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

SECTION 15.

Mr. D. Ahern

I move amendment No. 72:

In page 12, between lines 28 and 29, to insert the following subsection:

"(3) In case of doubt the procedures of Committees materially affected by the provisions of this Act shall be regulated by the Standing Orders relative to Public Business of Dáil Éireann or Seanad Éireann as the case may be.".

This copperfastens Article 15.10 of the Constitution which allows us to make rules for the internal procedures of our committees. For the first time this Bill gives committees a quasijudicial and it is important that we include this provision. Mr. Hanratty said it was unnecessary but I am not sure. However, an alternative amendment was agreed to so I will withdraw my amendment.

Amendment, by leave, withdrawn.

Question proposed: "That section 15 stand part of the Bill."

Mr. M. McDowell

What does section 65 of the Court Officers Act, 1926, state?

Mrs. Doyle

The section compels a court officer to keep quiet about what he has learned.

Mr. J. O'Keeffe

I have a concern about this. If documents were lodged in court proceedings which had a particular relevance to a subsequent investigation, does this section preclude the production of those documents?

Chairman

Section 56 of the Court Officers Act, 1926, states:

(1) Nothing in this Act shall prejudice or affect the control of any judge or justice over the conduct or business of his court.

(2) When an officer attached to any court is engaged in duties relating to business of that court which is for the time being required by law to be transacted by or before or under or pursuant to the order of a judge or judges of that he shall observe and obey all directions given to him by such judge or judges.

(3) All proofs and all other documents and papers lodged in or handed in to any court in relation to or in the course of the hearing of any suit or matter shall be held by or at the order and disposal of the judge or the senior of the judges by or before whom such suit or matter is heard.

Mr. J. O'Keeffe

Is the Minister of State happy that the point I raise will not cause difficulty?

Mr. O'Malley

Does that continue to apply when the case is over? Does the judge cession or whatever of the documents after the case is over?

Mr. Penrose

I do not think so.

Mr. O'Malley

According to what the Chairman read, it suggests he might.

Mrs. Doyle

I am advised that documents are normally returned to the litigants.

Mr. M. McDowell

Some documents are kept on court files. At one time when documents and all affidavits were filed——

Mr. O'Malley

Are they not filed in the central office?

Mr. D. Ahern

They would not necessarily be filed in the court.

Mrs. Doyle

Apparently it is up to the judge.

Mr. M. McDowell

Bearing in mind the reason for the urgency in this case, I hope we are not shooting ourselves in the foot.

Mr. J. O'Keeffe

Deputy O'Malley and I have occasion to go hunting for documents filed in court. Will this section constrain us from doing so? I accept that we are all bound by the earlier legislation, but let us not copperfasten it entirely and padlock the door.

Chairman

According to subsection (2), sections 4 and 5 of the Official Secrets Act, 1963, shall not apply. Do Members wish to hear what this says?

Mr. M. McDowell

It is a prohibition on disclosing official information.

Chairman

Members do not need it.

Mr. O'Malley

Do you see the difference in approach between subsections (1) and (2)? Subsection (2) says the Act shall not apply but subsection (1) says that section 65 of the Court Officers Act, 1926, will apply. Why should you try to ensure that the Official Secrets Act does not apply but that the other does? I would have thought neither should apply. There are opposite effects in both subsections.

Chairman

Is there a danger of conflict between the courts and the Oireachtas?

Mrs. Doyle

No. They are quite different matters.

Mr. M. McDowell

Section 15(1) states: "Section 3 is without prejudice to section 65 of the Court Officers Act, 1926. . .". That is one discreet statement, but the subsection continues:". . . and, subject to subsection (2), to any statute or rule of law prohibiting or restricting the disclosure of information". That is a pretty frightening proposition.

Mr. J. O'Keeffe

Why is it there?

Mr. M. McDowell

What are we letting ourselves in for with rules of law?

Mr. O'Malley

Section 3 is without prejudice to any statute or rule of law prohibiting or restricting the disclosure of information. The only bit that is excluded from that are sections 4 and 5 of the Officials Secrets Act.

Mr. J. O'Keeffe

If there are laws prohibiting the courts or the committee from doing certain things, then they are there. Why should we be putting into print what seems to be an additional restriction on the powers of the committee? Is there a particular reason for doing it? If there is not, why do we not take it out?

Mr. M. McDowell

I can give a clear example. There is a rule of law that documents which are subject to confidentiality cannot be disclosed.

Mr. J. O'Keeffe

Yes.

Mr. M. McDowell

It is a rule of law that affects employers and employees. Are we making our power to send for papers subject to that? I can fully accept that you cannot root around in a solicitor's privileged documents — such as instructions from a suspected criminal — but we should be careful before extending it to every rule of law. It is not just prohibiting the disclosure, it is restricting it. That section is painted with a pretty broad brush.

Mr. Penrose

I agree with Deputy McDowell. There is no need for this. Anyone who is in that position will invoke the statutory provision under privilege of the legal profession. Why tighten the belt when there is no need.

Mr. M. McDowell

That would certainly run Deputy O'Malley and Deputy O'Keeffe's committee into terrible trouble.

Mr. J. O'Keeffe

I think it is crazy unless there is some reason behind it.

Mrs. Doyle

With or without it, it could affect the sense.

Mr. J. O'Keeffe

My basic point is that, if the law is there already, we are bound by it.

Mr. M. McDowell

Would it not be the case that if there was a rule of constitutional law, for instance, we could not repeal it? In any event, if some other Act has a special provision saying, for example, that no adopted person's birth certificate shall be revealed, that is not repealed by anything in this Act.

Mrs. Doyle

No, it is not.

Mr. M. McDowell

What worries me is that a rule of law could import things such as confidentiality about which I would be deeply sceptical.

Mr. J. O'Keeffe

What is a rule of law?

Mr. M. McDowell

That is the point.

Mr. O'Malley

It is when a statutory judgment becomes part of the law.

Mr. M. McDowell

Common law.

Mrs. Doyle

Yes, common law. Subsection (1) of this section provides that the committees' powers of compellability do not in any way interfere with judicial control of court business and must, with the exception of subsection (2), comply with existing law prohibiting or restricting the disclosure of information. Subsection (2) provides an exception to the above by waiving the requirement on civil servants not to disclose information.

Mr. M. McDowell

I accept that but there is a problem with the second phrase in the first subsection.

Mr. D. Ahern

Subsection (1) could be left out and subsection (2) left in.

Mr. M. McDowell

Stop after ". . . 1926", and start off again.

Mrs. Doyle

We will look at that.

Chairman

That would be subject to subsection (2).

Mrs. Doyle

No.

Mr. M. McDowell

No. You just stop at ". . . 1926", and then go on?

Mrs. Doyle

"Section 3 is without prejudice to section 65 of the Court Officers Act, 1926".

Mr. J. O'Keeffe

And end with "Sections 4 and 5 of the Official Secrets Act, 1963, shall not apply. . .".

Mrs. Doyle

We will look at that.

Chairman

Does this mean that a court of law or a tribunal can get information even though they would normally be covered by this? These committees will not have the same power as a tribunal or court to get information.

Mrs. Doyle

No. They do not have the full powers of a court or tribunal.

Chairman

Will this section deny an investigation under these Acts from getting information which an outside tribunal would get?

Mr. O'Malley

Yes, but not just this section — many other sections will do that.

Chairman

I know but just dealing with this section?

Mr. O'Malley

Yes.

Mr. J. O'Keeffe

Not this section, if we amend it.

Chairman

Why should that be?

Mr. D. Ahern

This section is at the end of the Bill and we may not reach it by 1.30 p.m. next Thursday. It is important that we have some indication beforehand so that we can discuss this important section. I suggest we do what has been suggested — stop at ". . . 1926", because that takes care of the situation.

Mr. J. O'Keeffe

And leave in subsection (2)?

Mr. D. Ahern

Yes.

Mrs. Doyle

I will come back with, at least, an information note beforehand in case we do not reach this section, so that you will know our intentions.

Mr. M. McDowell

This Bill was held, by implication, to amend any other rule of law or statute. That would be lawful unless it was unconstitutional. If it is unconstitutional, the legislation has to be interpreted so as not to give it that meaning.

Mrs. Doyle

That is right.

Mr. M. McDowell

In the last analysis, it is better to leave it out.

Mrs. Doyle

We will certainly look at it and will definitely come back on it.

Question put and agreed to.