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

SECTION 2.

Mr. M. McDowell

I move amendment No. 3:

In page 4, line 4, to delete "Sections 3 to 13 and 15" and substitute "This Act shall".

Section 2 states:

Sections 3 to 13 and 15 apply only to a committee on which power to send for persons, papers and records is conferred—

(a) by resolution of the House of the Oireachtas by which the committee was appointed, or

(b) if it was appointed jointly by both Houses of the Oireachtas, by resolution of both such Houses.

This might seem unexceptional until one examines what is excluded from application to all such committees, unless the Houses so resolve, that is, section 14. The effect of section 14 and section 2 when taken in combination is that in future, no matter what the Houses of the Oireachtas want to do by way of Standing Orders or what the will of the Oireachtas or either House might be in relation to any committee or subcommittee, the terms of section 14 will apply to every committee, whether it has compellability, privilege or immunity under this Bill.

Section 14 is one of the most draconian, antidemocratic and anti-openness provisions I have ever seen. The Minister of State has told us that the Director of Consumer Affairs is to be considered a civil servant for the purposes of this Bill and she proceeded to discuss section 2 on the basis that we would accept that, where the term "civil servant" appears in the Bill, it will include the Director of Consumer Affairs. If one replaces the term "civil servant" with "the Director of Consumer Affairs" section 14 (1) (a), will read:

The Director of Consumers Affairs . . . shall not—

(a) while giving evidence to a committee, question or express an opinion on the merits of any policy of the Government or a Minister of the Government or the Attorney General or on the merits of the objectives of such a policy. . .

If such a measure were handed down in Moscow I would understand it. However, this country is supposed to be a liberal parliamentary western democracy.

If the Director of Consumer Affairs came before a committee to express his views on the efficacy of current policies in relation to moneylending, it would be unlawful for him to express any views on the objectives of Government policy even if the House wished him to do so. I have never seen anything do draconian and bad minded as this provision. The Director of Consumer Affairs cannot express voluntarily a view on the objectives of the Government policy which he is required to implement. If he does so then, under the terms of section 14(2), it must be concealed that he has done so — his words must be expunged from the committee's record and we must pretend it never happened.

I reject utterly the thrust of that section. The members of the Association of Higher Civil Servants, who may well have had more influence on this Bill than Members of the Oireachtas, do not want to be in a position where they can be forced to express a view on Government policy. However, it is a radically different to say that they may never do so under any circumstances, even if they want to, and the position they occupy, such as the Director of Consumer Affairs, would make it a nonsense for them to come before a committee to report while suppressing any personal opinion on the merits of the objectives of the Government's policy. I regard it as a deeply offensive provision which should be removed.

The idea that is should become unlawful for the Director of Consumer Affairs, for example, to express any views on the merits of Government policy is so alarming that I am amazed it has survived this far. It must be a misguided view on the part of the Civil Service lobby which feels it needs the protection of not being obliged to express opinions. It has converted a worthwhile privilege against being forced to express an opinion into a blanket law suppressing anybody's right to express an opinion even when a committee wants to hear it and the House of the Oireachtas which established the committee wanted the opinion to be heard.

The effect of section 2 is that even if the Dáil establishes this committee and says that the Director of Consumer Affairs may express an opinion to this committee on the objectives of Government policy, that would be unlawful.

There is an even more sinister aspect in section 14(1) (b) which immunises any document from being brought before any committee of Dáil Éireann if, anywhere in the document, any opinion is expressed by any civil servant or any indication of such an opinion is expressed by any civil servant. This would mean, for example, that if the committee was examining the export credit to Iraq issue and it required a lengthy factual document which included at its end an opinion by a civil servant, the whole document would have to be kept secret from any committee of the Dáil forever, no matter what the Dáil does by way of resolution.

Who composed this section? In whose interest is this section put before the Legislature? Any document with facts in it which could be crucial to an inquiry can be declared never to have existed because in one passage or appendix to it a civil servant's opinion is incorporated. I find that absolutely staggering as a proposition of law, utterly inconsistent with the notion of parliamentary democracy and completely at variance with the stated polity of this Government that it believes in openess, transparency and accountability. The curious outcome of it is that if many of the documents presented to Mr. Justice Hamilton in the beef tribunal were called for by a committee of the Dáil, if this Bill had been in existence prior to the beef tribunal and if there had been any committee hearings on the same territory, they would have been prohibited from being brought before that committee because they would have contained material which would have offended against section 14(1)(b).

Section 14 is deeply offensive and what I resent about section 2 is that it makes section 14 apply to every committee of the House, even ones which have nothing to do with compellability and privilege and will never take evidence. We are told no such document can ever be produced to any committee of Dáil Éireann. I will go down in flames on this and I will bring down the pillars around on me unless I get a clear indication that this section will not be proceeded with in its present form. It is deeply offensive and anti-democratic. It is being included in the interests of secrecy, closed Government and of a small elite of people who want to protect themselves. It is completely inconsistent with the purpose of the Bill which is to bring openness to the Irish Governmental process.

Acting Chairman

I will not go down in flames on this but I have a great deal of sympathy for the points made by the Deputy.

Mr. D. Ahern

I agree with Deputy McDowell but I am not sure whether I would agree with him on the basis that it is some clique of civil servants who are of the view this should be included in the Bill. It is a view of a very restrictive Government which professes openness. It is an extremely draconian section which, in effect, is a stick hanging over any civil servant who may even venture into the area of giving a view. If this section was in vogue in regard to the hepatitis C tribunal or any committee of this House in the future, a civil servant would not be able to vindicate his or her good name in a situation where they may feel in jeopardy. Under the Constitution there is a distinction between the Legislature and the Executive. This section blurs that distinction whereby the Executive, members of the Government and the permanent Government are responsible and answerable to Dáil Éireann and Seanad Éireann. It is draconian and is probably unworkable. It is an obvious pointer as to how this Government wishes to deal with critical analysis but, apart from that, it is unfair to civil servants.

On the other hand, there has to be a fine balance. One cannot have any person appearing before a committee and perhaps running a coach and four through policy just because that person has some gripe against a Department, such as an employment problem. It is incumbent on the Minister to take up the views we express as regards the extremely restrictive nature of this but, on the other hand, to protect a situation which could be used if this was left too open.

Acting Chairman

I should emphasise we are not dealing with the substantive issue under section 14 at this stage, whether civil servants should come before the committee, but I accept Deputy McDowell mentioned it because section 14 will apply to all committees.

Mrs. Doyle

Allowing civil servants, gardaí or Defence Forces personnel to comment on the merits of Government policy would undermine the traditional neutrality of those in the public service in providing objective advice to Ministers. Therefore, I will not accept the amendment. If civil servants want to comment on Government policy, they will pay their deposit and stand for election. We know the basis under which the democratic system has operated for many decades in this country and the excellent service we have had, particularly from the Civil Service which has provided apolitical advice and support since the foundation of the State. Governments have come and gone and civil servants have been able to support and serve the Government of the day with no difficulty. That is how I want it to continue.

Some of the other points Deputy McDowell made about section 14 are worth examining, particularly in regard to the Director of Consumer Affairs.

Mr. M. McDowell

I only chose him as an example. I will not be bought off with him.

Mrs. Doyle

I am not buying off the Deputy. I would not even attempt to; I could not afford his price inside or outside this House. We will be circulating the list of civil servants as has been requested which can be looked at specifically and objectively but I will not move with regard to civil servants who serve in line Departments, gardaí and defence force personnel. I might be prepared to look at one off cases but, as regards the Civil Service in general, I will not relent in terms of allowing them to comment on policy. We need to draw a distinction on this in the best interest of the country.

When we come to section 14 we will deal with the Deputy's points again. Many amendments to section 14 have been tabled and I am well disposed to a number of them at this stage. I have some difficulty with the second section, the strike out section — if a civil servant inadvertently made a comment, it has to be struck off the record and cannot be repeated. I have difficulty in understanding how that can be enforced in practice. I have difficulty in understanding how that can be enforced in practice. I have asked for that to be looked at again and I will be coming back on it. I am not sure what the outcome is and I do not want to mislead the Deputy.

Most of this Bill applies only to those committees which are empowered to send for persons and papers, a category which currently excludes inter alia the select committees other than the Oireachtas Joint Committee on Foreign Affairs. The exception is section 14 which forbids civil servants, gardaí or members of the Defence Forces from commenting on the merits of Government policy, and precludes a committee or any of its Members from disclosing such a comment if it is made. We will talk about that again.

This exception to granting compellability powers to committees is to apply to all committees. With respect, the effect of Deputy McDowell's amendment would be to confine the prohibition on public servants commenting on the merits of Government policy, to committees empowered to send for persons and papers.

Mr. M. McDowell

No. With respect, Minister, it would be to give each House of the Oireachtas setting up the committee, the power to decide whether the provisions of that section would apply to any committee it established.

Mrs. Doyle

I am advised it would remove the prohibition in relation to the select committees and would permit public servants to make such comments before those committees.

Mr. M. McDowell

It would give the Dáil — or the Seanad if it were setting up a committee — the right to decide whether section 14 applied to any committee. It would certainly have that effect.

Acting Chairman

In so far as we are referring to section 14, there probably will be other issues arising at that stage. I can foresee questions arising as to somebody being asked to give an opinion, evidence or a view on Government policy on an issue ten years ago. What policy are we talking about? Are we talking about current policy or the policy of a Government on export credits to Iraq? It is probably an issue we will have to look at in more detail in the context of section 14.

I noticed we had the new Garda Commissioner before one of our committees lately and he spoke very freely about his view on policing and how things should be done under his jurisdiction. Will there be a future restriction on him so doing? These are some of the issues that we may have to tease out further in relation to section 14. This substantive issue will have to be looked at in detail. At this stage we are just on the edge of the issue and I feel we should move on unless someone wants to add something.

Mr. O'Malley

I support what Deputies McDowell and Ahern have said. I do not entirely follow the Minister's argument. Unlike her, I was a member of Government for 13 years and I have much practical experience of different aspects of this type of problem. It will create a completely unreal situation. Documents have to be produced in the ordinary course of business of a Government Department and litigation is going on all the time.

One example has been given by Deputy McDowell but it is the most pertinent one to give because it is the one that has generated the highest degree of litigation and it is still ongoing. There are views expressed on Government files where one civil servant in particular went out of his way to say what was being done was crazy. There are some who believe he paid a penalty for that afterwards, but he did say it and said it fairly forcefully. Others, on the other hand, took a different view. They said strange things expressed on the same files, including congratulating a more junior official for successfully confusing the Deputy and avoiding the truth being told to Dáil Éireann. That is on the same file in which a much more senior official says that what is being proposed by the Minister is crazy.

Are we not to be allowed to see these things? It seems extraordinary to me. Deputy McDowell was struggling for some way to describe this; he said it was alarming and amazing. When I read this the concept that occurs to me is that of democratic centralism. I do not think section 14 would be out of place in Kim II Sung's North Korea. It is precisely the way they are expected to conduct their affairs in P'yongyang where one does not think ill of the leadership and does not even suggest or raise any question as to the possibility of the leadership being wrong. If a person has such a thought he must keep it private because to express it in any way is fatal. What is essentially different between that and the proposal here, other than that the sanctions may not be quite the same? I am afraid the principle is the same. It is not the kind of democratic society that any of us would want to live in. It simply is not acceptable.

Civil litigation has been pending since 1989 — I have a feeling it will pend forever and it may or may not get to a hearing — on aspects of this whole matter. If and when it does, there is no way a court could decide that litigation without having access to dozens of files from the former Department of Industry and Commerce, and some also from the Department of Agriculture, Food and Forestry. It means, therefore, that a committee of this House cannot undertake any work of that nature and cannot investigate these matters at all. We are left only with High Court litigation or tribunals established under the 1921 Act. I thought the whole purpose of this exercise in recent years was to increase the number of committees of the Dáil as well as their jurisdiction and capacity. The purpose of this Bill is to give those committees powers of compulsion as well as giving privilege and immunity to witnesses but the whole thing is swept aside by this.

To my mind it is frightening. Deputy McDowell is right to say that it creates an alarming vista as to what will happen. Civil servants regularly express opinions on policy. They would not fulfill their functions if they did not. That is what they are there for and that is what they are paid for. For that fact not to be available to a committee of this House, even after the event, seems quite extraordinary. A civil servant, or a Minister giving directions to a civil servant, who did not want a particular file produced in this Committee, only has to tell the civil servant to raise a question about Government policy and write it down in the corner of the file. That would sterilise that file for all time. Are we serious at all about this?

Mrs. Doyle

The Deputy will be aware there are amendments dealing with that in section 14. I would not presume we cannot resolve some of the difficulties, but I do not want to be disingenuous. I do not think we will have a full meeting of minds on this. However, there are amendments dealing with that last point.

Acting Chairman

It is clear we will have an interesting debate on section 14. Those who are assisting the Minister in drafting the Bill should bear in mind Article 28.4.1 of the Constitution which states that the "Government shall be responsible to Dáil Éireann". We will come to that when we deal with section 14.

Mr. M. McDowell

I do not want to prolong today's debate but I want to respond to some of the Minister's points.

Acting Chairman

I ask the Deputy to bear in mind that we are talking about whether section 14 should apply to all committees or to only some committees. The substantive issue will be dealt with on Thursday.

Mr. M. McDowell

If my amendment is not accepted and this Bill becomes law, section 14 will apply to every committee of the Dáil and Seanad. This involves a constitutional issue which Mr. Plunkett should bear in mind. It meams that henceforth it will be unlawful for the Dáil to establish a committee to receive the views of any public servant on Government policy. It means the Seanad will also be prohibited from doing that because this legislation will cover both Houses of the Oireachtas and the committees they establish. There is a constitutional dimension to this because we are putting a fetter on each House of the Oireachtas in relation to what can happen at their committees. I would not underestimate the problems in this regard.

I believe in a neutral Civil Service, but it would be an outrage if the price to be paid was that any politician who wilfully and scandalously disregarded the advice of a civil servant, could successfully pretend to his colleagues in the Dáil that he was never given such advice and could threaten to stop any civil servant from revealing the fact that he acted irresponsibly and against the substance of the advice he received. Section 14 is designed to create a situation where any Deputy or Minister can henceforth pretend to the Dáil that he was not given contrary advice and it will not know that the action he recommended to his Cabinet colleagues flew in the face of the expert advice given to him.

As Deputy Dermot Ahern said, a balance must be struck. At our committee meeting with Mr. Hanratty, I emphasised that civil servants should not be compelled against their wishes to become involved in party political controversy and that they should not be forced to align themselves publicly with ideas in case it prevents them from acting objectively in the future. However, those are conventions whereas we are dealing with a new rule of law. The difference between a convention and a law is that sometimes conventions must be waived in order to get at the deeper more substantial truth.

If this section applies to all Dáil and Seanad committees — we should forget about the constitutional dimension for the time being — a convention, whereby the chairman could tell a Deputy that Ms Bloggs is not required to answer a question because it would put her in an embarrassing position where she may have to express a view contrary to that of the Minister, is now being elevated to a strict rule of law. Instead of refusing to produce a memorandum in which reference is made to one civil servant's opinion, we are creating a situation where it will be unlawful to produce any such documents to a Dáil committee but not to a court or a tribunal of inquiry, as Deputy O'Malley said. This means that a Minister will be able to go before a Dáil committee and pretend he did not receive contrary advice from his civil servants in the knowledge that they cannot contradict him. If the same matter was heard before a different body, such as a tribunal of inquiry, the truth would emerge.

A prime example of this is the hepatitis C tribunal where it is alleged — we will find out if it is right or wrong at a later stage — that a Minister was advised to do one thing by civil servants but he opted to do another. If that inquiry took place before the Select Committee on Social Affairs after this Bill was enacted, it would be unlawful for the civil servant to reveal that he had advised the Minister not to set up an expert group under Dr. Miriam Hederman-O'Brien and for the Minister to admit he had been so advised. What kind of nonsense is this?

As Deputy Dermot Ahern said, a balance must be struck because we want to create a non-political Civil Service. However, we cannot do that by creating a Kim II-Sung style of Civil Service, which is what this section is trying to do. This Bill does not represent openness.

This section does not apply to a former civil servant. If he loses his job, he is entitled to say he advised the Minister not to do something.

Mr. O'Malley

He will not be able to get the files.

Mr. M. McDowell

He cannot prove he is correct.

Mr. O'Malley

The files will be suppressed and he will be called a liar.

Mr. M. McDowell

On the other hand, three civil servants who gave the opposite advice and who could help the Minister out of a hole cannot be questioned. Deputy Dermot Ahern said that many civil servants — one could imagine it happening in the hepatitis C tribunal — may want to produce a file to show they advised the Minister in one direction but they were trampled on. This Bill means they will have to go along with the Minister's political charade and keep quiet or resign. The Minister said people should run for office if they want to be involved in politics but the price may be to resign from their jobs to protect their reputations.

Mr. O'Malley

If civil servants resign, they should take a photocopy of the file with them; they will not get it otherwise.

Mr. D. Ahern

That is the voice of experience.

Acting Chairman

We are straying from the amendment.

Mr. M. McDowell

I have learned from Deputy Dermot Ahern that tabling an amendment 18 months ago does not have an immediate effect.

Civil servants are not entitled to express a view on Government policy. As a member of the Opposition — I have never been in Government — I know that civil servants are happy to fire snowballs at anything I suggest but they give the Minister lots of ammunition. They are the first to answer on the merits of an Opposition proposal. They could tear shreds off Deputy Dermot Ahern or Deputy O'Malley if they suggested a certain course of action, but if they were asked about the Minister's alternative policy which was nonsense, the Chairman would tell them not to answer.

Mr. O'Malley

They would still be excluded from answering if it was said her policy was right. Even Kim II Sung did not go that far. He allowed them to publish when they agreed with him.

Mr. M. McDowell

This does not apply to the Director of Consumer Affairs. The Garda Commissioner came before a committee recently to talk about the drugs problem in Dublin. He was prevented from saying anything he believed was contrary to present Government policy on drug enforcement, for instance, if he thought that soft drugs should be legalised, or that it was pointless to do X, Y or Z. He was entitled to speak on the merits of anything else. The Director of Public Prosecutions would not come before a Dáil committee because of the independence of his office but he went on a radio programme to talk about his desire for a unified prosecution service. Is he entitled to do so? Was that Government policy or is it the case that civil servants will be entitled to comment on issues which are not the subject of a fixed Government policy and are merely at the proposal stage?

I am completely opposed to section 14 and I regard section 2 as arguably unconstitutional. Section 2 states that section 14 applies to any committee the Dáil may establish after this Bill becomes law, irrespective of the wishes of the Dáil as to whether they want that committee to receive opinions from civil servants or members of the Garda Síochána. They will not be able to change that unless they can persuade the Seanad to do so. Even if the Seanad was willing it would take a long time to do it or, alternatively, if the Seanad wanted to establish such a committee it could never do so unless the Dáil agreed. This is why I think section 2 has constitutional implications. I would not push it too far because it is by no means clear one way or the other. I strongly oppose section 14 and any effort to make it the law of this land regardless of the wishes of any House of the Oireachtas hereafter in establishing a committee.

Mr. Penrose

I do not know where to start as we have rambled form section 2 to section 14. I will never confine myself on Committee Stage again. If any chairperson tries to confine me I will use today's precedent as a focus point for attack.

Acting Chairman

We are discussing amendment No. 3 which relates to section 2. I have allowed this free ranging debate because first, section 2 impinges on section 14 and second, some preliminary discussion on section 14 at this stage may, by the time the section is discussed on Thursday, bring a possible response which may alleviate the worst impact as outlined by Deputy Michael McDowell.

Mr. Penrose

I am delighted about this. Deputy McDowell has set a great precedent. It is something I have argued for strongly in the past and my knuckles have been severely rapped for daring to do so. It is important as the sections are interlinked. I do not know why section 2 is included. Why not give the powers to all committees? Why have the procedures set down? The select committees have powers so why are we setting out this whole prodcedure? Why is there an underlying thrust to implement procedures which are not needed?

Section 14 is unduly restrictive. I hope the Minister will try to meet halfway the concerns raised in some of the amendments. I agree with Deputy Dermot Ahern who made a valid point. If one is close to legal matters perhaps one can see certain things. If civil servant's constitutional rights are impugned in some way, how do they get an opportunity to vindicate that right at a committee?

Mr. M. McDowell

They resign their job and then try to reclaim it.

Mr. Penrose

In practical terms, nobody resigns anything. Perhaps I have a simplistic view of life but I would be surprised.

Mr. M. McDowell

The Deputy is right.

Mr. Penrose

How do they set about protecting their professional character or reputation? Why does section 2 have to be part of the Bill? Perhaps there is a good reason. I am not a draftsperson so I would not know. The chairman is right to say that this is an opportunity for everyone to focus their minds on some of the amendments that hopefully will be implemented in section 14. We have spent around a year and a half considering this matter in great detail and a number of viewpoints have to be accommodated. A delicate balance has to be struck in section 14.

The chairman and Deputy McDowell referred to Article 28.4.1th. of the Constitution. Are we precluding people from commenting on matters that might be the focus of any investigation the Houses of the Oireachtas may want to pursue? The initial opinion of counsel was that this section be removed entirely. I hope I am not misquoting him. The Minister has indicated there are reasons this cannot happen. I hope some of the concerns expressed here this evening will be accommodated by next Thursday.

Mr. D. Ahern

In the press release issued by the Minister when he published this Bill he said that civil servants and members of the Garda Síochána or Defence Forces shall not, in giving evidence, express any opinion on the merits of policy. However, they will be free to state what policy is understood to be. Because it was a press release perhaps the Minister was trying to put as good a gloss on section 14 as he could, as is the wont of the PR person who composed the press release.

The issue of sections 2 and 14 goes to the root of what we are trying to do in this Bill and also goes to the root of the accountability of the Executive to the Oireachtas, as laid down in the Constitution. In this Bill, the Government is proposing different categories and trying to sectionalise in certain categories because it impinges on what it perceived as criticism of its area, not so much as regards the Director of Public Prosecutions but as regards the Attorney General. This is one of the reasons we find the Bill difficult to examine.

The Minister of State is very involved in the SMI. I am not sure if section 14 fits into all the laudable efforts being made in the SMI. In the Minister's list of legislation sent out today, it is hoped to publish a Bill bringing the SMI into legislative form. If we are to make civil servants more accountable, they cannot be dummies. They must be given an opportunity to express an opinion. It is possible that from time to time there may be someone who, for some reason, has it in for a Department or a Minister and may use a wide provision in this Bill to put a slant on an issue that would perhaps be to the detriment of the Department or the Minister. A balance must be struck.

Mr. M. McDowell

The Government usually has a majority on the committee and it can decide whether it wants to have a head-banger like that at its committee meeting.

Mr. D. Ahern

Deputy Michael McDowell's point is the core of this issue. If these committees are dealing with a quasi-judicial matter, the role of the Government Whip must be looked at closely.

Mr. M. McDowell

I want to bring this debate to a conclusion.

Acting Chairman

That is a wise decision. The Minister wanted to make a final comment on amendment No. 3.

Mr. M. McDowell

Another loophole is that is allows one civil servant to say what another civil servant advised, although I know they would not do that.

Mr. D. Ahern

You never know, look at the hepatitis C tribunal.

Mr. M. McDowell

If Deputy Dermot Ahern and myself were civil servants and I said he advised the Minister to do certain things, I would be saying someone else told him. I would not be giving evidence to a committee or expressing an opinion. It is completely unworkable in its present form.

Mrs. Doyle

I accept the Deputy's point. As I said, section 14 will have to be re-examined. It is unlikely I will able to go the full road with Deputy Michael McDowell and others who have expressed reservations, but I hope I will be able to go part of it.

Mr. M. McDowell

The Minister may find it easier in the end to go the whole way.

Mrs. Doyle

In 1983 the previous Minister for Finance introduced the Comptroller and Auditor General (Amendment) Bill which created a precedent for this principle that was fully supported by the main Government party. The Bill specifically stated that Department Secretaries and Accounting Officers could not comment on Government policy before the Committee of Public Accounts. This principle is not new.

Mr. M. McDowell

That has a narrower purpose.

Mrs. Doyle

I accept that but the initial principle was accepted at that time. I am not sure if Deputy Michael McDowell accepted it; he probably did not. He, like myself, was in Opposition during that period.

Mr. M. McDowell

I do not think I read it.

Mrs. Doyle

Does the Deputy mean it missed his beady eyes at that time? Deputy Penrose questioned why section 2 was included in the Bill. It was included to ensure that the Houses of the Oireachtas made a decision on which committees would have this power of privilege and compellability. I assume Deputies do not want every committee of the House to have such power. I see no reason the Joint Services Committee might need it. There are some committees, not many, to which we do not envisage extending this power. It is not just a blanket power; the Houses of the Oireachtas will decide to which committees it will be extended if and when the time comes. That, as I understand it, is the purpose of section 2.

Deputy Dermot Ahern asked if I had looked at the restrictions in section 14 with my SMI hat on. I did because I was concerned that the new public management Bill, which will amend the Ministers and Secretaries (Amendmdent) Act, would conflict with the provisions in section 14. I am assured by a high ranking civil servant, who does not mind commenting on Government policy but not before a committee, that there is no conflict between the SMI and the legislation which will underpin it — the public management Bill — because policy will contine to rest with the Minister and not with senior civil servants or managers of the Civil Service. There will be no conflict in relation to policy matters.

Deputy Michael McDowell mentioned a loophole that a civil servant can comment on what another civil servant said.

Mr. M. McDowell

He can testify.

Mrs. Doyle

It is an interesting point which we will consider. The majority of points raised deal with section 14 so we can discuss them when we reach that section.

Acting Chairman

This has been a good debate and I expect the points raised will be given full consideration before we discuss section 14 in a few days' time. The powers of Dáil committees under this Bill represent a tug of war because, although the Constitution specifically provides that the Government is answerable to the Dáil, which is the supreme law, we must also consider the position of the Civil Service. It is normal for power groups to look after their own interests. The points raised by many Members should be taken into account. There is an old saying that for every complex problem there is a simple answer. Deputy Dermot Ahern agrees this is not a blanket power where any civil servant can be called before a committee to give his views on anything. I am encouraged by the Minister's reply that she will give full consideration to the points raised.

Will a Dáil committee or a judicial tribunal investigate such matters? Section 14 seems to apply to an Oireachtas committee only and not to a judicial tribunal. Will civil servants be precluded by law from giving an opinion before a Dáil committee but not before a judicial tribunal? That aspect should be considered between now and Thursday.

We have been advised that once the Bill becomes law, it will probably be necessary to draw up guidelines for the purpose of its implementation. It might be better to include some of the matters we have discussed in the guidelines rather than in statute form.

Deputy Michael McDowell said that section 14 will apply to all committees. The Minister has given an undertaking to examine section 14 and to consider the points raised by Members. Is the Deputy pressing the amendment?

Mr. M. McDowell

Yes, because I regard it as a matter of fundamental importance. I would not be happy if I walked away from the points I have made.

Amendment put and declared lost.

Mr. D. Ahern

I move amendment No. 4:

In page 4, between lines 9 and 10, to insert the following:

"and shall include all Select Committees of the Dáil".

I tabled this amendment in December 1995 because I felt the section was too restrictive. The Minister adverted to it earlier when she said she was not sure if we wanted the provisions to apply to the Joint Services Committee. When the issue of the attendance of the Garda Commissioner arose, one person expressed a view while in Government which was totally contradictory to that expressed out of Government. I felt at the time that the Garda Commissioner should be required to attend the committee. This was a long time ago before the issue was in the public domain.

If we start restricting compellability and privilege we will hamstring ourselves as regards events that could crop up from time to time. That is why I put down this amendment to include all select committees of the Dáil. I recommend it to the committee.

Mrs. Doyle

I thank Deputy Ahern for his amendment which would give compellability powers to all select committees. In the interests of natural justice, witnesses should be compellable only to those committees that have the power to call persons and papers in their terms of reference. As the Oireachtas can determine which committees have this power by determining committees' terms of reference, I do not feel it is necessary or desirable to provide, in legislation, who should have the powers. As we have already discussed, an exception to this is section 14, which will apply to all committees.

Mr. M. McDowell

I am glad the Minister mentioned that.

Mrs. Doyle

The Government position is that it would not be naturally just to allow committees that do not have powers to call persons and papers to compel witnesses to appear before them. I know that is not what the Deputy intends. I cannot accept the amendment. If in its terms of reference a committee does not have powers of compellability under this Bill, it can apply to the Dáil at any stage for those powers if an issue should arise. Then it would have that power for the life of that Dáil. It would then have to reapply under the next Dáil as the power would not remain under its terms of reference. Any committee can apply for such power if the need arises.

Mr. M. McDowell

Is the Minister right on that? Section 2 (a) says it shall apply only if it is done by resolution of the House of the Oireachtas by which the committee was appointed. It can be said that it is the House of the Oireachtas by which the committee was appointed or the resolution by which the committee was appointed. There are two ways to read it. I read it the second way. Could the Minister put down an amendment to make it clear that it is not the resolution by which the committee is appointed but the other way round?

Mrs. Doyle

I think it is by resolution of that House of the Oireachtas, so both apply.

Acting Chairman

This is a further technical complication which may be looked at. I understand that committees are not appointed by resolution but by order of the House.

Mr. D. Ahern

The Minister is correct in saying that if the Joint Services Committee wants to compel people to come before it, they have to go back to the Dáil. If it does this, the Government has a majority and so can decide against it. In effect, we then defeat the purpose for which these committees were set up in the first place and also Article 28.4.1th of the Constitution which requires the Executive to be answerable to the Dail.

I disagree with the Minister. It would be better to have this in legislation rather than allowing the issue of whether a committee should have the power to compel to be at the whim of the Government. That was the rationale in the establishment of all our committees. It may not apply to the Joint Services Committee or subsidiary committees but who is to know in the future?

Mrs. Doyle

The Government has a majority but it also has a majority on committees. Before the committee even decides to go to the Dáil to pass a resolution, if that is the relevant House, the matter would have been debated at committee. If it does not pass the committee, it will not pass the Dáil and if it passes the committee, it will pass the Dáil. The terms of reference were set up by the Dáil and that is the way it will continue.

Mr. D. Ahern

One of the core problems with this Bill is that if a Government Whip is put in place on the deliberations of a committee, it calls the procedure into question and leaves it open to legal challenge. If a whip is imposed on a committee investigating an issue, a person who feels in some way aggrieved as a result of the decision of that committee could go to court and challenge that decision. The dead hand of Government appears to go right through this Bill. This is just another way of precluding proper investigation by the Oireachtas.

Mr. M. McDowell

I would prefer if section 2 (a) was revised to make it clear that it is the House by which the committee was appointed which has the power to make the resolution, rather than providing that the relevant section of the Act can only be applied by resolution of the House where the resolution is the resolution which appoints the committee. I do not know how this can be done and perhaps there is an easier way to do it.

Mrs. Doyle

I will look at it.

Mr. M. McDowell

There is an implication in Deputy Ahern's amendment that a House will henceforth be prohibited from appointing any select committee without compellability powers. There could be constitutional difficulties with this. Is it open to both Houses of the Oireachtas to tell the Seanad they may only appoint select committees which have full compellability and privilege powers. Is that an infringement on the rights of an individual by both Houses? The point I made on my last amendment may apply here also. There is a limit to the extent to which the Houses can ditate to each other what they can do in relation to the committees they appoint.

Acting Chairman

A number of technical points have been usefully raised. Will the Minister look at them again?

Mrs. Doyle

Yes.

Acting Chairman

On the basis that the Minister will have a look at these technical points, is the amendment being pressed?

Mr. D. Ahern

Yes.

Amendment put.

The sub-committee divided: Tá, 4; Níl, 5.

Tá
Ahern, Dermot.	O'Malley, Desmond J.
McDowell, Michael.	Walsh, Joe.

Níl
Byrne, Eric. Doyle, Avril. Nealon, Ted.	O'Keeffe, Jim. Penrose, William.

Amendment declared lost.

Question proposed: "That section 2 stand part of the Bill."

Mr. D. Ahern

The committee obtained a submission from the Association of Higher Civil Servants which took a specific view with regard to the inclusion of section 14. It considered that there were difficulties from both a practical and legal point of view.

The Government has drafted the section in such a way as to attempt to hamstring the answerability, not only of the Government but of the permanent Government, to the committee system. I am inclined, therefore, to oppose the section in the hope that the Minister of State will prove a better solution on Report Stage.

Mr. M. McDowell

I agree with Deputy Ahern. Section 2 should be deleted.

Mrs. Doyle

I will return to the point made by Deputy Michael McDowell with regard to section 2 (a). There may be a drafting change when we look at it.

Acting Chairman

Perhaps the word "resolution" should be changed to "order". The House does not make a resolution; it makes an order. However, this does not take from the point that the section is opposed.

Question put.

The sub-committee divided: Tá, 5; Níl, 4.

Tá
Byrne, Eric. Doyle, Avril. Nealon, Ted.	O'Keeffe, Jim. Penrose, William.

Níl
Ahern, Dermot.	O'Malley, Desmond J.
McDowell, Michael.	Walsh, Joe.

Question declared carried.

NEW SECTION.

Chairman

There are a number of amendments to section 3 and we might try to accelerate the pace without cutting short any valid points Members may raise.

Mr. D. Ahern

I move amendment No. 5:

In page 4, before section 3, to insert the following new section:

"3.—In all its deliberations under this Act, it shall be the duty of the Committee to take all necessary steps in order to protect and vindicate the good name of any person appearing as a witness or otherwise before the Committee.".

I tabled this amendment because of the rationale behind the Haughey case, which was a watershed in respect of bringing people before Oireachtas committees. If possible, I would like to amend the amendment by substituting "it shall be the duty of a Committee" for "it shall be the duty of the Committee". It is important to include this provision in the legislation. It may be stated that it is already incumbent upon any committee to adopt fair procedures. However, it should be included in the terms of the Bill. It could also be stated that this could open the way for a charter for compensation but I do not necessarily accept that argument because a committee of the House must take all necessary steps to protect and vindicate the good name of any person appearing before it.

During our earlier discussion on whether civil servants could give an opinion I made the point about such individuals being able to properly clear their names. They may believe that, if they were to come before a committee, their constitutional rights were being impinged under section 14. Rather than have the provision implicit it should be explicit. It is for this reason I tabled the amendment.

Acting Chairman

I might make two points at this stage. Deputy Ahern wants to make a minor amendment to the amendment. Is that agreed? Agreed. The Deputy may or may not be aware that Mr. Hanratty felt that it could be unwise to table this amendment.

Mr. D. Ahern

I do not accept his opinion. Mr. Hanratty states that the amendment is unnecessary because fair procedures must be observed. However, I believe it is important that this should be explicitly stated in the legislation.

Acting Chairman

Everyone would agree with the intent that there must be fair procedures. However, Mr. Hanratty pointed out that provisions of this kind could be a charter for those who do not have a good reputation and want to avoid coming before the committee to be properly investigated.

Mrs. Doyle

I will not be in a position to accept the amendment. Article 40.3.2th of the Constitution provides that:

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

The protection of the good name of any citizen is already guaranteed. Therefore, the amendment proposes to put in legislation what already exists in the Constitution and is unnecessary. Section 10 provides a redress procedure for a citizen who feels his or her good name has been compromised. The proposed amendment would slow down the work of committees by obliging them to take the necessary steps to vindicate the good name of each witness appearing before them before questioning could begin. I concur with the sentiments expressed by the Chairman in respect of Mr. Hanratty's advice and, therefore, I cannot accept the amendment.

Mr. D. Ahern

The Minister of State's speaking note is somewhat contradictory because, on one hand, she stated that the Constitution already provides that person's name must be vindicated while, on the other, she stated that there would be an obligation on every committee to properly vindicate the name of a person before they give evidence. That does not really stand up to scrutiny. I believe it should be explicitly stated in the legislation. I will leave it at that.

Mrs. Doyle

The detail is set out in section 10. I see no contradiction, I am merely repeating that the Constitution so provides. Even were I to accept the general tenet of the Deputy's argument on the basis of natural justice, it is superfluous. I understand from the Chairman that Mr. Hanratty has also advised that it would unnecessarily complicate the workings of the committee without providing any protection that is not already provided by the Constitution and section 10.

Mr. D. Ahern

Would the Minister then give her opinion on section 14? If a civil servant who came before a committee felt constrained because section 14 was in place and felt his good name was affected, could he use section 10 as drafted to claim before the committee that his good name had been taken without having had the ability to express an opinion? The Constitution professes that through all its procedures we should vindicate a person's good name but under section 14 a civil servant could well be, to put it mildly, left exposed and shot in certain circumstances which may arise from time to time. We only have to consider what is happening at the hepatitis tribunal — people may not be running for cover but they certainly are being put under the spotlight. If this type of committee is put in place there will be an onus on people. It is fine to say nothing is proven against them but people will say there is no smoke without fire. That is why our committees must proceed with extreme caution when addressing issues which come before them.

Mrs. Doyle

I do not accept the case being made by the Deputy. Section 14 only precludes comment by the civil servant on the merit or otherwise of Government policy. That is all that is excluded as it is laid out at present. Members will realise that even at present in the Committee of Public Accounts things sail close to the wind and life is made fairly uncomfortable for civil servants. These matters can be handled and section 10 of the Bill provides the redress. If a weakness arises or an individual before the committee feels that under natural justice his or her good name has been brought into question in any way, he or she can proceed according to section 10 to vindicate it. When we reach that section I hope Deputies will be satisfied with the Bill's provisions. I am not giving a personal view, I have been advised by legal people. The committee's legal adviser had strong views on this amendment; according to the Chairman, who put Mr. Hanratty's views on the record, he did not advise that we proceed along these lines. Any advice I have received would be contrary to the Deputy's point about the need for the amendment.

Mr. D. Ahern

I tabled the amendment in order to discuss the matter. I accept that it is already inherent in our Constitution and from the point of view of natural justice it should be inherent in our committees' procedures. However, section 10, the provision mentioned by the Minister, contains nothing to prevent a civil servant, a garda or a member of the Defence Forces who was not involved with a committee to come before it to undo damage done to him or her at a previous committee meeting, which is good, but why is he or she excluded from commenting on issues of policy which may well impinge on his or her good name?

Acting Chairman

Surely the bottom line is that the committee could be questioning a witness about something of which he or she might not be particularly proud and, if one includes a provision of this kind, might not the committee be restricted in its line of questioning? The amendment provides that the committee must, at all times, do whatever is necessary to vindicate the good name of that person. It must work with fair procedures but if perchance the witness did not have a good name, perhaps we should not put too much of an obligation on the committee other than to have fair procedures.

Mr. D. Ahern

As the Minister or her senior counsel said, I am only repeating what is in the Constitution.

Mrs. Doyle

The Constitution refers to unjust attack — if the name is already bad, one could argue the case.

Amendment, by leave, withdrawn.