I move amendment No. 66:
In page 11, line 37, after "to a committee" to insert "pursuant to a direction of the committee to the person".
SECTION 12.
Is this a drafting amendment?
Yes. This section provides that material provided by a person to a committee cannot be used as evidence against that person in criminal proceedings. It ensures that only evidence provided to a committee following a direction by that committee shall be inadmissible as evidence in such criminal proceedings.
This is to prevent to situation where a person could voluntarily send information to a committee for the sole purpose of rendering that information inadmissible in criminal proceedings against that person.
We did agree to an amendment previously in relation to discovery. A person could make discovery of documents and include in the discovery a document which they might not want used in criminal proceedings. Would the Minister look at this point?
Yes.
I am not happy that the Minister has achieved all that she wanted by this amendment. For instance, as it stands, even if a committee does send for a document and gives a direction, is it right that that document, because it has been before a Dáil committee, can never be used against that person in any criminal proceedings?
Is the Minister providing an escape hatch for crooks who would be rushing up with documents for the committee on the basis that, if later prosecuted by the DPP, these documents can never be produced?
Let us talk about a real example. If an important businessman who gave large sums of money to politicians swore an affidavit saying that he had given money to this and that politician, and if Deputy O'Malley was investigating this matter on a committee and sent a requirement to him to produce that evidence, is the Minister saying that, as a result of that, no criminal proceedings could ever be brought again?
That evidence could not be used.
No, but that document could never be produced.
Even though the amendment only protects documents sent under the direction of the committee, the decision of the Court of Human Rights has gone much further. Any document or evidence is precluded from subsequent proceedings.
There could be a widely circulated affidavit and the DPP might be staring at it wondering what to do. The affidavit might also have been sent for by the committee. If it is produced before the committee it suddenly is immunised even though it was in the public domain.
Is there not a core principle that someone cannot incriminate themselves? That goes to the heart of what this section was trying to achieve. If we are trying to make an exception to that principle——
That is why I would advise Deputy Lowry not to make a statement.
If someone else produces the affidavit to Deputy O'Malley's committee this section would not apply. It has to be produced by its author.
It is privilege against self-incrimination. It is not an easy thing to disregard.
I have not thought it through but we should not make fools of ourselves either.
In one sense it strengthens the power of the committee in that someone could reasonably say that they would be willing to come before the committee with the documents except that, if they did, they would be prosecuted. The intent behind the section is to reinforce the power of the committee to secure access to documents while, at the same time, not leaving the person involved open to prosecution.
There is a responsibility on committees in compellability mode on any issue to know whether that is in the best interests of the public or to let it go to the courts. The decision will have to be made on serious issues in the knowledge that this will be the result of producing documents.
There is the danger of the section being used gratuitously.
I am not sure where the balance of natural justice lies.
Maybe that is a danger which cannot be completely excluded.
How does it affect the discovery of documents? If an order is made for the discovery of documents, will all documents discovered and submitted be——
I do not know what amendment has been thought of for the area of discovery as we have not seen it yet. If it requires or permits inspection and production, it might be that it is caught——
These could be weeded out.
——because it is then produced to a committee pursuant to a direction.
And all documents so discovered.
What is the position if there are civil proceedings before a High Court and an order for discovery and a man feels that, if he produces certain documents, he will be sent to prison?
He may refuse to do it on the grounds of possible self-incrimination. From memory, there is a provision in the Larceny Act, 1990, that, if people are compelled to produce documents on discovery in any tribunal or court, they cannot be used against them in certain criminal proceedings under that Act.
Would the position be the same for a judicial tribunal?
The privilege against selfincrimination is a constant throughout the system.
Is there a provision along these lines in the Tribunals of Inquiry (Evidence)(Amendment) Act, 1979? What is the practice and procedure before a tribunal because we are to a degree setting up a semi-parallel system and that would be the best precedent to look for?
The senior counsel advising the committee said he did not see why this section should extend to documents. It needs closer examination.
On the other hand, if people plead self-incrimination as a possible ground for not producing documents, the documents would never be seen to establish the plea was genuine. It would be better to have this than people not showing the material and not saying why either.
The exemption given here to statements, admissions or documents produced by a person only relates to that person and no one else. This is open to abuse. If a document is produced by X which incriminates X, Y and Z, he is then in the clear and Y and Z can be prosecuted for fraud or whatever. Like many other sections, this needs much thought. I can see this being the subject of litigation ad nauseam. There will be criminal trials where people will attempt to avail of this provision and will go to the High Court for declarations that they are entitled to them. Why should the producer of the document be criminally exempt if his co-conspirators as disclosed by the document are not?
The Minister of State must produce about 50 amendments between now and next Tuesday night. It is impossible for her, her staff and advisers to do it and we are cutting our throats as a committee and as a Dáil in expecting that to be done. It will be inferior work; by definition it must be. I know how difficult these matters are. One could spend a day mulling over that small section alone and trying to analyse the consequences. It is crazy to be rushing this. The only beneficiaries in the long term, apart from lawyers, will be people who should be properly investigated by a committee and who will drive a coach and four through it because the legislation is defective. The Minister of State has to table 50 amendments, many of great significance. This cannot be done over a weekend. She will have to circulate them next Tuesday.
There can be no effective response to them.
We will hardly have time to read them.
It does not matter who is involved and how competent and dedicated they are; no one could produce 50 or more amendments of the type needed by next Tuesday. It is impossible and the committee is crazy to follow this time scale. I plead that people sit back and think about it. Some may think the only objective is to get to the end of the Bill. It is not. The committee's objective is ultimately to get to the end, having fully examined every part, teased it out and got it right. The idea of a committee is that it makes amendments of significance. Here it is not doing that. All these amendments are being promised on Report Stage. However, they cannot be drafted between now and next Tuesday.
It is a difficult deadline but I have pleaded for some weeks that this be studied on Committee; I have offered myself at every available opportunity and we have not been able to. I am afraid the timetable has tightened up.
I will not tolerate this. The committee wrote to the Minister for Finance in July saying it would be ready to take this Bill from the first week in November. Amendments were not forthcoming from the Government until 23 December.
They were not available to Members until 2 January.
It has been erroneously stated in the House that the committee was at fault. I do not want that falsehood repeated.
Since 6 January I have made myself available, virtually day in day out, morning, noon and night, to give the hours this Bill needs.
Others were not available.
I have really tried to allow for the committee to put time into this.
I drafted amendments to this Bill in November 1995 but the Minister, her officials or the Government did not examine those amendments until two weeks ago.
The amendments were not examined until the report from the committee's legal adviser was examined.
I must confirm that, as far as the Minister of State is concerned, she wanted to sit night and day to work at this.
It was not laziness on the part of the committee. We wanted our legal adviser to advise us on the implications of the Government amendments. We could not suddenly just tell a busy senior counsel to attend instantly.
The committee process has been productive and, in a largely non-partisan way, isolated issues have been constructively debated and dealt with. Progress has been made and we are near the end of the process.
The officials have a lot of work to do between now and Tuesday. I accept Deputy O'Malley's point. I do not know if it is possible to draft the amendments but the midnight oil will be burnt.
It should not have to be done.
We have the timetable given us.
The points are not made vexatiously and are valid and ought to be considered. Ways and means might be found to give more time to the Bill without delaying it unduly. Even if all the amendments were recommitted, we could discuss them again next week. Perhaps it would then be possible to delay the passage of the Bill until the following Tuesday.
Amendment agreed to.
Section 12, as amended, agreed to.
NEW SECTIONS.
Amendment No. 67 is out of order as it involves a potential charge on the Revenue.
The Minister took one of my amendments on board which involved a charge on the Revenue. Perhaps she could do so again.
The Deputy should not think that because I did it once I will do it on all occasions. The amendment is unnecessary because we have already dealt with this area.
The Minister will be busy.
At the first meeting of the Dunnes subcommittee we appointed a legal adviser. We made it clear we would not operate unless we got a legal adviser.
Amendment No. 67 not moved.
I move amendment No. 67a:
In page 11, before section 13, to insert the following new section:
"13.—(1) The Committee on Procedure and Privileges may make rules or issue guidelines relating to the conduct of proceedings before any committee to which section 2 of this Act applies.
(2) A committee shall, as far as is reasonably practicable, conduct its proceedings and exercise its powers in accordance with the rules or guidelines (if any) which may be made under subsection (1) of this section.".
It is important to have guidelines. I tabled this amendment on the basis of the advice given by Mr. Hanratty.
I am prepared to accept this amendment.
It should read: "The Committee on Procedure and Privileges of either Houses of the Oireachtas". It needs to be tidied up a little.
I will come back with another amendment on Report Stage.
Amendment agreed to.