Amendments Nos. 71 to 73, inclusive have been discussed with amendment No. 61.
SECTION 23.
I move amendment No. 71:
In page 29, subsection (1) (c), line 12, after "is" to insert "or was".
Amendment agreed to.
I move amendment No. 72:
In page 29, subsection (2), line 28, after "may be" to insert "or that the person may have contravened Part II before becoming an office holder".
Amendment agreed to.
I move amendment No. 73:
In page 30, subsection (3) (c), line 16, after "writing by" to insert "a Committee under section 12 or".
Amendment agreed to.
Question proposed: "That section 23, as amended, stand part of the Bill."
This section sets out arrangements regarding reports by the commission. The contents of such reports will be similar to those of committees. Provision is made here for dealing with possible offences. If in the course of an investigation the commission comes across something it feels may constitute a criminal offence it can mark time and refer it to the Director of Public Prosecutions. It also provides, in the interests of natural justice, that the person subject to the investigation will be supplied with the report, as will the person who made the complaint.
What is a criminal offence under his Bill?
This section deals with criminal offences that are so under other statutes, not under this Bill. The criminal offences dealt with under this Bill relate to the updating of the 1889 to 1916 Acts. It does not create any new criminal offences, it just codifies and tightens up loopholes in those Acts. That is dealt with in section 36. It is made a criminal offence under this Bill not to co-operate with a committee and to leak confidential information.
On what?
For example, information on the interests of spouses or children acquired during the course of an investigation. That is to protect the privacy of the individuals concerned, which is something we all take seriously.
When the report is made it goes to the person against whom the complaint is made and eventually goes before a select committee of the House. In the case of an office holder it also goes to a select committee. Which committee?
The same select committee of the House.
Is it specially set up to investigate the complaint?
No. Under Part II of the Bill there is provision for a select committee on Members' interests which will investigate complaints about Members and will deal with reports from the commission on complaiants about office holders. A report on a complaint about an office holder will go to a committee of their peers.
I hope there will not be any investigations against Members or office holders. In such investigations there is a danger of partial results being leaked to the newspapers and this could have serious consequences for the person concerned.
That is why we are making it a criminal offence for people to leak such information.
Would the Minister consider making the publication of such information a criminal offence? We all know that we will not find out who leaked the information. I do not know if there would be constitutional implications or how one might go about adopting the principle but it would be worth while. A damning half report on an investigation might be published and the reporter might not give a source; the Garda might investigate the matter and find nothing. However, the mud will have stuck. Could we not approach the matter from the other angle and make it an offence to publish a partially completed report?
We will not be able to tackle the problem with the other approach even with the best of intentions. It would be better if some other device could be found. It should be made an offence to publish a partially completed report. Contempt of court is the most similar example I can think of. Can that be considered if it is possible? I bow to superior knowledge if there is superior knowledge on this matter.
We have two lawyers here. We will look at the points made again under section 33. My understanding is that the laws of libel would apply, as would the constitutional right which anybody has to their good name in case of publication of damaging material.
Fabrication.
I am aware of instances — not to do with office holders — when a matter has been referred to the Fraud Squad that it seemed by some miraculous means to end up in the newspapers. I know that Ministers are careful to ensure that it is only at the very last moment they go to prepare anything. Matters will now be referred to a commission and it will carry out an investigation. If speculation appears in the newspapers that the commission has investigated certain aspects or has received certain documentation in response to questions, although the report may ultimately find the material trivial the damage may be done to the person involved. It is no use telling the person they can sue for their good name; there would be nobody to sue as it would be just the publication of information.
I made the point earlier about asking people to become involved in semi-State companies or become office holders and the type of witch hunting that takes place around anyone in public life or those connected to them. We should consider a provision in the Bill aimed at stopping the publication of half truths. The commission is a new concept so why not start in this Bill with that idea? I am sure there would be difficulties but it is not impossible.
I agree with the points made. It would be a good idea if such publishing was an offence. While ultimately the truth will out and people would be cleared, there may, for example, be an election in the meantime and it would do a politician no good to have his name vindicated after losing his seat. We are a perishable type of "animal" and it is a different situation. Natural justice and other lofty things are all very well but they take time to evolve. Given the life of politicians, it should be an offence to leak or publish any such suggestion.
I agree with the points raised because it could do a Member untold damage. It should be an offence for newspapers, radio or television to publish or broadcast a report until it is complete and a decision has been made because it could have serious consequences for a Member or an adviser. As Deputy Ahern said, it could have serious consequences for that Member if he or she was contesting an election. People will say there is seldom smoke without fire. I ask the Minister to look at this before Report Stage and ensure such a report could not be published.
I agree with the remarks made by the other Deputies. This notion of saying it is an offence to disclose confidential information never gets us anywhere. Journalists will go to jail rather than disclose a source and the damage is done once the journal publishes. There is never an effective remedy in these cases. I will only believe it when I see these so-called "investigations" come to a conclusion and point to an individual who is the source of a leak. I note under section 31 (2) that a Minister can disclose information in the public interest in any event. God help us in the course of an election what a Minister's view of "public interest" might be.
I remember a case where the Bar Council was investigating a matter relating to a barrister and a witness who produced evidence before the Bar Council's investigation tribunal had that evidence published in the newspapers, although those involved were confidentially bound not to publish it to the detriment of the person involved. There was no recourse in what was supposed to be confidential evidence before a domestic tribunal. The same will apply here. It will not only involve the Member who is being charged with an offence, it also could involve a Member or a person who is not a Member and is totally innocent, whose private affairs might come into the investigation. Somebody may give interesting gossip to a journalist in the knowledge that the journalist will not reveal his or her source. There is no effective remedy. I support what Dputy McCreevy said, in that if we want to keep a cap on the publication of damaging information from these committees, we must complement the duty not to disclose with the duty not to publish.
I have some sympathy with sentiments expressed by my colleagues. There is nothing worse than the leaking of half-baked information because it lends itself to accretions, additions, hyperbole and exaggeration. The harm is done at that stage. I agree with Deputy Connolly that some people hold the view that there is no smoke without fire. While one might be vindicated by the inquiry, it is still imprinted on people's minds in that there must have been a reason for the investigation. If an election takes place in the interim, one may suffer as a result. There is no remedy available in his case.
We have lofty aspirations and well intentioned legal principles to protect us but, at the end of the day, it may be too late. Such an investigation would be amorphous and people would be brought before it to give information and there would be serious consequences if that information was leaked. This should be examined before Report Stage so that information from an inquiry would not be published before the results are given to the House.
We belong to a profession where conflict, strife and rivalry are endemic. We must watch our opposition at constituency and national level to protect ourselves. More important, we must watch our colleagues and friends. While we may not like it, that is the situation in this profession and those who have come through the machinery know that. I raised this issue at an earlier stage when I was in Opposition and I will not change my position on this. Once this Bill is enacted, we will have set up the machinery for some evil person to set up a Member of the Oireachtas. Somewhere down the line, perhaps not in one or two years, someone will seek to set up maybe a friend or foe with a view to unseating them or making them uncomfortable.
I know there are procedures to protect false accusations getting through, but some can filter through. In the final analysis, it is not the verdict that will count, but the publicity surrounding it. If there is publicly about someone being involved in something shady, there is no way that one can catch up with that. I was involved in the media before politics and I know that once damage is done, irrespective of what one may do, there is no way one can catch up. Even if a person prosecutes someone, people will ask a few months later was he not up in court for something, that is, the person who prosecuted. That is what happens when someone is involved in something shady or underhand.
There will be a cloud hanging over them.
That cloud will not be removed until long after that person dies. I agree that a provision should be made so that until there is a verdict on the inquiry, there can be no publicity on the matter. Otherwise this excellent Bill will be used as a vehicle to denigrate and to take away the character of someone in the rough and tumble profession in which we are involved.
Deputy Nealon paints a dark picture of simple-minded politicians — perhaps he is correct.
I agree with previous speakers. This is another section which is fraught with danger. We should look at the recent inquiry we had and the implications of some of the unsubstantiated statements. People made statements in the House which were never substantiated and have been denied but were the basis for the fall of a Government. There was a conspiracy theory and statements about "rocking the foundations of the State" in relation to certain matters and church people. I could go on but I will not because I will have another opportunity to do so.
This is not relevant to section 23.
I am sure it is a good example of the implications of the section. People outside the Oireacthas can make similar statements. All of us have had experience of this. It may not necessarily occur in the media. At times there have been whispering campaigns about us and mud sticks. The Minister should introduce an amendment on Report Stage to ensure that newspapers may be liable for what they publish without having to prove where they obtained it.
I acknowledge there is a great deal of merit in the points being made by members on all sides. I will have another look at this issue and come back to it on Report Stage.
Subsection (4) provides that "where at any time a report ... is furnished to a Committee, the Committee shall cause a copy of the report to be laid before the House concerned". Subsection (5) states that "where a report is furnished to a Minister of the Government, he or she may cause the report to be laid before each House". This means that the Minister of the day has discretion in the matter, whereas the committee does not have discretion. What is the purpose of this? I am not saying it is necessarily wrong but I want to understand the thinking behind it.
Under subsection (4) these reports will be made where the Act has been shown to have been contravened. Because we are talking about a matter which affects a Minister, it is important that a report should be laid before the House. In the case of subsection (5), the report may be clearing somebody or finding that a contravention has taken place in respect of somebody who is a public servant. We are not talking here about somebody in public life. We would not see any point in laying a report before the House saying that a particular civil servant was investigated and found not to be in breach of the regulations.
Surely subsection (5) could also apply to the director of a semi-State company, who would also not be in public life.
That is why we are providing for ministerial discretion. If there was serious public concern about allegations made by the director of a major public company, the Minister in his or her wisdom could decide that it would be appropriate for this report to be laid before the House.
Is it only in cases where people are found to be in breach of the Act that reports have to be laid before the House?
Only where a Member is found to be in breach.
This does not relate to this section. It must be part of another section.
If the commission carries out an investigation and finds that an officeholder has contravened the Act, it must provide a report on the matter to the select committee. Subsection (4) provides that the committee must lay a report before the relevant House. There is a similar provision in section 10 in respect of ordinary Members. We have already agreed under section 10 that if a report about an ordinary Member goes to the committee, it is laid before the House. Under this section, if the commission carries out an investigation and finds an officeholder has contravened the Act, it is not only the members of the select committee who find out about it but it is laid before the House.
I know what section 4 means. Reports concerning allegations against Members or office holders are laid before the House. Under subsection (5), if the Minister of the day decided that it was not in the political or any other interest to lay the report before the House and the committee had reported that the allegations against a person did not stand up, he might decide not to publish this fact. He has discretion. I am sure that the Minister has put in this proviso in anticipation of the example she gave of a civil servant but could the subsection not also be interpreted in the way I have outlined?
We are talking about an allegation being made about a private citizen on public business. The report of the commission may find the person was in breach of the Act or was not. We are not dealing only with reports which find people are in contravention. The Minister is being given the power to lay or not to lay the report before the House so that the privacy of private citizens, who the commission finds may or may not be in breach, is protected. We envisaged that the provision could be availed of by a Minister where there is considerable public disquiet about a case and the laying of the report would serve to demonstrate the facts of the case very openly.
Surely the Minister could also come under pressure not to publish the report, if the report found a person guilty of the offence, because that person might be a friend, a colleague or of the same political persuasion as the Minister. The opposite could apply if the person was a political enemy.
If public servants — I use that term in a broad sense to include directors, senior executives and civil servants — are found to be in breach of the Act, there is a provision for dealing with this through disciplinary measures. This is a term of their conditions of appointment. In the case of a Member or a Minister, it is up to the select committee to recommend to the House what the disciplinary measures should be. There is a difference between people in public life and people in private life on public duties.
Under what category do directors of semi-State companies come?
They are in breach of their terms of appointment if they are in contravention of the Act.
But they are not civil servants.
They are not civil servants and it would be up to the Minister to decide whether or not it was in the public interest to lay reports concerning them before the House. For example, if there was major public disquiet about a director of a State company and that person was found to be cleared, I would imagine that a Minster would think it would be very much in the public interest, if the issue had been discussed in the media, to put the report before the House to make it absolutely clear the person had been cleared.
The Minister's faith in her colleagues is wonderful to behold but a Minister may come under other pressures as well. I do not see the even handedness of this. I can see the Minister's desire to protect the ordinary civil servant but the same rule should apply across the board to people who are not public servants.
I share Deputy McCreevy's doubts about the distinction drawn between subsections (4) and (5). I cannot see why a director of a semi-State body found guilty of serious misbehaviour by a commission, should be in a position to ask the Minister to suppress the report. That worries me. I can imagine all types of circumstances where it might suit a Minister to suppress a report.
If we are talking about a serious contravention, I have sympathy with the points Members are making and I can have a look at that. Where somebody is found innocent and it has not come into the public domain we should not impose an obligation to lay the report before each House. An inadvertent minor contravention about which a statement issues a couple of days later is not necessarily a hanging offence but as Deputy McDowell says, where somebody is flagrantly in serious breach there is merit in making it compulsory.
In relation to minor matters like being late with returns Members of the House should be able to ask the committee not to publish the report about them because that seems to me to be a protection and a public servant or a semi-State person should be entitled to ask for the protection of the committee. If it is a serious matter, I cannot see why it should be a matter of discretion for a Minister of State who may have reasons for saying this could damage his party or damage him as someone who appointed the person to the semi-State body in the first place. There could be one thousand and one reasons why a Minister would want to suppress a report. A Minister should not have the power to suppress a report about a serious matter involving a person holding a senior public office, whereas a Member of the Dáil charged with more or less the same type of misbehaviour gets automatic publicity.
I exhort the Minister to define clearly breaches which are minor in character. By deduction then those not so defined are serious and should be reported in the same fashion as those set out in subsection (4). It should be mandatory to report anything serious. However, for minor indiscretions or deviations, such as Deputy McDowell mentioned, where somebody fails to make a return through an oversight the Member involved could seek the protection of the House.
Is the Deputy saying it should apply to every breach?
Yes, except those defined as being minor in character.
Even breaches defined as minor in character would concern Members of the Oireachtas as well as others. I do not want the Minister of the day to have one set of rules for some people and a different set of rules for us.
I will have another look at the points made by the Members.
If the commission thinks it is a major matter, that should be the end of it. It seems extraordinary that the commission might think something is a major matter and might certify it as such, while the Minister would say it is a minor thing. If somebody has to make a judgment I would prefer the commission to make it rather than a Minister.
Section 23 will stand part of the Bill subject to the Minister reviewing the position on Report Stage. We are agreeing to it on that basis. We are asking for an undertaking to review it.
We are taking that on board.
I agree with Deputy Connolly. The consensus here is that we are unhappy with the section as it stands. We are letting it go forward because we have not got a better draft before us.
Question put and agreed to.