Nos. 26 and 27 are not really necessary. In any event, it would be inappropriate to require a person to “fully and completely co-operate with the commission”. Some flexibility is required and the provisions of the Bill strike the correct balance, particularly in that withholding a document until one is directed to produce it does not necessarily mean one is not facilitating the commission’s work and behaving in an improper way. I am not sure if I have clarified the issue but it is clear that there are circumstances in which it is not improper to adopt the aforementioned approach. There may be good, cogent reasons for doing so.
Is the amendment being pressed?
There is a level of agreement here. The only difference between the Minister of State and myself is that I thought it would be more useful if this were specified in section 24(2) in the same way that subsection (1) specifies that before a direction is given to pay costs the commission must be satisfied that the legal costs were necessarily incurred and the level and amount of those costs are reasonable. We are suggesting that a level of co-operation with the commission should also be necessary before the consideration is made. However, if the Minister of State is telling me that section 24(3)(e) has the same effect as my amendments I accept his word on that. It is important to state that people should co-operate fully and completely with the work of a commission to ensure that a matter of public concern is resolved as soon as possible.
Section 24(3)(e) was introduced on Report Stage in the Dáil in recognition of the fact that there may be circumstances where a person, for good reasons, would wish to be directed before surrendering a document. That would not be improper. Otherwise, if a person behaves improperly he or she carries the consequence of his or her behaviour.
In section 24(3)(e) the inclusion of the words, “the degree of failure” is an indication that the commission can weigh up the quality of the co-operation given over a period of time. If someone has unwittingly failed to co-operate but has co-operated in every other degree and aspect, that can be weighed up. That is sensible and I withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 27 not moved.
Section 24 agreed to.
Sections 25 to 27, inclusive, agreed to.
Amendment No. 28 not moved.
Section 28 agreed to.
Sections 29 to 31, inclusive, agreed to.
SECTION 32.
I move amendment No. 29:
In page 24, subsection (4), line 40, to delete "specified Minister" and substitute "Houses of the Oireachtas".
I will withdraw the amendment on the basis that it may be reintroduced on Report Stage.
Amendment, by leave, withdrawn.
Section 32 agreed to.
Amendments Nos. 30 to 33, inclusive, not moved.
Section 33 agreed to.
Amendment No. 34 not moved.
Section 34 agreed to.
SECTION 35.
If amendment No. 35 is not agreed to, amendment No. 36 cannot be moved.
I move amendment No. 35:
In page 25, subsection (2), lines 31 to 36, to delete paragraphs (a), (b) and (c) and substitute the following:
"(a) inform the person that it intends to amend the report, including by omitting any part of the report based on evidence received without observing fair procedures, and give the person an opportunity, if desired, to apply to the Court pursuant to subsection (1)(b),
(b) apply to the Court for directions, or
(c) inform the person that it proposes to submit the report to the specified Minister without making any amendments, and give the person an opportunity, if desired, to apply to the Court under subsection (1)(b).”
If a person submits a statement under section 35(1)(a) as currently worded, he or she might not have a further opportunity to apply to the court for an order that the draft be amended. For example, if a statement is submitted and the commission decides, nevertheless, to submit its report to the Minister without making amendments, does the person who submitted the statement have a right to go to court? As the Bill stands, there might be a multiplicity of unnecessary applications to the court by a person who is not satisfied with the outcome of his or her submission. A person must make a judgment as to whether or not to apply to the court before he or she knows the effect of submitting a statement to the commission. The amendment would provide an option to such a person to apply to the court if he or she is not happy with the way the commission is dealing with a submission and would make clear the circumstances in which a person may apply to the court.
This is an interesting amendment. It was submitted late and gave us pause for thought. The amendment relates to section 35, which deals with the circumstances in which amendments can be made to the draft reports. The arrangements in section 35 are designed to ensure that fair procedures and natural justice are respected, the points made by Senator Tuffy. Persons who are named in reports are to have an opportunity to seek to have changes or corrections made where they believe fair procedures are not respected. This can include going to the High Court for an order seeking changes or deletions of certain material. That is not to say a report may never give details about named persons. It may do so if that is in accordance with evidence and where fair procedures are respected.
Section 35 seeks to find a balance between the need to respect fair procedures and the need to ensure the timely completion of investigations and that publication of reports is not delayed unnecessarily or unreasonably by persons who do not like the conclusions reached, even where the conclusions are justified by the evidence and by all the circumstances. The amendment, if it were accepted, would tip the balance in favour of those who have an interest in delaying the work of a commission and preventing the publication of its report. I do not believe that is the intention of the Senator. For that reason, I am not disposed to accept it. While I take the point Senator Tuffy has made, there are sufficient safeguards to ensure that natural justice and fair procedures are protected. I would be fearful that if I were to accept the amendment the balance would be tipped to the point which would countermand much of what is good in the legislation.
The amendment may not be worded in the best way possible but it attempts to address a problem. It is not clear whether or not a person could go back to the court after subsection (2) has come into operation. He or she probably could. It is uncharted territory. I will withdraw the amendment with a view to having it reintroduced on Report Stage and to give the Minister of State an opportunity to reword it with similar effect, if he so desires. I can see problems with the wording as it stands, but by withdrawing my wording the same problems will remain, although in a more unstructured way. I will give the Minister of State another opportunity to look at the question for Report Stage.
The intention is not to restrict applications to the High Court for an order seeking changes or deletion of certain material and that would not be the effect. It would not be possible to prevent a reference to the High Court. I accept that Senator Tuffy is attempting to move the section in a particular direction but I am fearful that if we were to go in the direction of the amendment, as drafted, we would land ourselves in difficulties and would be opening the gates for people to use the court mechanism to prevent speedy progress. I do not think that is what any of us wishes. For that reason I cannot accept the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 36 to 39, inclusive, not moved.
Section 35 agreed to.
Sections 36 and 37 agreed to.
Amendments Nos. 40 and 41 not moved.
Section 38 agreed to.
Section 39 agreed to.
SECTION 40.
Question proposed: "That section 40 stand part of the Bill."
Freedom of information will not apply to the records of an investigation by a commission but will it apply to correspondence between a commission and the Minister who establishes it? I am concerned about our right to know the state of play with a commission. The Minister has an absolute right to get the report and documentation but we all have a right to see the documentation.
That is a fair and interesting question, which is another way of saying that I am not sure. When the Minister is here tomorrow, the Senator might ask him then.
I cannot see how the Freedom of Information Act could be used in a way that would have an inimical or frustrating effect on the work of a commission. The Freedom of Information Act provides for the release of information with certain discretion as to whether it will have a negative effect. It is not an absolute; a freedom of information request is just that — a request — particularly where it touches on functions of a judicial or quasi-judicial nature.
It would be difficult to give an absolutely certain reply to the question because it would depend on the circumstances of the case. When freedom of information requests are being processed there is a distinction between the administrative element, which can be requested, and issues relating to judicial policy. It is impossible for me to say that the Act will apply either in every circumstance or under no circumstances.
The Freedom of Information Act is clear on this in so far as it is believed by the Parliamentary Counsel to have an impact on this legislation. Other circumstances are purely hypothetical and, therefore, it is difficult to give a definitive answer. I cannot see where any other freedom of information issue would arise.
If the commission is established and is under the ownership of a Minister, it is vital that Members of the Oireachtas and the public know what is going on in the discussions between the commission and the Minister. I am not suggesting that any information at the disposal of the commission should be made public but there is a right of knowledge on issues such as fees, resources and staff. None of the information will upset the work of the commission. The public and the Oireachtas have a right to know how much money is being spent on a commission, what it is doing and how near it is to concluding. Even the interim reports are being sent directly to the Minister, removing Oireachtas Members from the loop again, so it is necessary that some of the correspondence between the Minister and the commission is subject to the provisions of the Freedom of Information Act.
Question put and agreed to.
Section 41 agreed to.
SECTION 42.
I move amendment No. 42:
In page 28, between lines 41 and 42 to insert the following paragraph:
"(a) utterances by witnesses, solicitors or barristers, whether oral or written to a commission;”.
There is some protection of privilege and immunity for witnesses in the Bill but there is no privilege for lawyers comparable to that which obtains in the High Court. This is an omission because such privilege has been provided in other similar statutes.
I would be reluctant to consider a circumstance where absolute privilege is given because it is a bad idea. Witnesses have the same protection that they have before the High Court but I would not agree with granting barristers or solicitors absolute privilege.
Section 42 of the Bill confers absolute privilege on reports and documents of commissions and on the records of members. The amendment would extend the privilege to witnesses, barristers and solicitors. It is unnecessary and unwise to do so. As for witnesses, section 20 confers on them the same immunities, duties and liabilities as witnesses have before the High Court and it would not be a good idea to give them privilege or immunities beyond those enjoyed in the High Court, which are more than adequate.
There is no reason at all that solicitors or barristers should be given absolute privilege because then they could make the most outrageous accusations against an individual without being subject to any come back. It is important that we control any potential excesses.
Amendment, by leave, withdrawn.
Section 42 agreed to.
Amendments Nos. 43 and 44 not moved.
Section 43 agreed to.
Amendment No. 45 not moved.
Section 44 agreed to.
Sections 45 to 51, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.
When is it proposed to take Report Stage?
Tomorrow.
Report Stage ordered for Wednesday, 7 July 2004.