Select Committee on Finance and General Affairs debate

Mrs. Doyle

I move amendment No. 64:

In page 11, subsection (1), line 28, after "direction" to insert "or who is directed to give evidence or produce a document to a committee or to attend before a committee and there to give evidence or produce a document".

This section confers High Court privilege meaning that proceedings cannot be used against witnesses for the purpose of defamation or self-incrimination on witnesses acting under a committee's direction. This amendment is designed to strengthen the power of direction so it also applies to people not present before the committee and makes it applicable from the receipt of a direction and not from physical appearance before a committee. It should help speed up committee proceedings.

The Government intends to introduce amendments to the text to extend privilege to the authors of documents produced by witnesses under direction from committees and to clear up any ambiguity in the point that the privilege extended under this subsection applies to both documents and evidence given directly to committees. Addition of the phrase "and the document shall be privileged" to the end of subsection (1) would achieve the first point. This wording was used in the Wallace committee legislation. Insertion of commas after the word "committee" in lines 27 and 28 of the subsection would remove the possible ambiguity previously commented on by Deputy McDowell.

Mr. M. McDowell

According to this the direction is a precondition for absolute privilege; therefore, a volunteer, does not get absolute privilege. I am most unhappy with that. I do not see why previous notice in writing should matter if a committee allows somebody to give evidence.

Mr. J. O'Keeffe

If a committee is in compellability mode, all the evidence before it should be covered by privilege.

Mrs. Doyle

Even if they come voluntarily we can just give them the document. Is direction not only a piece of paper?

Mr. J. O'Keeffe

Yes.

Mr. M. McDowell

Its relevance is section 9 where people must be given advance notice. You cannot get a civil servant before a committee on the same afternoon the request is made because it would be impermissible or impossible to have a direction and they will therefore not receive privilege.

Mr. J. O'Keeffe

It could frustrate the work of the committee. There seems no reason why privilege should not apply in all cases.

Mrs. Doyle

On a point of principle we may be able to accept that but we need to examine how we can separate compellability and privilege.

Chairman

Will that amendment be submitted on Report Stage?

Mrs. Doyle

Yes.

Mr. D. Ahern

I move amendment No. 65:

In page 11, lines 31 to 35, to delete subsection (2).

I have a grave difficulty with subsection (2). It would be very difficult for a committee chairperson to decide, midstream, that they are going to withdraw privilege from a person who is giving evidence. It would put a huge onus on all our chairpersons. We have difficulties regarding the powers, duties and indemnity of our chairpersons. A chairperson, particularly somebody who does not have a legal qualification, and even somebody with such a qualification, might not be able to determine properly when to withdraw privilege when somebody is giving evidence. There is a provision relating to taking evidence on oath and, in order to overcome this problem, perhaps in all instances evidence could be taken on oath. That probably would protect not only the committee but also the person giving evidence in that it would retain their privilege. If they were to give evidence on oath they would be subject to perjury if they departed from the truth.

This puts a huge onus on chairpersons to be judge and jury in the granting or withdrawal of privilege.

Chairman

The provision states: ". . . evidence to a committee in relation to a particular matter is directed to cease giving such evidence. . . . .". It does not say by whom the person is directed. If the direction is given by the committee there might be a long argument and division in the committee.

Mr. D. Ahern

I assume the person is directed by the chairman.

Chairman

It is not clear.

Mr. D. Ahern

That is true.

Mr. J. O'Keeffe

Mr. Hanratty pointed out that even before the High Court, privilege is not absolute. In his view, if somebody used or abused his position as a witness after being told by the judge to desist, full privilege would not apply. The person would automatically be open to difficulty if he or she abused the position for the purpose of, for example, slandering somebody. It is a point worth considering.

The subsection appears to be unnecessary. If somebody is directed to cease giving evidence but continues to do so, surely they must do so at their own risk.

Mr. O'Malley

Why is subsection (2) included?

Mr. J. O'Keeffe

That is my point. Could that provision not be included in the guidelines?

Mrs. Doyle

It is included on the recommendation of the Committee of Public Accounts.

Mr. M. McDowell

It appears to imply a right to continue, having been told to cease. Since the person will only have qualified privilege, why should he or she not cease when directed to do so?

Mr. D. Ahern

If somebody were to continue to speak in a court he or she could be in contempt of court if the judge had directed the person to cease. If a witness came to give evidence about a certain issue and proceeded to slander somebody, one would not be qualified to give direction whereas a judge can give a direction that the person will be in contempt of court.

Mr. Penrose

I would worry about it. The chairperson will give his grounds for directing that the witness cease to give evidence. The Bill could survive without this provision. It should be included in the regulations. As it is, it is fertile ground for people to seek a judicial review as to when absolute and qualified privilege come into being and a dispute could arise about it.

Mr. M. McDowell

Absolutely. It is better to omit it.

Mr. J. O'Keeffe

I prefer to omit it. I do not see why the witness should have any privilege. The provision, by giving the witness qualified privilege, confers a benefit on somebody who ignores the direction.

Mr. M. McDowell

If one is given the same immunity as a High Court witness and if Mr. Hanratty's advice that one cannot abuse one's privilege when one is told to cease giving evidence is correct, one cannot proceed, for example, to slander other people. Perhaps it is unnecessary to have two types of privilege in the provision. If one has the same immunity as a High Court witness one cannot have more immunity than that.

Mrs. Doyle

Is that interpretation correct?

Mr. M. McDowell

That is the point: we must be sure about it. Mr. Hanratty told us that if one is directed to stop giving evidence in the High Court and one then proceeds to accuse all one's neighbours of, for example, child abuse and so forth, one does not have absolute privilege.

Mr. D. Ahern

One does not have High Court privilege once one deviates from the subject at issue in the court.

Mr. M. McDowell

We can check it out.

Mr. J. O'Keeffe

I hope the Minister of State has a document from Mr. Hanratty, dated 2 July 1996, in which he covers this point extensively.

Mrs. Doyle

If our legal sources confirm what has been said about subsection (2) we can delete it, but I will not commit myself to doing so until I get confirmation from the Government's legal sources.

Mr. J. O'Keeffe

Mr. Hanratty refers to the words of Chief Justice Ó Dálaigh in the Ray Haughey case of 1971. In the course of the judgment the Chief Justice said that, even in the High Court, if a witness were to take advantage of his position to utter something defamatory, having no reference to the cause or matter of inquiry but introduced maliciously for his own purpose, no privilege or immunity would attach and he would find himself sued in an action for defamation. If we let subsection (2) stand we will confer qualified privilege. Its inclusion should be examined.

Chairman

All evidence will have to be taken under oath. Otherwise if false evidence were given it would not be an offence. The witness would have privilege and could not commit an offence.

Mr. M. McDowell

That is a point. There should be a general guideline that the oath is administered. As the Chairman pointed out, if the oath is not generally administered it means people can make slanderous and untrue remarks about others with no penalty attached.

Mrs. Doyle

That is right.

Mr. M. McDowell

They also have absolute privilege.

Mr. J. O'Keeffe

It might also help us to overcome the difficulty of somebody who is a volunteer. If the Bill were to provide that all evidence be given on oath and that anybody giving evidence on oath is given privilege and immunity, we could overcome the difficulty of the volunteer in a neat way.

Mrs. Doyle

It is up to the committees to decide whether the witnesses give evidence on oath. The provision is in the Bill and the committees can issue guidelines and decide whether all or some evidence is given on oath.

Chairman

I was Chairman of another committee and, in the case of some witnesses, I had good reason to believe that the evidence given was and could not have been true, but no offence was committed because since the evidence was not given on oath, there was no perjury.

Mrs. Doyle

There is provision for oaths in the Bill.

Chairman

I accept that. However, if the oath is not applied from the beginning and one subsequently discovers the evidence is not true, the witness has not committed an offence.

Mr. M. McDowell

The evidence is absolutely privileged.

Chairman

One would have to decide that all evidence under the proceedings of this Bill should be on oath.

Mrs. Doyle

That is a matter for the guidelines, not the legislation.

Chairman

I am not sure.

Mr. M. McDowell

It does not really matter; it can be done through the guidelines.

Mrs. Doyle

There is provision for oaths so it is a matter for the guidelines or the chairperson. The chairperson can decide that all evidence is taken under oath.

Mr. J. O'Keeffe

I agree with the Minister. If the Bill provides that the committee may do something, it is for the committee to establish the guidelines along the lines suggested by the chairperson.

Mrs. Doyle

We have done that.

Chairman

When I was Chairman of the Committee of Public Accounts I saw the need for this important legislation. There might be a division in the committee as to whether evidence should be taken under oath and if it is decided not to do so, no felony or contempt can be committed. It should be clear from the beginning.

Mr. J. O'Keeffe

The Bill should provide that anybody who is giving evidence under oath has immunity, whether that person is directed to come before the committee or is a volunteer.

Chairman

The sub-committee would like the Minister of State to look at two issues: that evidence "shall" rather than "may" be given under oath and, second——

Mr. J. O'Keeffe

I am happy with "may" provided there is a provision that somebody who is giving evidence under oath, whether voluntarily or under direction, is given privilege.

Chairman

A volunteer before the committee should have the same immunity as someone under direction.

Mr. J. O'Keeffe

My concern is the effective working of the committee and that someone would not delay its proceedings by saying they must be given notice which would put matters back by a couple of weeks. They might then send in a principal officer or managing director which would cause further delay. We need to deny anyone the opportunity to deliberately frustrate the committee.

Chairman

Who gives the direction? It is not clear from this who that would be.

Mrs. Doyle

Section 3(3)(b) states "Any other direction shall be given by the chairman of the committee concerned or by any other member of the committee who is acting as chairman thereof". This makes it clear that a direction made under section 11(2) would be made by the chairman.

Mr. D. Ahern

Subsection 11(2) would put a huge onus on chairpersons and would cause us grave difficulties.

Mrs. Doyle

The working of this legislation puts an enormous onus on chairpersons. There is a solemnity about this that we have not met before.

Mr. D. Ahern

We have been forewarned and that is why we have a duty. It does not matter whether they are in committee they will be going on the advice of their civil servants.

Mr. M. McDowell

If we can get rid of section 11(2)——

Mrs. Doyle

We will proceed along those lines and Deputies can take it that there will not be too much of a problem.

Chairman

If we delete section 11(2) would that mean that if someone came here and gave evidence which was unrelated or malicious they could not be told to stop?

Mrs. Doyle

Of course they could.

Chairman

If this was dropped?

Mrs. Doyle

The chairman will have to direct them immediately they step out of line. It puts an onus on the chairperson to know when they have moved beyond the point of what is acceptable in terms of the evidence required.

Mr. J. O'Keeffe

There is a concern in that one is not entitled to privilege.

Mrs. Doyle

That is right.

Mr. M. McDowell

Presumably if one is told to stop one cannot be giving evidence pursuant to direction.

Mrs. Doyle

I thought direction in that case was to stop.

Mr. M. McDowell

If one is going to rely on section 11(1) as it now stands one has to be tested by and pursuant to direction. If the chairman told you to shut up, I do not see how one can claim that one is testifying pursuant to a direction.

Mr. D. Ahern

It could end up in the courts as to whether it was a direction.

Chairman

Clarification is needed as to whether there is power to give a direction and, if so, by whom. How does one minimise the likelihood of recourse to the courts? There will need to be a legal assessor beside the chairperson during such proceedings. The liability of the chairperson also needs to be clarified.

Mr. J. O'Keeffe

Mr. Hanratty said an alternative would be to remove any form of privilege for the person who insisted on continuing to give evidence and by statute give them qualified privilege, but that is the worst of both worlds.

Mr. M. McDowell

Qualified privilege is when one gives information in which one has an interest or duty or shares a common interest with the recipient of it. Therefore, if the recipient feels the committee has told him to shut up and keeps on unilaterally broadcasting at them, I do not think qualified privilege would apply.

Chairman

Inquiries of this nature are likely to be televised and a lot of damage could be done before any order could be given.

Mr. M. McDowell

That is true.

Chairman

The Minister should bear that in mind. Unlike a court of law a lot of damage could be done while the witness continues whereas the court could ban it and the media would obey that ban.

Mr. J. O'Keeffe

The question arises whether the broadcasters would have difficulties themselves.

Mr. M. McDowell

The camera would have to be turned off. If there was a live broadcast of committee proceedings with absolute privilege and suddenly the witness strayed into disobedience and qualified privilege, RTÉ would have to decide what to do. Perhaps they could have a panic button.

Select Committee on Finance and General Affairs debate - Thursday, 30 Jan 1997

SECTION 11.

Select Committee on Finance and General Affairs debate -
Thursday, 30 Jan 1997