I move amendment No. 6:
In page 4, subsection (1), line 10, to delete "Subject" and substitute the following—
"Where a person has refused to give evidence, or to produce or send a document to a Committee, or to attend before a Committee to give evidence or to produce a document, and subject".
This amendment would allow a committee to give a person an opportunity to refuse to give evidence. I drafted the amendment in December 1995.
This amendment was designed to require the committee to operate informally, by request, get a refusal and then invoke its powers. I put my name to all of Deputy Ahern's amendments with which I agreed but I did not agree with this one because it might be difficult to ascertain the reason someone was refusing to give evidence — he or she might be prevaricating or making themselves difficult to obtain. Although it is a well-intentioned effort to oblige committees to attempt to adopt informal procedures by agreement, it might play into the hands of those who wanted to make themselves unavailable by giving them the option of not refusing and then saying the compulsory powers could not be invoked against them.
I tabled this amendment because much of the business which the committees would have to address would neither be investigative nor connected with serious issues of public concern but would involve mundane matters, so I felt it necessary to include this preliminary element to the section. I would like to hear the Minister's views. It would give committees and their members more power to decide whether to compel someone and give them greater latitude in the way they would direct people to come before them and give them an opportunity to respond.
This aspect could be dealt with in guidelines; it is a valid point but perhaps it should not be included in the legislation. We spoke with our senior counsel about the need for guidelines and while they will be necessary for formal procedures, there is a role for informal procedures in some instances.
Initially, the amendment seemed reasonable and fair but there is no privilege without compellability, that is, without going into the formal mode so one might be limited if one does not go into that mode. Also, if one is going to switch to that mode in any case one might as well start in it. The sub-committee document stated that committees should have formal procedures which ought to be used before the formal powers provided for in the legislation are invoked. In most cases, it might be sufficient to invite a person to attend. If a person who was invited to attend before a committee did so but refused to give evidence or produce a document it might be necessary to issue a formal direction under section 3. Consequently, the power to issue such directions should not be confined to persons in attendance "pursuant to paragraph (a)” which provides for attendance following receipt of a formal direction from a committee.
My legal advice is that if informal questioning which would not involve a direction under paragraph (a) failed to elicit the information required from a witness, the formal procedure outlined in the Bill would then be invoked. As this formal procedure would involve a direction under paragraph (a) in any case, fairness to witnesses dicates that this direction is used in all cases, irespective of whether informal questioning has already taken place. Unfortunately, I cannot agree with the amendment.
If a committee is meeting and it requires a witness, an officer of the committee could contact the witness by telephone and ask him or her to come to the meeting in the afternoon, for example. As I understand it, the Bill requires that a written direction be given, which is a more formal procedure than perhaps is in vogue at present. When the sub-committee which inquired into the fall of the last Government was taking evidence it sometimes arose that another witness might be needed the next day. Under the provisions of this Bill such a committee would have to adjourn for a day or two while a letter was sent to the witness. It is a more cumbersome procedure which does not allow for the informal mechanism in place.
I sympathise with the Deputy's point and I can see that such situations are likely to arise. However, there is little point in a witness arriving on a voluntary invitation and not having the protection of privilege, which would be the case unless he or she is formally summoned under the procedures in question. There are issues involved which may need further consideration. For example, does a fax constitute a formal summons?
I cannot accept the amendment because it is in the interests of the witnesses that they have the protection of privilege and they will not have it unless they are formally summoned. The Deputy's amendment will not sort out the problem.
I had in mind a situation where one could invoke section 3 only in the event of somebody declining an invitation to the committee.
A voluntary signing up to the formal agreement?
If a request was made informally to a person to attend the committee and was refused, the committee could then issue a direction. I understand that is how these arrangements occur in many of the committees, and my amendment seeks to recognise these informal procedures. Will the Bill curtail the existing informal procedures because the person who might be informally requested to come before a committee would not have privilege?
Section 11 refers to ". . . a person whose evidence has been, is being or is to be given before a committee . . .". That does not seem to indicate a person who has been required to do so. It applies to oral evidence. The section also refers to a person who ". . . produces or sends a document . . . pursuant to a direction . . ." Is the term "pursuant to a direction" applicable to giving evidence or just to the document? As I read it, I presume it applies only to the second element.
I do not see why only a person who attends by direction should be privileged. If I give evidence I do not see why it must be pursuant to a direction. I agree with Deputy Ahern in that respect. Section 11 confers immunity in respect of a document to the person who produces it or sends it to the committee, which is the same immunity as a High Court witness. Does it confer immunity on the author of the document?
We will check that.
I raise the issue in advance because it is relevant. The Minister of State says that if matters proceed informally certain things will happen. She should look at section 11 in this context.
Issues relating to section 14 arose in relation to section 2. It is useful that the point has been made about section 11 because the net point, on which Deputy Ahern has touched, is whether privilege will arise when a person attends informally. Is it only applicable when a direction is issued? This is an essential point. I suggest that as Deputy Ahern has achieved a worthy objective in raising this important point, we might leave it for dicussion under section 11.
It even requires a direction to be given in writing. One could not request somebody to come and give evidence by a telephone call.
This is an important point and I will ask the Minister of State and her officials to examine it before the discussion on section 11, perhaps Deputy Ahern would withdraw the amendment on that basis.
Yes.
A number of points have been well made and I would like time to get further advice on them.
I do not think the direction in writing should be there. How a person should be summoned to attend should be covered in the draft guidelines. One can direct any person to attend but how it is done should be covered in the guidelines.
If a person was in the room with the document it would be absurd for the Clerk to the committee to have to direct them.
A direction implies a formal procedure as opposed to a request by telephone. We will discuss the matter under section 11.
Amendment No. 9 is related to amendment No. 7 and they may be taken together as a composite proposal.
I move amendment No. 7:
In page 4, subsection (1), line 10, after "may" to insert "request the Sub-Committee on Compellability to".
I accepted what the legal adviser said at the last meeting about our putting a second stratum of complication into the procedure. However, I tabled these amendments in an attempt to introduce a less extreme proposal with a less judicial process than is in the Bill, that is, to allow the Members of the House to have seizin of the compellability aspect. A specialist sub-committee of the House should deliberate on the issue of compelling witnesses to attend committees.
If a committee wished to compel someone it would have to get an opinion from a sub-committee set up by the Dáil, called the sub-committee on compellability, to allow it to decide on the issue of that person coming before a particular committee. This might be a contentious issue and I have tabled this amendment in order to deal with hard, difficult cases. It is similar to the appeal procedure which I have included in another amendment to the Bill to try to retain the involvement of the Oireachtas rather than having everyone hare off to the High Court to decide whether he or she could be compelled to appear before a committee. There is a precedent for this in the retention of what is called the parliamentary ethos of our committees where former Taoiseach, Jack Lynch, was of the view we should try, as far as possible, to retain the parliamentary element of requesting people to come before committees of the House.
Amendment No. 7 provides that the compellability of witnesses would be decided by a new sub-committee on compellability and amendment No. 9 provides for the establishment of this new sub-committee. These amendments will reduce the scope of committees to act independently in fulfilling their functions by requiring approval of the sub-committee on compellability before witnesses could be compelled to attend before them and they would slow down the work of the committees by adding an extra layer of procedure to investigations. However, there is merit, particularly in amendment No. 9, in giving a body with specialist knowledge of the provisions of the Bill a role in implementing the terms of the Bill as intended. It would get over the potential problem of committee chairpersons who are unfamiliar with the detailed workings of the Bill giving direction to a witness that may prove unenforceable and which may let a reluctant witness off the hook. The proposed sub-committee would be such a body. I ageee with the principle of the proposal and will introduce an amendment on Report Stage. It will have to be phrased differently but I commend the movers of the amendments for the point being made as I have great sympathy with it.
I had understood questions of procedure would be probably dealt with by way of guidelines drawn up and agreed by the different committees. It probably will be necessary to have legal advice, particularly at the beginning. I cannot understand the thrust of Deputy Ahern's amendments on these issues.
I withdraw the amendments on the basis that the Minister of State is in agreement with the principle of my amendment and will come back on Report Stage with her own amendment. I would have thought either this committee, or a committee of the House, primarily one with a legal background, would be able to examine directions that cause difficulty on a case by case basis rather than having a dispute in court as to whether a person should be so directed.
As long as it would be operating along the lines the Deputy mentioned rather than adding a further layer of procedure which would restrict and reduce the powers of committees.
That is not the intention. The subsection states "shall be established to determine requests of committees and the procedures of the Committee shall be regulated by the Standing Orders of Dáil Éireann relative to Public Business". I note what the secretariat has said in regard to the difficulty with my amendment as it only refers to the Dáil Committee on Procedure and Privileges.
Seanad Éireann would have to be dealt with separately.
The wording will have to be rejigged but I am happy to look at it. I accept the thrust of amendment No. 9.
I move amendment No. 8:
In page 4, subsection (1), between lines 25 and 26, to insert the following:
"(e) direct any person whose evidence is required by the committee to make discovery on oath of any documents which are, or have been, in that person's possession or power relating to any matter properly the subject matter of that committee's deliberations; the affidavit to be sworn by such person shall specify which (if any) of the documents therein mentioned that person objects to produce and the grounds upon which such objection is made."
There should be a facility, similar to the procedure of discovery in the courts, which calls on a person to furnish a list of all documents in their possession and dividing them into certain sections. If a committee is heavily involved in an issue, it would be possible for it, using this procedure, to sift through what is necessary. I urge the Minister to examine this. This amendment finds favour with our legal advisor who said it was an acceptable one.
He went further than that and said unless there were a provision of this kind, there would be significant difficulties operating the committee system. If a committee is only given two documents but a third document exists which makes a liar of the other two, it operates under a complete misapprehension. Theoretically, a committee could ask everybody who appeared before it to list their documents. Witnesses could be asked to go through the discovery process by simply adjourning the hearing and telling them to return when they had, to the best of their recollection, a complete list of documents. It is better to provide an analogous process to court discovery. Discovery can prove onerous, expensive and time consuming in certain circumstances. For instance, if the hepatitis C tribunal was being dealt with by a committee of the Dáil, it would be quite open to participants not to mention certain issues. Nobody will guess they are there unless they get divine inspiration. That is why it is important that, if a committee is trying to ascertain the truth of a matter, it should have the capacity to ensure it will get all the relevant facts and that people are not being economical with the truth in a way that would not be permitted before a tribunal or court.
I hope the Minister will not place me in an invidious position this time. This should be an integral part of any procedure, and I said that when we were in private session. I agree that this procedure will help to define issues and to uncover facts that would not otherwise be discovered. People will have an opportunity in the way they present the affidavit on oath. They can give a reason particular documents are privileged and it can be determined in that fashion. If something is a matter of legal advice that is given prior to its being brought before a committee, people will have an opportunity to state that fact. It is an important and integral part of court procedure which also helps to save time because real issues can be focused upon instead of extraneous issues. This is a reasonable amendment and I hope the Minister will see fit to incorporate it.
When this matter was being considered earlier, the question of how best the committee might get to the facts of any particular situation was discussed. In that context, the power of the committee to require discovery through an order was raised. Essentially, the idea is that a committee would be able to direct a person to disclose the existence, nature and identity of any document relating to the matter being discussed or investigated. I appreciate it is a judicial power and I am not sure if there are any problems from that point of view. When a committee is investigating a matter it is, as was mentioned earlier, acting to a degree in a quasi-judicial role. In that case perhaps there should not be any reason judicial powers should not be available. If there is a difficulty about giving to such committees the power of discovery, it might be covered by way of giving the committee the entitlement to apply to the court for an order. The Minister should be aware that the committee felt strongly that discovery was one of the weapons or instruments investigative committees of the future should have.
I do not agree the committee would not have the power because committees already have the power to take evidence on oath. I do not see how we can be precluded from taking evidence on oath, on affidavit. We should be entitled to take an affidavit on this course.
Perhaps we can hear what the Minister has to say on the issue.
I agree strongly in principle with the point made. The amendments relates to the discovery of documents procedure and states: "If so instructed by a court, a person is obliged to swear under oath that they will provide all documents at their disposal relevant to the proceedings in question".
The present wording in relation to compellability of documents is that "a person will obey a direction from a committee in relation to documents in his or her possession". There is no obligation on a person to produce relevant documents which are not specified by the committee as it stands.
The reason I am reluctant to accept the wording as is without looking at it again is that there may be a question of a right to appeal. I have to check that the appeal procedures in the Bill will cover this. There is some doubt about that. In natural justice there has to be a right to appeal which, I am advised, would have to be added to this. I want to look at that but I accept the principle. I will come back to Members on Report Stage with a Government amendment incorporating the appeal procedure if necessary.
The committee will regard that a major plus if the principle, about which we all felt strongly, is accepted by the Minister. We will leave it to her and her advisers to frame the amendment to ensure it complies with the principles of natural justice. On that basis, are the proposers satisfied with a job well done? May I take it that the amendment is withdrawn?
Yes, on that basis.
I am advised that, according to the rules of the House, I have to rule amendment No. 10 out of order. I cannot say I did so with any great enthusiasm, but we all have to comply with the rules. As Chairman, I was told that because it involved a potential charge on the Revenue it is not in order.
I accept that. We are hamstrung because of that rule also in relation to amendment No. 67 which relates to the availability of legal advice to this Committee. However, surely the Minister and anyone involved in this legislation must accept that it will put a huge onus——
Would it put the matter in order if I moved the amendment?
Work away.
I move amendment No. 10:
In page 4, subsection (2) line 27, after "committee" to insert the following:
"and also of a person who under section 10 of this Act has been given consent by the committee to attend in accordance with such section where that person has established, to the satisfaction of the committee, that this attendance was justified".
That is the sort of spirited co-operation I was anxious to engender in the committee. It puts the ball right beck into Deputy Ahern's court.
I will speak in favour of my amendment, which is now the Minister's.
I will credit you with joint authorship.
I am not sure this has ever happened before. We are breaking new ground. Deputy Nealon, who is a Member with long experience, referred in private session to the fact that this legislation will hugely increase the workload of Members. Some of us have a legal training which is sometimes a help and at other times a hindrance. It helps us on certain issues, but the vast majority of Members do not have a legal training.
A Committee Chairman is currently before the courts because of something that occurred in a committee. Through no fault of his, he finds himself in that position. I am talking about the principle of giving committees proper resources.
If under the legisation we were directing and enabling people to appear who, under section 10, felt their names were in some way being brought into question, or to correct a fact, defend the person or protect their own name, as the section says, I felt it was only right that section 3 (2) would be amended to give people their reasonable expenses. I pointed out in the amendment that they would have to establish to the satisfaction of the committee that his or her attendance was justified. I am glad the Minister has moved this amendment. It is a step forward.
I would like to hear the Minister.
It seems to be in accord with the principles of natural justice. Like the Deputy, I am glad the Minister has overcome the difficulty by moving the amendment herself.
As is obvious from my offering to move this amendment, I have absolutely no difficulty with it. I commend the original authors of the amendment if, even though having moved it, I am not the author. The subsection in question provides that the Oireachtas will pay witnesses' reasonable expenses. As witnesses are to be compelled to attend, it appears reasonable they should not be out of pocket for doing so. Similar provisions already apply to court witnesses who are paid what is called a viaticum, that is an advance payment of a sum deemed appropriate to cover legitimate expenses incurred by the witness, such as travel and attending court.
Current payments to non-specialist witnesses can be of the order of £10. The effect of this proposal is to pay expenses at the rate payable to High Court witnesses to persons who exercise their rights under section 10 to attend committee meetings where they have been identified.
