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

SECTION 14.

Mr. M. McDowell

I move amendment No. 68:

In page 12, subsection (1), line 2, after "shall not" to insert "be required to".

I took the wording of this amendment from an amendment I tabled in respect of the barristers' wig provisions during deliberations on the Courts and Courts Officers Act. The original Bill stated that barristers "shall not wear wigs" and I tabled an amendment to insert the term "shall not be required to". Someone in the Parliamentary Draftsman's office forgot to remove the prohibition on wigs from the Long Title and, therefore, it remains.

Section 14 proposes that a civil servant, a member of the Permanent Defence Force or a member of the Garda Síochána shall not be required to express an opinion when giving evidence. The amendment is designed to make it possible for them to do so. I believe it would be much more desirable that there should be a general convention that civil servants never do this. I agree with Deputy Ahern that there should be an impartial, apolitical public service. By the same token, however, there may be occasions on which it is appropriate for a civil servant to express an opinion. It would do serious damage to the constitutional rights of others or the civil servant in question if they were prohibited from doing so. For example, a Minister might inform a committee that he or she took a certain action on the advice of a civil servant.

Mrs. Doyle

A Minister might say it?

Mr. M. McDowell

He or she might state that they were advised to do so. The Minister of State has already stated it on a number of occasions at this meeting. It might transpire during the course of events that this was not true and the civil servant might state that they had given the opposite advice.

I accept that it does not allow a person to state that they did not advise a Minister to do something. If there was a document in which the person stated that what the Minister was doing was cracked, it could not be produced at the committee to corroborate their account.

Mrs. Doyle

It could.

Mr. M. McDowell

Does the Minister of State believe that it could be produced as evidence of the advice given?

Mrs. Doyle

Yes.

Mr. M. McDowell

Even though it contained a statement critical of Government policy? I do not want to create unnecessary problems. If there is a view that a civil servant could inform a committee of the Dáil that he or she advised a Minister against a particular course of action——

Mrs. Doyle

That is a direct negative, it is not a comment on policy.

Mr. M. McDowell

If a person is entitled to do so in one context, why not another?

Mrs. Doyle

It is different because it involves factual information and opinion on Government policy.

Mr. M. McDowell

This is most important. I had believed that, on a narrow reading of the provision, it could be stated that a civil servant may not express an opinion but he or she may give evidence that they expressed an opinion and provide details of that opinion. If it is interpreted in that light, I have no difficulty with the provision. In other words, a civil servant could state "I did not advise the Minister to do A, I advised him to do B and I informed him that A was wrong for the following reasons.". It is the third part that is relevant.

Mrs. Doyle

No, if a Minister stated he was advised to do A by a civil servant there is nothing preventing the civil servant from contradicting that assertion. Facts are facts.

Mr. M. McDowell

The Minister is receiving one view from one of her advisers and a second view from another.

Mrs. Doyle

I am not.

Mr. M. McDowell

If a civil servant were in a position to state "I advised the Minister against doing A and I advised him in favour of doing B. I gave him the following five reasons for this course of action.", he or she would not be giving evidence of his or her opinion or questioning Government policy. They would be merely reciting the factual details of what they had done at a specific point. If that is correct interpretation of the section, that is a huge relief.

I do not want civil servants to come before the committee to state they believe that what the Minister of State, Deputy Doyle, is doing today is cracked. However, it would be desirable that a civil servant could state "Six months ago I advised her against her actions" if asked a question in that regard. The amendment merely stresses that, in certain circumstances, although one cannot be required to ask that question of a civil servant, they should be permitted to tender that evidence. To prevent someone giving that kind of evidence would be wholly incorrect. Perhaps a consensus will emerge from the Minister of State's officials on this issue.

If one reads section 14(1)(a) as stating that a civil servant is prohibited from opining on Government policy in a fresh way, I am not against that provision because it is not the role of civil servants to give their views on Government policy. However, it would be very serious if the section were interpreted as meaning that they could not indicate that in the past they had held a particular view for certain purposes.

Chairman

Does giving evidence include the provision of documentary evidence?

Mr. M. McDowell

Section 14(1)(b) is even more frightening. Will the Minister of State indicate whether she intends to amend section 14(1)(b)? Some of our fears might then become redundant.

Mr. J. O'Keeffe

That would improve the situation. Section 14(1)(b) is for the birds. If the Minister of State clarifies the position, it might be easier to deal with the balance of the issues involved.

Mr. M. McDowell

Is the Minister of State insistent on the inclusion of subsection (2) in the legislation?

Mrs. Doyle

No.

Mr. M. McDowell

In that case, I will run a line through it. Does the Minister of State intend to amend section 14(1)(b)?

Mrs. Doyle

Yes.

Mr. M. McDowell

How will that be achieved?

Mrs. Doyle

Section 14(1)(b) will read:

(1) (b) shall not preclude the sending or production of a document from which such questioning or expressions of opinion have been deleted or excised. No such deletion or excision shall be made without the consent of the Secretary to the Government.

That is a rough draft of the new wording.

Mr. J. O'Keeffe

Without the provision relating to opinions?

Mrs. Doyle

Yes.

Mr. M. McDowell

I remain opposed to section 14; I cannot reconcile myself to it.

Mr. D. Ahern

During our initial meeting to deal with Committee Stage there was a comprehensive discussion of this issue in connection with an earlier amendment. I have severe reservations about section 14. Mr. Hanratty stated:

This section is an ancient relic and it is ironic to find such a thing in a piece of draft legislation dealing with accountability in the closing years of the 20th century.

Mr. Hanratty was aware that he was speaking to both Government and Opposition Deputies when he made that statement. He made a strong point about the separation of the Dáil and the duty of the Government to be responsible to Dáil Éireann.

I have a strong view about this section which I articulated at our last meeting. It is wrong to tie the hands of a civil servant appearing before a committee who may find his or her name called into question in some way. In effect, they would be unable to vindicate their good name because of the provisions in this section. That is a severe restriction on any civil servant, regardless of their ability to express an opinion which may be a superficial statement or cast off remark that could have significant consequences for a Minister or someone else. On the other hand, while I oppose the section, I appreciate that a situation could not be allowed to arise where a person with a gripe against a Department, perhaps in respect of treatment they received regarding superannuation, could appear before a committee with the intention of doing damage.

A balance must be found. However, I do not believe that the section, as it stands, contains a balance. Some of those currently holding office in Government made their name on certain issues. Do they know that they are putting their names to this section? At our last meeting it was suggested that Members representing Government parties might return to their masters to ask if they are aware of what this section entails. I understand the Government recently discussed this matter forcefully. If that it is the case and if the Government is aware of what it is doing, it shows how able its members are to change their tune.

Mr. O'Malley

Deputy Ahern read the first sentence of Mr. Hanratty's advice on this section. I believe it would be useful to read the remainder. I quote:

It is difficult to see how the objectives of Article 28.4.1 are being achieved if the very people who deal with the matters under consideration are prevented by law from commenting on those matters. Many of the servants of the State have considerable qualifications and expertise in their respective fields and its seems anomalous that the Oireachtas should be deprived of the benefit of such expertise in its deliberations of the matters that they have under consideration. From the point of view of giving full effect to Article 28.4.1, I would recommend the removal of this section in its entirety.

I believe Mr. Hanratty is correct. I could not follow the proposed amendments, of which copies are not available but which were read into the record by the Minister of State, to be introduced on Report Stage. However, from what I could gather — Deputy McDowell seems to be of the same view — they do not seem to make a material difference.

Paragraphs (a) and (b), particularly the latter, of subsection (1) give rise to much concern. I can relate paragraph (b) to a matter which was investigated by a tribunal. The advice given and views expressed by various civil servants at that inquiry were very relevant. This concerned whether export credit insurance should have been given to a certain company in respect of a certain country for a certain product at a certain time. Quite a number of civil servants placed on record that they had disagreed with the Minister and advised him at length that he should not continue to pursue the course of action on which the had embarked. It was important that that fact should have been made known to the tribunal of inquiry. Had it not been made known, the tribunal's investigations would have been seriously compromised.

Under section 14(1)(b) it will be a contravention of the Act if such documents are produced. I do not believe it will be of any benefit to merely excise parts of documents and produce the remainder. The whole point is lost if relevant information is excised. To apply paragraph (b), as it stands, to the situation to which I referred, the entire file would have been presented to the tribunal with advice to the Minister informing him he was wrong excised. That would have been a pointless exercise because the tribunal wanted to know the nature of the advice given to the Minister. It seems to be entirely incorrect not only to prevent civil servants expressing an opinion but to obscure or prevent the disclosure of the fact that, in the past, they expressed an opinion to state that a particular action was wrong or right. This provision equally applies to situations where civil servants stated that they believe a Minister was correct in what he was attempting to achieve.

Mr. M. McDowell

If a Minister can state that he took a particular action on the advice of civil servants, why can someone not establish the contrary and state that an action was taken against the advice of civil servants?

Mrs. Doyle

I am advised that there will be no problem in that regard. The instance to which Deputy McDowell referred involves a factual statement rather than an opinion on policy.

With regard to the example referred to by Deputy O'Malley, a dialogue took place with civil servants — either through live discussion or documentation — who stated that they advised a Minister to take a certain course of action. He suggested that such documents would be precluded under this section. However, I am advised that this would not be so. A matter does not become policy until the Government or the Minister decides on a particular course of action. The dialogue leading to a policy decision is a matter of fact. However, when a policy decision is made or a Minister decides to take a certain action, comments by civil servants on the merits or otherwise of those decisions involve the giving of an opinion.

Mr. O'Malley

That is precisely the point. In the example to which I referred, the Minister in question stated that £120 million worth of export credit insurance cover should be given to company X to export beef to Iraq. After they received the direction, a succession of civil servants stated that they disagreed with it, believed it to be wrong and recommended that the Minister should change his decision.

Chairman

In the definitions section, it is stated that evidence includes opinion. Therefore, a witness who is not a civil servant would be able to give an opinion while a civil servant cannot do so——

Mrs. Doyle

In respect of Government policy——

Chairman

——even if the giving of that opinion was necessary to clear their good name.

Mr. M. McDowell

As I understand it, the Minister's revised position is that there is nothing to stop a factual question being asked of a Minister or a civil servant. As a matter of history there is nothing to stop a civil servant being asked if they received advice against something or if they advised a Minister against doing something. I am happy with that interpretation of paragraph (a), but then why is paragraph (b) there at all? It is extraordinary that if Mr. Gallagher is called into a committee I can ask him what advice he gave the Minister a year ago but I cannot ask him to produce the document in which he expressed the advice.

Mrs. Doyle

The Deputy is twisting it. Factual questions are acceptable, but to ask any civil servant, Mr. Gallagher or otherwise, did he agree with the Minister's decision or to ask him to comment subsequently on the merit of that policy is not acceptable.

Mr. M. McDowell

If I ask a civil servant did he or she advise a Minister against doing something he is entitled to say he did. It is nonsense if I ask him if he put it in writing and he says he did but the Minister says that advice was never given to him, as has happened in the BTSB tribunal. One individual said he gave the Minister advice against an inquiry while another person said they had no recollection of it. If there was a piece of paper on file to clarify it, it would be remarkable if it could not be produced.

Mr. D. Ahern

This section would then exclude "the following question is" or "what is your opinion", which would be the obvious question asked by someone in a tribunal.

Mrs. Doyle

It is unlikely that only one line of advice would have gone to the Minister and that could be asked for. The facts are acceptable, but the civil servant commenting on the merit of either the Minister's decision or Government policy in relation to it is not. This expression of personal opinion disqualifies the documents.

Mr. D. Ahern

Ministers may give options and may give opinions on the options.

Mr. J. O'Keeffe

Is this in the jurisdiction of the High Court or a tribunal of inquiry?

Mrs. Doyle

No.

Mr. M. McDowell

Mr. Justice Hamilton has had all of this in front of him for weeks. If the Minister is saying that the official interpretation of section 14 (1)(a) is that a civil servant is prohibited from expressing his state of mind and opinion on Government policy and its merits in evidence before a committee——

Mr. D. Ahern

At that time.

Mr. M. McDowell

— at that time, that is fine with me. If one is entitled to ask a civil servant if they advised a Minister against doing something in the past and he is not prohibited from answering that question, and is required to do so, that is fine with me. It seems to be somewhat artificial to produce the letter in which they advised the Minister against because he says it never happened and then a document is issued with the centre cut out because the substance of the advice or the opinions contained in it were there. That would be very strange.

To take the concrete example of the BTSB inquiry, the former Minister for Health, Deputy Howlin, and his programme manager, Mr. Collins, have one recollection of events and a civil servant apparently has another.

Mrs. Doyle

That is nothing.

Mr. M. McDowell

In a hypothetical situation, if there had been something in writing, that would have been the clincher. To say that cannot be seen is crazy.

Mr. D. Ahern

I would be happier if section 14 (1)(a) was left on its own and 14 (1)(b) was deleted. Section 14 (1)(a) says an opinion cannot be questioned or expressed "while giving evidence to a committee". The state of mind of the civil servant when he or she was advising the Minister at a particular time would be relevant to the committee's deliberations. If a document was produced which showed that at the particular time the official expressed an opinion, it would be a fact, not an opinion, that he gave that advice and that opinion as to the merits or demerits of a policy.

Mr. M. McDowell

Nobody wants Opposition Deputies to call in their "pet" civil servants to criticise Government policy. That would be horrific.

Mr. J. O'Keeffe

I agree with Deputy Ahern's approach. He has always taken a responsible view on this section. Civil servants cannot criticise the Minister of the day on the off chance they might get promotion from the next one. If civil servants are restricted from expressing opinions on current Government policy and we go back in history and charge a committee with the specific purpose of getting at the truth of what happened 12 months or two years ago, a fair balance would be met by the adoption of Deputy Ahern's approach.

Chairman

There are guidelines set up by the Committee of Public Accounts for the giving of evidence by accounting officers and the subsequent correction of that evidence. It seems this matter would be better dealt with by guidelines for civil servants, how they give evidence and avoid politics. We do not want civil servants gratuitously entering into politics.

Mrs. Doyle

That is the point of the restrictions.

Chairman

One can easily conceive of an inquiry where it would be necessary to know the opinion of a civil servant.

Mrs. Doyle

In the context of this Bill, it is Government policy to protect the long standing objectivity and political neutrality of public servants. I cannot accept any amendment that could lead to a situation where public servants would give politically motivated responses to politically motivated questions. We do not disagree on that. I will look at the point made about history and will also look at section 14 (1)(b) again.

Mr. M. McDowell

Deputy Ahern's suggestion, to retain section 14 (1)(a) and leave the rest of it to guidelines or else have no section 14 and leave it all to guidelines, is probably the best.

Mrs. Doyle

The historical aspect of this is quite interesting. Under the 30 year rule, all this material can be given out anyway. How far back is acceptable? In time all this evidence will be available. There must be a cut-off point where one does not have to wait 30 years. The Freedom of Information Bill will perhaps go further. We must ensure that legislation does not allow extra information to come out.

Mr. M. McDowell

This should be dealt with by guidelines. There should be a convention in the House that people never embarrass a civil servant by asking a question and a civil servant displays basic impartiality and loyalty by not expressing opinions. Those are two basic canons on which we are all agreed.

Mrs. Doyle

Should there be sanctions if the guidelines are breached?

Mr. M. McDowell

They are not in this section either. The Minister got rid of them in section 2 where a civil servant was reported to their superiors.

Mr. O'Malley

It will be totally anomalous if we have a provision relating to inquiries conducted by Dáil committees and at the same time there is a Freedom of Information Act that makes this information available to the public anyway.

Mrs. Doyle

We would have to be sure it was in tandem with the freedom of information legislation.

Mr. McDowell

Is it not also an anomaly that the Select Committee on Social Affairs could not ask somebody if they did not think of having an inquiry and if they were advised in favour or against on in the course of an inquiry into hepatitis C. Mr. Justice Finlay can ask those questions.

Mr. J. O'Keeffe

It would mean decisions would have to be made if opting for a judicial inquiry if such a situation might arise. That decision would have to be made in advance. This route could not be followed which is my worry. I appreciate this is leap in the dark and that we are setting up a parallel system. If we over-spancell it, this route will not be capable of being used.

Chairman

I suggest that the Minister of State considers giving the Minister power under regulations which would have to be approved by both Houses of the Oireachtas to set out guidelines and penalties. We would have more time after the Bill is passed to draw up the regulations.

Mr. M. McDowell

We would have a problem with the guidelines because this brings us back to the Constitution. It is for the House to determine how its committees function and not a Minister.

Chairman

Subject to a positive order voted on by both Houses.

Mr. M. McDowell

I would not give the initiative to the Minister. These guidelines will be agreed by all-party consensus.

Chairman

The normal procedure is that the Minister may do something by regulation. If the Minister does not propose a regulation which is not passed by both Houses, the prohibition will not exist. It is the way forward.

Mr. D. Ahern

If one looks at the history of civil servants, they have tended not to delve into things. There may be instances where a committee is investigating a historical issue that it would be necessary to know about a Minister's options and what advice was given. That would be a historical fact and not an opinion, as envisaged in this. I ask the Minister of State to have another look at this.

Chairman

We all agree with what Deputy Ahern said and we do not want to create temptations for civil servants to get into the political arena. We must reconcile those two issues. Will the Minister of State consider amendments?

Mrs. Doyle

Yes. I will try to marry the views; I do not believe we differ in terms of the objectives of how one does so.

Mr. M. McDowell

I will withdraw my amendment. I thank the Minister of State for a reasonable approach.

Amendment, by leave, withdrawn.

Amendment No. 69 not moved.

Mr. M. McDowell

I move amendment No. 70:

In page 12, lines 12 to 22, to delete subsection (2).

Amendment agreed to.

Amendment No. 71 not moved.

Section 14, as amended, agreed to.