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Select Committee on Finance and General Affairs debate -
Tuesday, 21 Jan 1997

SECTION 1.

I move amendment No. 1:

In page 3, subsection (1), line 17, after "Oireachtas" where it secondly occurs, to insert "and any sub-committee validly set up by the committee under the terms of reference of that particular committee".

I propose this amendment because I feel there was a difficulty in regard to the composition of committees. The committees will have a quasi judicial function from time to time in dealing with issues. If an issue went to court the fact that the full membership of the committee was not present at all times could be questioned. There is no substitution provision regarding the membership of the committee to consider the Deputy Lowry-Dunnes Stores issue. It would be necessary, therefore for all five members of that committee to be present at all times. This can cause difficulty.

The purpose of my amendment is to allow a committee establish a sub-committee to look at issues if it considered it appropriate to do so. I am encouraged by the advice provided by the legal adviser to the committee to the effect that the amendment is desirable from a practical point of view. In view of this, I hope the Minister of State will agree to the amendment.

I join in sending good wishes to the Chairman, Deputy Jim Mitchell. I thought he might be with us today and did not realise he was still indisposed.

Section 1 (1) defines "a committee" for the purposes of the Bill as all Oireachtas committees apart from the Committee on Members' Interests of Dáil Éireann, which is excluded because of the powers conferred on it by the Ethics in Public Office Act, 1995. These powers allow the committee to investigate allegations of wrongdoing against Oireachtas Members.

The definition of "committee" will apply throughout the Bill, except where otherwise specified. The powers of compellability provided for in the Bill are to apply only to those committees which have the power to call persons and papers specified in their terms of reference. As this sub-committee does not have this power in its terms of reference it cannot use the compellability provisions of the Bill. As amendment of committees' terms of reference is the responsibility of the relevant House of the Oireachtas, it is a matter for the Oireachtas to decide when these amendments should be made.

With regard to the amendment, I am advised that sub-committees are not deemed to be committees in legislation. The effect of the proposal, therefore, would be to allow sub-committees of Oireachtas committees, as well as the committees to call witnesses. While the amendment could be interpreted as diluting the powers to committees proper, and could create a problem where a sub-committee takes a line at variance with that of the parent committee, I will accept the amendment in principle and introduce an amendment on Report Stage. Members will be aware there is nothing to prevent a sub-committee de facto conducting investigations, provided they are conducted in the name of the committee proper.

It appears the Minister has given consideration to the points raised and is disposed to come back to the House on Report Stage. Is that acceptable?

Yes. However, it is not simply a matter of a sub-committee compelling witnesses to attend; it is a question of privilege before a sub-committee, in addition to the other aspects of the Bill. This is not an attempt by Deputy Dermot Ahern or me to enable small groups of three or five people to undertake roving investigations. However, it proposes that where a committee divides its activities into subgroups for good reasons, all the privileges and immunities which would apply to witnesses before the committee proper would apply to a witness before the sub-committee. This is not designed to create a monster; it is designed to immunise people who appear before the committee and to give them privilege.

The Deputy's point is well made. I did not refer to it sufficiently in my response. We will take it into account when reviewing the situation.

The Bill has become more urgent because of the deliberations of the five member committee considering the Deputy Lowry-Dunnes Stores issue. Is the Minister of State suggesting the Bill, if passed, would not confer on that committee, a sub-committee of the Committee on Procedure and Privileges, the rights laid down in the Bill? The provisions of this Bill should be passed on to that committee. If not, we must look at the issue again.

The Bill refers to committees appointed by the Houses of the Oireachtas. However, committees often break up by agreement into sub-committees, which are not established by the Houses of the Oireachtas. For example, the Select Committee on Legislation and Security has at least three sub-committees. It is important, therefore, that an amendment extends the provisions of the Bill to such sub-committees.

Given that these committees and sub-committees will have a quasi judicial function, there is a huge onus on members to attend for all of the evidence. Otherwise the committee would be left open to legal challenge.

I understood the Minister of State to draw a distinction between the powers delegated by the Bill, to a committee or a sub-committee as opposed to the powers derived from orders of reference by the House. Perhaps this point could be clarified.

In drawing up her amendments the Minister of State must be careful and cast her mind forward to decisions made by committees and the possibility that such decisions could be made by members who did not attend hearings. What would be the standing of such decisions? They would rightly be subject to legal challenge. We must examine this aspect carefully.

The proposed amendment is reasonable. Deputy Michael McDowell's point is important. A sub-committee should have the same privileges as the committee.

Like Deputy Nealon, I am concerned that, if the sub-committee assumes the role and is validly established by the main committee, it should be given the same powers as the main committee in respect of this matter. As Deputy Nealon stated, people who have not heard evidence cannot be in a position to express viewpoints thereon and act in a quasi-judicial role unless they were privy to all matters put before a committee. The amendment is practical because it ensures that committees of the House will not find themselves before the courts on a regular basis. Any decision taken by people who did not hear evidence first hand would be subject to judicial review. This would be similar to a situation where one judge began a case today and another assumed responsibility for it tomorrow. That cannot happen. I am sure that Deputies Ahern and McDowell tabled this amendment for that reason. The amendment is extremely desirable and logical from a legal viewpoint and it is an important safeguard in respect of sub-committees acting on behalf of their parent committees.

Are we not then placed in a position where we must consider two aspects? The first is the practical aspect on which I believe we agree, where a committee or sub-committee reaches a decision, an opinion, a view or a finding of fact and it is important that the members of that committee or sub-committee be present to hear all the evidence before reaching a common view. That is a practical matter for which, we cannot legislate and it raises important issues about the responsibilities of Deputies in the future and the additional burdens that will be placed on them. However, that is a separate issue.

With regard to the legalities of the issue and the Bill itself, it is clear that the anxiety of the committee in considering the Bill is to ensure that, whether an issue is being discussed by either a committee or a sub-committee, the committee involved be conferred with all the relevant powers under the Bill. Whether those powers will be derived under legislation or orders of the House, the Minister of State seemed to be making a distinction in that regard, it must be confirmed that the sub-committee will have those powers. The Minister of State seems to be of one mind with the committee on this issue and, if necessary, I am sure agreement can be reached to withdraw the amendment and reconsider the matter before Report Stage.

The Chairman summed up the situation well. I have no major problems with the points made but I want to be sure that, if work is delegated to a sub-committee by a committee, all the powers of the committee can be transferred to the sub-committee. Doubts exist in that regard but I have no difficulty with the thrust of the amendment. However, it must be reconsidered and I support the Chairman's suggestion that the movers of the amendment might withdraw it so that the matter could be dealt with again on Report Stage. We may be able to proceed with the text of the amendment as it stands but, if we cannot, minor drafting changes may be all that are involved.

I have no difficulty with the principle or thrust of the amendment. As I understand it at present, the Committee on Procedure and Privileges or the rules of the House will govern attendance. However, as Members correctly stated, there is an issue of natural justice at stake. If we move into a quasi-legal mode and Members of a committee acted like a de facto jury, they must be present if they are to pronounce judgment. What is acceptable in terms of attendance must be clearly stated. A situation where a committee enters a privilege and compellability mode is quite different from that which obtains during its normal workings. These are strictly political matters and Members can be summoned from their offices or the Dáil Chamber to vote at the sound of a bell ringing. I see the situation quite differently under the rules of natural justice in terms of these particular powers and my views do not differ from many of those offered by Members. Therefore, I would like to revisit the issue on Report Stage.

I apologise for introducing a discordant note but I tabled this amendment in November or December of 1995. The Minister of State and her officials had time in the interim to revisit the principle upon which I tabled the amendment. It is a very simple point and, as I stated at private meetings of the committee, I do not profess to possess a monopoly of wisdom regarding amending what the Minister for Finance acknowledged to be a relatively flawed Bill as published. I would have thought, with the resources available, the Minister of State and her officials would have been able to formulate an opinion on this issue. However, she has not even put down an alternative amendment. If she gives an undertaking to reconsider the matter, I will table the amendment again on Report Stage. Am I allowed to do so?

I would like to believe that we will obtain a formal response from the Government in respect of this issue. In preparing its report, the committee spent much time with its advisers going through the Bill with a fine tooth comb. However, the Government's amendments do not really address the issues proposed in the committee document. I hope people are not playing for time.

It seems the Minister of State's response is an indication that the power of reasoning counts and the points raised by the committee have struck home. I believe a common accord is developing to try to ensure that this Bill will be the best possible legislation when enacted.

As far as attendance at committees or sub-committees is concerned, we must face the fact that, in the ordinary practicalities of political life, it will not be possible for the total membership to be present at all times. We should keep it in mind that Members may be obliged to be absent for long periods for a variety of reasons and make appropriate provisions in the Bill which cannot be challenged following enactment.

To respond to Deputy Ahern's point regarding logistics, this amendment was tabled with others in December 1995. However, in practice, the amendments were not considered by the parliamentary draftsman — they were only briefly considered by my officials — until the committee's report was sent to Cabinet in September 1996. The Cabinet finally issued its response to the report in November or December and it was only at that stage that the amendments which still stood were seriously considered.

Amendments can only be sent to the parliamentary draftsman en bloc for consideration as to what can be accepted and rejected. It might seem that an inordinate length of time was spent on the amendments but, in practice, the Cabinet only gave its final consideration of the committee’s report. I initially agreed with the Deputy’s point but I fully accept the explanation of my officials why we have not reached a final decision on the amendments we can accept.

I emphasise that we have no difficulty with the substance of the amendment. We merely await the draftsman's opinion regarding how it might be tidied up. I cannot state that the wording of the amendment will pass scrutiny, it may do so, but I invite the movers to resubmit it on Report Stage.

I will not labour the point but I am not merely concerned with the involvement of civil servants in connection with this amendment. Since in its Programme for Government, this Administration stated that it was more than willing to bring forward this legislation, I would have thought it would have been on the Government's priority list and someone would have considered the amendments I tabled within two weeks of the Bill's publication. However, I agree to withdraw the amendment if the Minister of State will reconsider the matter.

We are making progress, the amendment is withdrawn. I hope we can continue consideration of the Bill in the same constructive spirit and make progress on the other issues as they arise.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 3, subsection (1), lines 25 and 26, to delete ", intention or allegation" and substitute "or intention".

This amendment removes the word "allegation" from the definition of "evidence". It follows advice from the Attorney General that "allegation" was superfluous and was covered by "opinion" or "belief". It is a technical change. The other definitions are standard points of clarification in legislation.

Normally the term "evidence" would not be extended to include the word "allegation" because an allegation is a statement of fact or opinion.

The statement: "you hit me" is an allegation and a statement of fact; it is also a statement of belief about the fact. I hope it is not thought that removing this term, which I would not have included in the first place, reduces the nature of potential evidence to committees or acts as a restriction on their capacity to receive evidence which does not include what ordinary people would term "allegations".

My advice from the Office of the Attorney General, through my officials, is that the concept of "belief" and "opinion" covers anything that might be an allegation, so the word is superfluous. I understand it to be purely a drafting matter and I assure the Deputy there is no Machiavellian reason behind removing it. If he feels it should be looked at again I am prepared to do so.

I do not because I would not have included it in the first place but I wanted to hear the full explanation for its removal.

Perhaps it is because it should not have been there.

That is the only explanation I want to hear. I do not want anyone to be able to say at a later point that this Bill was specifically changed on Committee Stage to remove the term "allegation", and thus not allow a witness to make an allegation at a committee. I want the record of the sub-committee to show that was not the reason the change was made.

My advice would support the Deputy's view that it is not the reason.

The word "allegation" was included by the drafters of the Bill and it must have gone through the Office of the Attorney General in order to have been included. I would be worried that a curtailing of the definition of evidence might leave the committee hamstrung when looking at an issue. The Attorney General may be looking at it from an overly-legalistic point of view, perhaps thinking of the definition of evidence in the courts. Here we are dealing with committees of the House and political life is full of allegations with perhaps 95 per cent of them not being true. In committees we would look at the allegations but I am not sure we would look at opinions, beliefs or intentions. There may be a better word than "allegation" and perhaps the Minister would consider it before Report Stage.

This is not an exhaustive definition, it is an inclusive one. The term "evidence" has its ordinary and natural meaning plus the extended meanings of opinion, belief or intention. From that point of view, it does not purport to exclude anything from the ordinary and natural meaning of the word "evidence".

I am glad "allegation" is to be specifically excluded, not because it would limit the powers of committees under the Bill but because it is in the interests of everyone, not least politicians, that allegations would not be dignified with the term "evidence".

Amendment agreed to.
Question proposed: "That section 1, as amended, stand part of the Bill".

Does the term "civil servant" as used in the Bill extend to programme managers? What is the ambit of the section?

The use of "civil servant" relates to sections where the onus is on civil servants. Like Deputy McDowell, I wonder whether discussions between Ministers and programme managers, who are not civil servants in the normal sense of the term and may not come under the definition in the 1956 Act, would be exempt from the provisions of this Bill. There is no reason programme managers should be treated differently from civil servants so they should be included.

When we were dealing with the correspondence relating to the Bill I noticed that the Association of Higher Civil Servants raised the distinction between "civil servants of the Government" and "civil servants of the State". I do not know whether that related to this point or to the distinction between civil servants and public servants. I hope the Minister has all the answers.

To answer your point first, Chairman, the term "civil servants" includes civil servants both of the Government and the State. As to the definition of "civil servant" in the Civil Service Regulation Act, 1956, the sub-committee proposed that it might be appropriate to make reference to the 1959 Act also. The point was also made that discussions between Ministers and programme managers who are not civil servants do not appear to be exempt from the provisions of the Bill. At the time the sub-committee expressed the view that there appeared to be no valid reason for treating programme managers who are not civil servants differently from those who are and if this omission was through inadvertence, the definition section may present an opportunity to remedy this. Deputies have referred again to this point. However, I am not clear what was intended by the reference in the sub-committee's report to the 1959 Act. References to other legislation are unlikely to improve the definition as the definition in the 1956 Act is adequate. In relation to programme managers, those who were not serving civil servants before being appointed programme managers are appointed by way of excluding order under the 1956 Act and, therefore, are civil servants for the purposes of this Act. All programme managers are unestablished civil servants once appointed and so come within the full ambit of this Act.

Many people who would not be considered civil servants, such as the Director of Public Prosecutions, the director of Consumer Affairs and the Ombudsman, are deemed to be so by statute. If we include those people in the definition of "civil servant" it has downstream consequences throughout the Act for the capacity to produce documents and to be required to produce documents. I would be unhappy if we glided over this definition of "civil servant" if it includes the Ombudsman, the DPP and the Director of Consumer Affairs.

As the Deputy is aware, the matter of the DPP is dealt with specifically in this Bill and there is no ambiguity in relation to it. The Ombudsman is not considered a civil servant, interestingly, but the Director of Consumer Affairs is and we are happy for the Bill to apply to him. The areas in which there might be some doubt as to whether the Bill should apply will be dealt with as we go through it but it will apply to all others.

Mighe we be facilitated with a list of those people who may be considered to be civil servants, for example the Director of Consumer Affairs? We are unsure whether such people would be subject to the Bill.

I will prepare and circulate such a list to the Deputies. The provisions of the Bill will apply to everybody who is considered a civil servant unless they are specifically exempted.

Question put and agreed to.
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