Section 13 states that a "witness before a committee may be required by the committee to give his or her evidence to the committee on oath". That is vague. Section 12 mentions the offence of perjury. I do not understand how a person can be charged with perjury if they do not give evidence on oath. Should this committee not require that all evidence be given on oath and amend the Bill accordingly?
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
A vote for affirmation.
That is correct.
I agree with that as it would add to the solemnity of the proceedings.
The Minister should be careful because it will change the section to read that a "witness before a committee shall be required by the committee to give his or her evidence to the committee on oath". There may be circumstances where an oath might not be appropriate.
When?
If a child or someone who does not believe in oaths was brought before a committee. Must the Minister not provide for affirmations instead of oaths? She should not rush into this. Does it apply to a volunteer?
Yes, particularly to them.
To give them immunity.
Provided the Minister gives immunity to a volunteer, which is not included in the Bill at present.
What is the argument against giving evidence on oath?
I am afraid we will rush into this without giving it proper consideration.
No committee will take a child to a criminal court. We are conducting the business of the Oireachtas and we will not bring in seven year old children who do not understand the meaning of an oath. That would be crazy.
I cannot see 15 or 16 year old children being brought before a committee.
I am not making an argument against the proposal but to clarify the situation.
The Oireachtas might decide that this committee has the power, but some of its hearings may not be held under the powers of this Bill. For example, witnesses have come before this committee to discuss European Monetary Union, which would not be covered under this Bill. Perhaps the Minister could clarify that.
Surely it applies to the operation of this Bill only?
It does not.
Section 2 deals with the application of sections 3 to 13 and 15. If a person comes in here and gives us his views on something, that is not evidence.
There are things on which we might seek evidence.
If I make statements of fact here, I am not giving evidence.
I used to listen to what was called evidence at this committee when in fact it was a submission on behalf of an organisation.
People making pre-budget submissions to the Select Committee on Finance and General Affairs Committee are not giving evidence.
It is referred to as evidence.
It is not evidence in the legal sense.
We included "expresses an opinion" but we left out "allegations".
Under this Bill witnesses before a committee of the Houses of the Oireachtas ——
Section 2 states that "Sections 3 to 13 and 15 apply only to a committee on which power to send for persons, papers and records is conferred— . . . ". I presume that covers your point.
It does not.
The Select Committee on Finance and General Affairs will have powers in one context and will not want to exercise them in another.
Surely you are resolved to move into compellability mode.
That is not what section 2 states.
It is only when it is operating in that regard——
You may have intended it to state that.
Perhaps we should include "may" rather than "shall".
I would prefer "shall".
Guidelines should state it is a mandatory provision. If the Minister accepts Deputy Dermot Ahern's amendment, the committee will be obliged to administer an oath when it is in compellability mode.
I am not happy with that. Suppose the committee starts to take evidence without an oath, and halfway through decides the proceedings are becoming nasty so it had better introduce an oath, what priority is attached to the evidence given under oath and to that not given under oath? This is a dangerous situation.
The guidelines could state that all evidence should be given under oath and it would not be possible to start without doing so.
The guidelines will state that if the Austrian Ambassador comes before the Oireachtas Joint Committee on Foreign Affairs, a Bible should not be administered to him to take the oath. The guidelines will set out when it is and is not appropriate to do it.
We defined evidence as an opinion, a belief or an intention. Section 13 refers to evidence under this legislation.
That is why we should use "may" and then have guidelines which state when it is and is not appropriate to do it.
We have no guarantee the guidelines will state that.
If what you are saying is correct, how will you deal with the Austrian Ambassador?
The Chinese will be a bigger problem.
The Deputy should be careful because this is on the record.
The word "shall" should be applied once this Bill's powers are being used but it should not be applied by a committee which is not using them.
I do not agree with that.
I do not know how to phrase that correctly. There must be a provision so that when this legislation is being used the word "shall" will be required.
Would it be possible to marry everyone's concerns? As I understand it, when this committee enters compellability mode, evidence is taken under oath. However, there will be many other occasions when the committee will not be acting in that mode. Therefore, the term "a witness before a committee may be required" would cover that eventuality, provided the guidelines clearly stated that, once in compellability mode, all evidence will be taken under oath. A marriage of the two provisions would achieve what Members are seeking.
Yes, if that is stated in the legislation.
It does not need to be stated. The guidelines are a matter for the committee.
No, the guidelines are a matter for the Committee on Procedure and Privileges.
Yes.
This committee or the Houses of the Oireachtas will not have a direct say in the matter.
There is a constitutional point at issue here. It is not possible for both Houses of the Oireachtas to inform either House that an oath must be administered to persons appearing before committees. It is the responsibility of each House to decide if an oath is to be administered in particular circumstances. This is a constitutional point. Both Houses cannot inform either House with regard to how it conducts its affairs. Under the Constitution, each House decides its own privileges and procedures. Therefore, placing the provision in the guidelines is the correct route to take.
I strongly support that approach. We want to give maximum powers to the committee but we do not want to tie its hands. The obvious solution is that referred to by the Minister of State.
Are Members satisfied with the use of the term "a witness before a committee may be required" and the guidelines to resolve the issue of compellability?
Provided it is made clear in the legislation, not the guidelines, that it shall be obligatory to take an oath at an investigatory hearing.
That is not contained in the legislation.
What about the constitutional point?
The issue raised by Deputy O'Malley is not covered by the legislation.
If a number of people at a hearing give evidence without taking an oath while others give it on oath, there is a sanction against the latter group if they deliberately make untrue statements but there is no sanction against the first group. Some inquiries might be uncontentious at the outset but could become quite contentious and it might become necessary, in the middle of an inquiry, for witnesses to be administered with an oath.
Members seem to be of the opinion that committees of the Dáil should only investigate specific scandals that are referred to them. That is not so. The value of the work of many parliamentary committees abroad lies in the taking of what is known as evidence relating to the provisions in a Bill, for example. Very contentious views can be expressed when one interest group wants one thing and a second group wants another. The committee is charged with deciding the best route to take and, if its deliberations are very contentious, those people should give evidence on oath. The work of committees is not always concerned with investigating scandals.
Members of the Committee of Public Accounts are screaming for the right to take evidence under oath and I have good cause to support them.
I wish to raise another issue which is somewhat of a googly. What sanction can be imposed on a person who refuses to take an oath?
That is dealt with under the section concerning penalties. They will be brought before the courts with the possibility of being sent to prison.
Is it referred to as contempt?
Section 3(7) states:
A person who—
......
(d) does any other thing in relation to the proceedings before a committee which, if done in relation to proceedings before a court by a witness of the court, would be in contempt of that court,
shall be guilty of an offence.
Such a person could state they were not doing anything.
Refusal to take an oath will be classed as contempt. The person would be given a direction under section 3(1)(d) before section 3(7)(d) comes into play.
I believe there might be problems regarding the Constitution, Article 15.1 of which states that "Each House shall make its own rules and standing orders. . ..".
That means that joint committees cannot operate the legislation until——
They can, but they must be authorised to do so by the Committee on Procedure and Privilegess of both Houses.
Bearing that in mind, it is clear that, under compellability mode, it should be general practice to take evidence under oath from the outset because this involves less danger than the alternative.
We can agree on that proposition in general terms but it is not included in the legislation and, if it is to be included, we do not know the form it will take. There is great risk involved and these matters cannot be properly resolved before Tuesday next. That provision alone is difficult and the matter will not be dealt with properly in the time available. Deputy O'Keeffe stated that much progress has been made but the only progress I am aware of is that we must wait until Tuesday for the hen to lay the egg. The problem is that she is expected to lay approximately 50 eggs and it will be extremely difficult to do so.
That is a very sexist remark.
The point has been made. The Minister will consider the three issues raised in respect of the use of "shall" or "may".
If I interpret it correctly, use of the term "may" and the guidelines seems to have the greater support.
I wish to make a final point in relation to the clerk administering the oath. It is necessary, under the relevant Act, to specify who is empowered to administer the oath.
It is included in this Bill.
Yes. I see that the clerk is the person charged with that responsibility. Should the provision not also include the chairman or a person acting with him in the event that the clerk is not present?
An acting clerk could also administer the oath.
Therefore, use of the term "clerk" does not mean anything?
No.
It is a loose term. Is the Minister of State satisfied with its use?
Yes.
It would the person acting as clerk to the committee?
Yes.
Returning to the oath and the compellability mode, does that cover ordinary hearings of the Committee of Public Accounts? I believe evidence before that committee should be covered.
Section 2 states that any committee which has powers to send for persons, papers or records, by resolution of the House of the Oireachtas by which the committee was appointed, is covered by the provision.
Are accounting officers covered by the legislation?
They appear under the Comptroller and Auditor General (Amendment) Act, 1993, but there are not compellable.
The provision should include the compellability mode and giving evidence before the Committee of Public Accounts. Members of the committee are very keen to compel witnesses to attend and give evidence and I strongly support them.
I am not sure but the committee could be conferred with such powers.
It is the responsibility of the Dáil to bring the Public Accounts Committee under this legislation.
The Attorney General is compellable under the legislation.
We are visualising this as evidence under oath for investigations under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Bill. However, the Committee of Public Accounts holds its own hearings and there were cases where witnesses were suspected of giving deliberately incorrect evidence and it was not an offence to do so. The committee could not refer such cases to the courts because there was no suspected felony involved and the person suspected of giving such evidence got off scot-free.
He was promoted to the position of Secretary.
I do not want to go into further detail.
This provision would apply to the Public Accounts Committee if it went into compellability mode.
The proceedings of the Committee of Public Accounts, even in considering the Report of the Comptroller and Auditor General and questioning accounting officers and others, should be covered.
They are not covered under this legislation. However, I am advised that the Public Accounts Committee has those powers at present.
Yes, but there is no provision to take evidence under oath.
No. However, section 13 is covered under section 2 which states that sections 3 to 13 "apply only to a committee on which power to send for persons, papers and records is conferred". Since that power is already conferred on the Public Account Committee, it is covered.
We can argue about this all night. I would like to see a copy of the Comptroller and Auditor General (Amendment) Act to which the Minister referred.
Those provisions are not contained in the Comptroller and Auditor General (Amendment) Act, 1993.
No they are not, they are included in an earlier Act.
The earlier Act dates from the 1860s.
No, there are several other Acts. The 1860 legislation is the Principal Act. However, the point is well made.
The power to send for papers must be conferred not by Act but by resolution. That is the difference.
In fact it must be done by order of the House.
If the guidelines or the law state that evidence shall be taken on oath when a committee is in compellability mode, that may not cover ordinary hearings of the Committee of Public Accounts. However, I believe it should.
I agree with the Chairman. If the legislation does not cover such meetings of the Public Account Committee, it should.
Any amendments on Report Stage should take cognisance of that fact.
Question put and agreed to.
NEW SECTION.
I move amendment No. 67b:
In page 12, before section 14, to insert the following new section:
"14.—A Committee may at its own discretion, decide to hold any of its proceedings, or any part thereof either in public or in private.".
I tabled this amendment because we were advised by senior counsel that, in view of the fact that we were discussing matters relating to the security of the State, a committee should have the ability to meet in private. I am not saying that this is my opinion, I merely tabled the amendment for the delectation of the committee.
I will accept the amendment.
The Minister of State stated that she would accept the amendment.
I will introduce an amendment along those lines on Report Stage.
What about the amendment before us?
I will accept the amendment as worded.
Amendment agreed to.