Amendments Nos. 11, 12, 16, 17, 21 and 22 are related and may be discussed together. Is that agreed? Agreed.
SECTION 3.
I move amendment No. 11:
In page 4, lines 36 to 38, to delete subsection (4) and substitute the following:
"(4) Subsection (1) does not apply to the President or an officer of the President or a judge of the Supreme Court, the High Court, the Circuit Court, the District Court or the Special Criminal Court.".
This subsection gives exemptions from compellability to the President, her officers and the judiciary.
We should leave the Director of Public Prosecutions aside for the time being and look at the subsection.
The phrase "an officer of the President" is unknown in law. Is the secretary in Áras an Uachtaráin or the President's PRO "officers of the President"? What does this phrase mean?
I am advised that any official in a Department is an officer of the Minister, or, in this case, of the President.
Does it mean that any civil servant in Áras an Uachtarán can never be summoned before a committee of the Oireachtas?
Yes.
For any purpose?
That is my understanding. The Office of the President, including the President, is excluded.
Does it affect having them appear before an Oireachtas committee, for example, the Committee of Public Accounts?
The Committee of Public Accounts is provided for under legislation covering the Comptroller and Auditor General.
Surely the President should be in a position to consent to one of his or her officers appearing before an Oireachtas committee? For example, if I am performing a useful function in the Department of Enterprise and Employment and am sent to Áras an Uachtarán I then become immune from appearing before a committee, even though it wants me to appear in connection with an issue which has nothing to do with the presidency. I could understand the use of the terms "acting as such" or "in connection with such duties", but the present terminology provides a way of immunisation for civil servants by sending them to the President.
The President should not be brought before a committee. However, if the purpose is to say that a civil servant for the time being in Áras an Uachtarán should be immune from being brought before a committee, surely it is possible to redraft the section?
We will look at the matter. It is not intended to preclude them from answering questions regarding their prior activities. The answering of questions relating to the presidency and their role as officers of the President may cause problems.
The provision of immunity to former judges called before committees regarding the discharge of their functions while they were judges is a mirror image of the same point.
That needs to be looked at again.
Former Presidents should be immune from being called with regard to functions they discharged as President because under the Constitution the President is immune from being called before any tribunal.
I do not think that former Presidents are immune from appearing before tribunals.
They are not in respect of discussing the discharge of their functions. However, would it be dignified for an Oireachtas committee to call a former President before it?
It follows from the case made by the Deputy and we will look at this also.
Was any consideration given to the exemption of the Ceann Comhairle, the Cathaoirleach of the Seanad and others? The Ceann Comhairle asked to have this matter raised.
I have no difficulty with the Ceann Comhairle being made immune with regard to the discharge of his functions because he is responsible to the House and it is the privilege of the House to impeach or expel him. However, if the House decided to get rid of a Ceann Comhairle, must the entire House hear the case or can it appoint a committee to investigate?
They can be compelled.
Perhaps they should be compelled.
According to my briefing note, long before the text of the Bill was finalised, it had been envisaged that Ministers and Ministers of State would be exempted from its provisions. That approach was ultimately, and rightly, abandoned and the principle was that, unless there was a constitutional imperative to do otherwise, compellability would be universally applicable. As all elected representatives of both Houses of the Oireachtas, including the Taoiseach and all Ministers and Ministers of State are to be compellable, and both the Comptroller and Auditor General and the Ombudsman are comprehended by its terms, there is no valid reason House chairpersons, including the Ceann Comhairle and Leas Cheann Comhairle, should be exempt, although it is unlikely that either of them would be called before any committee.
This is logical because Ministers and Ministers of State can be compelled to appear. As it is unlikely that the Ceann Comhairle and Cathaoirleach of the Seanad would be called, there is no reason they should be excluded.
I raised the matter because it was raised by the Ceann Comhairle. We should put on record the response of the committee, and in this regard, the comments by the Minister of Sate are adequate.
We are considering, by agreement, amendments Nos. 12, 16, 17, 21 and 22 with amendment No. 11. In accordance with Deputy Michael McDowell's suggestion, I will not put the amendments until the conclusion of discussions on all these amendments.
Amendment No. 12 depends on amendment No. 11 and ceases to be relevant if amendment No. 11 is acceptable.
That is a fair point.
With regard to this subsection, will the Minister of State indicate why there is a change of heart from the draft legislation in respect of the Director of Public Prosecutions?
The DPP is a statutory officeholder established in 1974 to take on most of the functions with regard to prosecutions undertaken before then by the Attorney General. The activities of Attorneys General in this area led from time to time to allegations that they were influenced by factors other than strictly legal ones.
As each Attorney General was selected by the Taoiseach, decisions relating to prosecutions, particularly when the defendant was a known critic of the Government or a Member of the Oireachtas as happened with a prominent independent Senator in the 1960s, provided ammunition for sporadic partisan exchanges across the floor of the House.
It was largely to end the perception that the Office of the DPP was established in 1974 and the current holder of that office appointed. Against that background it is perhaps understandable that the DPP has been reluctant to accept invitations to appear before Dáil committees for fear that such an appearance might lead to questioning and discussion of individual cases in one form or another.
The initial version of the Bill was sympathetic to that view and exempted holders of that office totally from the compellability provisions which it sets out. However, debate on Second Stage took place in the wake of the appearance by the DPP on the "Liveline" radio chat show, hosted by Marian Finucane, which several Members saw as contrasting with his approach to Oireachtas committees. At that juncture the Minister for Finance indicated the Government's intention to propose an amendment under which the DPP would be compellable. The first of the changes to the subsection, which are set out in the Government amendment, is to remove the blanket exemption of the DPP from the compellability provisions. The second is a point of drafting convenience which combines the exemption of the President with that of officers of the President. This removes the need to have separate provisions for both, as was the case on Second Stage. Section 3(6)(a) includes officers of the President and officers of the DPP in the totally exempt category which the amendment will separate. As that level of exemption no longer applies to the DPP, a later amendment proposes the deletion of that subsection. I hope that answers the questions raised.
I posed the question for that reason. I am delighted the Marian Finucane Show exercised its powers of persuasion on the Department of Finance or those responsible for drafting the Bill. I would like to believe Members on this side of the House could be as persuasive in their arguments on other sections. I voiced my concern when the DPP appeared on the Marian Finucane Show at a time when a number of high profile officeholders were reluctant or refused to appear before Oireachtas committees. When I saw this reference in the Bill I decided to table amendment No. 12 because the implication in the proposed legislation was completely at variance with the high ideal in the Programme for Government which states that holders of high office will be available to appear before committees, as appropriate, subject to legal constraints. It is our responsibility to change those legal constraints if we so wish, and that is what we have done. I am glad the Minister of State, the Government and the drafters of the Bill decided to be influenced by ourselves and Marian Finucane.
Do I take it there is a general welcome for the provision relating to the DPP?
I have always been of the view that the DPP seems to misconceive the nature of his office. In public pronouncements, he has drawn attention to the fact that his salary is the same as that of a High Court judge and he is, by means of his constituting statute, independent. He has consistently confused independence with non-accountability in the past. No one wants a situation where the DPP is accountable in respect of decisions made in individual cases. Likewise, no one would be in favour of the DPP having to appear before a Dáil committee to explain why someone was or was not prosecuted. By the same token, however, it seems that — this is where the DPP exaggerated the status of his office — the DPP is of the opinion that issues of policy are ones on which the Legislature and the public have no right to expect account from him regarding the way in which he discharges his functions. I draw on one example of this, which is particularly controversial.
Under the Road Traffic Act, the Office of the Director of Public Prosecutions has a choice as to whether it prosecutes someone for dangerous driving causing death or dangerous driving simpliciter. As Deputies Ahern, Penrose and O'Malley are aware, the significance is that one is an indictable offence with more serious penalties than the other. If a person is prosecuted for dangerous driving simpliciter, under the Constitution it is deemed to be a minor offence liable only to summary punishment.
I do not want to bring the DPP before a committee of the House and ask why, in the case of a constituent's dead brother, there was or was not a prosecution on indictment. However, in a case such as that, the DPP owes an explanation to the public — it is arrogant of him to suggest he does not — and it is important that he should come before a committee of the House to state that: "These are the broad criteria I follow on such issues. In one case, I have an option and, in general terms, I do X or Y. I know that this is a publicly sensitive matter but these are the policy guidelines under which I operate.". The reason I highlight this issue is that the DPP has laid down policy guidelines. For instance, he issues directives to the Garda as to how it should deal with matters of that kind.
To provide another example, I am aware that the DPP issued guidelines relating to prosecutions for assaults on members of the Garda Síochána. Although until the late 1970s or early 1980s there was a system whereby you could insist on trial by jury if a garda alleged that you had assaulted him during the course of his duties, the DPP largely circumvented that by issuing a directive to gardaí never to bring that indictable offence except in circumstances directed by him. He also stipulated that members of the Force should rely on a summary offence under an obscure Victorian statute from the late 19th century. By making that decision, he unilaterally deprived people accused of assaulting members of the Garda of the right to have a jury decide whether the individual garda was being truthful. This issue continued until the advent of the Public Order Act where a further effort was made to deprive people of the right to trial by jury in cases where ordinary citizens came into conflict with gardaí. Thankfully, on that occasion, the then Minister for Justice, Deputy Geoghegan-Quinn, acceded to an amendment I tabled and preserved the right of an accused person to such a trial on indictment and have a jury decide the issue.
The important issue is that, in many District Courts, there was a perception that an ordinary punter accusing a garda of assault would be at a disadvantage when going before a district judge if that judge dealt with the garda on a daily basis. The question arose as to whether the garda would be believed or if the benefit of a reasonable doubt was likely to be accorded to an accused if it had the effect of doubting the evidence of a witness appearing before the judge in question on a daily basis. The DPP owes an explanation to the public regarding the directive he issued to the Garda Síochána. The people are entitled to know whether ordinary citizens' rights will be seriously infringed by a general directive issued by the DPP's office.
There are many other points to be raised in this regard. For example, the DPP recently issued directives relating to indictable offences to the effect that people should be released on bail to reappear at a later stage. That is an issue on which the Oireachtas is entitled to an explanation.
It would have very dramatic effects.
It would. With respect to the Director of Public Prosecutions, whom I know personally and who is a decent man, it was monstrous that he could state that he owed no one an explanation for these circulars and he would not appear before a committee to explain them. This was compounded by the fact that he decided to go before the people by appearing on the Marian Finucane show.
I am not asking for anything that is improper. There is a belief across all parties in the Oireachtas that the DPP is independent in relation to decisions he makes in individual cases, but we also want him to be accountable to us for policies he pursues. Amendment No. 11 tries to deal with this issue by referring to the general administration of the Office of the Director of Public Prosecutions. However, I do not believe that formula, as applied to the Attorney General's office, would be interpreted as making it amenable in relation to general policies in respect of categories of cases. I believe the Attorney General's office would state that administration involves computers, paper clips, delays, etc., and indicate, in a general way, that it is not the substance of decisions.
I am unhappy with the formula that has emerged. I do not believe it makes the Director of Public Prosecutions accountable in a way which is reasonable and sensible and gives the Oireachtas some rights to require accountability from him regarding the discharge of his functions on general policy guidelines, circulars, etc. This is a matter of profound importance. The Director of Consumer Affairs is likewise independent but he has always expressed the view that he would be glad to appear before any committee to account for the way he discharges his functions. I am not stating that he should be grilled about why he did or did not prosecute someone under the Trade Descriptions Act. However, he could appear before a committee to say "this is the case I try and I exercise my discretion broadly along the following lines". I urge that the Minister get advice from the Attorney General as to whether the phrase "general administration" is sufficient to allow an Oireachtas committee to look into circulars on policy matters about prosecutions, because if it is not sufficient we should broaden the Bill to allow it.
If I may presume to speak for the other members of the committee, the case articulated by Deputy McDowell has been discussed on a number of occasions and there is a broad view on the part of Members as parliamentarians that they want the DPP to be made accountable in so far as he can be while still retaining his independence. He would be accountable, therefore, in the broad sense from the point of view of policy. The issue of general administration for which he is accountable to the Committee of Public Accounts seems to confine his accountability to the figures and finances of the running of his office rather than anything beyond that.
That is one reason I put down my amendments Nos. 12, 17, 18, 21 and 22, all of which relate to the restriction on both the Attorney General and the DPP coming before committees. It seems the Government wants, and perhaps the Attorney General has advised, that he should come before the Committee of Public Accounts only and not any other committee. I put down my amendments so that he and the DPP could come before other committees. Under the Act setting up the Office of the DPP he is given the benefit of independence in all his decisions but by no stretch of the imagination does that prevent him from being made accountable to the Oireachtas. We have an opportunity in this legislation to redefine the roles of the DPP and the Attorney General; the latter has been broadened in recent times because of difficulties in the office but it has not been enough. My amendments concerning the DPP and the Attorney General would widen the scope but ultimately would not do damage to either office.
We are considering Deputy Ahern's related amendments which focus on the point about the committees before which the DPP could come. The Minister is examining the case made on general administration but her own amendment provides that there could be a debate on the statistics and perhaps one could find an answer under that heading.
The DPP can be assured that no member of this committee, in its lengthy deliberations on this Bill, wishes to interfere in any way with his independent performance and discharge of his functions. It is an underlying assumption of this committee that it has no wish to do that and Deputy McDowell has enunciated the broad view of the committee. However, we want to know the broad policy parameters within which the DPP operates and no one is in a better position to elucidate them than the Director himself. Deputy McDowell referred to circulars and other matters about which it should be possible to proffer a full explanation to a committee such as this. It will not be an adversarial set up; members will ask broad questions and will not enter into the minutiae. They and the public are entitled to know the broad guidelines under which the DPP has operated a policy and that is accountability in the broadest sense. I agree with Deputy Ahern that independence in the broadest sense in the performance of the necessary functions under the Prosecution of Offences Act, 1974 does not preclude accountability in the sense we are seeking to enforce it in this forum.
I fully agree with Deputy McDowell and this committee should try to reflect what he has expressed in the Bill. Our experience in the Committee of Public Accounts is that we have had particular and especial difficulty with the Accounting Officers of the Office of the Attorney General and the Office of the DPP. This was especially true of the former Accounting Officer of the Office of the Attorney General who in my experience is the only one who formally refused to come before the committee, although I believe he has a statutory duty to do so.
We should be careful about remarks which might focus on individuals who are not in a position to answer before this committee.
In that committee we are given the impression that the Accounting Officer's only function is to reply to questions relating to the expenditure of money. There is a broader consideration, not necessarily for the Committee of Public Accounts but for committees generally, that matters of general policy should be the subject of examination by committees of this House along the lines indicated by Deputy McDowell. I do not know why it should be necessary to single out these two offices but the problems experienced by the Committee of Public Accounts should be borne in mind. So far as matters of general public policy are concerned, there should be the same accountability to committees of the House as there is everywhere else.
Deputy O'Malley is here longer than the rest of us but even he is only a bird of passage. We should remember that all through our consideration of the Bill. Difficulties have arisen in various offices, in more recent times in the Office of the Attorney General, where people have been made responsible for mistakes of which they were not even aware, whether they liked it or not. If we, as politicians, have an opportunity to investigate and make accountable the permanent Government, as is our duty under the Constitution, we should put in place the necessary legislative provisions to do so. Then we would not be at the behest of or restricted on this basis by the very people who are unwilling, because of the history of these offices, to be dealt with on the same basis as Ministers, Taoisigh, etc. and who influence the Government to continue to allow them to keep this status. The Minister is making great waves about the Strategic Management Initiative and if that is to mean anything it should mean that an individual will not be responsible for mistakes made in offices, of which they are not even aware. This goes to the core of much of the reform that the Government and all politicians are trying to bring to bear on the service.
I was talking about the Office of the DPP. I confess to being somewhat strategic in my approach. I decided that it would be best to leave the Office of the Attorney General to one side in the argument because the Attorney General would be advising the Minister of State on the DPP's office. I thought we might make more progress on one front rather than take on the citadel itself.
It is unfortunate that the Bill is being put forward, even with the amendments in its present form, on the advice of the Attorney General. It means that we cannot again have a committee such as the sub-committee chaired by Deputy Dan Wallace which inquired into the fall of the last Government. That would be to state that we are no longer competent to undertake such an investigation again.
There was no compulsion at that sub-committee.
That is great. It would mean that a serving Attorney General and his civil servants could say "no" and we would have to accept that as an answer.
Which is what he said.
That is true. However, I am talking about the officials who came before the sub-committee on that occasion. The Bill suggests that the House should be happy to receive a polite refusal from them. It is not acceptable.
We will be examining the question of the Office of the Attorney General in a separate series of amendments.
Let us concentrate on the DPP.
It will be a matter of principle if we start making exceptions for offices because of their role. The Attorney General is advising the Government on this Bill and on the amendments.
I accept that.
It is like advising on the Constitution and advising not to have a separation of the two roles.
The DPP and his office were entirely excluded. Arising from the views of the committee, the Minister of State has put forward an amendment which will include the DPP and his office to the extent of the general administration and statistics relevant to a report of the DPP. The issue of whether the boundary can be pushed back further has been raised and it focuses on the question of the committee before which the DPP or one of his officers would attend.
Deputy Jim Mitchell, who is Chairman of the Select Committee on Finance and General Affairs, was particularly exercised about the position of the Committee of Public Accounts on the basis that it is a non-partisan committee with a long tradition. He was particularly concerned, as a former Chairman of that committee, that its non-partisan nature would be protected.
The Minister of State has said that witnesses could attend voluntarily.
That was a reference to the sub-committee chaired by Deputy Dan Wallace. That could not happen again.
It could not happen again unless there was a voluntary element. At the last meeting the Minister of State told us at length how the compellability was inextricably linked to the immunity and the privilege. In other words, if, for example, Deputy Ahern was an officer of the DPP or the Attorney General and had to appear before another sub-committee, such as that chaired by Deputy Dan Wallace, he would not be ordered or directed to attend and, as the Bill stands, none of his evidence would be privileged. The Offices of the DPP or the Attorney General will simply refuse to attend because a law was enacted which did not give them privilege and they do not wish to be sued.
Which is probably reasonable on their part.
That is why when Mr. Eoghan Fitzsimons came before the sub-committee in 1994 he insisted on privilege. He did not get absolute privilege and had to accept a limited privilege. My amendment, No. 15, addresses the issue concerning the general administration and we should discuss that also.
Strictly speaking it is not appropriate to discuss it in this context.
Not in relation to amendments Nos. 11 and 12 but it is appropriate on the next issue.
This is a matter of fundamental importance. We are being confronted with a statement that these two bodies may in future, at their pleasure, do us the honour of attending when it suits them but may, at their discretion, refuse. That is unacceptable.
We began with total exclusion of these people——
The fact that we are making progress does not mean we should be satisfied.
The Minister of State has set the ball rolling by providing for the removal of the exclusion.
That is the sprat that is supposed to satisfy us. It cements into place an immunity for these offices.
On the point the Minister of State made that people might attend voluntarily, if certain people to whom I am not allowed to refer refuse to attend when they have an obligation to attend, what are the chances of having them attend when there is no such obligation?
They did attend before. We will have to go back to the issue of immunity. We should focus on this group of amendments
Which are about the DPP.
We must be aware that the DPP is not being made accountable to ordinary committees of the House but, on matters of administration, to a committee the sole function of which is, in effect, to deal with the efficacy and honesty of the spending of departmental moneys. That is not an adequate basis for dealing with the issues I raised earlier, for example, general circulars emanating from the DPP's office on prosecution policy.
The Minister of State now has an idea of the parliamentary view on the issue.
I thought initially that I was at a severe disadvantage as the only Member here who does not have a legal background. It can be daunting to bat on the part of the Government faced with an array of eminent legal expertise from different political sources. However, it can also be an advantage because it means one can sift more quickly and write instructions without getting too concerned. It also means that I can represent the view of the ordinary thinking punter.
I remind colleagues that the Attorney General and the DPP were excluded entirely from the Bill initially. To some extent, the door has been opened slightly and they are now included in a limited sense to allow them appear before the Committee of Public Accounts. Deputy McDowell suggested that it was just a sprat to satisfy members but I have long since given up the prospect of satisfying the Deputy on this.
Deputies should read amendment No. 16 carefully. I have great trust in the ingenuity of the members of the Committee of Public Accounts. Deputies should also recognise that I can only go so far on this issue.
Why should we?
It is either that or nothing. If I have a little discretion I will move on these amendments. Some amendments and issues have been discussed at the Cabinet table through a number of different Governments. What we are presented with today it as far as my advisers are prepared to go.
I know the Minister is being truthful when she says that is the extent of her brief. By the same token, it is a sorry scene that a Minister is saying this is what you have and no more despite the fact there is a cross party unanimity that this is not enough. This is what has been decided by the very people whose interest is being protected.
I hope that is the sorriest scene the Deputy is ever faced with. If the Deputy is a realist, he will know exactly how the system of adversarial politics works. If all of us were on the one side on everything, there would be no need for different political parties.
I am not engaging in adversarial politics. I am standing up for the Oireachtas against the permanent government which is refusing to behave properly towards the Oireachtas.
I am not in a position to accept that. There was a political input from the Cabinet table and this is the view of the present Government as distinct form the permanent government. We have to be fair.
Sometimes I get the feeling parliament is in the role of Oliver Twist; we want more. I, as a parliamentarian, understand the view of Parliament as Oliver because essentially my starting point is Article 28 of the Constitution which says Parliament should be supreme and unless there are reasons to the contrary, that should be honoured fully. I understand the point raised by my colleagues. They are anxious to push back the boundaries as far as possible but we are not just talking about the present Government. There are three governments and there is a tug of war between the Executive, the Parliament and the Civil Service, the permanent government, which has not shown a huge enthusiasm to increase the powers of Parliament. I emphasise the Minister has been successful in getting the door opened. I would prefer the door to be opened more but the practical reality is this is as much as she can deliver at this stage and I accept that.
You mentioned previous Governments. I have no doubt if you asked any member of the previous Government if they would be in favour of this Bill if they were now in Government based on their experience of the Attorney-General's office, I am sure they would rather see the boundaries pushed out in regard to the accountability of the Attorney General more so than those of general administration and statistics. It goes to the very core of what we are trying to do as parliamentarians. If I were in the Minister's shoes, I would be endeavouring, as far as possible, to look after the interests of the Oireachtas. The Bill tries to do this and committees are endeavouring to make the permanent government accountable for their actions under the Constitution. The birds of passage in those positions have to take the flak, unfortunately, if things go wrong. That is why we should have a broader view as to what we are doing and the Minister of State's colleagues should not have sent her over to this committee with riding instructions which are totally at variance with the honeyed words of their programme for Government. That is a political point but we are not looking after our interest——
Or the public interest.
——because difficulties will arise in the future and we will be spancilled by these provisions.
I appreciate the Minister of State moved a little when confronted with the report of this committee and its unanimous non partisan view that what was originally proposed was utterly and completely unacceptable. We are being given the appearance of a concession when in substance we are being denied the very essence of what we were talking about. The Minister of State can say this is the best she can do but my duty as a parliamentarian as I understand it is not to accept from her the best she can produce.
I do not expect the Deputy to accept it.
The Constitution gives the supremacy, as the Chairman said, to the Oireachtas. The balance between the Executive, the Oireachtas and the permanent executive has been badly tilted against parliamentary freedom and accountability, and the independent role of the Legislature. I am not in the business of pushing back boundaries; I am vindicating parliamentary rights. In its present form I can imagine nothing more calculated to subvert parliamentary independence than the terms of this Bill in certain respects. I note recently that canine metaphors are all the go whether one is a rottweiler, poodle or golden labrador but we are being brought on a collective visit to the vets if we accept this Bill.
Those in the Attorney General's office are in a central position as they are judges in their own cause in this matter. They must be under the Constitution because they must advise the Government of the day on the matter but the Government's interest is not necessarily the Parliament's interest or the public interest. In this case the Attorney General recognises a parallel between his position and that of the DPP's but there is not a strict parallel and it would be a mistake by the Attorney General to take the view that what happens to the DPP is a sign of what happens to him next and that if he allows the DPP down the slippery slope he tumbles down the same slope after him. By definition the Attorney General's role as adviser to the Government is privileged and, therefore, no amount of barking at committees can change that situation but that does not apply to the DPP. The function of being an independent prosecutor was given to him in so far as he exercises the previous function of the Attorney General which was also to be an independent prosecutor.
Whether that worked out in practice in every case is a different matter. Nobody is seeking to trespass on that central core of the DPP's independence. The unanimous view of this committee was, in order to achieve accountability, the Minister of State had to go much further than the original Bill and much further than the amendments which she has tabled. Her proposals compound the wrong done to the Oireachtas. If the whip is applied on this, the Minister will achieve her goal but my words are not party political because I have as much ambition as the Minister of State to be in her position. If I were where she is, I would do what I am saying not what she is saying because I would tell the gentlemen advising the Government in this respect they are shutting the door too much. There is no point in saying the door is a little open if there is a massive big security chain on it through which nobody can go in and out.
To use another canine metaphor, there is no point employing a dog and doing the barking yourself. You already indicated that the Attorney General's position under the Constitution is to advise the Government. We have had strong unequivocal advice from the Attorney General in relation to what he would deem acceptable on this issue. Even if you were a member of the Cabinet and not the Attorney General yourself, you would be part of a decision making process involving collective responsibility. You would have to go along with the majority decision as all of us must do in democratic life. The decision of the Cabinet, on the advice of the Attorney General which has been handed to me, is as I am presenting it to you today.
He is judge and jury of his own court.
We know, but there are several Members who will have a second bite at this cherry. Perhaps those who are on the constitutional review group need to revisit some of the issues being touched on here.
We are talking about the Constitution.
I suggest there are concerns you have legitimately spoken of and put on the record.
We are perfectly happy with the constitutional arrangement. We are not suggesting that the Constitution has to be amended. We are suggesting that what the Minister is putting forward is by no means required by the Constitution but is required by the self interest of certain officeholders.
I cannot let that go unchallenged.
I am not saying selfish self-interest but their administrative self-interest.
Maybe they are concerned about the interest of the Government. The Attorney General is a political appointment and advises the Government of the day. To be absolutely fair, I would accept the advice given is not in any self-interest.
Strike that from the record. We are talking about responsible self interest.
We fully accept, and it will always be fully accepted by any Oireachtas Member, that any advice the Attorney General gives to Government is completely privileged and he will not be under any onus to give that to a committee. That is the excuse that the Minister put up, as I understand it, as to why he should be——
No, that is a misinterpretation.
It is not. He has a duty under the Constitution in relation to the public interest. The issue is that he should be answerable to a committee.
I am concerned for the position of committees generally, and I am also concerned for the position of the Committee of Public Accounts in particular. I am supposed to be at a meeting of that committee at the moment. It is one of the features of the committee system in this House. Earlier this morning, before I arrived here, I raised on that committee the question of how it is affected by this legislation. The clerk will look at it but it is too late really because we are now dealing with those very amendments.
My concern is this: at the moment the accounting officers from the Office of the Attorney General and the Office of the DPP are in the same position as any other accounting officer who comes before the committee. If this Bill is passed with these amendments by the Minister, those two accounting officers will not be in the same position as any other accounting officer. They will have special statutory provisions relating to them and you can be perfectly sure they will claim those before the committee. They will learn off these two subsections by heart and will know every comma in them. They will say to the Committee of Public Accounts: "It is not within subsection (6) or subsection (5) as the case may be, therefore, I will not answer. I am in a much more privileged position than any other accounting officer. Other accounting officers have to answer questions but we do not because we have been given this particular power". That is wrong.
It is putting the Committee of Public Accounts into a weaker position than it is at the moment vis-�-vis certain accounting officers. It is not acceptable to that committee and should not be imposed on it. Its already limited powers are being further circumvented by these proposed subsections. I do not think that is right.
In so far as committees are concerned, the Wallace committee had available to it certain files from the Office of the Attorney General relating to a particular case. It raised questions of general policy in that Office relating to the way in which paedophile cases were dealt with. In future, neither that or any other committee will be able to raise such questions again.
The Minister of State has sold herself short by saying she is, in effect, no more than a messenger between the Cabinet and this committee. How is the public interest served by excluding such matters that have already been before committees of the House? How is the public interest served by taking away from the Committee of Public Accounts certain powers it already has, and making them narrower? It is not. The public interest is damaged.
Who are the long-term beneficiaries of this? Not just the Government of the day who, as described earlier, is a bird of passage but those who are not birds of passage are the people whose interests are served. That is why, at least in part, the advice the Minister of State refers to is being given in such apparently trenchant terms. This is now a question of whether this committee, on behalf of the House generally, is prepared to put the public interest first or whether it is prepared to put the interests of those who are not birds of passage first. It is outrageous that the public interest should come second and we are being asked to subscribe to that.
The Government is lucky but the public is ill served by the fact that this committee, both on the last occasion and today, has, with one honourable exception, not been reported in public. No public spotlight has been thrown on its affairs. If the public knew what the Minister was doing she would change her mind within 24 hours. She is getting away with doing something in private which, in my view, is quite scandalous. I am saying this because she is saying by this Bill, and let us be very clear about it——
This is a public session, and the Deputy knows that.
I accept that, but the public is not here. Look around you.
The Deputy is making sure he will make the headlines. I have no difficulty about that.
I am not. I do not even know if there is a press reporter here, which is a sad fact.
The Deputy is very unobservant then.
We are very glad the reporter is here. You are very welcome.
I just want to make this point.
It is all right, the Deputy will get his seat. He need not threaten the rest of us.
It is not about seats.
This is not about seats. I would not be participating in this committee if I was worried about my seat, in that sense.
Public threats are unworthy of this committee.
I am making this point to the Minister. She has come before this committee and, unlike any other Minister, has said: "There is no point in discussing this matter further with me because I have made up my mind".
I am sorry, Deputy, I have no difficulty in discussing it.
The Minister of State has indicated that we are wasting our time, and that she is not open to conviction or movement on this issue.
Yes.
I am glad there is somebody here from the press because I did not know who that gentleman was. The effect of this is that the Wallace committee can never again sit to deal with similar issues if this Bill is passed. According to the Minister's own words, it would be only as a matter of a voluntary decision of officials of the Department to come before a committee. Unlike the Wallace committee before which Mr. Russell, Mr. Hamilton and others appeared and had privilege because we gave them special privilege, under the Bill they will be deprived of privilege because they will be there voluntarily, not as a result of a direction.
That is not so.
They will say: "I am sorry. I cannot comment on the Father Smyth affair because all my words are potentially defamatory". The Minister is saying never again to a Wallace committee.
The Minister is restricting them.
This is outrageous.
The unequivocal advice from the Attorney General to the Cabinet is that this is the way it should be operated. It has been debated by Cabinet sub-committees. This is as the Government would wish it.
We targeted this before. We are at a critical stage because although it is not the biggest issue in the Bill, it is at its core. In view of what has been said, I ask the Minister to go back to her masters and to the political parties in the Government and ask them to reconsider this issue. We are doing the public and ourselves a disservice. We have an opportunity to put ourselves on a higher plane in relation to our duties under the Constitution. However, we are not only making matters worse but we are going back to the position in which we originally found ourselves.
I should draw the threads of this discussion together. Perhaps the tug of war between the Dáil, the Executive and the Civil Service — the permanent government — which has been going on over the lifetime of the past two or three Governments is an unequal contest, but some progress has been made. Parliament would prefer if the Director of Public Prosecutions, while retaining his independence, and the Attorney General, while respecting the confidentiality of his advice to the Government, and the staff of both offices were as fully accountable as possible. We have moved away from the original total exclusion and we have opened the door. Most parliamentarians, including myself, would prefer if it were opened further but that is not possible at present. The advice being given to the Government and which has been accepted is that it is not possible to push the boundaries back further at this time. It is overstating the issue to say we have gone backwards when these amendments provide that, in certain limited circumstances, the DPP and his staff can go before a committee.
They are already obliged to go before the Committee of Public Accounts but they do not have the benefit of these two constraining subsections. This is nothing new.
At present, they are normal accounting officers but after this they will not be. They will be accounting officers with special statutory overriding instructions of which they will avail.
I am glad Deputy Dan Wallace came to this committee meeting to hear us being asked to prevent an exercise in democracy, such as occurred under his chairmanship, from ever happening again. It is a scandal.
As regards what Deputy O'Malley said, only the accounting officer in the Attorney General's office goes before the committee at present. The Attorney General will present himself under what we are suggesting here. We must not forget that the Attorney General is not accountable to the Dáil but to the Taoiseach.
We should also bear in mind that this Bill is an historic breakthrough as far as parliamentary committees are concerned. It will be tried and tested, perhaps more quickly than we think, and it will be set in stone forever. I envisage a review of this Bill — perhaps that is a signal to the permanent government to keep the file open. All parties have expressed strong views on this matter. I hope that regardless of who conducts such a review in the next year or two that everybody will stick to the views they are now expressing. Progress has been made, although I would prefer if it were greater. I intend to keep that view no matter what role, if any, I have after the next election and I suggest that all Deputies do the same.
We have spoken at length on these amendments and I am not sure we can achieve anything more by having a further debate. It is clear the Minister does not have any further discretion in the matter. Perhaps it would be better to put the question.
I do not think we are making progress. What are we doing on this side of the House? When the Minister introduced this Bill, he stated:
As part of the Minister of State's responsibility to bring about changes in public institutions to make them more responsive, transparent and accountable, I am requesting my colleague to guide the Bill's passage through the Oireachtas. I do not claim to have a perfect solution in this Bill and I am open to reasonable suggestions of improvement that are constitutionally practicable.
What we have done here today is a disservice to the sentiments expressed by the Minister when he introduced this Bill. He acknowledged that it was not a great Bill, that it could be amended and that, perhaps, he could have brought forward a better one. We have been wasting our breath at this committee. It took almost a year to put together a document which we sent to the Government for its deliberation. The Government had almost a year's notice of my amendments, yet it only got around to looking at them in the past few weeks. We have been treated shabbily and I do not know if I will participate in any future discussions on this legislation.
Shortly after the amendments were tabled the sub-committee decided to get senior counsel advice. A document was put together which was submitted to Government without any direction, as was requested. There was little point considering amendments which predated the additional list of requests because they could have been changed or opinions altered in one way or another.
I do not accept that.
The efficient use of the public service indicates that all the amendments were looked at, although they were still coming in this week. To try to pretend they were sitting unattended on a desk for a year is disingenuous and the Deputy knows that.
It is a fact. I spent a lot of time drafting those amendments within two weeks of the Bill being published——
Before this committee decided to get senior counsel advice and submitted a specific document.
I would have thought that somebody in the permanent government would have at least looked at the amendments and expressed a view.
They were looked at but they were not considered in detail because they were not drafted. These are logistical arguments. A few days ago we spent three hours discussing the earlier sections of this Bill. It was obvious that I was prepared to look at matters again and to resubmit amendments where it was possible to meet the points made by members of this committee. That is still my view. However, I will not be dishonest with the committee and go through a charade by saying I will resubmit them all. As a result of being honest, I am accused of stonewalling or of not acting according to the statement made by the Minister for Finance in the Dáil on Second Stage. That is not true. In the time already spent on this Bill I have accepted some of the Deputy's amendments, the sentiments of many more and I am resubmitting others on Report Stage.
Does the Minister not accept this as one of the core principles in the Bill?
If the Deputy thinks back he will know exactly how willing I am to be open to the views of the committee.
There is no great profit in pursuing this much further.
There is not much profit in putting it to a vote either because it will be rail-roaded. Will a whip be imposed on this?
There will be.
Unfortunately. This is a sad day's work.
It is clear some progress has been made in improving the Bill in the eyes of parliamentarians.
I do not accept that.
The Chairman insists that is the case but is representing his own view, which is a minority one on this committee. It is not progress but retrogression.
At the last meeting, many members felt it was important that committees should have powers of discovery. That was not included in the Bill.
We are talking about this issue, not other issues discussed last week.
I think Deputy McDowell is in rottweiler mode.
I am not. The problem is the Chairman is in poodle mode.
Or a lapdog one.
Shitsu would be more appropriate.
Some advances have been made in our discussions to date. It is clear that the Minister, who had discretion in relation to other issues raised, does not have any discretion on this amendment in relation to the DPP. On that basis I am not sure there is much profit in debating it further.
There is profit in carrying the debate further. Sometimes the purpose of debate is to persuade through public opinion. The Minister disparagingly said I was looking for headlines. I am not. I am looking for public focus——
The Deputy had to check the press were here so he may repeat all he said. They missed the first two hours.
I am not ashamed of making the point that the effect of the sections the Minister is putting before this committee would be that the committee that Deputy Dan Wallace presided over could not function——
That is not true, it is insolence.
A moment ago I was asked to repeat it——
The Deputy knows perfectly well I was being facetious.
I will repeat the point because it is important to underline it. That sub-committee of the Select Committee on Legislation and Security could never function again unless staff of the Attorney General's office individually consented to appear. If the Bill goes ahead in its present form, they would appear without privilege. That is implicit from what the Minister says. We know that means there will never again be the type of committee chaired by Deputy Dan Wallace investigating the same issues. If in the future there is an affair similar to that of Brendan Smyth, this House of the Oireachtas will be prohibited, by a combination of an absence of privilege and this Bill, from investigating that matter. The Minister knows well that at the time the committee was established, they were given privilege by the Houses of the Oireachtas because the former Attorney General, Mr. Eoghan Fitzsimons, demanded he have privilege before he came before the committee.
The Minister now says that if a committee was established by the Dáil to investigate a similar set of circumstances, it would be impossible to call officers of the Attorney General before that committee as a matter of compulsion. They could volunteer if they wanted, but according to the Minister's explanation of the terms of this Bill at the last meeting, if anyone appears voluntarily and other than subject to a direction which cannot be made in their case, they would not have privilege.
In those circumstances, it is fair to state that the Minister is saying that if this Bill is passed with these proposed amendments there will never again be an investigation, similar to that in the Brendan Smyth affair, of the Attorney General's office, and of the kind conducted by Deputy Wallace, because the witnesses, such as Mr. Fitzsimons, could never again be afforded the privilege that he reasonably demanded before he came before that committee. That is the bottom line. I am not being politically partisan. I am trying to deduce from what is going on here what the bottom line is and, as far as I can do so, it is as I describe it.
I accept there were occasions at the last meeting when the Minister accepted some amendments. However, they were not core amendments like this one. I accept what the Minister said that it may well be a fait accompli. I am not sure that all Members within her party, Democratic Left and the Labour Party are of this view.
It is the Government's view.
I accept that. I will not go into the constitutional law of who is responsible to whom. I believe we have an opportunity to draw a line in the sand here. Unfortunately, we are flunking it.
I accept the Minister of State's bona fides and that she is expressing her position to this committee in utmost good faith. I am arguing with the position she is expressing, not with the way in which she is presenting it. To come before this committee in the face of a cross party, unanimous view that a wider approach is necessary and to say the Government takes a different view is all very well. However, Deputy Ahern's view is reasonable — if you go back and conduct a political, as opposed to a governmental, process to see does this represent the will of the majority of people in the House or are they willing to impose a whip and defeat an all-party consensus on this committee, the Minister will get a different answer.
There is no precedent for that.
The position of the Committee of Public Accounts has been weakened vis-�-visthe offices of the Attorney General and the DPP and their accounting officers. That point has not been controverted. The Minister attempted to say the provision was extended because the Attorney General and the DPP were mentioned. The Attorney General and the DPP cannot be brought before the Committee of Public Accounts. The point she makes is totally invalid. The only person with whom that committee is concerned is the accounting officer. She misreads her own amendment because subsection (1) does not apply to the Attorney General. He is totally excluded from having to produce any documents. The only circumstance in which he is not excluded is when his accounting officer may have to give evidence or produce documents relating to the general administration and financial aspects of the office.
He may have to do so himself.
He may not have to do so. He cannot do so. He cannot come before the committee. It has no power.
That is factually incorrect.
What difference is there in one person giving the answer rather than another?
I am correcting that point. It does apply.
Unlike the Minister, I know something of the Committee of Public Accounts. The committee has no jurisdiction to bring a Minister, the Attorney General, the DPP or anyone else before it. It only has jurisdiction to bring in the accounting officer under its standing order and also under statute.
That is intended when this Bill is passed.
Under this Bill, will it not have the power to call in the DPP and the Attorney General?
It will not because they are not the accounting officers.
That is the only function they have.
It has no jurisdiction to examine anyone other than an accounting officer. Frequently, accounting officers attend with as many as eight officials who never answer a question, even though they are frequently consulted. In the last couple of weeks accounting officers have appeared with as many as eight officials. They never answer questions, although they are frequently consulted. All of the accounting is done by the accounting officer. There is no question of the Attorney General being the accounting officer; he is not.
The sad fact is that the existing powers of that committee will be constrained. At present, the two accounting officers concerned are governed by provisions the same as any other accounting officer. This will not be the case after the passage of this legislation, when they will be the only two accounting officers in respect of whom there are special statutory provisions. Doubtless they will rely on them.
How is the public interest served by that and how is it regarded as opening up matters? The opposite is happening. There is a tightening up rather than a loosening.
If the position of the two accounting officers is weakened by the Bill we will address it on Report Stage, although I am advised this will not be the case. Once passed, this legislation will allow the Attorney General and the DPP to appear before the Public Accounts Committee in the limited way under discussion here. If the Standing Orders of the Public Accounts Committee need to be changed to include the DPP and the Attorney General, as well as accounting officers, that can be done once the Bill is enacted.
They will be hamstrung by what is happening today.
Many members know better than I that the Attorney General and the DPP could be brought before the Public Account Committee, even in the limited way we are discussing here. It can be achieved once this is law.
To answer——
To answer in respect of what is being provided for here.
The Minister of State suggests that there is an advantage to having the DPP in attendance to answer questions that could be put to his accounting officer under present arrangements. However, there is no advantage in this. He is entitled to refuse any question in the same manner as his accounting officer.
When this Bill becomes law they will be able to appear, even if it means changing the Standing Orders of the PAC. If the position of the two accounting officers is weakened in any way we will address this on Report Stage.
Deputy Michael McDowell said that when this Bill is enacted we can never again have a committee of the kind chaired by Deputy Wallace. I do not accept that. We are precluding the DPP and the Attorney General as a matter of course from taking part in the compellability requirements by which such a committee may wish to proceed. I accept that in respect of the Public Accounts Committee only, this is a very restricted area.
We referred to the Brendan Smyth case and the problems that arose. If such a situation were to arise again with regard to an Attorney General or a DPP, where in the interests of the public, justice and public accountability questions on specific cases had to be brought before a committee, there is nothing to stop a one section Bill being put through the House.
Pass legislation.
The committee chaired by Deputy Wallace only functioned because at the request of the Attorney General emergency legislation on privilege and compellability was put through. This facilitated the committee in the job it had to do.
It is not intended, as a matter of course, that the Attorney General and the DPP should come under the full terms of this Bill. While there is disagreement on this, there is nothing to stop the passing of a one section Bill — that is all that would be needed, given the provisions contained in this Bill — as was passed in respect of the committee chaired by Deputy Wallace, to bring a DPP or an Attorney General, specifically named, before a committee if there was a problem of the magnitude of the Brendan Smyth case. It could be done in a day or two. It was done before. We could, therefore, have a committee of the type chaired by Deputy Dan Wallace at which privilege could be extended——
Not under this law.
No, but a one section Bill would allow it because it is not intended under this law.
I was right.
We did not have this law previously. The committee chaired by Deputy Dan Wallace had its own legislation.
This legislation prevents it.
It does not. The committee chaired by Deputy Dan Wallace had its legislation and a similar committee could be established in the same manner.
Another Bill will be necessary to overrule this legislation.
A specific Bill was necessary to establish the committee chaired by Deputy Dan Wallace. No compulsion, only privilege, was involved.
We were assured that this Bill would address the impediments to the committee I chaired, but this will not happen. The Minster of State is under constraint and it is clear that the Government has shifted its ground. In November 1995 the Minister gave certain assurances on the legislation to the Dáil. Amendments were put down two weeks later by Deputy Dermot Ahern, yet the decision of the sub-committee regarding legal advice did not occur until July last year. There was a period of seven months when nothing was done. Everybody knows that the legislation was put on the back burner. We are only here today because of the constant demands by the Opposition.
It is only because of the Lowry affair.
The key issue arising from that committee was the enactment of legislation to compel the appearance of people, including the Attorney General, who refused to appear before it.
The Minister of State said that emergency legislation could be introduced at any time. The purpose of this Bill was to do away with that nonsense and to enact legislation which would address the relevant issues.
To allow the committee to be in the driving seat, not the Government.
Deputy Wallace gives the impression that there was a gap between November 1995, when Second Stage was passed, and the commencement of Committee Stage last July, when nothing was done. That is not true. If the Chairman's secretariat checks the records it will be found that there were several recorded approaches by the Minister for Finance between January and July 1996. We received the Chairman's report in July, after the taking of legal opinion.
There was no foot dragging regarding this legislation. It has been with this committee since shortly after November 1995. Little progress was made because we respected the committee's right to get a legal opinion and to submit it, as agreed, to the Cabinet unadulterated and without direction.
It is a matter of fundamental importance that all of this arose because of the Brendan Smyth affair. The Bill was resurrected because of the affair. I accept the need to resurrect it because the Dáil was given clear undertakings that the Government would address the issues which arose during that affair. This committee, through its subcommittee, made major efforts in that regard and utilised the services of its own senior counsel, who acted somewhat like the Attorney General in providing valuable advice in these matters. I was not involved in the selection process to appoint that individual but I am delighted with the nature of the advice we received from him.
However, we have now been presented with a Bill which, after a good deal of argument and heated exchange, provides that Deputy Wallace's committee, with all its infirmities, can never investigate the Brendan Smith affair unless a further Bill is introduced. The crucial point about that is——
A one section Bill to deal with specific cases.
——that the Government of the day, because it controls both Houses of the Oireachtas in normal circumstances will never be obliged to investigate such matters, unless it wants to. If it is in the interest of the Government of the day to suppress such matters, keep quiet about them and inform the committees that they must make do with this legislation, that is the way these problems will be dealt with.
I refer to parliamentary rights. Following a lengthy discussion, we have reached the bottom line. If another Brendan Smith affair occurred tomorrow and it was necessary to investigate how it was dealt with in the Attorney General's office, every committee of the House would be stymied in its attempts to do so. The only way they could investigate the matter would be to push through the Houses a Bill to allow them to do so. That is a very sad end to this Bill because——
What is the point of it?
——it makes fools of everyone. We believed we were participating in a process to prevent that shambles recurring. We were under the impression that we would never again have to deal with the extraordinary scene of Eoghan Fitzsimons sitting in the Taoiseach's chair in the Dáil Chamber surrounded by a group of parliamentarians arguing about his status. We believed that that special, one-off Bill would be the last of its kind to be required. However, we have finally extracted from the Minister of State that the Bill before us will not address that situation and further legislation would be required to do so. She also informed us that the Attorney General is the main mover behind retaining that position. I reject that completely. We are being made fools of, regardless of the kind of dogs we may be.
It is clear that we have reached the crux of the issue. It is also clear that there has been an ongoing tug of war between Parliament, the Executive and the permanent Civil Service. Some of us are of the view, as parliamentarians, that this Bill could be improved and some improvements are being made. However, while I have sympathy with many of the points raised by the Opposition, it is clear that the Minister of State does not have discretion to make changes. On that basis, I believe we cannot proceed further with the discussion at this time. Therefore, we should put that question on this issue and move forward. I say that without attempting to impose a guillotine but the matter has been discussed exhaustively. The correct course regarding amendment No. 11——
Is it in order to read from the statement made by the Minister for Finance when he launched the Bill?
The Deputy has already done so.
It would be informative to read more of it. He stated:
Over the years several committees have expressed the view that they were hampered in the discharge of their duty to the Oireachtas because they had no means of compelling the attendance of witnesses, the answering of questions or the production of documents which they considered essential to the satisfactory completion of certain inquiries. For their part, witnesses were sometimes reluctant to co-operate fully with particular committee inquiries because the qualified privilege which they enjoyed did not protect them against possible civil action. Moreover, the fact that witness enjoy only qualified privilege, whereas committee members are accorded absolute privilege, means that the witnesses feel themselves to be at a disadvantage vis-�-vis those who are questioning them.
Conscious of the doctrine of separation of powers enshrined in the Constitution, my Department has now produced, with Government approval, the text of new legislation.. . .
I believe the Government is misconstruing the phrase "Conscious of the doctrine of separation of powers" in its favour as opposed to upholding the right of Parliament, under the Constitution, to make the Executive answerable to it.
I am delighted with this newfound commitment to Parliament on the part of all parties. I hope it is a spirit with which they will continue to be imbued in the future. At present, however, we must operate on the basis that half a loaf is better than no bread. We will not get further——
The Chairman keeps referring to——
Where is the half loaf? There is not even a crust in this Bill.
Amendment put.
The Select Committee divided: Tá, 5; Níl, 4.
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Tá |
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Byrne, Eric O'Keeffe, Jim Doyle, Avril |
Penrose, William Nealon, Ted |
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Níl |
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Ahern, Dermot |
McDowell, Michael |
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O'Malley, Desmond J. |
Wallace, Dan |
Amendment declared carried.
Amendment No. 12 not moved.
Sitting suspended at 1 p.m. and resumed at 2.30 p.m.
Amendments Nos. 13, 14, 15, 18 and 19 are related and may be discussed together.
I move amendment No. 13:
In page 4, lines 39 to 45, to delete subsection (5) and substitute the following:
"(5) Subsection (1) does not apply to the Attorney General or an officer fo the Attorney General except—
(a) where the committee concerned is the Committee of Public Accounts, and
(b) in so far as that subsection relates to evidence, or a document in his or her possession or power, concerning the general administration of the office of the Attorney General.".
This subsection provides for compellability of the Attorney General but only with regard to the Committee of Public Accounts and then in relation to administrative matters only. It does not provide for discussion of specific cases. It combines the compellability of the Attorney General and his officers in one subsection whereas previously it had been provided for in two subsections. This means that the original subsection (6)(b) which provided separately for officers of the Attorney General is to be deleted.
Using the phrase "that subsection" instead of "it" in the first line of paragraph (b) removes any ambiguity that the word "it" refers to anything other than the Committee of Public Accounts. The inclusion of the phrase "or a document" in the first line of (b) broadens the definition of evidence to include documentation of relevance to the point of the inquiry. This addresses the point made on Second Stage that evidence may have been confined to oral submissions only.
Confinement of the compellability of the Attorney General to the general administration of his office is necessary to protect the lawyer-client confidentiality of the Attorney General in specific cases and to avoid diluting the constitutional independence of his office. Due to the closeness of the expression "general administration" to the general issues of financial regularity, general efficiency and value for money for which the civil service head of his office answers as accounting officer to the Committee of Public Accounts, compellability is being confined to that committee only.
The Government has decided this is the most appropriate form of accountability for the Attorney General and the most that can be realistically expected of him. This is because his work in the capacity of legal adviser to the Government must remain confidential. As officers of the Attorney General could answer questions on his behalf, it is logical that their accountability is the same as for the Attorney General. The Opposition amendments call for accountability to any select committee and for the reasons I have stated this is not acceptable to the Government. Therefore, I cannot agree to them.
This subcommittee has called for the Attorney General to be made compellable in his capacity as guardian of the public interest. According to statements made by Opposition Deputies on Second Stage and in meetings with the Select Committee on Finance and General Affairs, there is a general acceptance that the Attorney General should not be compellable in his capacity as legal adviser to the Government.
No. He should be compellable to a committee but at any point where his evidence would touch on the legal advice to the Government we accept that he cannot be compelled to give evidence. However, appearing before a committee is a different issue.
The compellability I mentioned refers specifically to the aspect of the legal advice to the Government. I accept the Deputy's point.
The Attorney General is an independent constitutional officer whose authority derives from the Constitution. As members of the Dáil have been reminded often, his accountability is to the Taoiseach by whom he is appointed rather than to Dáil Éireann. It is possible to distinguish between those actions which an Attorney General takes as guardian of the public interest and those he takes as adviser to the Government. Before I met the subcommittee some months ago the possibility of embodying that distinction in the Bill in a manner which widened the area of compellability applying to the Attorney General was explored. Although we may not agree with the views of Deputies that does not mean the issues were not explored.
In this context we were conscious of the interest expressed in the House on the initiatives taken as guardian of the public interest by a previous Attorney General in relation to the X case and Cabinet confidentiality. However, we were strongly advised that such issues were intrinsically connected with the independent status of his office and that the application of a compellability provision to them would impinge on that independence. In the circumstances it is not open to me to agree to any change in this regard.
The Attorney General is party to about 3,000 civil cases at any time. Many of the claims made by citizens against the State would touch on general policy issues. I am not familiar with the remit of the Committee of Public Accounts, but apart from counting figures and ensuring value for money, is that committee in a position to examine issues such as general policy arising out of court cases?
I do not think this is a valid extension of the powers that already exist. It is irrelevant whether it is the Attorney General and one of his or her officers who attends a Dáil committee to be accountable for value for money. We are trying to broaden the scope with which committees can question the Attorney General with the overriding principle that at no stage can the committee be expected to interfere with the lawyer-client relationship he or she has with the Government. We are referring to the public interest and other areas in which the Attorney General is responsible.
The Minister of State referred to the independence of the Attorney General. We accept that the DPP is independent in relation to individual case decisions but that does not exclude the possibility of his being accountable to somebody in relation to the general policy issues. That is what we are trying to enshrine in the legislation for the Attorney General and the DPP. It will not cause the downfall of the structure as we know it but it will make those who are faceless at present somewhat accountable.
It is not good enough for the Minister of State to say the Taoiseach is answerable for the Attorney General in the normal scheme of things. There have been instances in the past where difficulties have arisen because the Taoiseach was not aware of what was going on in the Attorney General's office, yet he was supposed to be answerable for it. This is again the issue of whether we, as parliamentarians, irrespective of party politics, are prepared to draw a line in the sand and point out that those people who work on the Executive on behalf of the people are answerable to the elected representatives of those people.
Earlier I advanced the view that it was sensible to distinguish between the Attorney General and the DPP. It is much easier to instance the policy directives in regard to the DPP than to think of immediate examples of similar issues arising in the context of the discharge of the Attorney General's functions. I reiterate what Deputy Ahern said. Nobody is suggesting if the Attorney General comes before a committee of this House he can be asked questions about the legal advice he tenders to the Government or questions which impinge upon his capacity to give independent legal advice to the Government.
The Minister of State's bland explanation as to why it is the case the Attorney General in his other functions cannot be made accountable, although he is manifestly independent, was not convincing. The Attorney General has functions, for instance, under the extradition law, not all of which are confidential. Some are public law functions in regard to this country. In regard to the discharge of certification procedures, for instance, under the latest extradition Act, one could say a decision by the Attorney General in each case should not be subject to investigation because it is a quasi-judicial decision. The Attorney General could be asked to state his general policy. How much evidence is he requiring of the British Government to back up warrants, for instance? Is a letter sufficient for a simple allegation or does he want to see witness statements? Does he not think in sensitive cases he should see the witness statements rather than just accept a letter from the British Attorney General at face value?
There is no sense in compelling him to come before a committee of the House and asking him what standard of procedure or proof should operate. This does not limit his independence. The proposition "I am independent, therefore, I cannot be asked anything" is facile. The Director of Consumer Affairs is independent in carrying out his functions. He wants to interact with the Legislature and appear before committees of this House to be questioned about those matters. It is pussyfooting and fussiness on the part of the Attorney General to claim that he cannot come near this committee. We are like Dracula. He has to come in wearing garlic around his neck in case we might ask him a hard question whereas the Minister of State was in a position to make a concession about the Director of Consumer Affairs. He is an important person, although he is not a constitutional officer.
The Constitution is not the crucial issue. However, independence and accountability are crucial. Under the Constitution the function of prosecuting indictable crime falls to the Attorney General or to another person designated by law. When the prosecution function was vested in the Attorney General, he would have come before the committee and refused point blank to discuss general directives as to the circumstances in which people should be released on bail etc. He would have come up with the exact same pat explanation to defend that as he is coming up with in regard to his public defender role. I have heard what he has said. I am reasonably intelligent but I am not convinced by him. He is stretching the issue a little too far.
For instance, relator actions exist where people want to sue to assert a public right. The Attorney General has a residual role. He has to give his fiat for such actions to be brought. I do not want ask him about individual cases but, as a legislator, I am entitled to ask him the level of proof required and the general guidelines he operates in regard to this discharge of a public law function before a committee. Under the coroner's Act, he is entitled to order new inquests and, without talking about individual cases, the Oireachtas is entitled to ask him what are the general policy guidelines which inform his office in regard to the discharge of that function. At present, it seems to be a wholly discretionary power and we are never told in public on what basis he makes his individual decisions.
There is the question of litigation with the State. The Attorney General might not necessarily be involved in it on a day to day basis. It is quite easy to imagine a different regime being established whereby a solicitor general carries out those functions on behalf of the State. If there were such a person, it would most likely be an elaboration of the present Chief State Solicitor's function. It is easy to imagine circumstances in which the Oireachtas would want to bring him in to ask what is happening in his Department. There has been no challenge from Members of this committee to the proposition that the Attorney General's function as adviser to the Government is one in which he cannot be asked questions which impinge upon the privilege which attaches to that function, but it does not follow either in logic or in terms of good legislative policy that that should apply in general to the rest of his functions or to those of the DPP or the Director of Consumer Affairs. I strongly argue in that context we should reject the gist of this amendment. It does not deal with the fundamental issues that the sub-committee identified as a serious defect in this legislation when it operated on a non-partisan basis.
Am I correct in saying a great deal of taxpayer's money would be paid out on the strength of advice from the Attorney General in almost 3,000 cases? We should not be entitled to pick out individual cases and ask why the Attorney General advised they should be settled but, on the other hand, if the Committee of Public Accounts is to mean anything it should be able to examine such an issue. It is not within its remit to do so at present. It is not beyond the bounds of the draftsman to draft an amendment along the lines articulated by Deputy McDowell and myself.
Everybody agrees the Attorney General should not be compelled to appear before any committee of the House when he is exercising his functions as a constitutional officer, as adviser to the Government. Why was the exemption not merely drafted on the basis that the Attorney General shall not be compellable where he is called to account for anything relating to the discharge of his constitutional function as an adviser to the Government. That seems to me to be the right approach. I will not vote against it but this debate may be relevant when we review the Bill.
It seems obvious to deal with this in the same way as one would deal with the DPP. One could say the DPP or his officers should not be compellable in dealing with specific cases or decisions in specific cases, but otherwise should be. The fundamental premise from which I start is that everybody should be compellable to appear before Committees of the Oireachtas unless there are reasons to the contrary.
An Attorney General should be amenable to a Committee of this House under the Prosecution of Offences Act where both he and the DPP are required by law to be impartial in the distribution of their briefs among counsel. While I suggest the contrary in relation to the present Attorney General, if it transpired that an Attorney General behaved in a woefully partisan way that attracted public scandal he should not be able to blow us a raspberry and walk off saying it was none of our business but was a matter for the Taoiseach and himself.
I agree with the Chairman. What he has proposed is eminently sensible. I cannot see any reason someone cannot look at it in that light and bring it back on Report Stage. None of us wants to impinge on the constitutional functions delegated to the Attorney General.
It seems there is a common view here as to where we stand while we understand the position of the Minister who has no discretion in the matter. It can be noted that this was the view expressed at the Committee and that the suggestion I made was acceptable on all sides. In the meantime we have to go ahead on the basis of the Minister's amendment.
Deputy McDowell made a point about the Attorney General and his handling of litigation. I am advised the Department of the Taoiseach, or indeed the head of any line Department involved in litigation through the Attorney General with any outside party, can be asked specific questions. There is no difficulty. Usually, the Attorney General works on behalf of some specific section, body or agent of State. If there is a general policy matter in terms of handling litigation it can be dealt with through the relevant Ministers whose Departments are involved in such cases.
Most of the arguments from the Committee seem to be about where we set the boundaries of the Attorney General's constitutional functions. The committee wants the boundary pushed out far further than I am in a position to indicate here or than the Cabinet has accepted. What I have suggested is what the Cabinet has accepted after lengthy discussion involving not just Fine Gael but Democratic Left and the Labour Party.
I would be less than honourable if I said I would go away and talk about this and come back on Report Stage. I have a feeling for the areas in which I have discretion but there are other areas where I do not. I am being straight about that in terms of how we handle it.
We accept that, but will the Minister at least give an undertaking that she will go back to wherever she came from and say that when she tendered the reasons they offered, they were not regarded as satisfactory?
Rest assured that your views will be well reported where they should be, but I have little confidence in saying they will change their minds. However, I will let them know how strongly the Committee feels.
In fairness to the Minister, the specific point should be clear. Normally a formula is used whereby Ministers say they will look at a proposal and come back on Report Stage, giving rise to a reasonable expectation of change. While the Minister wants to be fair and open with us, as she has been so far, she is not giving any such indication. I would not mind our views being made known in the appropriate quarter.
I am quite happy to do that. Extradition was raised and I am advised this involves between states relations of a most delicate and confidential kind. I do not think any of us would argue with that. It would be prejudicial to this if the arrangements and policies which the Attorney General applies in this area could be scrutinised compulsorily by the Oireachtas.
I have no doubt. For instance——
If the committee wishes to address my technical advisers, I am quite happy to report progress. If it wants a more detailed legal response than I am fit to give I am quite happy to do that, but may I finish the point? The point was fairly made about it being imperative for the Attorney General to share out briefs impartially. This Attorney General is exemplary in that, and most Attorneys General are. As the Chairman pointed out, not all have been, but most Attorneys General are reasonably good in this area. Having said that, any Attorney General must have discretion to use his judgment in a particular case, and he must have confidence.
Yes, but he must accountable.
He is accountable in how he shares out his briefs in as much as a Parliamentary Question is put down every year, and answered.
What good is that?
Why do you not make it an oral Parliamentary Question instead of a written one? Each brief and the amount paid is tabulated. That has been the practice for some time.
He cannot comment. We cannot ask him any hard questions.
Perhaps the Deputy could try the Taoiseach. The Attorney General does not answer Parliamentary Questions, but others do. There is limited opportunity to explore whether that could be developed further. I do not know.
I will make a few points. The Attorney General is one of a number of constitutional officers of State whose position is created by the Constitution. Some of the constitutional officers are responsible to the Oireachtas, others are not. Under the Constitution the Attorney General is not responsible to the Oireachtas. He is responsible to the Taoiseach in the sense that the Taoiseach appoints him and may dismiss him at will. Subject to this power of the Taoiseach, the Attorney General is a constitutionally independent officer. This interpretation of the constitutional position of the Attorney General has been laid down by the Supreme Court. The Attorney General cannot, therefore, be made subject to the Oireachtas or its Committees for the way in which he discharges his functions as a law officer. Nor can he be placed in a position in which he might be called upon to give information to the Oireachtas concerning individual cases. There is no argument there. To do so would be to compromise his independence, which has been recognised by the courts, and to contravene the Constitution.
For these reasons the provisions of the Bill which envisage that the Attorney General shall be answerable only to the Committee of Public Accounts — and then only in respect of matters concerning the general administration of his office — are the limit to which the Attorney General and his officers can be made accountable under the Bill.
Who wrote that?
In whose interests was it written?
(Interruptions.)
He is judge and jury in his own cause.
To get back to canine matters, you do not employ a dog and do the barking yourself.
Is the Minister the bark?
A Deputy
Is the dog with you?
No, I am the dog handler. The following is an interesting point which we have not touched on. It is of interest that the constitutional review group in its report last year, recommended that the Attorney General's relationship to the Government should not entail accountability to the Houses of the Oireachtas.
We agree with that.
The report recommends no change in the law concerning the independence and accountability of the Attorney General in any respect. It brings it out of the realm of who is giving this advice. Another body also gave this advice.
He was on that committee and he led the charges.
There were many other eminent people, apart from the Attorney General, on it. That is a defence of our position.
I do not know if the Chairman remembers his school days when we were supposed to prove theorems. We started off at the top but we knew we would not get to the bottom. To try to fool the examiner, we would frequently work from the bottom to the top which meant we finished in the middle. That is what is happening here.
Not at all. This is factual information. The constitutional review group is a separate body and that is its advice.
I am reviewing its report as well.
This matter has been well debated and the Minister has heard the Members' views.
Amendment put.
The Select Committee divided: Tá, 5; Níl, 4.
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Tá |
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Byrne, Eric. O'Keeffe, Jim. Doyle, Avril. |
Penrose, William. Nealon, Ted. |
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Níl |
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Ahern, Dermot. |
McDowell, Michael. |
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O'Malley, Desmond. |
Wallace, Dan. |
Amendment declared carried.
Amendments Nos. 14 and 15 not moved.
I move amendment No. 16:
In page 4, line 46 and in page 5, lines 1 to 8, to delete subsection (6) and substitute the following:
"(6) Subsection (1) does not apply to the Director of Public Prosecutions or an officer of the Director of Public Prosecutions except—
(a) where the committee concerned is the Committee of Public Accounts, and
(b) in so far as the subsection relates to evidence, or a document in his or her possession of power, concerning—
(i) the general administration of the office of the Director of Public Prosecutions, or
(ii) statistics relevant to a matter referred to in a report of and published by the Director of Public Prosecutions in relation to the activities generally of the office aforesaid.".
Amendment put.
The Select Committee divided: Tá, 5; Níl, 4.
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Tá |
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Byrne, Eric. O'Keeffe, Jim. Doyle, Avril. |
Penrose, William. Nealon, Ted. |
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Níl |
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Ahern, Dermot. |
McDowell, Michael. |
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O'Malley, Desmond. |
Wallace, Dan. |
Amendment declared carried.
Amendments Nos. 17 to 19, inclusive, not moved.
I move amendment No. 20:
In page 5, between lines 8 and 9, to insert the following subsection:
"(7) (a) A committee may not direct a person to give evidence, or produce or send a document, to it, or attend before it to give evidence, or produce a document, to it, that is not relevant to the terms of reference of the committee.
(b) Where a direction to which paragraph (a) relates is given to a person and the person is of opinion that evidence or a document to which the direction relates is not relevant to the terms of reference of the committee concerned and so informs the committee—
(i) the committee shall either withdraw the direction or refer the question whether the evidence or document is so relevant to the Chairman of Dáil Éireann,
(ii) if the question is referred to the Chairman of Dáil Éireann, he or she shall decide it, and
(iii) if he or she decides that the evidence or document is not relevant to the terms of reference of the committee, the committee shall withdraw the direction.".
The first part of this amendment, subsection (a), if accepted, will replace section 4 of the text debated on Second Stage. The draftsman has used the phrase "not relevant to" to replace "outside" with regard to a committee's terms of reference on the basis that the former is a more accurate drafting term. The basic meaning remains unchanged.
This amendment results from the Government's acceptance of the need to have an adjudication procedure in cases where there are disputes over whether a committee's questions fall within its terms of reference rather than a committee, in effect, ruling in a dispute to which it would be party. While this might have been done by amending section 4, the drafting advice suggested it would be better placed in an extended section 3. The procedure provides for the Ceann Comhairle to decide if directions are within a committee's terms of reference.
Our view is that he or she will be sufficiently removed from the heat of whatever controversy might arise to be an acceptable adjudicator. If he or she rules that a direction falls outside a committee's terms of reference, the committee is required to withdraw the direction. It is a natural justice issue.
Can that be appealed?
Not formally within the process we are laying, down but it can be challenged judicially.
It does not make any provision in relation to the Seanad. It applies to the Chairman of the Dáil. There could be a problem in that respect.
I take that point. I will withdraw the amendment and resubmit it on Report Stage. It is a definite omission which needs to be changed.
I am advised when one speaks about committees, one discusses orders of reference, rather than terms of reference. In three places, "terms of reference" is used.
Apparently there is some debate with the draftsman on that point. We will examine that before we resubmit on Report Stage.
Before the Minister withdraws the amendment, I want to discuss the consequences of a decision by the Chairman of the Dáil, or the Seanad, as the case may be. An aggrieved party, whether a Dáil Member or not, can go to the High Court to quash the Chairman's decision. Unfortunately, the committee cannot go to the High Court. The committee is bound by this decision. There is a lack of reciprocity there. If the committee finds a decision inconvenient, it cannot get it resolved quickly. The Members of the committee, in their private capacity, would have to take action. I do not know whether a committee would be empowered or whether it would be within its orders of reference to go to the High Court as a collective body to challenge a decision. It would be strange. It seems imbalanced that a layperson who is aggrieved can get a decision quashed but in effect a committee would not have locus standi to do this.
I think the Deputy is correct. We will check that before Report Stage. I am advised that a committee would not want that power. If the High Court ruled against them, the matter would probably end there.
Perhaps a committee might not want that power. If Deputy Foley's situation is anything to go by, a chairman of a committee will not want that power. Deputy Foley is being brought to the High Court because of an issue he was not responsible for but because he is chairman of a committee he is being held responsible.
It did not happen during a committee meeting.
I know that.
It is not strictly political.
One of the core issues in this legislation is that either we protect Oireachtas Members in respect of their duties, as laid down under these committees, or we do not. Currently our chairpersons are not covered. Deputy Foley is not covered and is liable to severe damages against him, arising from an incident which was not his doing but which happened in his role as chairman.
All of us are put under a much stricter onus as a result of this legislation. Deputy McDowell's proposed amendment No. 23 says that a committee may by its Chairman apply in a summary manner. If it is found that perhaps they did that in a frivolous manner, the chairman would have to pay costs and would not have the State behind him saying "well done". They would say he was on his own.
I am not sure it is correct to go into a specific case. In so far as the point was made, it should be discussed under amendment No. 23.
We cannot exclude the right of the court to judicial review. If anyone thinks this is an academic issue, I believe if we ever get near any sensitive investigations in this House, it will end up in court. Unless we provide for the High Court to make quick decisions, it will be in the interest of the big businessman who does not want his affairs investigated to apply for judicial review.
As Deputy Nealon said at the last meeting, we as politicians have a limited shelf life. Our attention span is necessarily limited. If someone brings us to the High Court by way of judicial review, we are effectively finished. We may be told to come back in nine months to deal with the issue. I am arguing for direct interaction between the committees and the courts so that a quick decision is made as to whether someone needs to come before a committee.
Would the Members prefer if there was no referral to the Chairman of the Dáil or Seanad but that the matter just went to the courts? Then the committee could be represented in court. It might be better, particularly if there is no appeal by the committee against the Chairman of the Seanad or Dáil's decision.
We should consider a direct connection between the committees and courts where there is an almost instant decision from the court, as of right, not by a complicated mechanism. Under the Land Commission legislation, there was a judicial commissioner. There should be a direct function for the High Court to make decisions rapidly in these matters.
I am not sure that led to expedition in the Land Commission.
I would be at variance with Deputy McDowell. We are trying to run a parliamentary committee system as best we can even though we have far too many. We should endeavour as far as possible to keep decisions within the remit of our committee system rather than allowing them to go to court at the drop of a hat. I am not saying that that would be the case in this instance but I would guard against the involvement of the courts.
I accept what Deputy Ahern is saying. As good policy we should deal with ourselves whenever possible. However, it is almost certain that people will use these powers and seek to affect decisions made here by judicial review unless we provide a judicial mechanism which is more rapid to assist both the individual and the committee in reaching a speedy decision.
It seems that Members would prefer parliamentary committees to deal with their own business. It is accepted that, in certain circumstances, people will go to the courts. It would be the desire of committees that, in so far as the courts are going to be involved, there should be a fast track procedure towards decisions so that the committee could return to its business taking the court's view into account. Whether that should be left to judicial review or whether we should provide for it in the Bill is the outstanding issue.
The Minister is bringing back amendment No. 20.
Amendment No. 20 will be withdrawn and amendments Nos. 21 and 22 have been discussed.
The Minister is bringing back amendment No. 20 with the Seanad element.
It was withdrawn for a purpose.
We might need to consider whether Members want the referral to be to the Chairman of the Dáil or Seanad or to the subcommittee on compellability. That might be more logical. That subcommittee has been set up since amendment No. 20 was drafted. Alternatively, Members might wish no appeal so that matters could go directly to the courts where the more thorny cases will probably end up anyway.
There are three possible avenues and I am happy to ask Members to put their heads together and direct me. In the meantime I will seek advice. It may be more correct to go to the subcommittee on compellability and then to the courts.
Provided that subcommittee was not deciding along Government and Opposition lines but on an even handed basis. There should not be a whip on its decisions.
There can be no whip.
If it decides at the start of a case that the committee should go into compellability mode it will have to be even handed in making that decision. The subcommittee may then be the right body if something is deemed outside the terms of reference. That is where the expertise may rest eventually in relation to this mode. It is worth teasing out.
Amendment, by leave, withdrawn.
Amendments Nos. 21 and 22 not moved.
I move amendment No. 23:
In page 5, between lines 8 and 9 to insert the following subsection:
"(7) A committee may by its Chairman apply in a summary manner by way of motion to the High Court for an order requiring any person to comply with a direction under this section and upon such application being made, the High Court shall have jurisdiction to order the person to comply with such direction, and to punish any person who wrongfully fails to comply with any such order as a contempt of the High Court, and to make such interim or interlocutory order, or ancillary order as the High Court may deem necessary and just to give full effect to a direction of a committee.".
The purpose of this amendment is to insert a subsection (7) which is to give committees effective means of requiring compliance with their directions. It is artificial to see this other than in the context of section 7(3) of the Bill which criminalises anyone who does not comply with a direction.
If I were a wealthy businessman who had corrupted a number of politicians and at this stage of this Dáil's life I was directed to come before a committee which was investigating the matter, there would be an enormous temptation to hop on a plane and take a holiday in Miami. I might reckon that my mates would be elected in the forthcoming election and the committee would lapse.
Let us be honest, the DPP, with the best will in the world, is not going to get anyone into court within three to six months, on present experience. If one is charged with drink driving the chance of being summoned to the District Court within six months is small. The chance of being convicted within a year, if one puts one's mind to delaying the matter, would be fairly remote. If people ignore or confound us in the future we have no effective remedy against them. In a serious case where someone's career is at stake one may more or less rest assured that brass necked people will take a long, hard look at section 3(7) and say that they will take their medicine, especially since the penalties are only monetary. Some might argue that £1,500, £2,500 or £25,000 is nothing. There are businessmen in Dublin for whom a £1,500 fine would be very good value. We should have the power to go to the High Court and order an individual and documents to be brought before us as if he is being summoned to the High Court.
There is a complexity to the Haughey decision that committees cannot certify contempt but they can apply to the High Court for orders in aid. It would be contempt of court to disobey these orders and the rich businessman would find himself in Mountjoy immediately. A dirty raincoat lawyer looking at the criminal procedure would say, "Let them try, let us see in six months whether you will get them there." The delay is of crucial importance. One can appeal to the Circuit Court and, in the case of an indictable offence, it could be a couple of years before one faces the music.
Irrespective of any question of penalty, is it the time factor which concerns the Deputy?
Perhaps I should not have mentioned the penalty because it is a distraction. In present circumstances we must have some means of obtaining a High Court order and I do not think there is any constitutional infirmity. There are two defects in my amendment. I selected the chairman as the plaintiff, but we would have to have an indemnity for the chairman in respect of costs.
It does not necessarily have to be the chairman.
No, but a committee is not a legal body. If Deputy O'Malley and I were a vocal minority in the committee and were not in favour of prosecuting, claiming that it was an abuse of process, then if the Chairman was not the applicant we could have the ridiculous situation where some applicants could tell the judge that the application should not have been made.
If the committee had come to a decision by majority vote, is the problem of the committee not having a legal status——
You could find the State charging those who voted in favour, with those voting against getting off.
So it is the cost point of view rather than the status of the committee that is significant?
If the committee wants to force Michael McDowell to come before it, somebody has to go to the High Court and somebody's name has to appear before the High Court as the applicant. If you put down the whole Committee, you are in trouble. It makes sense to put down one person, namely the Chairman, as the nominated applicant.
I agree with Deputy Ahern about providing some form of indemnity for a Chairman. Would you go to the High Court without indemnity? We have to have an indemnity provision.
Unless we have something like this, the temptation to rich and powerful people or to chancers to ignore the Committees must be huge. They will not be frightened by criminal sanctions which they know will not happen until one or two years have passed.
Has anybody a supporting view?
I concur with Deputy McDowell. It is an eminently sensible amendment to this section. Members are constrained in fulfilling their duties. Can an amendment be inserted to deal with this and all other difficulties that might arise as a result of this legislation being enacted? Some faceless civil servants will say it is not constitutionally possible to indemnify committee Chairpersons in carrying out their duties because some of their duties are outside what is referred to as duties. It is all gobbledegook to me.
Our Chairpersons have to be indemnified in carrying out their duties. This is the time to do it.
I understand there is no problem about an indemnity for a civil servant who finds himself in court as a result of his performance or non-performance of duties.
I support this amendment. The fact that an amendment like this is necessary underlines the futility of the whole Bill. The more I listen to discussions here, the more I am convinced the only way to get information from people who are unwilling to give it is by way of tribunal under the 1921 Act. I regret this is so. I was one of the enthusiastic supporters of this process. The process should be used. One of the many weaknesses of this House is that it has not been used up to now. The people the Committee would want to get information from most urgently are the very people who will challenge every line of this.
Deputy McDowell's amendment is to get over the question of somebody objecting on the grounds that what they are being asked for is outside the terms of reference of the Committee. An objection would result in a two year delay because even if the High Court decides it in a summary manner, we cannot deprive a person of his right to appeal.
We can.
That is an additional thing that would have to be put in, that no appeal shall lie against the decision of the High Court.
Can we deprive a person of his right to appeal on a point of law?
Yes, except on a point of constitutionality. We cannot exclude an appeal to the Supreme Court on an issue of constitutionality.
We will check it out.
The desirability of what Deputy McDowell is trying to do is underlined by the existing subsection (7) which purports to create an offence. The consequences of committing an offence are laughable. I am not supposed to use names, but if X, whose name has been mentioned in this context, were to be told that if he did not produce documents, he would be fined up to £20,000, his reply would be "I will play you a game of golf for it" because he never plays a game of golf for less. How unreal can this be?
I assure the Deputy when we get to that section he might be well pleased with my response to the amendments, so let us not preemptive.
My information is that a potential witness before a potential Committee does not play golf for less. It is an absolute joke.
The Minister has already indicated that will be taken on under a different section.
There is merit in the fast track procedure advocated by Deputy McDowell. We can set out ways to restrict a person's right to appeal but we cannot circumscribe in law a persons right to have recourse to the judicial review process, that is, an appeal to see if we have acted within our jurisdiction.
If there were a formal procedure laid down in the Act, would that not largely preclude the judicial review process except in unusual and extreme circumstances?
What Deputy Penrose says is correct. We cannot make things unreviewable because there must be judicial review of administrative action. However, if a Committee takes the initiative and goes to the High Court to get somebody to appear before it, this would have to be notified to the person concerned. That leaves the person stuck with the decision. The High Court's decision cannot be then reviewed.
In practice it would largely exclude the judicial review process. Therefore, if I come before the High Court I am stuck with its decision. I cannot say I want to review it.
In practical terms it would largely exclude the judicial review process. If the amendment found favour with the Minister of State, I take it Deputy Penrose would not be displeased?
That would be a reasonable conclusion.
Has the Minister of State agreed to accept the amendment?
The Bill is currently framed as follows. A committee requires that evidence be provided or questions be answered, a witness contends he or she does not have to comply and the matter is referred to the High Court or, in the case of civil servants, to the Taoiseach who will decide. Deputy McDowell's amendment would enable the committee to take the initiative by obtaining a High Court injunction directing a witness to do whatever it wishes the witness to do. If the court grants the injunction the witness must comply or be dealt with by the court for contempt, unless that witness takes his or her own legal proceedings to set the injunction aside. A side effect of this approach is that a recalcitrant witness could be imprisoned for contempt of court. In a later amendment Deputy McDowell proposes a more overt move on the latter matter which I will deal with when we reach it.
Deputy McDowell sees this amendment as a means of expediting whatever investigation the committee embarks upon and as a quick fix mechanism for overcoming roadblocks which might be put in a committee's way. My feeling is that the process of gaining public acceptance of what is, in our political system, a major change in the functions and characteristics of committees and their members is likely to be a slow one and will require, in the initial stages, careful handling and a degree of patience on the part of committee members. We are breaking new ground with this legislation. We have had a great deal of discussion over many years about it. The public, apart from the legal sector, does not understand the implications of every section of the Bill. It is a new concept, particularly the possibility that a summons to a member of the public to come before a committee of the House could end up in that person being imprisoned. It is new ground and, while I am not saying it is wrong, we must be fully aware of what we are doing.
A number of safeguards have been included to protect and vindicate the rights of individuals. They might have a secondary value, however, in ensuring that when we come to the end of the road with a recalcitrant witness, there will have been sufficient checks and balances to leave no room for public doubt about the rightness of the committee's stance. Deputy McDowell's professional background gives him an enviable familiarity with the operation of injunctions and so forth. It might also have blunted his consciousness as to how the public might feel about or react to actions by politicians which could result in sudden imprisonment. I am not saying the Deputy's attitude is wrong but let us be sure we realise what we are doing. It could also have blunted his consciousness of how the merits of a case in the public mind can be obscured by sympathy for an imprisoned victim who has only himself or herself to blame for that imprisonment. We see such misplaced sympathy every day. Although it might be misplaced we must be aware of its likelihood.
We know where the Minister of State is going.
This is an important point. As a legal practitioner, the Deputy can see the objective of his amendment but the public might not see it. We must put on record that we have seen it to the end of the road and understand that public sympathies might not be with a committee which must act in that manner with a recalcitrant witness. We must be absolutely sure. At the end of the day this is politics; this legislation is part of a political framework so we must be sure we are aware of the consequences of the action we are proposing.
If there were such powers in the Bill, witnesses might be slow to evade or avoid the reasonable requests of the committee. It is not so much the use of the powers which would ensure compliance but the fact that reluctant witnesses would be aware of their existence.
We are trying to stop the Minister of State before she adopts a rigid position.
I am trying to read three sentences ahead and speak at the same time, which is an art. I am amending my text as I do so.
The Minister of State's gut feeling was a little surprising.
It is important that what I said goes on the record. As an eminent legal mind, the Deputy knows the consequences of his action but not all Members of the Oireachtas realise it and the public certainly will not. We have yet to prove by our actions as Members of this House to an outside audience that the powers of compelling attendance under penalties which are being conferred by us will, in practice, be valuable. Once that has been demonstrated we can count on public support for a measure of this nature should the practical operation of our committees demonstrate that it is required.
I can accept the amendment provided it is confined to the terms of reference and that section 7 (1) and (3), which refer to appeals to the Taoiseach by civil servants, are exempted. Within the terms of reference and in terms of outside witnesses I am prepared to accept it. However, I will have to deal with it on Report Stage as the right to appeal and other matters must be dealt with. In addition, the amendment might have to be rephrased to ensure it applies only to those to whom it is intended to apply.
That reply does not augur well for section 7.
The Minister of State must have experience in drama production. Deputy McDowell is gobsmacked.
It is as well I did not interrupt the Minister of State too often. I am not unconscious of the implications of sending somebody to jail because they refuse to come before or submit a document to a committee composed of politicians.
It is new ground.
I agree it is new ground. My perception as a lawyer might be unusual in that a lawyer sees people operating under similar powers every day. Judges can order something to be done and people know the consequences of not complying. If they refuse to comply with the order the garda at the back of the court will lead them away. In court people regularly see such occurrences.
That is a closed world to the public.
It is a closed world. One of the most shocking things in this country is the way the media constantly undermine the authority of the courts. If a judge sends somebody to jail because he refused to comply with an order of the court, the media should be supportive because judges do not take such actions lightly. I have seen a few judges threaten people with contempt of court but I have never seen a judge jail somebody except when forced to do so. The media constantly talk about people jailed for debt. Nobody is jailed for debt in this country. They are jailed if they go before a District Court which directs them to repay the debt at a certain rate per week and they fail to comply with a reasonable order. Nobody who has no money can ever be sent to jail on that account.
I agree the culture in this country is a problem and that if this House ever reaches the stage of applying to the High Court to have somebody jailed, it will be an eye opener for many people. By the same token, however, if this power lurks in the background the solicitors in large practices on Merrion Square, St. Stephen's Green and so forth will tell Mr. Bloggs that under section 7, he could be in Mountjoy in a fortnight if he continues on a certain course.
I see the merit of that too. However, those of us who do not have legal training must be conscious of the consequences of this provision and the political flak that could ensue from the media and within the culture.
Martyrs.
We will create martyrs and we will be the baddies no matter how it operates.
I wish to make a suggestion because there is a problem in relation to "a committee may by its chairman". Regarding the subcommittee on compellability, in the event of a committee feeling obliged to use this sanction, perhaps the Clerk of the Dáil or the Ceann Comhairle could take action in the court rather than the chairman putting his head on the chopping block. This might get around the difficulty of the indemnification of an elected representative other than the Ceann Comhairle.
The reasons he should not be dragged into it could be summed up.
Exactly.
Deputy Ahern's point that it be put back to the committee is valid and further thought should be given to how to achieve the necessary objective highlighted by the Deputy. However, there is a slight problem. Without dealing with the details of the case, I understand the claim is that there was not prior sanction or approval. The difficulty is that, in a bureaucratic mind, an effort might be made to locate a reason the chairman of a committee or somebody else should not have indemnity. Perhaps a general section highlighting the point that anybody involved in carrying out their functions is indemnified is required. It probably needs to be examined further.
There should be some form of indemnification. Perhaps the Minister could consider that between now and Report Stage in relation to all committee chairmen because it is an urgent matter. Regarding the sanction in the amendment that the High Court could punish a person who wrongfully fails to comply perhaps the committee could draft a provision which would allow for a grading of the sanction to apply, for example, in the event of a person failing to comply within a certain period, etc. Perhaps the matter could be dealt with in a way which is not as drastic as a garda placing his or her hand on somebody walking down Grafton Street and saying the committee went to the High Court a couple of hours previously.
What happens if they refuse to comply with the normal terms of appearance?
A notice of motion must be served on the individual that one is going to the High Court. The court says the person must comply with the direction of the Select Committee on Finance and General Affairs. If the person indicated in writing that they would not do it, the court would give them a day to consider their position. This is the usual practice. If that was the case, the person could be told that the chairman of the committee will apply to attach them and they could have a week or two more before they are jailed. I do not suggest that we should have a similar power to the House of Commons to send out a sergeant to drag people before the House.
Perhaps the power we are giving to the High Court could be outlined in more detail in terms of what it can and cannot do. It might resolve the point made earlier although we may be delving into the rights of a court.
The powers of contempt the High Court would be using.
The Minister raised the point about the political fall out.
I raised the point to be sure if the amendments are accepted that we fully realise the implications of our action. I made the point particularly for Members who do not have legal training and may not be immediately aware of how contempt procedures can end up. In terms of whether it should be the chairman, the Clerk of the Dáil or the Ceann Comhairle, it could be phrased in such a way that the chairman, acting on behalf of the committee, would always be indemnified. That is the way it would be done. There may be more to the Deputy's query in that perhaps we cannot indemnify anybody politically for fall out, only financially.
As the Minister has accepted the principle of the amendment — there is a need for further drafting — I ask Deputy McDowell to withdraw it on the understanding that the Minister will proceed along the lines she mentioned.
Unless the Attorney General or his adviser finds something that will cause a major problem of which I am not aware, I am of a mind to accept the procedure whereby an injunction can be sought. I favour the inclusion of this facility in the Bill.
I do not suggest it is perfectly drafted.
The right of appeal, indemnification and other matters must be examined. As the chairman and Deputy McDowell pointed out, this power would probably mean that anybody getting good legal advice would not push it this far. They would know they were wasting their time if they did so. However, we must be aware of the end of the road in terms of possible political fall out. We must accept that as responsible people if we want these powers; obligations and responsibilities go with them.
If the amendment is accepted——
It has been accepted in principle.
——does the existing subsection (7) fall? It does not fall automatically but it should be withdrawn because there is no point having the offence.
And also a power of contempt.
The more powers we have the better.
Perhaps we should reconsider that also but there is nothing wrong with having both. Perhaps the Attorney General will advise us that there should be one or the other.
Married into the one section. This is a belt and braces matter and I hope it will be the exception rather than the norm.
I hope it would be the other way round.
That it would be normal to injunct?
That it would be normal to seek a summary order. I referred earlier to the derisory penalties in section 16.
I accept Deputy O'Malley's point. However, if there is a factual issue where I, having been directed by the High Court to produce documents to a committee, then directed Deputy Ahern to burn them that afternoon and he denied it but I said that was what happened, there could be a criminal process which would involve determining those facts by a jury on indictment rather than the High Court stating it found as a fact that Deputy Ahern burned the documents and Deputy McDowell did or did not instigate it. We should not necessarily think that the criminal sanction and compliance will succeed. For example, under the planning Acts, it is an offence to erect an unauthorised structure. However, everybody knows prosecutions in that regard are so slow that sometimes they are useless. The effective provision for ensuring compliance with the law is section 27. However, one does not necessarily exclude the other.
I agree but we will consider the point.
Apart from the derisory penalties which may or may not be raised, the Minister has not tabled any amendments to section 16. If she intended to raise the penalties, presumably she would have tabled an amendment.
This is an amendment in my name regarding the monetary penalties. However, I am sympathetic to other amendments which we have not reached. The Deputy should not assume section 16 will remain as it stands when the Bill is concluded.
Apart from the derisory penalty as it stands, which may not be so derisory when we reach section 16, it can be imposed only on indictment. If one attempts to impose a penalty other than on indictment, it is the magnificent sum of £1,500. "On indictment" presumably means a trial in the Circuit Criminal Court in Dublin as the offence would take place in Dublin where the committee is sitting. I understand the delay in trials in the Circuit Criminal Court in Dublin is a minimum of two years and sometimes more.
It is a year anyway.
How can a procedure be used which will take two years from the time the person is returned for trial? It may take a year before he is returned for trial. The average length of a Dáil is three years. Then the committee falls before the man is tried. It is futile.
Does this not reinforce the case?
It does but to the extent that one could, without great loss, drop the whole criminal aspect and do this by application for injunctions or orders, especially if one is sensitive about the public perception, I am not.
The Minister might also consider in that context that, if subsection (7) was to exist in conjunction with my amendment, one would start off without prejudice to the powers conferred on the committee under the criminal sanction. If one had my power of application to the High Court for a contempt motion, subsection (7) as it exists in the Bill now would have to start without prejudice to the provisions of the previous section so that it would be made clear that they were not criminal under this also.
Amendment, by leave, withdrawn.
Question proposed: "That section 3, as amended, stand part of the Bill."
The Select Committee on Finance and General Affairs issued a report on the Office of the Attorney General which is quite interesting. It refers to the independence and accountability of the Attorney General and states that, in considering whether to invite the Attorney General to appear before the committee, it was conscious of the generally held belief that the Attorney General is independent in the discharge of his functions. The committee was unable to find any constitutional or legislative basis for this belief. Indeed, the Attorney General, when he appeared before the committee, confirmed that there was no constitutional or legislative provision for his independence. However, it was clear that at least in respect of some of his roles, he must be independent. The committee is anxious to establish that the independence does not exclude accountability in all circumstances. While conscious of the confusion that can arise in relation to the concepts of independence and accountability, the committee is of the opinion that these concepts are not mutually exclusive.
I did not have this information when we were speaking this morning. The report goes on to state that the committee is of the opinion that the present lack of legislation dealing with the independence and accountability of the Attorney General cannot be justified. The committee is of the opinion that the Attorney General's role as protector of the public interest is one that requires debate and clarification, particularly in relation to the question of whether the role is one which can be exercisable independently at the Attorney General's discretion.
The committee looked at this Bill and stated that, while it acknowledged that this was an attempt to address the issue of accountability, its initial opinion is that enacting such a provision would be to complicate rather than simplify the lines of accountability and reduce rather than increase accountability generally in relation to the actions of the Attorney General.
Need I say any more? I hope those listening will take cognisance of the fact that this report was made well before we had this discussion. The draft report by this committee or its parent committee was making all the points we made independently today. I and Deputy Michael McDowell were not members of that committee. That should be taken into account if this issue is to be looked at again, if that is to happen, between now and Report Stage.
Deputy Penrose took the Chair.
I was a member of the committee referred to by Deputy Ahern and cross-examined the Attorney General on a number of matters. He was very forthcoming. We made that report subsequently and the Minister might look at it.
While she looks at it, page 18 of the clerk's report expresses the view of the committee and states that the appearance of the Attorney General before the Committee of Public Accounts would be inappropriate. It would be; there is no point saying the committee would have power to send for him because it is clearly inappropriate. He will not be sent for because the committee's jurisdiction relates to financial administration.
Under Standing Order 26.
They are the sub-committee's views.
It is going to be used in policy well in advance of the Bill becoming law.
The question is: "That section 3 stand part of the Bill."
Do the next two amendments not apply to section 3?
Page 5, line 36, marks the end of section 4.
I am reading from my brief.
That is a different matter.
My brief is incorrect.
The difficulty is that it is hard to know how this is amended because the main amendments have been withdrawn and we do not have a picture of it. I cannot read the Bill as amended and say I am for or against it.
There were two decisions amending it today.
There were, but some of the more substantial amendments are still to appear.
The Deputy can object on Report Stage.
I object to the section as amended.
It is the central section of the Bill; that is not to say other sections are not important: they are, but this confers power on committees to obtain evidence, orally from individuals and through the production of documents. If this section is not right, the whole system is not right. It is very hard to judge it, given the nature of the amendments and unseen proposed amendments. Deputy McDowell's amendment No. 23, which is accepted in principle, is very important. Without it the section has no hope at all. It is not clear whether the existing section 7 is to remain and some of the other amendments are unclear.
Overall, even allowing for these matters, I am not happy with it. One of the reasons I am not happy is the manner in which it seeks to deal with the Attorney General and the DPP. It is extraordinary that in legislation or in the procedures of this House the Attorney General and the Office of the Attorney General seem to be sacrosanct. If either is mentioned the barriers go up immediately. A great phrase used is that he is not just a constitutional officer, he is a great constitutional officer.
As opposed to a minor constitutional officer.
I am a humble backbencher, but I am also a constitutional officer because my office is mentioned in the Constitution. I have more behind me than the Attorney General because nobody elected him. Much time and effort are spent protecting that office which has been underlined today by the fact that all the advice about what can and cannot be included in legislation comes from the Attorney General and the Office of the Attorney. They stay up for nights on end protecting their patch.
One wonders how effective they are given the amount of abuse hurled at various Attorneys General over the years.
I bow to experience and Deputy O'Malley has put this better than anyone. I will go with my instincts and oppose this section.
Subsection (8) states perjury will be an offence. Is there a punishment for perjury in the Bill? Is it necessary to provide a separate punishment because section 3(7) provides for punishment? I believe there is a perjury Act, so will its punishments apply to this?
How will one convict somebody of perjury if the evidence he gave was not on oath?
Presumably it will have to be on oath.
There is an oath procedure later on.
Section 13 requires an oath. From recollection, there is a wrinkle there in that the administration of the Oaths Act also covers the administration of a declaration or an affirmation. Is that correct?
Yes.
Are we clear there is a punishment in subsection (8)?
I will confirm that but my advice is that there is a punishment. We will revisit this on Report Stage.
At the next meeting will the Minister tell us what is the punishment? I am interested to know the punishment for perjury before one of these committees.
It is a serious penalty — 15 or 20 years.
That is strange if one goes back to the point Deputy O'Malley made, that is, if we imposed a fine, they would tell us to hump off but one can go to jail if one tells a lie before us. This is strange.
Section 13, which is very much related to subsection (8), states: "A witness before a committee may be required by the committee to give his or her evidence to the committee on oath." It does not state he shall be required.
If he is not on oath he cannot commit perjury. That is the relationship between the two.
Subsection (8) refers to a person giving false evidence to a committee.
It would only apply where a person is guilty of perjury under oath.
The words "before a committee" mean that a person must be present. What about a sworn document given to a committee?
What happens if a person lies in their affidavit?
This should be amended to "before or to a committee".
Unless the perjury Act covers that exception.
I am not sure the Minister is right. Why is there a penalty for perjury for false evidence given on oath and no penalty for false evidence not given on oath?
For telling lies as distinct from perjury?
Yes.
If a witness has not been requested to give evidence on oath and subsequently tells lies, there is no penalty. There is no penalty in the scenario outlined by Deputy O'Malley.
It is ridiculous there is no penalty for giving false evidence to a committee. My reading of this is different to that of the Minister. A person may give false evidence, sworn or unsworn, before a committee. If that person gave evidence before a court, he would have to be sworn.
We will look again at false evidence as distinct from perjury and come back to the committee on it. I do not believe there is any provision for false evidence given to the committee unless it is perjury, which is under oath.
When I was young some pious judges in the District Court used to excuse priests from taking the oath.
That is good to know.
This section has been well ventilated.
Is the Deputy suggesting that we have a few pious witnesses?
Not before Brendan Smyth.
Question put.
The Committee divided: Tá, 5; Nil, 4.
Tá
- Byrne, Eric.
- McGrath, Paul.
- Doyle, Avril.
- McCormack, Pádraic.
- Penrose, William.
Níl
- Ahern, Dermot.
- McDowell, Michael.
- Ahern, Michael.
- O’Malley, Desmond.
Question declared carried.
NEW SECTION.
Amendment Nos. 24, 42, 44, 46, 47, 49 and 50 are related and may be discussed together by agreement.
I move amendment No. 24:
In page 5, before section 4, to insert the following new section:
"4.—(1) There shall be a board (in this Act referred to as ‘the Appeal Board') to hear appeals from directions by Committees, or determinations by the Commission or Sub-Committee on Compellability, made under this Act.
(2) The appeal board shall consist of a Judge of the High Court (to be nominated by the President of the High Court), who shall be chairman, the Chairman of the Dáil (or where he is unable, through illness, absence, or other cause to fulfil his duties or the office of Chairman is vacant, the Deputy Chairman of the Dáil) and the Chairman of the Seanad (or where he is unable, through illness, absence or other cause to fulfil his duties or the office of Chairman is vacant, the Deputy Chairman of the Seanad).
(3) The decision of the Appeal Board shall be final.
(4) For the purposes of hearing an appeal from a determination of the Commission, the Chairman of Dáil Éireann shall stand substituted by the Deputy Chairman of Dáil Éireann.".
I tabled this amendment because I wanted to insert an appeals procedure in the Bill to prevent difficulties which arise under our committee system ending up in the High Court every second day. I also tabled it because of the primary responsibility of keeping committee work within the remit of the committees themselves. I accept what Mr. Hanratty has said but we have already set a precedent in that we have agreed to the sub-committee on compellability. It is this type of interim arrangement I want put in place rather than everyone having recourse to the courts. Parliament and the committees consist of political parties and I seek to achieve the keeping of it within the parliamentary context by tabling these amendments.
It was the general view of the committee that it was attempting to insert another tier but we have already done that in agreeing to this sub-committee on compellability. Furthermore, in the Minister's amendment No. 20, she agreed to allow similar difficulties to go the Ceann Comhairle for decision. In effect, the principle was agreed as an interim measure before eventually going to the High Court.
This is different from some of the concepts we discussed earlier today. It struck me, as I read Deputy Ahern's amendment, that it has merit of a kind the other proposals did not have which is that, under Article 37 of the Constitution, it is permissible to give limited powers of a judicial nature to non-court tribunals. Will the Office of the Attorney General, the parliamentary draftsman and the Minister of State's team examine the possibility of avoiding the court dimension to the Bill?
It cannot be avoided.
It can in some respects, and this would be good. Limited tribunals could exercise judicial powers of a limited kind. Would the relevant subsection of Article 37 avail a committee? If we ultimately conclude that we can avoid the courts then Deputy Dermot Ahern's amendment is an unnecessary complication.
There are certain things under the Constitution that can be judicially determined by tribunals other than courts. I would support any escape clause from the courts. If not, I am against it. If, therefore, Deputy Dermot Ahern's proposal could, on consideration and after any necessary changes, provide an escape from the court route I would be in favour of exploring it.
Precedent has shown that, with the best of intentions, it rarely succeeds.
I omitted to mention the Constitution provides for the separation of the courts from the Oireachtas. It is an area that requires a middle ground and in this respect perhaps an appeals procedure within the Dáil structure may help. However, there may be a better way to proceed.
I am sympathetic to that general point. However, would the courts respect it if we attempt it?
Given natural justice, people have a right to end up in court if they wish. This may only introduce more delay in getting to court.
I was surprised at the case involving the Committee on Procedure and Privileges of the Seanad.
I would have concerns. I understand the intention of it, and if it was the end of the road it would fulfil a good purpose. According to my briefing note, the amendment introduces an appeals board to determine cases of compellability which will consist of a High Court judge and the chairpersons of the Dáil and Seanad.
We are stuck with that because of the Constitution.
We may revisit the Constitution. It also provides for an appeals board to hear appeals on determinations made by the public offices commission or a new sub-committee on compellability, which would be established under amendment No. 9, to decide who should be compellable in the first instance in investigations.
I appreciate Deputy Dermot Ahern's anxiety to minimise resort to the courts in relation to the dispute which will invariably arise when an assertive committee runs up against a systematically non co-operative witness. I would be less than honest if I did not admit that, during the long gestation period of this Bill, thought was given to having a single person mechanism, involving a person who was a judge, to deal with such matters. The mechanisms and arrangements which we eventually came up with were based on our best assessment of practicability and constitutional requirements.
We all have a sympathy with the sentiment of the amendment but our touchstone must be can it work? The Government's view is that it cannot. The administrative landscape is dotted with a variety of tribunals and appeals mechanisms many of which found their way onto the Statute Book because Members of this House and their Civil Service advisers were convinced that, in each specific instance, the specific mechanism would allow problems to be resolved without the involvement of lawyers. Many of them envisaged decisions being final or attempted to restrict access to the courts. So far as I know, none have managed to do so.
Given the development of judicial review and the fundamental rights which could be involved in the kind of decision likely to give rise to problems for committees exercising compellability powers, I cannot see Deputy Ahern's proposal having the success denied to other such bodies. As we know from recent tribunals, the presence of a judge on the board carries no guarantee that his decision will find favour with the courts. It is probable that the appeals board will simply provide another staging point on the road to the Four Courts. For these reasons I oppose the amendment.
The Minister of State and the Government are speaking against themselves. The Government devised a cumbersome procedure with regard to the Price Waterhouse issue. Before the motion was passed in the Dáil, leading members of the Government told me that it would end up with a tribunal in any event. The Minister of State is speaking with forked tongue. Either the principle is right or it is not.
It must be workable.
The committee established to investigate the Price Waterhouse report may not be able to work. This is one of the reasons I queried the motion before the Dáil and suggested that the quorum should comprise three members. If they decide in an ultimately quasi judicial capacity, and somebody becomes aware of the fact that one or two of the members were not in attendance for a session or sessions, they will be called before the High Court. Ultimately, this issue will end up in the High Court.
Some 99.9 per cent of cases will not deal with very complex issues, such as the Price Waterhouse report. Disputes which arise under the more mundane issues could be addressed by this appeals procedure with the involvement of a High Court judge. I do not accept the Minister of State's advice that the courts may not take cognisance of the fact that a judge will sit on the appeals board. There is a myriad of appeals boards, for example, An Bord Pleanála.
Where there is an onus on us to separate the dealings of the Oireachtas from the courts and the Government there should be an interim measure. Although Mr. Hanratty advised the committee, this matter should be looked at.
I never stated that the courts would not take cognisance of the outcome of an appeals board on which a High Court judge sat. I said that there is no guarantee that they would find in favour, as previous examples have demonstrated.
The amendment may not be fully necessary in the light of the acceptance in principle of amendment No. 23 in the name of Deputy McDowell. A court deciding on whether a direction should be complied with is effectively performing the function which this appeals board is set up to perform. This also includes direction by the commission or this sub-committee. While I do not know how this sub-committee comes into it, the commission is referred to in a later section. I would have thought this would have arisen most often because somebody did not want to comply with, or wanted to appeal against, a direction that had been given to him. However, it seems to be covered by amendment No. 23.
Except that amendment No. 23 is more immediate. For that reason, some Members had difficulties about the immediacy of and the summary way in which that sanction was being imposed on people.
If I recall correctly, it also only deals with arguments relating to the terms of reference.
I agree with the Minister of State and Mr. Hanratty and I reluctantly disagree with Deputy Ahern. If we had different constitutional jurisprudence or a different Constitution we might have been able to domesticate and internalise an appellant procedure and make it final and enforceable. However, I do not believe the courts will ever abandon supervisory functions. As long as they are prepared to exercise those functions, the best thing to do is to bring this matter before them for a determination under one of the procedures provided under amendment No. 23 rather than allow people to serve judicial review notices, interim and interlocutory injunctions, etc., on us.
In that context, if the amendment is redrafted, and if it is necessary to do so, will cognisance be taken of its relationship to potential judicial review proceedings? Judicial reviews are creatures of High Court orders and it is possible to state that a judicial review shall not apply in certain circumstances or must be exercised within certain time limits. In the case of An Bord Pleanála and the Environmental Protection Agency, for example, one cannot return a number of years later to raise a point because one would be informed that one's time was passed. If there is any necessary tidying up regarding judicial review, it could be provided by statute that the committee can go before the High Court, notwithstanding a judicial review, to consolidate the matter. This would give the committee's fast track procedure some kind of precedence.
We will take that into account when considering the amendment.
When the Minister of State engages in her consideration of these would be amendments, it would be most desirable — given that we have gone through all legal and other possibilities — to try to exclude the courts to the greatest extent possible as Deputy McDowell suggests. There may be a way of doing so under Article 37. I accept that way has not been previously thought of in this context but it may be an ideal use of Article 37. In the past, Article 37 was used in connection with the disciplinary committee of the Law Society, dental societies, medical unions, etc. It was discovered that striking someone off for life was not a limited jurisdiction because it was too great a penalty. This provision is more limited because it concentrates on whether certain documents should be produced before a committee of the Oireachtas. That does not go to the root of a person's livelihood and would not have enormous effects on them which, in one way or another, could only be determined by a judge.
I am concerned about the judicial process being too prominent in this instance because, in practice, that process is only available to the very rich or the very poor. In particular, it is available to the very rich who will challenge it at every opportunity. If there was a non-judicial body——
Once it was terminal.
Yes, once it was terminal.
That is the difficulty we discovered, we cannot make it terminal.
An impecunious individual has a much better chance when appearing before committee than he would if he were obliged to go before the High Court where he could be destroyed because of his lack of means.
I cannot name names but I am aware of a number of inquiries that were held — including those held at my instigation under the Companies Acts — into the activities of certain companies to try to discover the identities of the owners of those companies; their identities were concealed by means of layers of companies in Jersey, Switzerland, etc. It emerged that the people concerned were extremely wealthy and they had no difficulty challenging the inspector at every turn in the High Court and some of the inquiries were delayed for that reason. These people will relish constant recourse to the courts. This is not just a body such as the Law Society or the Medical Union——
——or An Bord Pleanála.
——it is the Oireachtas which makes the laws. It is an elected and constitutionally recognised organ of the State and is in a different position to the lesser bodies to which I referred. There must be an arguable case that it can establish its own procedures, even of a judicial nature, under Article 37. This matter should be given full consideration.
Why is it not worth considering that suggestion, given that the bodies to which Deputy O'Malley referred are subordinate to the Oireachtas which is bound by and established under the Constitution? Such action could be subject to the usual restriction that an appeal board would be the final arbitrator and ultimately subject to a right of appeal on a point of law to, for example, the Supreme Court.
I agree with Deputy Ahern because, in planning matters, an aggrieved applicant who is dissatisfied with the decision of the planning authority must first consult An Bord Pleanála. I believe a decision was made in that regard in the late 1980s which corrals people's rights and means they cannot immediately go before the courts. They must obey the procedure set down and first consult An Bord Pleanála. Therefore, that is a case where limited jurisdiction applies.
Will the Minister of State consider the issue before Report Stage? She is aware that we want to keep it within the remit of the committee.
Article 15.10 of the Constitution states:
Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.
I do not know whether it is an "interference" to refuse to produce documents. The clause states that we have powers to "attach penalties for their infringement,——
Only on its own Members.
——and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members". Article 15.10 actually states that we are empowered to protect ourselves. I accept that we do not have powers to attach penalties in respect of non-Members but each House has a power to protect itself from being interfered with. Perhaps it is not the time to make this broad point but Article 15.10 can be interpreted as meaning that each House has the right to protect itself. That must mean that it is not by legislation passed by both Houses and that each House of the Oireachtas has its own private, individual power to take steps to protect its Members from interference from outsiders — in other words, to invoke executive powers to protect its Members, such as hiring K Security.
To stop the media calling Deputy McDowell a rottweiler.
Exactly. Each House is given the power, without legislation, to protect its Members but no one has looked at the essence of that power. It is for limited purposes but each House has the right to take steps other than through legislation.
There is an enormous onus on us to get this right because if we do not, if we trip at the starting gate on the first case, everything will fall. The strong advice given to me is that we cannot preclude a judicial review and I wonder whether we should be seen to do so under natural justice. When I say "we" I mean elected Members in the operation of such a committee of the Houses.
Everyone would agree with the Minister's instinct on that. If we cannot preclude judicial review, the real issue is whether we can fast track it and make it virtually instant.
I would like to examine that and I have mentioned it to my adviser. If we could speed up the process it would avoid thwarting the work of any committee which had gone into compellability mode. That is the best we can do between now and Report Stage, rather than look at the amendment. I have no difficulty with what Deputy Ahern is trying to achieve but I am strongly advised that if we get this wrong we will fall at the beginning.
The model we are most used to is that of An Bord Pleanála and I thought we could validly use that because we are much more solidly based under the Constitution than the planning process. Our legal adviser said he saw no problem in granting ourselves powers because in many Acts down the years we had granted various powers of compellability, etc., to other bodies and, by extension, we should be able to have an appeals procedure along the lines of An Bord Pleanála.
The Minister may reply that we never managed to give powers which were not supervised by the courts.
That is right, even decisions of An Bord Pleanála can be reviewed.
I have no problem with it being reviewed.
We do not want to put in an extra tier which will delay us in reaching our end result. Judicial reviews on points of law of An Bord Pleanála's decisions——
I am suspicious of the Minister's advice because, in effect, what we are doing is preventing potential litigation and keeping it within the remit of the Oireachtas. That may be why the Minister's advice is the opposite to mine. I cannot reconcile it with the normal attitude which would be to keep matters out of the courts to keep expenses down.
I do not think it will keep matters out of the courts and if I did I would be keen to accept what the Deputy says. Precedent shows that none of these non-judicial appeals mechanisms has worked as a terminal——
This goes back to Deputy O'Malley's well made point, that only those who can afford to go to court will do so.
——or those who qualify for legal aid.
As a practising solicitor, I tell people that they could go to the High Court or the Supreme Court but it will cost them an arm and a leg and they might not win. That is one of the biggest determining factors as to people's access to the court. It would be unfair if a person in difficulty before a committee was told he could go to the High Court because it would cost him a lot of money if it went wrong. That is why there should be an interim facility which would not cost money and might achieve a satisfactory result; if it did not, the person still would have the option of going to the High Court ultimately. As the Minister said, we should be careful to ensure this legislation works. It could be felt that the Bill is far too immediate in its sanctions and decisions. I do not want to filibuster any of the committees but we should examine the matter properly.
Is it not possible to achieve some of these aims by having a standard practice of inserting into a committee's orders of reference an appellate procedure or a mechanism to refer back to the standing committee on compellability? That cheap, fast track process could be built into every committee.
That would also be an appeals board.
I have no problem with that. The reason I put down this amendment was to have a discussion on this interim process. However, I would rather have it on a statutory basis.
I was thinking along the same lines as Deputy McDowell. There will be a number of committees applying rules and regulations and setting out orders of reference. It would be no harm if the appeal body suggested by Deputy Ahern had wider powers to include, as Deputy McDowell says, ensuring implementation on a consistent basis. It could have a supervisory role as well as an appellate role to ensure consistency. Since not all committees will operate their orders or terms of reference in the same way, there will be problems. If this body provided at least a semblance of consistency in relation to the application of the terms of reference, rules and regulations — which we must draw up and which will, one hopes, apply to all committees — it might serve a useful role.
I do not know whether it would be necessary to include in the legislation a clause providing that, before the passing into law of the Bill, the Oireachtas would put into being those internal structures and arrangements.
It might be better to include an enabling section——
That is what I am saying.
——such that the Oireachtas may provide in the orders of reference for certain things. The Minister is returning to the constitutional issue but my point is that it is not competent for both Houses of the Oireachtas always to tell one House what it must do with any committee it wants to establish.
Amendment No. 24 proposes an appeal board "to hear appeals from directions by Committees, or determinations by the Commission or Sub-Committee on Compellability", so there are layers.
That is rather complicated but in the order of references of a committee it should be easy to establish that anyone who is aggrieved by a direction is entitled to apply instantly to a subcommittee of the Committee on Procedure and Privileges.
To play devil's advocate. Who would not do that?
Suppose someone was asked for discovery, he would inform his solicitor that it would cost him £3,000 to comply, so he would request the solicitor to ask the committee to see sense.
The solicitor would ask the committee whether it came within the terms of reference?
No, the solicitor might realise that it could be done but would want to know why the discovery was sought. It might take the witness a week to comply with the discovery — he might want to go on holiday — so the solicitor could ask the committee to be fair to that person.
Deputy McDowell knows that asking for discovery is a hugely complex, difficult and costly task. We have given ourselves that power and perhaps we should allow people to appeal against it rather than having to go to the High Court to do so.
Perhaps we should consider whether the subcommittee on compellability could have an expert group on these procedures. Its powers could be increased to allow it to employ legal advice, perhaps from a retired High Court judge. I will look at it. As presented I have difficulties with it because we cannot accept the decision of the appeal board as being final.
Leave out the retired High Court judge.
We will run out of retired High Court judges soon. I will look at the principle Deputy Ahern is trying to espouse.
I would be willing to delete the element of the appeal board's decision being final. I will withdraw the amendment on the basis that the Minister of State will come back to us with a composite proposal.
I will try to include the principle the Deputy has outlined but I do not know what I will be able to arrange.
I do not mind if it is done by way of Standing Orders.
We will look at it. I know what the Deputy is trying to achieve and I will see if there is a formula for it.
Amendment, by leave, withdrawn.