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Seanad Éireann debate -
Wednesday, 21 Sep 2011

Vol. 210 No. 4

Reporting of Lobbying in Criminal Legal Cases Bill 2011: Second Stage

I move: "That the Bill be now read a Second Time."

It cannot have escaped the attention of the House that in the past few months there has been an inappropriate level of public and media attention and concern focused on what appears to be a fairly widespread practice, sometimes gentle and other times not so gentle, of interference by parliamentarians in the workings of the judicial process, in particular with respect to criminal cases. This has occurred within our own State and internationally. Obviously, there have been several high profile cases, one in particular which reignited the debate for several months. I will not go into the details of these cases, some of which emerged into the public domain and others which had already been in it but were re-examined.

Suffice it to say that there have been well documented cases of Ministers, Deputies and Senators intervening in the process of prosecution or sentencing of rapists, child rapists, multiple rapists, incestuous rapists, of at least one person found guilty of vehicular homicide and of another found guilty of organising a quasi-political-criminal terrorist conspiracy. These are only the cases that have come to light. God only knows how many cases there have been in which intervention of this type was made. It has been reported that a well known constituency organisation in this country — I will not be specific — the office of which is known to give a high level of service to its constituents, was making up to 600 petitions per week on behalf of its constituents in their interface with public bodies. I am certain that in a proportion of these cases the interface was with the criminal justice system.

In days gone past, we had a semi-formalised system of petitions in which there was an actual mechanism for parliamentarians to make representations through the Department of Justice to have outcomes of the process of sentencing amended. As a result of concerns raised by a then retired judge, the matter was brought before the courts and a change was made. The system of petitions was replaced by the notion of making representations. As a political outsider looking at this, I contend that what we have with the current system of representations are stealth petitions. It is a way of exerting the same gentle degree of influence on a case as had previously been made in a formal petition through something couched as a question. I am not entirely comfortable with this.

The legislation we are discussing — I am grateful to my colleague, Senator Quinn, for seconding it — is an attempt to regulate this process by ensuring it is reported and cannot happen surreptitiously, that in the event that such an intervention is made it must be recorded by, say, something as trivial as a telephone call to a Garda or a prosecuting official anywhere in the State. Some will say that the Bill does not go far enough. Others will say we should try to ban the process. In the immediate aftermath of the events which occurred earlier this year, my visceral reaction was to state my intention to introduce legislation in this House to end that practice. There are problems with that. There are also issues relating to the whole concept of freedom of speech and whether it is possible to stop any two people from actually speaking to one another. It certainly seems entirely reasonable to introduce legislation which would ensure that if any Member of Parliament makes any representation of this type to the Judiciary, the Garda or members of the prosecuting service — they may well do it from very pure motives — it will, at least, be recorded. It may be that a subsequent Bill will go further in the future and we would have an open mind on supporting any amendment at some stage, but this Bill gives us an opportunity to grasp this nettle now and put a brake on a process which, if not corrupt in itself, can be readily corrupted.

This issue must be acknowledged, especially in light of today when a poor gentleman, Troy Davis, may well face execution as a result of a conviction which many authorities believe is very unsafe. It may be entirely appropriate for colleagues to make representations internationally and nationally where they believe a true miscarriage of justice is occurring but if they make it, they should be prepared to make it publicly. They should be prepared to make it in a fashion where it is reported to the justice officials here, where it is subject to FOI legislation and where it can be scrutinised by the media and the citizenry.

It is important to think about why people do this. I have had a number of conversations with my new colleagues and, in many cases, my new friends in this House since I had the privilege of coming in here some months ago. It is apparent to me that many of the old timers here have felt under a degree of pressure with this process. It is something that happens which they wish did not happen. They wish they had a defence against it and had a better means of saying to a petitioning constituent, "No, I cannot do this; please do not ask me to do this". Under this Bill, it would be easier to point out to a petitioner in a case where the request for representation may be less than fully justifiable that the person must understand that every aspect of that petition, including the approach that was made, will be subject to public scrutiny.

Parliamentarians may believe that within a system like ours where there is a heavy emphasis on some local aspects of politics — I do not use these terms pejoratively — in terms of a certain basis of clientelism and patronage, one of their currencies is the ability to portray their office as having a degree of influence on behalf of potential voters. People can argue about the rights or wrongs of that. I believe we need a fundamental reform of our rules regarding influence but that is another day's work.

Parliamentarians should remember that a number of parliamentary careers have been destroyed by this process, including that of a Minister. Deputies and other Senators have had their reputations called into question and one Supreme Court judge, one Circuit Court judge and several judicial officials have also had their careers damaged in this way. One may not lose anything by supporting a Bill of this nature. There is also an expectation that this type of pressure will merit a response from our officials and our civil servants, putting them in a very difficult position vis-à-vis their political masters. The need for this type of representation to be made public might have the effect of discouraging some of the more inappropriate cases. Trying to stamp it out will be difficult but we should at least cast light on it.

A US Supreme Court judge, Louis Brandeis, stated almost a century ago that: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman...". Mr. Justice Brandeis made these comments about the American banking system in 1913. One can only speculate if the wisdom of those timeless remarks had been taken on board by the leaders of our political system, banking system and banking regulatory system 90 years later, it might have had a profoundly beneficial effect on the more recent history of our country. It is not too late to learn that lesson with respect to this issue.

Those of us who may feel we are in the House but not necessarily of the House, those of us who until recently would have been somewhat critical spectators rather than participants in the actual political process, will be aware that the reputation of Irish politics is not very high right now among the electorate. Obviously in times of economic distress this can occur but there has also been a well evolved body of evidence over several years showing systematic dysfunctions in the political process. This is one opportunity to look at one little dysfunctional aspect of the political process and to fix one little problem which would not only will help the problem, but enhance the reputation and standing of these Houses and of the system of democratic government. I ask Members to support the Bill.

I welcome the Bill. I also welcome the Minister of State, Deputy Kathleen Lynch. I am convinced the Government will accept the Bill because it is short, simple and easy to understand and it does not go nearly as far in the direction in which it could go.

We have a tradition in Ireland of trying to influence decisions in many ways. When I became chairman of An Post, I could not believe the number of letters I received in the first week or two seeking all sorts of things, such as jobs in the post office or whatever. We said "No" and that we would stop it. The Minister at the time came back to me and asked that I be less blunt about my replies, saying that all he wanted was to send them on the constituents when he got them. I once wrote a letter to a judge in a foreign country — before the decision was made — to seek a non-custodial sentence for a very well known case here. The person who had been accused publicised the letter and I was quite happy about that because it was likely to do good if it could be heard. Senator John Crown has covered all this. He said it is all right to write letters as long as one makes it public.

In 1997, in a debate on reform of the Seanad, I spoke about lobbyists and asked how we could ensure that this was above board and that everyone knew about it. Senator Crown is not attempting to solve the big question of all lobbying but, as the Bill states, lobbying of members of the Judiciary only. Given that it is a simple and concise Bill, I am convinced the Minister will be able to accept it.

It is a worthwhile initiative and one that is long overdue as politicians have, for too long, interfered and intervened in matters where they should not have done so. There were promises in 2002 and 2008 that something would be done about the situation but a code of conduct has not been established. As Senator Crown proposes, if these representations are made in public there is little wrong as often this means that those involved can take account of relevant information. In 2007, the Irish Council for Civil Liberties reported that politicians should be banned from attempting to influence judges' decisions and from making adverse comments outside the Oireachtas that undermine the independence of the Judiciary. The judicial appointments process was also criticised. It claims that this is tainted by allegations of political bias and intense private lobbying of senior politicians, including Cabinet Ministers, for promotion to the Bench. We must also remember that the Judiciary exists to keep the Government in check and take a firm stand on important matters that affect peoples' human rights. Therefore, the separation of powers is essential.

While I understand we are talking about judges being lobbied by politicians, we must address the issue of lobbying in general at some point as a matter of urgency. We have often heard talk of the establishment of a national lobby register but that has yet to see much movement. In the UK, an initial voluntary register of lobbyists was made available earlier this year. The EU made a register of lobbyists available online to improve transparency. This is interesting. The Comptroller and Auditor General reported that 17% of public bodies ignored a survey on the €15 billion annual procurement bill. This is ridiculous. The lazy attitude must change and issues must come out into the open.

Senator Crown is not attempting to open up of the entire lobbying movement, although that is something we should do. The Bill relates solely to the lobbying of members of the Judiciary. In terms of overall lobbying, we should consider the model of the US register. Under the lobbying disclosure Act of 2005, all companies and individuals engaged in lobbying in the US must register with the clerk of the House of Representatives and the secretary of the Senate. Otherwise, they risk a fine of up to $50,000. All lobbying activity must be logged and the amounts spent must be noted. The American register is also searchable online, which makes it simple. Not only can the results be filtered using all sorts of criteria from the client's name to the affiliate organisation to the branch of government contacted, but each act of advocacy is recorded along with the date on which it happened and the amount spent. The forms used to register this activity are electronically stored and publicly accessible. For instance, one can find out that Exxon Mobil spent over $3.2 million in the fourth quarter of 2010 on direct lobbying activity in Washington. I mention this as a reminder that such logging is possible.

If we are to have a record of lobbying by politicians on judges, let us not stop there. For all the talk of a new republic, let us undertake measures that will make us completely open. I suggest the lobby register that is in place in the US, but we should also build a national public spending website. There is so much we can do and it is possible to achieve a great deal.

I welcome Senator Crown's proposal. An overdue step, his initiative should sit in a wider framework of registering lobbyists and a system of governance that could be made more transparent through straightforward steps. This proposal is the first step towards ensuring that all lobbying becomes open and transparent. Senator Crown has taken a simple approach. The Bill is short, concise and easily understood. On this basis, I hope the Minister of State will tell us it would be no bother to her to accept it. I get great pleasure from seconding Senator Crown's proposal.

I reply as someone who has had some little experience of this issue. Like Senator Crown, my speech will use slightly exaggerated language, but we will balance each other out. I wish to express my appreciation and that of the Government to Senator Crown for publishing the Reporting of Lobbying in Criminal Legal Cases Bill 2011. Through the Bill, the Senator has put on the agenda once more the fraught issue of lobbying.

It goes without saying that lobbying is part and parcel of our lives as public representatives. Representative democracy has at its core the concept of us representing our constituents, those who in a general sense put us in these Houses to represent them and their interests. Beyond that, there is lobbying by various interests, representative bodies and associations, as Senator Quinn correctly highlighted. The Government is an active lobbyist in its own right, in particular, on the international stage.

Lobbying has got a bad name in some quarters, particularly from those who believe that Members can function in a sealed bubble, immune from the realities of everyday life and concerned only with their role as legislators. As we all know, the reality is different. The making of representations, that is, lobbying, is part and parcel of the democratic process everywhere that democracy is practised. It is not unique to Ireland and there is nothing intrinsically wrong with it. In certain circumstances, it may need to be regulated, but this does not make it wrong.

There are bounds to acceptable lobbying and both sides of the lobbying process must be conscious of the boundaries, particularly where professional lobbying is concerned. The Government committed in the programme for Government to introduce a statutory register of lobbyists and to introduce rules to regulate lobbying. This is a priority for my colleague, the Minister for Public Expenditure and Reform. Our commitment is proof of the seriousness with which we approach the issue of lobbying. The public has a right to know who the lobbyists are and to have their activities regulated. There can be no sense that professional lobbying can provide a covert inside track to power.

It is in this context that I welcome the Bill. Its underlying principles are noble and to be commended. They echo the philosophical underpinning of the Government's view of lobbying generally. As I hope I have made clear, neither I nor my Government colleagues see anything intrinsically wrong with lobbying, provided that it is available to all and not the preserve of the few. To be fair to Senator Crown, he appears to share this opinion. What the Bill seems to aspire to achieve is an open, transparent regime where representations in the criminal justice system are made public by both the lobbyist and the lobbied and where the Minister for Justice and Equality is advised that the lobbying has taken place.

While transparency in lobbying is something to which the Government is committed, we are committed to it in clearly defined circumstances where it is required. We have never envisaged regulating lobbying where it does not already exist and, more particularly, would never countenance providing for or regulating lobbying that is already unlawful or, if made lawful, would undermine well established constitutional and legal principles. The Judiciary, the Office of the Director of Public Prosecutions and Garda Síochána are three cornerstones of the criminal justice system. They are independent in the performance of their functions and that independence is a fundamental underpinning of our democracy.

Article 35 of the Constitution enshrines the independence of the Judiciary. Its independence has served the nation well since 1937. As one of three arms of the State, the Judiciary's independence is at the heart of our democracy. The boundaries of that independence are at their most acute at the interface between the Executive, the Parliament and the Judiciary. Any encroachment by one on the other disturbs the delicate balance on which the edifice is constructed and undermines the separation of powers, the doctrine at the core of our democratic State.

In this Bill, Senator Crown is proposing to legislate for an encroachment on this independence that is unconstitutional. He is proposing to legislate for the lobbying of the Judiciary by Members of the Oireachtas. The only brake, if brake it is, on this lobbying is that the lobbyist and the lobbied must make the lobbying public and, in the case of lobbyists, inform the Minister for Justice and Equality of the fact of the lobbying. Once they have complied with this, the wall of independence comes crashing down and Oireachtas Members are free to make whatever representations they wish to make to the Judiciary.

Rather than being free to conduct their courts as they see fit and to administer justice without fear or favour, members of the Judiciary would be subject to a legalised lobbying regime with no boundaries. The independent Judiciary, a cornerstone of our democracy, would be no more. It would be replaced by a Judiciary whose every decision would be parsed to see if it accords with any of the representations made to it by Members. While I have every faith in the capacity of the Judiciary to ignore such representations and to continue acting independently, to allow the perception to take root that outside influence could be brought to bear on the Judiciary would fatally undermine its independence.

Judicial independence and the separation of powers are the bedrock of our democracy. The suggestion that we should blithely legislate them away is breathtaking. I am not aware of any previous legislative proposal whose effect, if not its intent, could be so injurious to the institutions of our State. Judicial independence is not just a legal or constitutional nicety. It is fundamental to our constitutional construct. To tamper with it, even with the best of intentions, is to undermine it. It is independent or it is not; there is no halfway house. There is no regulated independence. The Judiciary is constitutionally independent and must be allowed operate independently and without interference from Members of the Oireachtas. To allow regulated interference is to undermine independence.

In addition to falling foul of the constitutional provision in regard to the separation of powers, the Bill, if enacted, would conflict with the common law offence of perverting or attempting to pervert the course of justice as well as the offence of criminal contempt of court. I fail to see how the legal precepts contained in these two offences can be reconciled with the regulated interference in the judicial process provided for in this Bill.

In saying all this, I am not questioning for one minute Senator Crown's bona fides. As he rightly points out, he is a new Member. I am sure that at the end of his term here, whenever that will be, he will be far more familiar with the niceties and definitions required in legislation such as this. I understand what he is trying to achieve and believe he is motivated by good intentions. It is unfortunate that these good intentions have been undermined by an attack on judicial independence, which I accept cannot have been his intention.

Let me turn now to other aspects of the Bill which are almost as undermining of our system of justice as the attack on judicial independence. The Office of the Director of Public Prosecutions and An Garda Síochána are, with the Judiciary, key elements of our prosecution service. This was recognised in the enactment of the Prosecution of Offences Act 1974, which states in section 6(1)(a):

Subject to the provisions of this section it shall not be lawful to communicate with the Attorney General or an officer of the Attorney General, the Director or an officer of the Director, the Acting Director, a member of the Garda Síochána or a solicitor who acts on behalf of the Attorney General in his official capacity or the Director in his official capacity, for the purpose of influencing the making of a decision to withdraw or not to initiate criminal proceedings or any particular charge in criminal proceedings.

Section 6(1) (b) states: “If a person referred to in paragraph (a) of this subsection becomes of opinion that a communication is in breach of that paragraph, it shall be the duty of the person not to entertain the communication further.” Under section 3(1) of the Reporting of Lobbying in Criminal Legal Cases Bill 2011, which is before the House, a member of the Oireachtas may communicate with the prosecution services, which in Schedule 1 includes An Garda Síochána and staff of the Director of Public Prosecutions, provided he makes the communication public and addresses it to the Minister for Justice and Equality. This major legislative change is to be enacted without any reference to the Prosecution of Offences Act 1974. The least one would expect is that section 6 of that Act would be amended, if not repealed. Instead, if the Bill were to be enacted, we would have on the Statute Book two entirely contradictory legislative provisions in regard to the making of representations to the Director of Public Prosecutions and An Garda Síochána.

The Prosecution of Offences Act states it is unlawful for anyone, other than specified interested parties — Members of the Oireachtas are not among those interested parties — to make representations to these institutions. The Bill before the House would meanwhile legislate for the making of representations by Members of the Oireachtas. The legal quagmire that the existence of two entirely contradictory Acts on the Statute Book would create is not, of itself, a reason to dismiss the proposals in this Bill in regard to the institutions concerned. If there were merit in the proposition, then the Bill could be amended to allow for the necessary amendments to the Prosecution of Offences Act to be brought forward.

Is there merit in legislating to allow for Members of the Oireachtas to lobby An Garda Síochána and the Director of Public Prosecutions with the safeguards of disclosure provided in Senator Crown's Bill? Is it now time to amend the Prosecution of Offences Act to allow Members of the Oireachtas to lobby our prosecution services? Are there grounds for believing the 1974 Act has not worked and that wholesale interference with the prosecution services by Members of the Oireachtas is the order of the day? There have been instances in which Members have made representations that were considered inappropriate and there have been resulting resignations in a small number of cases. However, the small number of such instances and the fact that they ultimately come to light do not provide a sound basis to legislate in the manner proposed.

No more than in the case of the Judiciary, an independent prosecution system is at the heart of our system of justice. The people who drafted the Prosecution of Offences Act 1974 were seized of this fact and legislated to protect that independence. Save for in a small number of high-profile cases, I am convinced that the law is observed by Members of the Oireachtas and that in the rare case where it is not, the Garda Síochána and the Director of Public Prosecutions are sufficiently robust to apply the provisions of section 6(1 )(b) and not ‘’entertain the communication further”.

I cast no aspersions on Senator Crown's motives. I have no doubt that he is motivated by the best of intentions. Like us all, he wants the highest standards to be observed. I am quite certain his intent is not to encourage or facilitate lobbying in our criminal justice system but to regulate it by making it public when it happens. That is fine up to a point. However, in seeking to do this, he runs the risk of unintended consequences.

The controversy that the relatively few cases of interference in the prosecution system gives rise to is entirely related to the fact that they are so rare. If, as a result of the enactment of this Bill, lobbying of the prosecution services were to be made legal, it is possible that rather than deterring the practice, it would give it legal underpinning and encourage it.

It is not fanciful to imagine that the vast majority of Members of the Oireachtas who, as matters stand, would never countenance making representations of the type concerned could now be forced by competitive electoral considerations to be seen to do so. Senator Crown referred to people being put under pressure regarding constituency colleagues. This Bill would encourage that further.

The scale of potential representations is demonstrated by the fact that just under 500,000 offences were dealt with in the District Court in Ireland in 2010. In trying to deal with, and presumably eliminate, the relatively rare phenomenon of contact with the prosecution services, this legislation could have the unintended effect of making such representations mainstream, and on a scale that the Senator can hardly have envisaged or intended. However, even if we take the benign view and assume the fact of disclosure will dissuade the would-be lobbyist, we must question whether change is necessary or desirable? No more than in the case of the Judiciary, to tamper with the independence of the prosecution services is to undermine their independence. At present, it is unlawful to make representations to An Garda Síochána or the Director of Public Prosecutions. What is proposed here would, allowing for the need to amend the 1974 Act, make such representations lawful, once they were disclosed. Is that what we want? An alternative approach, if there is a problem to be addressed — I do not believe there is — would be to strengthen the 1974 Act to make provision for an offence of unlawfully communicating with the prosecution services, with attendant sanctions. The route proposed in this legislation is to make what is unlawful lawful and to regulate it.

We are not prepared to do anything that would have the perverse result of making lawful that which is currently unlawful and entirely undesirable. Given what I have said already, I am not sure that it would serve any useful purpose for me to engage in a detailed analysis of the Bill. The flaws are so fundamental and the outcome, if not the intent, so undermining of our democratic structures and prosecution system that there would be no point in highlighting technical or drafting deficiencies in the Bill. I accept fully we all make such mistakes in our first attempt at drafting a Bill.

It will come as no surprise to Senator Crown or the House that the Government is opposing this Bill on Second Stage. This Government has shown itself to be open to legislation emanating from the Opposition benches. It is not given to the knee-jerk rejection of ideas on the sole grounds that they come from the other side or, in this case, an independent Member, a practice which characterised previous Administrations. This is a new Government with a new approach. However, the Government parties would be in dereliction of their duty as legislators if they were to stand back and permit the onward journey of legislation that strikes at the heart of the democratic institutions of this State just because it is a Private Members' Bill.

As countries around the globe embrace democracy and work to build up the democratic institutions we sometimes take for granted, it would be perverse of the House to give fair wind to a Bill which, if enacted, could only severely damage our democracy. I say this with the greatest respect for Senator Crown and reiterate that I welcome his initiative in bringing forward the Bill. I encourage him and other Members of the House to bring forward Private Members' Bills in the future. I can assure them that provided they address a problem or gap in the law and are constitutional, they will get a fair hearing. Unfortunately, this is not the case with the Reporting of Lobbying in Criminal Legal Cases Bill 2011, and for this reason, the Government will oppose it on Second Stage.

I regret to state this, but methinks the Minister of State doth protest too much. She thought it was appropriate to give a character reference to a rapist, a disgraceful exercise which most of us assumed was already illegal.

There is no doubt there are flaws in Senator Crown's Bill but the humiliation the Minister of State heaped upon him in her attacking statement, belittling a Private Members' Bill, is a new low in the House. I am shocked to read the Minister of State's speech. I wonder whether she read it prior to delivering it. It is not like her to read such a speech. It is also not true that the Government has a new approach to Private Members' Bills because it has voted down every such Bill that has come before the House, including the Registration of Wills Bill on which everybody had previously agreed and the Family Home Bill, which many——

That was not voted down. It is still on the Order Paper.

It was withdrawn by Senator Leyden because the Minister indicated it would be opposed. Many of the Minister of State's colleagues were in favour of the Family Home Bill.

Senator Crown has identified a very serious issue but unfortunately the Minister of State concentrated only on two aspects of the Bill, which are contact with the Garda Síochána and the Office of the Director of Public Prosecution. I assumed it was already illegal to contact a member of the Garda Síochána or the DPP on criminal matters and I have never done so. I state to Senator Crown that I believe very few Members have contacted the DPP; I cannot imagine why I would ever do so and I have never been asked to do so. I have contacted the Irish Prison Service on several occasions with regard to humane conditions for prisoners and that is fair enough. I am concerned about Senator Crown's requirement that this be made public at the time. The fact of an Oireachtas Member's representation is already subject to freedom of information legislation. The Bill goes slightly further than this by requiring all details of it to be public at the time. Perhaps this goes too far.

However, there is merit in the Bill and merit in discussing the issue. Fears have been expressed by people and it has occurred that Members of the Oireachtas have inappropriately tried to interfere in the criminal system. This is not right and it is correct that some form of regulation or type of openness is put in place. I would not extend this openness to the Garda or anyone involved in prosecuting a crime. This would be wrong. However, a legitimate case can be made with regard to the Probation Service, the Irish Prison Service and the parole board. The only one of these I have ever contacted is the Irish Prison Service. I have never had cause to contact An Post about a criminal matter. I must admit I once wrote to Iarnród Éireann about a lady who had been fined for not having a ticket and felt it was unjust. It never occurred to me that I was interfering in a criminal process but I can see the point. The matter involved a fine of €60.

Once, I was asked to request a local authority to drop a prosecution. I thought the approach to me was highly inappropriate and I declined to do it. I thought it was wrong that I would be asked to contact a local authority about a criminal offence with regard to dumping and I did not do it. In fairness I think this would be the attitude of most people. If I was asked to do it, who else was also asked and who made representations in these cases? Therefore, there is merit in Senator Crown's Bill.

The Bill also covers the Competition Authority and the Financial Regulator. Many representations were made to the Financial Regulator when investigations were taking place with regard to Quinn Insurance. While most were done openly, perhaps the independence of the Financial Regulator came second to the issue of jobs in the area.

The Government has not shown itself to be open to Private Members' Bills. The speech by the Minister of State was insulting to Professor Crown, who is an eminent surgeon and who has taken on this issue with the utmost seriousness.

I doubt very much that the Minister of State, Deputy Lynch, gave the speech huge thought because she is not the type of person to state such things and I acknowledge this. However, it is open to me to criticise her for past actions when she speaks on this matter because many of us would never have done what she did.

The Bill has many flaws but this side of the House is willing to support it and let it pass Second Stage. If it comes before us on Committee Stage, Fianna Fáil will suggest substantial amendments. We believe that under no circumstances should somebody contact the Garda or the DPP and in most cases contact should not be made with the courts. However, we believe circumstances do exist where private representations can be made with regard to the humane treatment of prisoners and other issues.

Many of the representations made by Oireachtas Members are subject to freedom of information legislation and it is possible to find out what representations we have made. It is likely the relevant Department or agency would hide information relating to the personal details of the person when releasing information under freedom of information legislation.

It is possible to pass Private Members' legislation, but the Government has not done so yet in the Seanad and I challenge Government Members on this. When the Minister of State, Deputy Brian Hayes, came to the house to debate the Family Home Bill he stated the Government was not responsible for Private Members' business in the Seanad and that Members could vote in accordance with what they believed. They did not do so on that occasion. I urge them to do so today. We must give the impression that we are open, transparent and above approach. As the Provost of Trinity College stated recently, point an accusing finger at me and I will answer. This is the right approach for anyone in a position of power or authority.

We should acknowledge that Senator Crown has presented the Bill with serious intent. Do not insult him for bringing forward serious work. Let the Bill pass Second Stage and bring forward amendments. If the Bill passes Second Stage, Fianna Fáil will table substantial amendments on Committee Stage. We support the Bill and urge the Government parties to do so also.

The Minister of State said this is a new Government with a new approach. It has been in office for only six months and it is much too soon to cast final judgment on its approach. Senator Crown has brought forward this Private Members' Bill because he saw what he felt was a gap in the law which needs to be addressed. It is welcome — I do not state this in a patronising fashion — that Members of the Opposition bring forward Private Members' legislation. Historically, in the body of Irish politics few Private Members' Bills have passed into law. Ironically, as this is a Bill for the Minister for Justice, Equality and Defence we must recognise that the Minister for Justice and Equality, Deputy Shatter, is one of the few Deputies who has succeeded in having a Private Members' Bill passed. I hope such events will not be rare in future if we all genuinely try to bring about a new type of politics.

The legislation before us in the name of Senator Crown asks us to take a new departure and put into law a system whereby the Garda and Judiciary can be lobbied by politicians. Our friends in Fianna Fáil ask that the Bill be allowed to pass Second Stage and that party's spokesperson stated it will table amendments on Committee Stage. I must ask whether he is in favour of allowing politicians to lobby the Garda and the Judiciary because this is the core of the Bill. The Bill would put in place a system which would allow such lobbying to take place, albeit in a regulated fashion. What we have heard from the Minister of State — I am sure her senior colleague agrees — and what is the firm message from this side of the House is that the separation of powers is sacrosanct and there can be no deviation from it. We cannot have any system, registered or unregistered, whereby politicians are in a position to make representations to the Garda or the Judiciary. This goes to the core of the speech by the Minister of State and why the Bill cannot be accepted.

I listened with interest to what Senator Crown stated. Historically, there have been relatively few occasions when a difficulty has occurred with regard to lobbying of the Judiciary or the Garda by elected politicians. Irish politics can sometimes get a little carried away with hearsay. From time to time the message has gone out that politicians spend all of their days lobbying gardaí and officials in order to secure favours. That is not the case. The vast majority of Oireachtas Members have had no occasion to engage in such lobbying, not simply because it was illegal but because such requests were not made of them. I do not think we have a problem which needs to be resolved.

The message must go out loud and clear from the House again that the law as it stands prohibits each and every one of us from engaging directly or lobbying the Garda or Judiciary on behalf of our constituents. That is the law and that is the position which has served the State well since, as the Minister said, 1937. I do not think we should set about fixing a problem when the current legal position is the best one.

The Minister of State, Deputy Kathleen Lynch, has been unfairly accused of using harsh language and speaking in strident tones. She has simply clearly outlined the current position, the reason why it is deemed to be the most favourable and advantageous. She has clearly highlighted what she and her colleague, the Minister, Deputy Shatter, and all of us feel are the problems with what Senator Crown has produced. If we accept his Bill, I cannot see how it could be amended by the Opposition. We would then be actively encouraging the lobbying of the Garda and the Judiciary by politicians.

One of the interesting comments by the Minister was that when one constituency representative is contacted, he or she feels obliged to do his or her bit and then a second and a third politician gets involved and there is almost a competition as to how many politicians a prospective defendant has lobbying on his or her behalf. I do not wish to patronise Senator Crown. I welcome the fact that an Independent Member of the House feels the problem can be best addressed by bringing forward Private Member's legislation. I look forward to many more Bills being introduced, not just from Senator Crown but colleagues on all sides of the House, including perhaps some on the Government side. However, if there is a problem with the lobbying of the Judiciary and the Garda it is best solved by each of us stating clearly that such efforts to intervene are illegal, will remain illegal and should not be practised.

I support what the Minister of State has said in her decision to reject the legislation. She also said — it is important to say this — that where there is a gap in the law and a suggestion that something is unconstitutional a Private Member's Bill will receive a fair hearing from the Government. That is the key phrase, "Where there is a gap in the law". In this case when we reflect on it Senator Crown would recognise that there is not a gap in the law. It is surely desirable that there would be a clear bar and ban put on elected politicians improperly lobbying the Garda or the Judiciary. In this case there is not a gap in the law, which is best left as it is.

I regret to say to Senator Crown that on this occasion his Private Member's Bill should not be accepted. The situation as it is has served us well and will continue to serve us well. If we wish to do our bit politically we should ensure that the message goes out loud and clear that any attempt by a politician to interfere with the course of the law must remain illegal and highly improper.

I thank the Minister for coming to the House and presenting in a clear way the core reasons why the Government will not accept the Bill. I am reminded of a statement made by the former Minister for Transport, Noel Dempsey, who said that the business of Government should be done as if it were behind a pane of glass. I hope I am attributing it correctly.

It was John Bruton — another Meath man.

Okay. It is fair to say that the aspiration was a fine one and that Senator Crown, in bringing forward the Bill, will have had that in mind, as all the Members of the Government and I do. If it were at all possible to have a pane of glass we would do so.

Senator Thomas Byrne said that the Government is not behaving in a new fashion and that we do not understand the concept behind the Bill. He should bear in mind that in 1998 a Private Members' Bill was introduced by the Labour Party for the introduction of a register of lobbyists, which failed. In 2011 there is a commitment to such a Bill in the programme for Government.

We were still at school then. Times have changed.

I beg your pardon.

Senator O'Keeffe should be allowed to speak without interruption.

The registration of lobbyists Bill will be introduced. All Members on this side of the House will push for that but I do not believe we will need to push it hard as it will come forward. The essence of the Bill is to continue to support free and open access to the Government but to do it in a way which is properly scrutinised and where there is accountability. The essence of Senator Crown's Bill was is in some way to make people accountable, but unfortunately in so doing it would appear to give us the right to do things we have no right to do currently and we would not wish to have that right.

I question the suggestion by Fianna Fáil that the Bill should be allowed to proceed to Committee Stage. As my colleague, Senator Bradford, said, first I do not know how one would amend the Bill. It would require such amendment as to reach a point at which it would be unrecognisable. To allow it to go to Committee Stage perhaps would give rise to the suggestion that somewhere in this House we in some way agree with the idea that we would be allowed in some way, shape or form to make representations to the Judiciary, the DPP or the Garda. That is not the case. We do not wish to do that. Therefore, that is why, in essence, we must oppose the Bill even though we could not be more welcoming of the spirit behind it. I hate to oppose anything that appears to remove some lack of transparency. As the Minister indicated clearly, while that may not be the intention of the Bill it is the effect of it. While we look forward to the introduction of a Bill for the registration of lobbyists it is not the Government's intention to give ourselves as parliamentarians any additional powers of influence, particularly not the sort of powers which are not legal.

Senator Crown has spoken about the many people over the years both at home and abroad in powerful positions who sought to influence decisions and outcomes. Many would say that was completely wrong. They were wrong and they remain wrong but to try to correct it with this Bill will not assist in any way the correction of those wrongs or any future wrongs.

I thank Senator Crown for allowing us the chance to remind the Government and ourselves of the importance of the commitment we made in the programme for Government of the need for the registration of lobbyists and the continuation of anything that will encourage that pane of glass approach to Government, such as freedom of information legislation. On this day, unfortunately, we will have to oppose the Bill.

We are approaching the third anniversary of the most successful lobbying ever accomplished in any country, namely, the bankrupting of this country by the banks. I would like to see the Government treat the matter more urgently. We cannot allow that to continue, given the damage it has done to everybody in society.

This Bill attempts to bring situations like that out into the open. We do not know the answer to any of the questions about the successful lobbying of the banks in the Department of the Taoiseach on 29 and 30 September 2008. It is strongly believed that the construction sector has a track record in doing that, as well. What else was the Galway tent for?

When one thinks of Basil Chubb's book, which described politicians going around persecuting civil servants, maybe we should redefine political activity as to what goes on in Parliament, including the discussions we are having now, rather than placing the emphasis on lobbying. Parliamentarians have a duty to make laws and engage in these kind of discussions and debates.

While I appreciate the Government's bona fides in introducing whistle blower legislation, we have also had legislation that was designed to prevent things coming out into the open. We all want to see parliamentary reform and more open politics, but I sometimes fear that the permanent Government still rules. Certainly, the document prepared in this case reads like that and the Minister of State looked ill at ease reading it out. We have elections to change things and the last election was the greatest vote for change ever, as all commentators have pointed out. I am disappointed, however, that we are being told yet again that the Government will bring forward proposals some time. There should be a more open attitude to legislation from the Government side of the House.

Having a record of representations that are made is useful, yet it was almost categorisedin the Minister of State's reply as an offence in itself and a form of legalising lobbying. The crime is in the lobbying, while the solution is to have a record of that lobbying. There should be scope for more dialogue than we saw between the Minister of State and Senator Crown.

I welcome Senator Crown's initiative in drafting this Bill. It was not drafted overnight and much effort was put into it. I thank him for doing that. I pay tribute to any Member of the House who makes the effort to bring forward a draft Bill. Unfortunately, however, I cannot agree with the proposal for a number of reasons. One reason is that section 6 of the Prosecution of Offences Act 1974 clearly makes it illegal to make representations to the Garda Síochána and the Director of Public Prosecutions. The Bill before us does not take cognisance of that, although section 6 of the 1974 Act makes it unlawful to do so. There is no reference in this draft Bill to deal with that issue.

The other issue, which the Minister has comprehensively covered, is Article 35 of the Constitution which concerns the clear independence of the Judiciary. As someone who has practised as a solicitor for over 25 years, I understand the independence of the Judiciary. I will cite a simple example in this regard. A Circuit Court judge was dealing with appeals from the District Court and on his way into court someone rubbed up against him and said, "You remember me. You know me from our previous involvement". The person obviously would have been involved in the same political party. When the appeal of the person who had run into the Circuit Court judge came up in court, the judge said "I think it would be inappropriate for me to deal with this matter and I am adjourning it until the next term". In all my dealings in the courts I have always found the Judiciary to act totally independently, regardless of any previous involvement they may have had when in private practice. They have always given fair decisions and hearings. In addition, they have always protected their independence and ensured that their decisions are arrived at without political or Government influence.

We have had a few example of bad judgments or bad decisions being made where the issue was not thought out — or the consequences of the way they had dealt with it were not thought out — but that does not mean we should tar everyone with the same brush. In the past 50 years, the number of errors that were made is extremely small given the volume of activity going on in the courts, including the District Court, Circuit Court, Court of Appeal, High Court and the Supreme Court. The number of cases where something went very wrong is extremely small, despite the sheer volume of prosecutions and civil work involved.

Paragraph 3 of the Bill refers to communications. While it is a technical issue, it means that if the legislation is implemented I, as a legal practitioner, could no longer act in a family law matter. That is because my communication, if I was acting in a legal capacity, would be to the judge. Family law matters are in private, however, and therefore any representation I made would not be in the public domain. That is a technical question I have concerning the Bill. Any Member of the Oireachtas who is also in the legal profession could no longer act in a family law matter. I may be incorrect in saying so, but that is a technical interpretation of it.

I welcome anyone who comes forward with a draft Bill to highlight an issue. If legislative loopholes need to be tidied up in this legislation we should look at them, but I do not consider that the Bill before us is the way to deal with that. I am strongly of the view that section 6 of the 1974 Act should not be interfered with in any way. It is a powerful piece of legislation that is already in place and concerns the independence of the Judiciary, the Director of Public Prosecutions and the Garda Síochána. It ensures that they cannot be interfered with by the Government or public representatives generally.

Unfortunately, on this occasion I will not be supporting the draft Bill. I agree with the Minister of State, whose speech was comprehensive in setting out why it is not possible for the Government to support it on this occasion.

I am sorry I could not be here earlier, but I wish to support this Bill. It is a welcome initiative and I commend Senator Crown for bringing it forward. Having followed the discussion, I agree that elements of the Bill should be examined on Committee Stage, particularly concerning communications with the Judiciary, the Garda Síochána and the Director of Public Prosecutions. The Bill's principle is that when and where they are made, communications should be transparent and publicly available. It is an important principle that warrants a statutory footing. This is a question of making parliamentarians, such as ourselves, accountable for the representations they make.

I strongly support the Bill although I hear people saying that while they accept it, it should be put aside for the time being. We should pass it on this Stage. We will have plenty of opportunity to make amendments, as appropriate, to ensure that we make ourselves accountable and act transparently, which is the intention of the Bill. I wish to support it.

I welcome this discussion of the Bill and the Minister of State, Deputy O'Dowd to the House. He did not make the statement earlier and I am certain that the Minister of State, Deputy Lynch, did not write the response. There are elements in this response which are, frankly, insulting and beggar belief. I refer to the Minister of State's contribution which states:

The suggestion that we should blithely legislate them away is breathtaking. ... It is unfortunate that these good intentions have been undermined by this fatal attack on judicial independence. ... We are not given to the knee-jerk rejection of ideas, on the sole grounds that they come from the "other side" or in this case from an independent Member, that characterised previous Administrations ... it would be perverse if this House were to give fair wind to this Bill.

It is obvious an official woke up this morning in bad form because I have never heard such a response to any piece of legislation or any Private Members' Bill. I know the Minister of State, Deputy Lynch and I am certain she would not have written this response. I express my disgust at this response.

Senator Crown has put a lot of work into this Bill. I spoke with him about it last Friday. It is also unfortunate that the Department or the Minister in this instance has focused on only three elements of the Bill where it deals with the Judiciary, the Garda Síochána and the Director of Public Prosecutions. I note the Schedule to the Bill lists 16 other areas in which, in my view, it is only right and proper that representations which are made — whether people like it or not — would be made public. For example, it is permissible to give character references in a court case, although I have not done so myself. Why should those character references not be made public? I agree that some elements of this Bill would require amendment and I am certain Senator Crown would be amenable to some amendment of the Bill. However, while the Government response thanks the Senator in this way for bringing forward legislation it then effectively kicks him out the door for doing so. This is highly inappropriate.

The Bill deals with the Irish Prison Service and the issue of the transfer of prisoners. It is only right and proper that those representations be made public as there is nothing wrong with making such representations, in my view. Members on all sides of the House have made such representations and I, too, have made representations on humanitarian grounds. There will be instances when Members of this House or the other House will regard it as their duty to make representations on behalf of an individual, be that to the Irish Prison Service in this instance. I ask what is the harm with such a letter being made public. This removes the argument that the media have to act as whistleblowers and, as Senator Crown said, in many cases, many well-intentioned representations are turned into something regarded as wholly inappropriate.

I suggest the Government study this Bill in more detail rather than dismissing it out of hand as shown by the Minister of State's response on behalf of what Senator Barrett termed the permanent government and with which I agree. At the very least the Bill should be allowed proceed to Second Stage. If one discounts the provisions relating to the Judiciary and the Garda Síochána, the other areas of the Bill are well worth discussion. The Government has stated this legislation is not worthy of consideration and it has reiterated that the Bill is an attack on judicial independence. This is an insult to the person who has drafted and presented the Bill. In my view, the departmental official who was asked to prepare a response to the Bill did not read it and did not seek to understand the intentions of the Bill. I ask the Cathaoirleach if the Seanad could make a formal complaint about this type of response being read into the record of the House. I have never seen anything like it. I have only been a Member of the Seanad for seven months but I was a Member of the other House for nearly four years and I have never seen the like from any Minister.

Fianna Fáil will support this Bill. I have no doubt that amendments will be made. Senator Bradford welcomes the fact that Private Members' Bills are put before the House. My group has used our Private Members' time to bring forward legislation but I have never seen a government in such a short period of time dismiss every Bill that has been introduced from this side of the House and deem them to be unconstitutional in some way. I hope someone will consider this Bill in the clear light of day and consider the intention of the Bill instead of just dismissing it out of hand.

I am pleased to speak on this Bill. I compliment Senator Crown on bringing it forward. However, more research should have been undertaken with regard to it and in particular with regard to the constitutional implications. The only way to address a constitutional matter is by way of referendum.

That is what the Government says about every Bill brought forward.

It says that every single Bill is unconstitutional. We have a world record for unconstitutionality.

Senator Keane to continue, without interruption, please.

This proposed legislation relates to lobbying in criminal cases. I know it was out of the goodness of Senator Crown's heart that he thought it necessary to put forward this Bill as many a fine politician has fallen on the sword of lobbying in criminal cases. We all remember a few such politicians. I can see Senator Crown's reasons for presenting this Bill which I have read in detail. The general rationale of the Bill is to be commended as the process of lobbying is completely unregulated both in criminal as well as in the wider area of law. However, the Bill is fundamentally flawed in a number of ways.

Some speakers have made different comments. I refer to section 3 of the Bill, which provides for the permitting of communication by a Member of the Oireachtas with a member of the Judiciary or any employee of the State's prosecutorial or custodial service, with the intention of influencing decision-making in criminal proceedings. There is no other way of reading this provision. I ask why there is a need to lobby if one does not have an intention to make the person act in one's favour. There is no other point. The Bill further states:

(3) It is not an offence pursuant to subsection (1) if the communication concerned—

(a) is made public at the time of the communication,

(b) is also addressed to the Minister for Justice and Equality,

This does not make it right, however, because the separation of the Judiciary and the State cannot be interfered with. By permitting such communication, the Bill would run in direct conflict with Article 35 of the Constitution and the principle of the separation of powers which protects the administration of justice.

Section 6 of the Prosecution of Offences Act 1974 outlaws communication with the Attorney General, the Director of Public Prosecutions and members of the Garda Síochána. Senator Byrne has made the distinction but lobbying a judge is 110 times worse, in my view, than lobbying the Garda Síochána, with the aim of influencing decisions to stop or initiate criminal proceedings.

The Minister of State, Deputy Lynch, raised this point. She stated this was in conflict with the common law offence of preventing or attempting to prevent the course of justice. The practice of lobbying in criminal legal cases should not be allowed under any circumstances. As the Minister of State said, when the water is muddied and a little bit of lobbying is permitted, so long as one tells the boss or the Minister, this will open the floodgates and the judges would be right to throw out every single letter they receive from any Member of the Oireachtas. Moreover, even if the communications were not taken into account by those being lobbied — which I doubt they would be and which might even result in a heavier sentence for the person — the public would still perceive there had been interference and a lack of fairness. There should not be lobbying for one and not for the other.

In addition to its shortcomings in respect of the anomalies it presents with existing legislation, the Bill is narrow in its scope because it deals solely with lobbying in criminal cases while it is clear that a Bill which addresses lobbying in a broader policy making process is needed. The Minister of State outlined the Government's action on the register of lobbies.

The concept of lobbying requires definition. A definition of what lobbying is has proven problematic, as academics have failed to find consensus on a definition. However, we all know what lobbying is in so far as the role of lobbyists in the public policy area is concerned. Its role is to influence decision making among policy makers. Although the public perception of the lobbyist is often negative, throughout the democratic world, the role of lobbyist is essential when policy is formulated. Lobbyists are an acceptable element of society — but not in this society because we have seen too much bad lobbying — as they provide a necessary input and feedback into the political system. It is vital that openness and transparency are promoted within our political system. Senator van Turnhout referred to this and I will not repeat what she said. The purpose of this Bill is not to provide openness and transparency. Those issues can be better addressed in the register of lobbyists. That is the place to address the openness, transparency and accountability to which all politicians and lobbyists should adhere and where these should be regulated.

The integrity of Government decision making is imperative and measures to ensure accountability and clarity are essential. Nine political jurisdictions in the democratic world have lobbying rules in place, including, Germany, Hungary, Poland and the USA. Of the nine, both the USA and Canada have had regulation in place for more than 50 years. Therefore, we are behind the door in coming forward to provide for even a register of lobbyists. I can understand why Senator Crown finds it necessary to seek regulation, particularly considering the media attention given to all the cases coming to the fore here.

I commend Senator Crown for bringing forward this Bill as a Private Members' Bill. Reference was made to the speech of the Minister of State and some cheap shots were made at the Minister of State herself.

We were stating the facts.

The comments may have been factual, but there is not a register for lobbyists or anything else. Many Members have pleaded ignorance here on account of being only a short time in the House. The Minister of State should also been given due process as she was only a new Deputy at the particular time.

I have a question for the Minister on lobbying. Has the Department reconsidered the distinction between "paid" and "unpaid" lobbyists for the purpose of registration? It should consider the possibility that this could leave a legal loophole for lobbyists acting on behalf of large corporate or private interests. I know the issue of "paid" versus "unpaid" lobbyists does not affect this Bill because it concerns Oireachtas Members only, but it is a serious question.

I welcome the Minister of State and congratulate Senator Crown on his initiative in producing this timely and useful Bill. I know how difficult it is to draft legislation and think the Senator has done a remarkably good job in a relatively short space of time. The Senator has done an important service for the Seanad because he addresses an issue that is relevant and immediate and which shows the relevance and immediacy of Seanad Éireann. I hope the Government will at least accept the Bill in principle.

I do not know how much lobbying goes on around here, but I am aware that during my time former Members accepted jobs lobbying and had access, as former Members, to this House. I had serious qualms about that. In America, the cigarette lobby, for example, was under the radar and this country we have the drinks lobby. Both these lobbies do damage. Sometimes it is difficult to resist the temptations of those two attractive consumable items, but the lobbies should be in the open.

What I welcome most about this Bill is that it gives clarity to a position which was previously not quite clear. This provides protection for all of us. Once this Bill is passed, everybody here will know exactly where he or she stands with regard to Oireachtas stationery and every aspect of the situation. I am an Independent and am not firing a cheap shot, but I share the disappointment and was very surprised to hear Senator O'Brien to say that the Minister's response was prepared in advance of the Bill. I find that astonishing because if that is the case, it could not possibly be a coherent response. One cannot make a response to something which one has not read. For that reason, I think the speech should be withdrawn. I am not sure it is possible to state that something is unconstitutional when one does not know the provision. How could it be known? I will leave it at that.

On a point of order, the Minister's speech was in response to a Bill which was published and made available to us some days ago.

I accept the correction. I was responding to what was said. I am very grateful to Senator Bradford for making that point, because I would not wish to be unjust. I thank him for making that clear.

The principle of openness is extremely important. We are accountable. I wish to God that this legislation, or something like it, had been published and passed by the Houses of the Oireachtas ten, 20 or 30 years ago. I wish that was the case because it protects all of us. Everybody in both Houses is protected if this measure is passed and I hope it is. However, I would like the opportunity to be able to lobby outside this country. We have all heard of the case of the man about to be executed in Georgia. Perhaps he has already been executed today. Nine witnesses say his execution is a miscarriage of justice. We know that a number of people have been electrocuted in the United States of America despite the fact that they were subsequently shown to be innocent. Lobbying in such cases should be possible, but everybody should know about it and there should be a clear record of the lobbying.

Everybody knows it is wrong to influence the Judiciary in the course of a trial. However, there should be some room for open, clear and accountable lobbying by people who know the character of a person. They should get the opportunity to put their knowledge of the character on the record so that it can be taken into account. That should be just one other item in the case. I do not share the suspicion of the Judiciary. I believe we have a good Judiciary, whose members come from all parties and have been appointed by all parties. By and large they do a good job and are able to sort out the issues. I have great respect for the Judiciary. If the Government does not like this Bill, will it provide a timescale for amending it or for introducing such legislation to protect us? I would give that legislation a hearty welcome.

With regard to lobbying in foreign jurisdictions, such lobbying should be open and accountable. In the case of the man in Georgia, I would like to have been able to write on that case because it is terrible to kill a person, particularly when there is any doubt. A great authority, Professor William Schabas, has indicated that when somebody writes to another court, there is no question of infringing the separation of powers. There have been cases in which, for example, the attorneys general of certain countries have written letters. The Swedish Foreign Minister has written these kinds of letters. As far as I am concerned, it is all right to write them as long as they are written openly. Let this be the case.

I listened with great respect to what was said on all sides of the House and consider there is clear agreement that something needs to be done. The Government may remain immobile and it appears it will reject this Bill. There will be a vote on the Bill and I will vote for it. If it has flaws, let the Government amend it. Otherwise, I urge it to please introduce legislation now that will protect all of us and the good name of the Oireachtas and each individual Member. I had some questions and put them to Professor Crown earlier today and he satisfied me on them. I did not know, for example, why the Luas or An Post was involved, but now I understand. I am sure he has explained that here. His responses showed that something that did not occur to me and which I did not understand has a logical, clear, rational and legal explanation. Far from this Bill being a rushed and sloppy piece of work, it is extraordinarily fine. I congratulate the Senator who is a new Member of the House on having the initiative to introduce legislation on such a serious matter in such a considered way, one that can only benefit the respect the public feels for the Oireachtas.

Like other colleagues, I take my hat off to Senator Crown. This is a very important issue. I must admire the Senator who is only in the Seanad for as long as I have been, but has had the courage of his convictions to introduce such a Private Members' Bill. The motivation behind it is noble. I believe we need regulation on lobbying. In the US, as Senator Keane, such regulation has been in place for 50 years but the country does not have a good reputation in this regard. For example, former Senator, Chris Dodd, is heading up a sophisticated lobbying operation. Unless regulation is implemented correctly, it will not work.

It is not right to make representations to a member of the Judiciary. The separation of powers between the Oireachtas and the Judiciary is important. There have been examples of members of every political party, some of whom fell on their swords, making representations for leniency in regard to prison sentences. Two of my constituency colleagues did so and that was wrong. It was acknowledged by the parties that it was an error of judgment and that it should not have happened. Representations should be as transparent as a pane of glass. Representations regarding any legislation that emanates from the Oireachtas to govern this area must be in the public domain and be open to scrutiny. No Oireachtas Member should make representations unless he or she is prepared to do it in the full glare of the public eye and is prepared to live with the consequences. We do not live in a secret society or, for example, in Russia where things are done that should not be done. Whatever we do, we should do openly in the full glare of the public eye.

The definition of "lobbying" varies and it can interpreted in myriad ways but the bottom line is if one is lobbying, one is looking for something. Most of the time, people are seeking something noble, right and proper such as when they lobby on behalf for the underprivileged or for equality or the rights of the people with disabilities and minority groups. We are lobbied on a daily basis properly and correctly and we, in turn, also lobby on a daily basis properly and correctly but when it comes to the separation of powers, there is a fine line and if the legislation facilities that, it has to be done in the glare of the public eye. People should tread cautiously and carefully.

Regulation of lobbying is needed and legislation is necessary. It is wrong that we do not have it and I hope something emanates in this regard from the Government in due course. Consultation with Senator Crown and other Members would be useful. This House is playing a useful role in highlighting the issue through this debate and the Bill has led to a healthy exercise and discussion. At least we have had it out in the House. There is disagreement on the road we are taking but there is no disagreement about where we are going, as we all want proper, effective regulation in this area. We also want the good and noble name that politics had restored and it is only fitting and proper that we introduce whatever is needed in legislative terms to do that.

I thank almost the entire Government for attending the debate. My mother would be proud that so many distinguished Ministers attended. I also thank my colleagues for the courteous way in which the debate has been conducted and, in particular, the Minister of State, Deputy Lynch, and her officials for a detailed and vigorous defence of their position and critique of the Bill. I am grateful to my colleagues in opposition who were defensive of my psyche and I reassure them I will not seek counselling following the debate.

I am troubled because there is a disconnect from reality. The clear implication of the Government's response to my proposed legislation is that there currently exists a clear wall of separation between Parliament, on the one hand, and the Judiciary and the police, on the other. It was stated that this legislation would facilitate, legitimise and legalise a practice which is not only currently illegal but which is not currently occurring, a practice which, were this legislation to pass, would apparently become commonplace with a nightmare scenario of several hundred thousand potential interventions being made per year. This alleged wall of silence or Berlin Wall-like edifice is a pile of rubble because it is apparent to anybody who reads a newspaper that interference in one form or another occurs. It may be as gentle as a well noted character reference provided for someone who is wholly unknown to the parliamentarian in question but who happens to be a constituent. If such lobbying is illegal and is in danger of being rendered legal by my humble legislation, for which I would like to thank Shane Kenneally who did Trojan research in facilitating it quickly, where are the people in prison? It is a matter of common record that a former Taoiseach, two former Ministers, a current Minister and multiple parliamentarians have made interventions in the sentencing process or in regard to the duration of custodial sentences on behalf of people who had gone through the process. If it is illegal and we do not need to fix it, where are the prisoners? I would like to see these cases and criminal records and I would be prepared to visit those former and current parliamentarians to tell them that I did not know they had been locked up.

There may well be technical inconsistencies between this legislation and legislation on the Statute Book. I do not believe the Bill is unconstitutional, although I do not claim to be a constitutional lawyer. However, an important and bad message could be sent from the House. At a time of unprecedented scrutiny of the way politics is conducted in Ireland and when there is a widespread opinion that it is rife with patronage and clientelism, an attempt to block this legislation will be seen as an attempt to defend the status quo, which has failed. That is why I am pressing for the House to proceed with the legislation and I earnestly seek the support of my colleagues on all sides in attempting to see it advance.

Question put.
The Seanad divided: Tá, 18; Níl, 28.

  • Barrett, Sean D.
  • Byrne, Thomas.
  • Crown, John.
  • Daly, Mark.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Mooney, Paschal.
  • Mullen, Rónán.
  • Norris, David.
  • Ó Clochartaigh, Trevor.
  • Ó Murchú, Labhrás.
  • O'Brien, Darragh.
  • O'Sullivan, Ned.
  • Quinn, Feargal.
  • van Turnhout, Jillian.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.


  • Bradford, Paul.
  • Brennan, Terry.
  • Burke, Colm.
  • Clune, Deirdre.
  • Coghlan, Paul.
  • Conway, Martin.
  • Cummins, Maurice.
  • D’Arcy, Jim.
  • D’Arcy, Michael.
  • Gilroy, John.
  • Harte, Jimmy.
  • Hayden, Aideen.
  • Healy Eames, Fidelma.
  • Heffernan, James.
  • Henry, Imelda.
  • Keane, Cáit.
  • Kelly, John.
  • Landy, Denis.
  • Moloney, Marie.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O’Keeffe, Susan.
  • O’Neill, Pat.
  • Sheahan, Tom.
  • Whelan, John.
Tellers: Tá, Senators John Crown and Diarmuid Wilson; Níl, Senators Paul Coghlan and Susan O’Keeffe.
Question declared lost.

On a point of order, I ask the Leader to clarify what the timetable will be for the proposed legislation on the registration of lobbyists.

The Senator can ask that question on the Order of Business in the morning.

That is all they spoke about during the debate.

Sitting suspended at 4.55 p.m. and resumed at 5 p.m.