Amendment No. 28a is related to amendment No. 28 and will be taken together by agreement.
SECTION 5.
Debate resumed on amendment No. 28:
In page 6, subsection 1(a)(ii), line 5, to delete "one" and substitute "two".
—(Deputy D. Ahern).
We did not discuss amendment No. 28a and only had a peripheral discussion on amendment No. 28. I put down this amendment to allow for debate on this issue. In section 5(a) the Government proposes to extend the concept of the constitutional duty of collective responsibility. This is related to Cabinet confidentiality. At worst, it would be possible for the Government to form a committee made up of one Minister and ten civil servants and say that Cabinet confidentiality should pertain to that committee. That stretches the imagination. The Government stated in its programme for Government it would introduce a referendum to amend the Constitution to restrict the rule on Cabinet confidentiality. On the one hand, it promises to hold a referendum daily in the Dáil, while in this Bill it goes in the opposite direction. The Taoiseach maintains the Government will hold a referendum to restrict the rule on Cabinet confidentiality. This section restricts discussions at meetings of one or more Members with any amount of civil servants. The meetings cannot be discussed by a committee of the House. I do not accept this. It is too restrictive and goes beyond the view expressed by this committee. It also goes beyond the view expressed by Oireachtas Members on the relaxation of the rule of Cabinet confidentiality. In what way does the Minister of State propose this be done?
Suppose the Minister of Health had a meeting with an organisation within his remit and an issue arose. In such circumstances it would be possible for the Government retrospectively to designate this meeting, say between the Minister and ten of his civil servants, as a Government meeting. It could not be subsequently investigated by any committee of the House. We are making matters even more restrictive. For example, it would not be possible to have as wide ranging an investigation as undertaken by the 1994 committee in 1994-5.
Amendment No. 28 was put down within a fortnight of the publication of the Bill. I tabled amendment No. 28a recently, following extensive discussion on the Bill. I ask that amendment No. 28 be withdrawn and that the committee proceed with amendment No. 28a. It would have the effect of at least leaving the situation in the same position as it is now, where Cabinet confidentiality would be restricted to members of the Government and to discussions relating to meetings of the Government, including the Attorney General.
I do not suggest that the amendment is watertight, or that it will become law. However, rather than taking an approach opposite to that of the section, the Minister of State should proceed in the way suggested publicly on numerous occasions by the Taoiseach and other Ministers to the effect that they are willing to hold a referendum on the relaxation of the rule of Cabinet confidentiality. Does she not accept that, as drafted, her proposal takes the opposite view?
Does the committee agree that amendment No. 28 be withdrawn and that amendment No. 28a be discussed?
No, it is not agreed. We can discuss them both together. This section is of fundamental importance, as is this issue, and not only for the reasons expounded by Deputy Ahern. This proposal is a deeply offensive and unwarranted extension of the principal of Cabinet confidentiality to areas where it was never contemplated to apply.
Under paragraph (a) of sub-paragraph (2), a committee whose membership consists of one member of the Government, for example, one or two Ministers of State, is given the same status as a Cabinet committee. Effectively this means that Ministers of State who are not members of the Cabinet and who have no constitutional status are to be given Cabinet status as far as the Oireachtas is concerned. This will not be the case in courts, judicial tribunals or elsewhere. Why are we inflicting damage on ourselves?
A judge presiding over a judicial tribunal could declare that Ministers of State were not bound by Cabinet confidentiality. Likewise, High Court judges. They could then order them to answer the question put to them by counsel. Yet we are proposing to create a new category of extended Cabinet confidentiality for ourselves alone. This is offensive, and there is no reason for it.
If the courts can direct Ministers to answer a question, why should Oireachtas committees be told they cannot ask them to attend their deliberations? This is utterly wrong. Whose agenda is this? I do not believe it is the Attorney General's, rather it is an effort on the part of the Executive to say to the Oireachtas that it wants even more than the court has given to it by way of Cabinet confidentiality. It wants to make secret and incapable of examination a wide variety of meetings and transactions of meetings. There is no mandate in the Constitution for this, nor a convincing reason provided.
Applying the status of a Cabinet meeting to the deliberations of a Minister and Minister of State extends to a far more serious category, such as a meeting between a Minister and ten civil servants. For example, if a Government was about to make decisions which were not in the public interest with regard to the granting of export credit insurance for beef exports to Iraq it could establish a Government export credit insurance committee consisting of the relevant Minister and ten civil servants. The committee would be directed to transact business on export credit insurance and advise the Government on that matter. Any committee could be certified as such, whether it is retrospective or not. This means that the Oireachtas would never be able to find out what happened.
This is utterly wrong. If the High Court can ask questions of a witness and if a tribunal of inquiry can ask questions of people in those circumstances, why should Members of the Oireachtas be forbidden from doing so? It is so radically misconceived an extension of the principle of Cabinet confidentiality that it makes me wonder if it is being done in good faith. I do not want to be an arch conspiracy merchant, but is it being done in good faith because a good faith explanation has not been tendered for it? Is it being seriously suggested that, henceforth, governments will be in a position to state that one Minister and 10 civil servants can deal with a category of State business and that once they are given the status of a Government committee, they will thereafter be immune from any accountability to Dáil Éireann in respect of what they are doing?
Another point in that context is that parliamentary questions will still be put to the Minister. If I am the Minister in charge of export credit insurance in respect of beef exports to Iraq, I presume I must answer questions in the House. If I answer questions there and I must tell Members the substance of what I am doing with my Government committee in terms of what is agreed or not agreed, what countries are covered or not covered or whether decisions have been made, why can I not be asked about the questions here? It does not make sense.
I find it almost impossible to believe a Government could tender such an amendment in good faith, or even accept Deputy Ahern's efforts to make it slightly more civilised. In the last analysis it is being done in bad faith and in the interests of secrecy. As Deputy Ahern said, it is being done solely to extend the principle of Cabinet confidentiality as far as possible. It is part of the culture of secrecy which is ruining this country. People feel they are part of the permanent Government to advise Ministers. They think there are many types of mechanisms which should be put in place to keep them from ever being made accountable for their actions. That culture must go, and it will go. The people will sweep it aside when they find out what is going on.
I am amazed that the newspapers, which are so full of articles about freedom of information, have not zeroed in on what the Government is doing. The phrase "Read my lips" is crucial in this matter. The Government blathers on in the media every day about openness and freedom of information, but when it comes to the small print of a section in a Bill relating to the powers of the Oireachtas to make government accountable, we find it extends Cabinet confidentiality far past any legitimate application of that principle. I regard it as completely offensive.
The Minister said on the last occasion that the extent of privilege from non-disclosure conferred on this area is even wider than in the Freedom of Information Bill. If this is the case, why will a member of the public have more access to official documentation than a Deputy? Is the Government afraid of us? If the freedom of information categories dealing with Cabinet confidentiality are narrower, why will a Deputy be treated less favourably in a committee than a person walking in off the street when the Freedom of Information Bill is enacted? That is also deeply offensive.
The Minister also stated that the definition is different from that in the Ethics in Public Office Act and is a broader extension of the principle of Cabinet confidentiality in that case. She said this originated in some effort to accommodate in legislation a committee which was established in the context of the EU Presidency. If that is what this is all about, any such difficulties can be accommodated differently because the provision in section 6(9)(d) regarding dealings with other states, or a similar measure would have been sufficient to cover this area. I agree with Deputy Ahern that perhaps we are discussing the worst case scenario.
Section 6(9)(d) does that.
I know, but the principle could be included if that is what the Government is trying to achieve. However, once the Bill is enacted, a Government which wants to ensure an Oireachtas committee does not investigate a particular aspect of the transaction of State business will give it to one of these committees which will be chaired by a Minister with ten civil servants. The Minister may say that would be bad faith and the Government promised this would be implemented in accordance with the spirit of openness, transparency and accountability. However, the Minister's verbal commitments are not worth the paper on which they are written. When it comes to the crunch, a future Government will ask how it can stop Deputy Doyle, who will then be leader of the Opposition, using a committee to find the truth. The Attorney General of the day or somebody else will suggest setting up a Government committee, chaired by a Minister who will be able to transact this business in camera with a committee of ten civil servants and nobody will be able to answer any questions about it. That will happen; it is not pessimism but realism. Where people have the capacity to order matters so they are secret when they want secrecy, they will get it. This is a disgraceful extension of Cabinet confidentiality. All the points made by Deputy Ahern against it are true but there are many other aspects of it which are very frightening. People use the word “frightening” about individuals but I use it about this proposal.
Deputies are aware that practical circumstances dictate that much of the business of Government is conducted in fora other than around the Cabinet table. It is absolutely necessary to allow for proper scrutiny of the vast amount of material which must be gone through. As I stated in relation to amendment No. 28, amendment No. 28a would mean that proceedings of Government appointed committees involving Ministers of State could be subject to public scrutiny because committees of this nature conduct business which is as important as many matters formally discussed at Cabinet. It is essential, therefore, that there is the same level of protection from disclosure as for Cabinet meetings. For these reasons, I cannot accept the amendment.
Deputy McDowell revisited the point I made last week about Government sub-committee meetings on the EU Presidency. There are such meetings on the North. For example, the Minister of State, Deputy Coveney, is conducting a series of extremely sensitive and important meetings in relation to Northern Ireland affairs because he has been delegated that specific responsibility. There is a list of the delegation of sensitive and important matters including sensitive Government meetings which must be treated as such with due process as are Cabinet meetings.
They are sensitive meetings.
I listened with considerable interest to the views of members, many of which were trenchantly expressed. While I do not share the culture of suspicion which underlies much of the comment, I am prepared to go a considerable way towards allaying those fears by agreeing to drop the element of the Bill which would treat discussions at committees consisting of a member of the Government and any number of civil servants as outside the purview of compellability by committee. I am also prepared to accept in principle the conditions in Deputy Ahern's amendment No. 29 which he wishes to attach the remaining committee meetings. Amendment No. 28a would have the effect of removing——
Will the Minister accept amendment No. 28?
No. I referred to amendment No. 29 because it is related to the conditions.
Will the Minister repeat what she will accept?
Does the committee understand what amendment No. 29 deals with?
The reference to one Minister is not included in the circulated draft amendment.
No.
The Minister is going further again?
There can be one Minister, three Ministers of State and perhaps the Secretary to the Government.
How do Ministers of State constitute Government?
Government and Cabinet are two different things.
This is a new Bill of Government confidentiality.
I am not speaking strictly to Cabinet confidentiality. I made that point already in my opening remarks.
Regarding the point about one Minister, I understood that was in favour of amendment No. 28.
A single Minister and a number of civil servants will no longer be considered.
A Government committee.
Exactly. I am acceding to that.
The Minister of State is introducing a new element of non-Cabinet Government confidentiality. That is what the Bill is about.
Yes, there is a precedent for it.
For clarity, is it proposed to delete line 9?
Section 5(1)(a) to (3).
The following line is being deleted:
(III) one, or more than one, civil servant,
Will that be done on Report Stage?
Yes. I will be coming back to that on Report Stage.
I accept this and it is a significant concession. It stops civil servants and a Minister constituting a Government committee but we are left with the proposition that a committee of a Minister and three Ministers of State——
Or any number.
——or whatever number is now going to be given the same status as a Cabinet meeting as far as Oireachtas committees are concerned.
On Oireachtas compellability?
Yes.
Just as the terms of this Bill go, but not all Oireachtas committees.
The Minister of State is telling us that no Oireachtas committee is ever going to be able to find out what happened at a meeting between a Government Minister and——
If it is a properly appointed Government committee meeting along the lines of section 29, yes.
Deputy Ahern raised the question of this being done retrospectively.
No, we cannot legislate for how people might break the law. I am not approaching this with the same suspicion that many speakers are.
Would it help if the Minister of State's amendment had "appointed by the Government in advance" inserted?
I will look at that because I assume those operating this legislation will be doing so within the law. I will listen to any suggestion because I will be coming back to this on Report Stage.
I accept what the Minister says in deleting (III) but what worries me is the ethos in putting that in. When the Minister launched this Bill she referred to a new age of freedom of information and marrying this Bill with the Freedom of Information and Ethics in Public Office Bills. Deputy McDowell referred earlier to a conspiracy theory and I referred to a worst case scenario. We must look at it from that point of view because who knows what may happen in the future? The Taoiseach, in answering a query on the Freedom of Information Bill, made a curious remark. He said that in effect it superseded the Official Secrets Act.
The Freedom of Information Bill.
Yes, whatever that meant. Perhaps the Minister of State can explain it. I do not believe the Government intends to repeal the Official Secrets Act. Surely that Act applies particularly to civil servants in relation to ministerial discussions and to Ministers of State in any discussions they would have with the Cabinet or any of its members. The Minister has gone some way but is the Government giving information to Joe Soap in the Freedom of Information Bill with one hand while making it more restrictive, particularly for Oireachtas Members, to investigate issues which would normally be taken care of under existing legislation relating to the security of the State and the Official Secrets Act? Although the Freedom of Information Bill is being brought in, the Government is not going to repeal the Official Secrets Act.
The vigilance of some at this committee has put a finger in the dyke in relation to the burden on the permanent government, who wanted to go so far down the road of secrecy that it would make a mockery of all of us, not just those professing openness and transparency in Government. Civil servants often tell Ministers that proposals from the Opposition are not constitutionally sound. If the Government proposes to proceed in relation to Ministers of State, having left out the civil servant element, that is totally counter to the spirit of the article relating to collective responsibility. Collective responsibility only relates to Ministers appointed by Government under the Constitution, not Ministers of State, who are not members of the Government. In effect, Ministers of State are being given status they were never intended to have. Over the years, particularly in this Government, Ministers of State have been tacked on to make up numbers and keep people happy, with no disrespect to the Minister of State present. Now we are to give them the same potential as Government Ministers. That is constitutionally unsound and incorrect. It blurs the distinction in the Constitution between Parliament and the Executive. It is a dangerous road and I query it. It stipulates in effect any committee formed at the behest of a Government Minister.
The Government must appoint the committee.
It may be a minor committee granted a status way beyond what was ever envisaged in the Constitution. What is being done here is wrong and the Minister of State should rethink it.
The concept of Government confidentiality as opposed to Cabinet confidentiality is being extended. Several points have not been dealt with. One is that a tribunal of inquiry will be able to ask these questions of any of these people and a court witness will be liable to be asked this question. Deputy Rabbitte, who is a Minister of State, will be obliged to be asked these questions in the Four Courts but we will not be allowed to ask those question here. The Minister of State has not satisfactorily explained to me why I should be in a worse position than a barrister in the Four Courts with Deputy Rabbitte in front of him. Why should a Deputy elected by the people to whom the Government is accountable be in a worse position when asking Deputy Rabbitte a question than if I were doing so in the Four Courts?
I agree with Deputy McDowell. The Minister of State has not reassured me. It is remarkable there should be so many exceptions and exemptions to the powers of a committee to compel people to attend, produce documents and give evidence. They are heavily weighted in favour of the Executive of the day. Virtually anything it does or says can be excluded. The number of exclusions, if this legislation is passed, will be greatly increased. We are told that issues such as Cabinet confidentiality are going to be ended, but the Government should be judged by its actions.
Every day the Taoiseach speaks about changes that will be made and about greater openness and transparency. However, the Minister is pushing provisions through this committee which are the direct opposite of what the Taoiseach is saying, by virtue of a Whip which is applied most rigorously.
Could you explain that, Deputy? The opposite to what?
The opposite to freeing up things and transparency — it is making provision after provision to allow the Government and the Civil Service avoid disclosing matters. Deputy McDowell gave a very good example of a Minister in what was the Department of Industry and Commerce discussing export credit insurance with a group of civil servants. He gave that example because we know what happened in the past when there were such discussions. Had they been excluded and there would be power to exclude them under this section as proposed that information would not have come to light.
What is the point of this section except to facilitate a statutory and permanent cover-up to ensure that certain things never see the light of day? It is not just subsection (1)(a): I am talking about the whole section. Paragraph (b) deals with a matter which is the subject of proceedings before a court. There are matters before some of these courts for five, six and seven years. I know of a Department which appealed a case in which it acknowledged it had no chance of upsetting the decision but in order to keep the matter sub judice. When the courts in Ireland are finished with the matter it will then go to the European courts in order to keep it sub judice. It is an abuse of the process and that abuse is being given statutory recognition here. This is entirely wrong.
Comments were made about the number of people here from different parties. Deputy McDowell and I constitute a quarter of our parliamentary party. We both have plenty to do and would not be here unless we and our colleagues were grievously concerned about this Bill.
There are four people from the press here today and I am glad of that. I do not want publicity for myself but I want the significance of this legislation to be put before the public. It is turning the clock back and becoming more and more restrictive and protective of the Executive and of the permanent Civil Service. That is wrong. It is also hypocritical as we are being given political statements every day of the week to the effect that we are moving in the opposite direction. Because the press and the public are inclined to believe PR-type handouts they do not look at the reality of what is happening. The reality is frightening. There are now so many restrictions, exclusions and exceptions for the benefit of the Executive that this procedure will probably never be used. There will be no point in using it. It will copperfasten and make permanent resort to the procedure of tribunals of inquiry or court cases under the 1921 legislation. I thought we wanted to get away from that.
Before Committee Stage there were a number of meetings of this sub-committee with a senior counsel. There was virtual unanimity in the sub-committee at that time as to the direction in which we should move and the Government was asked to take that on board. However, it has not done so. It has moved in the opposite direction. The sub-committee is now under Whip and voting all these provisions through time and again means nothing. The real wishes of the sub-committee and of the Dáil are being thwarted and we are ending up in a worse situation than we were in.
We had a good example of it with the Attorney General's office and the DPP's office where their accounting officers at present come before the Committee of Public Accounts but from now on are given special statutory privilege which, I can assure you, they will avail of. We are moving backwards. It is a serious and frightening matter for anyone who has analysed it and the public should know about it.
I thank my colleague, Deputy Ahern, for ploughing a lone furrow, and Deputies O'Malley and McDowell for exposing the total inadequacies of this Bill.
The State apparatus is combining with a cynical Government and introducing all types of restrictions through legislation which is open in name only. This Bill will mean nothing as far as getting information is concerned. Statements are made in the programme for Government and in the Dáil about openness and giving Deputies a chance to make the process meaningful. I have been asking for some time why legislation could not be introduced on Sunday trading. I was told the Attorney General advised that it could not be done. I then sought the Attorney General's advice and I was told that was not possible. The bottom line is that this legislation will do nothing to give me the opportunity to see what the secretive advice which one Minister has, in this case. If the Minister cannot produce legislation which will give Deputies a chance to see what is happening behind the scenes then it is useless.
I am here to assist my colleague in advancing this legislation and in bringing it to a speedy conclusion so that the inquiry into the allegations concerning politicians and Dunnes Stores can proceed. I want to see that dealt with quickly. There is a nasty cloud hanging over procedures here until that is done.
What the Minister has produced is so nonsensical and farcical I am surprised that the two normally vocal Deputies from the Labour Party and Democratic Left are eerily silent. I do not blame them for being silent because there is nothing to defend.
What would the Deputy know?
I thank the Deputy for his work on behalf of my party. I am here simply to ask the Minister of State to listen carefully to what is said. The public is not aware of what is going on in this Committee and I hope members of the Committee will report on its proceedings because this is the most cynical and hypocritical legislation that has been introduced in the House in my lifetime.
I am amazed that so many Members of the committee appear to be at variance with the view of the eminent senior counsel they employed. Notwithstanding the problems he pointed out, he thought it was workable legislation.
Come off it. We can publish his opinion if the Minister of State wishes.
He said this was excessive.
We have already heard Second Stage speeches on the Bill.
Order, please. The Minister of State will reply and members will have an opportunity to respond.
I thank the Chairman for his protection. I listened to the speeches on Second Stage. I understand that, notwithstanding specific points and areas,——
Including this one.
——he considered it workable legislation. There is always tension between the Executive and the Legislature. That is the nature of Government conducting its business. That tension is even more acute between the Opposition and the Executive. It is normal and natural. I could write the script for either side of this argument depending on whether I am in Government or in Opposition so I am not frightened by the array of arguments.
We thought the Minister of State would change.
Like the Deputy has changed over the years.
Like the pane of glass has changed.
I will deal with a few specific points. First, we cannot anticipate the outcome of the referendum. The referendum will take place before the end of the year.
The Minister of State is going the wrong way.
I am not. The Official Secrets Act was mentioned. Section 15(2) provides: "Sections 4 and 5 of the Official Secrets Act, 1963, shall not apply to evidence given or a document produced or sent to a committee pursuant to a direction". The Freedom of Information Bill also applies to the Official Secrets Act. The Taoiseach said on the Order of Business that the Freedom of Information Bill removed many of the restrictions in the Official Secrets Act.
He used the word "supersede".
It removes the restrictions. If one combines the two Bills one can see what the Taoiseach meant.
He would rather see the Official Secrets Act repealed.
No, the Taoiseach was correct in what he said. There is consistency between the relevant provisions of the Official Secrets Act, the Freedom of Information Bill and this legislation. Deputy O'Malley appeared not to have heard me say that we are removing the civil servants. I might have misunderstood him but I have already outlined the position. I made my point about the civil servants twice today. He also referred to the gagging writ. An amendment has been put down to deal with the so-called gagging writ but it was dealt with in the speeches on Second Stage. I am referring to it to complete my reply.
Nothing is being done in bad faith. None of this section presumes that a meeting between any of the parties left in the section following the removal of the civil servants can be deemed a Government appointed committee retrospectively. The Dáil cannot legislate retrospectively.
I accept that.
I heard the Deputy's views three times so I will reiterate my points. We cannot legislate for a future Government or Government official or group of people in Government who might decide to break the law. It is intended that any Government appointed committee is appointed in advance and does its work once appointed. If that aspect of the provision needs to be tightened up I will be happy to do so.
With regard to Deputy Ahern's amendment——
Two amendments.
The Deputy has withdrawn No. 28.
I withdrew amendment No. 28. I put it down two weeks after the introduction of the Bill to facilitate discussion on the matter. It does not make any difference whether there is one Minister and civil servants or two Ministers.
I supported the Deputy.
Amendment No. 28a endeavours to bring the situation back to what we understood it to be, that collective responsibility only applies to meetings of the Government. Does the Minister of State accept that her amendment is, in effect, extending the concept of cabinet confidentiality to include Minister of State, which was not previously the case?
The amendment provides that confidentiality is extended to Government appointed committees or sub-committees of Cabinet. Although they are not Cabinet meetings they are Government appointed committees. The day to day work of Government must be able to continue. Extra responsibilities and demands as a result of EU membership and the Northern Ireland situation mean that many meetings are held which would not be defined as strictly Cabinet meetings. They are Government appointed committees which must handle important and sometimes sensitive matters of State. If Government is to function effectively, it is reasonable that such meetings, once they are properly appointed in advance by Government and according to the terms of this section, should enjoy confidentiality rather than not being able to conduct their business as they otherwise would.
The purpose of this Bill is to give parliamentary committees the power to hold inquiries to avoid expensive tribunals. Deputy McDowell's point is that this provision will restrict the power of a committee, established by the Oireachtas to conduct an inquiry, to ask questions which another tribunal could ask. Is that the case and, if so, why are we doing this?
The terms of reference that apply to a tribunal are different from those that will apply to committees that go into compellability mode. There is an onus on us to get the balance right. We are introducing quasi-judicial powers for committees of the Houses and we must ensure that the complicated and important business of Government is not hindered in any way. At the same time, natural justice dictates that certain protections should be built into the Bill which we might not want. We might be protecting individuals who might be called as witnesses more than is deemed necessary on first reading. Individuals will always have recourse to the courts if they feel their rights are not being properly heeded by the proceedings of the committee. We are trying to ensure that difficulties or problems that arise in the daily working of Government which need resolution can come before a committee that goes into compellability mode. Many will still have to go to tribunals and more will end up in the courts for resolution.
We are introducing another layer of problem solving for exposing difficulties, even misdeeds. However, that is all we are doing and we must get the balance right for the proper organisation and running of Government. I mean proper; I do not mean to allow any arm of Government to hide what it should not be doing. As intelligent beings, the Committee will accept there is no way one can know every detail of what goes on at every Cabinet meeting or Government appointed committee that is conducting business which was dealt with by Cabinet 20 or 30 years ago. Those Government appointed committees have a responsibility to report back to Government and the work they do is of a similar nature to work done by the Cabinet. I am not talking about extending Cabinet confidentiality. We are going to afford confidentiality to the Government appointed committees described in this section. There is a slight difference.
The Minister has not answered the question that the Chairman asked, which was why a barrister in the Four Courts or a president of a tribunal can ask a question which I cannot ask. Why am I being put in the halfpenny place?
This is considered the correct balance for the powers of the committee.
The Minister has failed to answer the question that the Chairman correctly put. By handling the section in this manner she is extending the whole concept of collective responsibility.
I am not doing that.
The Minister is doing that.
I am not giving them collective responsibility.
The Minister is changing the Constitution. She is doing something which was never envisaged in it. Collective responsibility in the Constitution only relates to members of Government. The Minister is placing a further question mark over the constitutionality of this Bill, which was in doubt before now.
There are three parties in this Government. The Labour Party, in particular, has made its name by espousing the opening of gates and letting in the light. What they are doing here is at variance with the fine sentiments which they expressed. The Taoiseach is around long enough to know how things work. With no disrespect to him he is more restrictive than most of the Government in regard to opening the door.
Fianna Fáil Ministers and a Taoiseach were dragged around to a committee of this House in relation to something they patently knew nothing or very little about. That was their difficulty. I do not think Members of the Oireachtas should be giving protection to the permanent government for mistakes that were made. We spoke of this at the last meeting in relation to the much vaunted strategic management initiative for which the Minister is responsible. This is a great initiative and the sooner it begins the better. Members of the Oireachtas are only birds of passage yet this legislation is allowing the permanent government the protection and we are being put on a pedestal to answer for their mistakes. If Albert Reynolds was here I have no doubt he would say that this section was going down the wrong road. This goes back to a previous section and the restrictive way the Minister dealt with the Attorney General and the DPP, where they can only appear before one committee in relation to statistics and administration. We, as Oireachtas Members, have a duty to break that down but it is not happening at this committee. I thought it would.
We are on section 5 and I would like us to focus on that. The debate is getting wider.
It is but it is difficult to stay on one narrow point. I was told by the Minister that civil servants are out and that I must not——
She said that she is now making a further concession.
Number 3 is going.
The Deputy may not have been present.
I am sorry. I had to go out because I am trying to do other things as well as attend this committee.
That is a problem. I thought the Deputy either did not hear me or misunderstood me.
Line 9 is going?
Yes.
That is a considerable advance. My difficulty is that, not long ago, the clerk handed me the new section 5 text as it would read following the Government amendment. It includes this.
There is an ongoing parallel debate in other quarters.
Let us acknowledge that advance and hope we can make some more because that took long enough to achieve.
That was achieved before we came into the room today.
Then why did the Government circulate this document with it still in it?
That was because, as we left here the other day, it was suggested that a composite section 5 should be circulated to aid Members in seeing where the different amendments would slot in and out. Since then there has been a further amendment.
Are the two pieces in square brackets in this composite text included or excluded?
The first one is Deputy Ahern's amendment.
I will wait for that. Can I say in relation to the Minister's impassioned Second Stage speech that she is talking about the need to protect the confidentiality of what one might call sub-Government meetings or meetings other than of the Cabinet but related to it. That is fair enough. Nobody is suggesting that whatever happens at such meetings should be broadcast.
The only cases where a committee of this House will want to investigate something which happened, was said or is contained in a document relating to one of those meetings is when there is some form of cover up, malpractice or misdemeanour. Unhappily this happens. It is only in such instances that a committee of this House would want to investigate them. If there is a prima facie indication of impropriety, malpractice, deception or fraud it is wrong that these protections should then be given to the discussions of those sub-Government meetings or to the documents emanating from them. Many of us think that it is wrong even at Cabinet level. It is wrong, notwithstanding the Supreme Court decision, that those matters should not be disclosed and that they should be protected. It is doubly wrong — this does not relate to the constitutional bar — that any impropriety at a sub-Government meeting or a document relating to it should be given this protection.
While it is an improvement that meetings attended by civil servants are now excluded, the logic of that position is that the other meetings referred to here should also be excluded. The Minister is seeking to defend something which we are not trying to attack. We are not suggesting that everything which goes on at such meetings or the documents relating to them should be published. We are saying that a committee of this House set up to investigate a prima facie case of impropriety or malpractice should not be blocked in its investigation by these things. That is a reasonable position and I ask the Minister of State to think about it or, if as she told us the last day she has no discretion, she should go back to those who have discretion.
I would like absolute clarity on this matter because this section is flawed. The section states: "discussions at a meeting of the Government or a committee whose membership consists of". We are excluding civil servants from a meeting between a Minister and a Minister of State. Does that not allow for others to sit in on the meeting such as an array of programme managers and advisers? The committee may consist of a Minister, a Minister of State and others. Is the question of excluding civil servants relevant?
The problem is it is not exhaustive; it does not exclude it.
The amendment does not make much difference to the discussion. Perhaps it might help if we included the words "whose membership consists only of".
I strongly support that suggestion because by excluding civil servants in paragraph (III), they will crawl back in through a back door because the Minister of State at the Department of Enterprise and Employment, Deputy Rabbitte, is also on the committee. We are back to square one.
If one accepts this at face value, I would be inclined to read it as consisting of only a Minister and a Minister of State. I take it the Minister of State does not intend to allow the civil servants to slip back in the door of that meeting by removing section 5(a)(i)(III). Does the Minister of State accept that all we are talking about are Ministers and Ministers of State? If that is the case and there is no sleight of hand to copperfasten that, the inclusion of the word "only" would take care of that. If it is something else, we had better be told.
If the Minister of State accepts that it is not good enough that one Minister and 20 civil servants can get this degree of confidentiality, how does it improve things if Minister of State, Deputy Rabbitte, also sits on the committee? How does that change things?
I want to make a point which has a bearing on proceedings at the hepatitis C tribunal. Under this section it appears that a meeting between a Minister and a Minister of State at the same Department could be constituted as a committee of the Government and any person who attends that meeting cannot be summoned or give evidence on that meeting. That would be a big step backwards and needs clarification. Under this section, as I read it, this would be possible.
Not unless the meeting of the Minister and Minister of State was appointed a Government committee in advance.
It would be open to a wayward Government to make that decision and constitute every Minister and Minister of State as a committee.
To go back to my point on export credit insurance, all the apparent good which the Minister of State's concession on paragraph (III) achieves is swept away by the simple device of appointing the Minister of State as vice-chairman in addition to the Minister as chairman of the committee and civil servants, We are back to square one because it is totally immune and we cannot hear about it again. That cannot be right; it is offensive to reason.
Obviously, that is not intended but it could be a consequence.
It is intended.
If we constituted a committee consisting of the then Minister and Minister of State at the Department of Justice and civil servants became aware of improper interception, they would not be allowed to give evidence as it would be a crime for them to do so.
Even if the Minister and Minister of State conspired in their presence to break the law, they still could not give evidence. Although ten civil servants could have told them they could not do something and they went ahead, they still cannot give evidence. If those civil servants can give evidence to a court or to a tribunal, why can they not give evidence here?
Maybe the tribunal is the place to deal with it. Perhaps we need legislation on setting up tribunals to tighten this up. I rest my case. As regards the point made by the Deputy, I said I will come back on Report Stage and introduce an amendment to deal with the areas on which I indicated I will be able to move. There will be civil servants in attendance at Government appointed committees for various reasons. First, each Government appointed committee will have to report back to Government.
They can be members of these immune committees under this——
They need not be members; they can be in attendance.
——unless the word "only", as Deputy Kitt suggested, is included.
We will look at the word "only" about which I am not hung up.
Perhaps the Minister of State is not sure what is on the minds of the masters. Is it her belief that this Bill restricts it to Ministers or Ministers of State? Despite the fact that we are removing paragraph (III), we are allowing civil servants to come in through the cat flap. Is that what the Minister of State believes this section will allow?
I cannot see any serious Government appointed committee of any description operating without the aid of a least one civil servant who will write up the report and report back to Government.
He would not necessarily be a member of the committee.
I do not envisage him as being a member of the committee.
Then include the word "only".
I have no particular difficulty with the word "only" but I want to take legal advice that I am not missing a nuance there. We will come to this on Report Stage when I will table an amendment to this section. We will have an opportunity to revisit the issues causing concern.
It has taken two hours to tease out this amendment. Members have been critical of others for making Second Stage speeches but these are crucial points. We said it was important to complete this today or tomorrow but this proves how wrong that process is.
I have allowed time to deal with this because it is a major part of the Bill. I suggest we deal with amendment No. 29.
I have tabled amendment No. 28a to try to retrieve what I understood collective responsibility to be.
Deputy Ahern has reminded me of a point which either he or Deputy McDowell made, that I was, through this Bill, extending collective responsibility or, in other words, making a de facto constitutional amendment.
The Minister said she was not doing that.
I want to clarify that I am not doing that. All Government appointed committees to which we will extend the confidentiality referred to under this section must report back to Government. Final responsibility will rest with the Government. Any decision taken by these Government appointed committees will be accepted or rejected by Cabinet with which responsibility still rests.
Could a committee consist solely of a Minister and Minister of State from the same Department?
In theory, a Minister and Minister of State from the same Department could be appointed by the Government to investigate something and report back to Government. It would be disingenuous of me to say otherwise.
That should be examined because a Minister of State is under the control of and is responsible to his Minister and can only do what the Minister allows or tells him to do whereas, if a Minister of State in another Department feels something is wrong, he can go to his Minister. There is a point there to be considered.
Amendment, by leave, withdrawn.
I move amendment No. 28a:
In page 6, subsection (1)(a)(ii), to delete lines 6 to 9 and substitute "with the Attorney General,".
Amendment put.
The Select Committee divided: Tá, 4; Níl, 5.
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Tá |
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Ahern, Dermot. |
McDowell, Michael. |
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Kitt, Tom. |
O'Malley, Desmond. |
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Níl |
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Browne, John (Carlow-Kilkenny). |
Mitchell, Jim. |
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Byrne, Eric. |
Penrose, William. |
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Doyle, Avril. |
Amendment declared lost.
Sitting suspended at 1.10 p.m. and resumed at 2.15 p.m.
I move amendment No. 29:
In page 6, subsection (1)(a), between lines 9 and 10, to insert the following:
"Provided that in regard to subparagraph (ii) above any such meeting—
(A) must have been authorised to be held by the Government,
(B) must report to the Government, and
(C) has been certified to be such to the committee by the Secretary to the Government,".
I tabled this amendment in conjunction with the previous amendment, which I withdrew, because there must be a restriction on the extension of Government confidentiality to sub-committees, civil servants, etc. I decided to include that any such meetings "must have been authorised to be held by the Government, must report to the Government, and has been certified to be such to the committee by the Secretary to the Government". I thank the Minister for accepting this point. I was worried that in a crisis a Government, which has not fulfilled its duties, might make an effort to retrospectively reorganise matters in relation to one of these committees. I remember dealing with a situation involving one Minister and ten civil servants. Perhaps the Minister could restrict such activities.
As I indicated in my general acceptance of the amendment, the proposal seeks to define and introduce verification procedures for a Government appointed committee. I see merit in the principle and I propose to accept the amendment. I appreciate that Opposition Members must from time to time take a malign view of a Government's intentions and that such a view underlines the proposed amendment. The general tenor of the amendment is one with which we can live. However, since a committee appointed by the Government has been mandated to hold meetings, some redrafting to align its wording with that of the subsection is probably called for and we will do that on Report Stage. I have no difficulty with the thrust of the amendment.
Including the point advanced by the Government.
We will consider that.
I fully accept the proposition that there must be some kind of prior authority and that we cannot have retrospection. The Secretary to the Government should be able to verify that prior authority was established.
Is the amendment made?
No, it is agreed as distinct from made. I will come back on Report Stage.
The Minister will submit an amendment along these lines on Report Stage.
I will withdraw the amendment on that basis.
Amendment, by leave, withdrawn.
Amendment No.1 to amendment No. 30 and amendment No. 37 are related to amendment No. 30 and amendment No. 31 is an alternative. Amendment No. 30, Amendment No. 1 to amendment No. 30 and amendment No. 31 can be discussed together. If amendment No. 30 is agreed, amendment No. 31 cannot be moved.
I move amendment No. 30:
In page 6, subsection (1)(b), line 10, to delete "a matter the subject of" and substitute "if the evidence or document could, if given, sent or produced to it, reasonably be expected to prejudice".
This subsection exempts matters which are the subject of court proceedings from compellability. This amendment narrows the exemption by limiting it to matters which might prejudice court proceedings rather than matters which are merely the subject of court proceedings. This decision as to whether proceedings have been prejudiced is referred to as a harm test. The provision attracted much negative comment on Second Stage as Opposition spokespersons indicated their opposition to the subsection in its entirety as it could allow for reluctant witnesses to halt proceedings through the simple device of issuing a plenary summons in a case without any intention of pursuing the matter. This amendment is designed to overcome that concern.
We share the opinion of the sub-committee on this subject but there was difficulty in coming up with a form of words which would achieve the objective. I am prepared to listen to possible alternative forms of words to achieve the goal of limiting the exemption only to matters which would interfere with court proceedings.
The subsection as it now stands requires a value judgment as to whether proceedings are being prejudiced. For this reason, amendment No. 37 provides for an adjudication procedure which gives the High Court the power to decide the issue. The amendment also makes the form of words used in this instant consistent with that in the Freedom of Information Bill. This amendment would provide for court proceedings to be unjustly prejudiced. Deputy Michael McDowell's amendment would provide for court proceedings to be unjustly prejudiced before they would be exempted from compellability. It also introduces a harm test for restrictions on matters affecting the security of the State and crime. Our advice from the Attorney General is that it is sufficient to find that matters are prejudiced. The inclusion of the word "unjustly" is therefore superfluous and I cannot accept the Deputy's amendment.
The effect of amendment No. 31 is to seek to limit recourse to the sub judice rule by reluctant witnesses. Only items of disagreement are at issue in court proceedings whereas all items in any particular case are the subject of court proceedings. As it does not seek to delete the subsection entirely but proposes to limit the exemption, it is covered by amendment No. 30.
I move amendment No. 1 to amendment No. 30.
In the last line before "prejudice" to insert "unjustly".
I am unhappy with this because the effect of the Government's amendment is a lack of clarity and potential obstruction of Oireachtas committees. By failing to determine what is prejudice, the Government is running away from the central core issue. I know amendment No. 37 deals with this to some extent. Supposing there was a health affairs sub-committee of Dáil Éireann which decided to investigate the BTSB scandal and the Minister for Health said he was a defendant in a case in which the late Mrs. Brigid McCole was the plaintiff. If he came into this committee and gave away his case, the State and the Exchequer would be prejudiced. If he was asked to make admissions before an Oireachtas committee in relation to ongoing litigation, he would be prejudiced. He would be able to convince any High Court judge that if he had to give away his side of the case in public, he would be prejudiced.
That is so.
That is what prejudice means. His capacity to defend his case would be weakened and he would be required to show his hand before the plaintiff in that case, or in any other BTSB case, showed her hand.
I do not disagree with that.
That shows the Minister's amendment is wrong. The public has a right to know the truth even if somebody is suing the State on the same territory. Admitting facts in public may be unhelpful to the State or may weaken its case in court but it does not excuse what the Minister is trying to do with this amendment. I agree that it is much better than the first draft, which was horrific, but it is still fundamentally unacceptable. If the BTSB and the Department of Health were aware that infectious hepatitis was present in anti-D material in the 1970s, and the Minister for Health was forced by an Oireachtas committee to admit that, it could prejudice his case against an injured party who brought a claim against him. However, which is more important, that an Oireachtas committee is entitled to get at the truth in the public interest or that a Minister feels giving information will prejudice a case brought against him by an individual?
To take another example, if there was a serious prison riot the prisoners would probably file civil bills, statements of claim and court proceedings to sue the State for the injuries done to them either by fellow prisoners or prison officers. If newspapers alleged that warders had beaten up the prisoners and the Oireachtas wanted to investigate the matter and talk to the prison governor, it would clearly prejudice the State's defence of the case against the prisoners if he had to admit that officers had beaten up prisoners. Again, however, which is more important, that the public should know this or that the Minister for Justice should be able to block the committee hearing on the grounds that it would be most unhelpful to his case if he was obliged to admit in public that his case was weak, before he had a chance to negotiate with the plaintiff in the Round Hall of the Four Courts?
Deputy O'Malley will warm to this further example. By virtue of the ongoing litigation involving the Goodman group on export credit guarantees and refunds, what questions from an Oireachtas committee could have been prohibited by a Minister on the grounds that he was being sued for £50 million and an answer might prejudice his claim?
The balance we strike must be unashamedly on the side of the public's right to know. A Minister may know that a busybody backbench committee member wants to ask an embarrassing question and, because £100 million of taxpayers' money is at stake, he will ask the Chairman or the committee to back off because it would be irresponsible for him to answer. I am not dealing with cases where it is irresponsible or the committee can be persuaded to lay off but with those where it is manifestly clear that the public interest requires an immediate answer and clarification, even though it will seriously compromise and prejudice the State's capacity to defend that claim in public. I do not believe that, in litigation, the State ever has an interest in concealing the truth.
As the shoulder note to section 5 states, subsection (1) relates to the "exemption of certain evidence" and what follows thereafter in paragraphs (a) to (e), inclusive, is an exemption or restriction. Section 5 (1) (b) is yet another attempt to muzzle committees of this House to prevent them investigating matters which may or may not be before the courts. My amendment No. 31 was an attempt to strike a balance, to replace the words "a matter the subject of" with "a matter at issue in". I wondered whether we should discuss amendment No. 32 at the same time because it places an onus on the person relying on those provisions to establish that the matter is at issue and the hearing date is set down, in other words, that the trial is happening.
As a politician, my duty is to hold people accountable, whether they be the permanent Government, outsiders or other politicians. This exemption is wrong because it is huge so, I would far rather that this provision be deleted. This matter has been the subject of acrimonious debate in Leinster House from time to time. We changed our rules in order to prevent people issuing a High Court plenary summons and thereby stop any discussion in the Oireachtas on issues of public concern. This change was to allow us to discuss matters so there would be no such thing as gagging writs.
Rather than include this exemption in the Bill it should be deleted and I ask the Minister to reconsider this. If she is not prepared to do so I am not sure whether I will support Deputy McDowell's amendment rather than my own. I gave my amendment much thought and drafted it with the help of a senior counsel but it is over a year since I submitted it and much discussion has taken place since at the committee.
Amendment No. 30 proposes to delete the words "a matter the subject of" and substitute the phrase "if the evidence or document could, be given, sent or produced to it, reasonably be expected to prejudice". That does not make sense. It is part of a sentence beginning at section 5 (1) thus:
Subject to the provisions of this Act, a committee may not direct a person to give evidence . . .relating to. . .
The phrase "relating to" covers paragraphs (a) to (e), inclusive. It cannot read "relating to if the evidence or document could, be given, sent or produced to it, reasonably be expected to prejudice". Each paragraph (a) to (e) must start with a noun, not a conditional phrase.
I have just been advised that "relating to" is deleted by amendment No. 26. It is difficult to follow because we have changed so much but we are speaking not to the original Bill but to the Bill as amended to date.
Is that in the clerk's text?
It should be, we had completed and agreed amendments Nos. 26 and 27 by then. I am advised that it reads properly in the text circulated.
Unless you have an encyclopaedic mind, it is impossible to know that the words "relating to" were taken out.
I do not find it that easy either. We just have to be advised.
It refers to a list of courts and other institutions. I know this was presented on 3 November 1995, but some of them have since changed. The Court of Justice and the Court of First Instance are now of the European Union rather than of the Communities. The European Commission of Human Rights has disappeared and has been subsumed into the court under a Protocol which was ratified by the Dáil at the beginning of last December. There is now only one institution, but I am not sure whether than has actually entered into force yet. I think they were waiting for Ireland to ratify it because we were the last signatory member state. Either now or in the near future the European Commission of Human Rights will have disappeared and it should, therefore, not be listed here.
On broadening the section, I am trying to go back to what I call the clerk's text on the White Paper, and reading this as part of the new and different subsection (1) that is now paragraph (b) there. Subsection (1)(b) is one of a list of five exemptions. Paragraph (a) is on the grounds of alleged confidentiality and (c), (d) and (e) are essentially the same.
I will try briefly to put it in simple terms to the Minister to show the futility of what we are at. This heavily amended subsection tries to give a series of exemptions on the grounds of confidentiality to sub-Government or non-Cabinet activities, when they do not have it at the moment, while it is official Government policy to remove that confidentiality protection from the Cabinet. We are really going backwards. It is ridiculous and futile for this committee to try to give Cabinet confidentiality protection to sub-committees and other sub-Government institutions or informal organs, when it is Government policy to remove by a referendum the present doctrine of Cabinet confidentiality. We have to stand back and look at it in that light.
I do not want to reopen the debate on earlier amendments, and I know the Deputy said he was speaking on the section but we have not got to the debate on this section yet. We are on amendment No. 30 and related amendments in relation to the courts. I wish to raise with the Minister how this gels with Standing Orders of the Dáil. Would it not be sufficient to rely on Standing Order 55 which is the sub judice rule?
It was changed recently and works very well.
In the recent Saunders case before the European Court of Human Rights, Mr. Saunders had his UK court conviction overturned because evidence was previously adduced from him in a non-judicial way, and then relied upon in court. There is a danger that unpropitious inquiries here might prejudice in favour of guilty people in subsequent court cases. That is something I would like the Minister to comment on. We certainly do not want a provision to stand which would allow committees of the House to aid felons.
That is covered by section 12 of the Bill which states:
A statement or admission made by a person before a committee, or a document given or sent by a person to a committee, shall not be admissible as evidence against the person in any criminal proceedings (other than proceedings in relation to an offence under section 3(7) or the offence of perjury) and section 11 shall be construed and have effect accordingly.
It is unbelievably wide. It covers Saunders.
That might or might not bind the courts of this land but it cannot bind the Court of Human Rights. Saunders got off in the Court of Human Rights because he had given evidence to an inquiry of the British Department of Trade and Industry.
He was obliged to, and they could use that against him.
To deal with some of the easier points first, Deputy O'Malley mentioned the list of institutions. There is a difference of opinion with him on that, but the answer is that I do not know. We can check out whether the European Commission of Human Rights is extant.
It is extant as of today but it will not be extant in a month or so. I think it comes into effect one month after the last of the consenting parties has ratified it.
I have asked for that point to be checked. To go back to the bigger point relating to the sub judice issue, and prejudicing proceedings that may or may not legitimately take place elsewhere, the issue is wider than proceedings before a court involving the State. Deputy McDowell only gave examples of State cases. It is essential that individuals involved in legitimate court action, are not harmed by statements made or documents presented under direction by an Oireachtas committee. In a real sense, this is about protecting the individual citizen.
In carrying out its statutory functions the Oireachtas, if investigating matters under this Bill, cannot adversely affect the constitutional function of the courts in administering justice. Any powers we want to give ourselves through committees or otherwise cannot interfere with the constitutional right of the courts to administer justice.
The Chairman made a point about Standing Order 55 relating to the modified sub judice rule. There is a world of difference between answering a parliamentary question or saying something in the House, and compelling witnesses to appear before a committee with all the powers of discovery we have already given ourselves under this Bill to produce documents. That is a much graver scenario in terms of the likelihood of prejudicing the outcome of something that may legitimately be proceeding before the courts, and what might happen in the House with an oral or written parliamentary question or a passing reference to a court case.
We took a narrow view of the sub judice rule and even to mention something that was going on in the courts was deemed to be out of order. Now, however, it can be mentioned so long as we do not actually say something that will prejudice matters before a court. The actual happenings, the fact that a case is going on and references to parties involved, are now in order. The question of whether we step over the line into prejudicing proceedings, however, must limit our discussions in the House.
I am advised that the constitutional function of the courts in administering justice determines the bottom line on how far we can go. I am of a mind to go the road with the Deputy so long as we do not step over the constitutional rights of the courts to administer justice. Because of that, in the extra powers we are giving ourselves under this Bill in relation to discovery and summoning witnesses, we cannot step over the line. I will defer to the eminent legal minds arraigned before me. If there is another tighter wording of the amendment that will prevent the courts being used in any way for gagging, please suggest the wording. We have looked at this from every angle. I am prepared to listen to possible alternative wordings but given the constitutional role of the courts and how far we can go in giving ourselves statutory powers, we cannot enter into that.
We also have a constitutional duty to order our own affairs as we see fit by our Standing Orders. They have worked well to date, although they needed amendment recently. Since then there has been no prejudice as far as I am aware. It would complicate the matter by including restrictions in the statute because we would restrict ourselves for ever. Those who are elected according to the Constitution should have discretion as regards how they carry out their business.
An exemption of this type goes to the core of our duty as elected representatives to legislate and to hold people accountable. The more restrictions we include in the Bill, the more we tie our own hands. We would do better to use the Standing Order. The section should be deleted.
It is my view that this is unduly restrictive. It goes beyond what is required in the circumstances. It could lead to people who are due to appear before a committee engaging in pre-emptive strikes. They could take out a writ if they were apprehensive about appearing. The operation of the legislation could be stymied by a gagging writ. That has been dealt with by a change in the sub judice rule in the Standing Orders.
Rather than deal with this matter in legislation it could be dealt with by internal rules for the committees. If there is a prospect of a committee trespassing on a judicial area of responsibility a chairman can take legal advice and inform the committee that it must meet in private session. The legal adviser could advise the chairman and the committee of the point at which it would make quasi-judicial determinations and thus infringe on the rights of a court. I agree with our senior counsel, Mr. Hanratty, that as a matter of law it does not follow that the mere fact a matter which is being considered by an Oireachtas committee is the subject of court proceedings automatically prevents the committee from engaging in an overview of the issues until the court proceedings are concluded.
Rather than have the matter cast in stone, so to speak, we should see how it might be accommodated in the rules and regulations. Nobody would wish to prejudice court proceedings but the use of internal rules and regulations may be the solution. Perhaps the Minister of State would examine the matter again to see if that is possible.
The Minister of State mentioned that I had given three examples which involved the State as a party. They were the ones that immediately came to mind because I see these committees, in ordinary circumstances, as an extension of the Dáil's function in keeping the Executive under scrutiny rather than having far-reaching inquiries into public scandals. Any matter of significant public controversy could be the subject of a defamation suit. For example, if I were accused of corruption as a Minister it would be easy to issue a writ against the newspaper which first printed the accusation. If I were asked to answer questions before a Dáil committee I could claim that it would prejudice my case as a plaintiff in a defamation suit.
There is a deliberate wooliness about the Government's wording which the Minister of State should accept. What are we afraid of prejudicing — the fair trial of the event? If we start to grab issues with which the courts are trying to deal in a way that would make it difficult for the courts to deal with them, that would prejudice the trial of an event. However, prejudicing the defence or the plaintiff by making public facts which they would prefer not to be known is radically different. If I am a defendant in an action, I am prejudiced if uncomfortable facts about my behaviour are made public and the other side in the case becomes aware of them.
In the case of the prison riot, the governor of Mountjoy jail and the Minister for Justice are prejudiced if it is established at an Oireachtas committee that the warders beat up the prisoners in the middle of a riot. It makes it more difficult to defend the proceedings if everybody knows that the governor has conceded that this happened. The Minister of State must sort out what it is she is trying to protect. If it is the fair discharge of the judicial function, that is one thing. If it is the State or private parties as litigants, through non-disclosure, that is wholly different.
In the Brigid McCole case, it would manifestly have prejudiced the Minister for Health's defence of the case had he been put through the mangle in the Oireachtas and had the facts that have emerged in the tribunal emerged here.
It would have allowed justice to be done.
If the State's interest as defendant in litigation comes into play and if it can invoke prejudice as a reason for not coming before a committee I have no doubt it will do so. If the Minister for Health had been asked some of the hard questions about what his Department knew three months ago, he would have declined to comment on the basis that the matter was before the courts. I know he would have done so because that is what Ministers have always done.
The Minister of State must sort out what it is she is trying to protect. I am convinced we are trying to stop committees from destroying the capacity of people to bring cases in the courts and have them fairly adjudicated upon. However, we are not in the business of stopping committees from bringing out facts in public which could deeply harm somebody's capacity to defend a case. There is a radical difference between the two concepts. That is why I used the term "unjustly prejudice". Perhaps that should be "unjustly prejudice the fair conduct of proceedings".
We would be prepared to look at that. I have no argument with the overall thrust of what Deputies are saying but we must find a formula of words which respects the boundary between the powers we are giving committees under the Bill and the courts' right to administer justice. It may be easy to overstep the line.
Mr. McDowell
What could an Irish committee do that could prejudice the European Court of Human Rights, if one is not in the business of revealing people's hands?
I will not repeat my advice literally but I cannot give an example.
Supposing the Irish Government was on a Stavanger torture charge, how could we prejudice the defence of a claim in Europe? This is a licence to conceal things from the Irish public.
There are Standing Orders which apply when proceedings have commenced and a case is before a jury.
That is mentioned in my amendment No. 32.
Also, the courts have held that they are not prejudiced and they can put anything out of their minds. The Special Criminal Court can sit through and discuss an alleged confession by an accused person, rule it out, declare that it does not prejudice the court and hear the rest of the case. Judges almost invariably decide that nothing heard in public prejudices them, they claim they can deal with any case.
One can also take examples which prove the contrary, where cases have been abandoned.
It is important that we try to retain the supremacy of the elected Members. We may be better not to include this in the Bill and to rely on Standing Orders.
My advice is that we must have something in the Bill and we will have to tie it up.
Perhaps we should take advice from the officials in the Houses of the Oireachtas rather than those in the Office of the Attorney General.
I am not in a position to answer that and I am not going to ask. . . .
It might be no harm if the Minister "tick-tacked" with some of her officials.
It is possible to devise a formula of words which prevents a committee from grossly interfering with the courts' ability to do their business. Gross interference with a court is one thing but prejudicing the position of one party to the proceedings is a radically different concept and we should not be in the position of keeping quiet because we might hurt one side's case.
Is Deputy McDowell pressing his amendment to amendment No. 30?
I will put it to a voice vote.
I am favourably disposed to that amendment. We have taken note of it and we will have to come back on it. I will withdraw amendment No. 30 and recommit, if necessary, when we take into account all the points made.
Amendment No. 30, by leave, withdrawn.
Amendment No. 1 to amendment No. 30, by leave withdrawn.
Amendments Nos. 31 and 32 not moved.
Amendments Nos. 33 and 34 are alternatives and may be discussed together.
I move amendment No. 33:
In page 6, subsection (1), line 15, to delete paragraph (c) and substitute the following:
"(c) if the evidence or document could, if given, sent or produced to it, reasonably be expected to affect adversely the security of the State,".
This provision attracted much negative comments on Second Stage. The subsection exempts matters which could affect adversely the security of the State through compellability. The Government amendment narrows the exemption debated on Second Stage by limiting to matters which might "affect adversely" State security rather then matters merely "respecting" such matters.
The alternate Opposition amendment would provide for the Attorney General to decide if the questions related to the security of the State. The Secretary to the Government has that role under section 7(2) of the Bill. The line Departments mainly involved in the security area are the Departments of Justice and Defence. The recognition in the Government's text of the Secretary to the Government provided a mechanism which allowed claims by those or other Departments that something fell into that category to be independently assessed without involving a political personage.
The Attorney General is more political than the Secretary to the Government.
Can I quote Deputy McDowell on that? I tabled five separate groups of amendments as the Bill evolved and my amendment No. 34 was one of those I submitted within five weeks of the Bill's publication, because I had thought Committee Stage was going to take place soon thereafter. I included the Attorney General because I felt that he would have a role as regards the security of the State under one of his two constitutional roles, that of protector of the public interest rather than that of adviser to the Government. I thought that he or some independent person should be involved, but the Minister has taken the rug from under me by calling the Attorney General a political personage.
That is the secondary role.
Yes, it is about 5 per cent of his job. I tabled the amendment in November 1995 and it was based on a line from A Government of Renewal which stated that the Government would look closely at dividing the dual role of the Attorney General. I thought we might have a separate prosecutor to look after the public interest but unfortunately the Government has gone back on that point as a result of the constitutional review committee of which the Attorney General is a member. I hear something being whispered into the Minister's ear——
I am being reminded of the fact that proceedings are ongoing in that matter.
I would like to hear the Minister's views on my amendment.
I have made my case.
Amendment agreed to.
Amendment No. 34 not moved.
I move amendment No. 35:
In page 6, subsection (1), lines 16 to 18, to delete paragraph (d) and substitute the following:
"(d) if the evidence or document could, if given, sent or produced to it, reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders of the effectiveness of lawful methods, systems, plans, or procedures employed for the purposes of the matters aforesaid, or".
Following this Government amendment, this subsection will exempt evidence which may prejudice the prevention of offices, etc., from compellability. Previously all information kept for these purposes was exempted. It is designed, inter alia,to protect confidential Garda sources. The form of words now used is consistent with the Freedom of Information Bill.
Generally, I agree with the improvement created by this amendment. The original version of paragraph (d) would have been far too wide and there would have been circumstances in which such information was required by a committee. The Minister's amendment is a step in the right direction.
Who would decide?
Mr. McDowell
The Secretary to the Government is the primary person but the committee itself would also be guided by it. It would have a self-executing role.
Where does it say "Secretary to the Government"?
In section 7(2).
That winds back to various other sections.
The phrase "prosecution of offenders of the effectiveness of lawful methods" should read "the prosecution of offenders or the effectiveness of lawful methods".
Yes, thank you for that. It is correct in the text before me so I did not mention it. It is a drafting correction.
That is now corrected.
Amendment agreed to.
I move amendment No. 36:
In page 6, subsection (1)(e), line 19, before "information" to insert "relating to".
Amendment agreed to.
Amendment No. 37 not moved.
I move amendment No. 38:
In page 6, between lines 30 and 31, to insert the following subsection:
"(3) A committee may not direct a witness to give evidence or produce or send to it a document relating to the source of any information required by that committee where such witness satisfies the Committee that—
(a) such information was obtained by him in the course of his occupation as a journalist, and
(b) the objection to giving such evidence or producing such document is reasonably based upon the preservation of anonymity assured by him to the person the source of such information.".
This amendment relates to journalistic privilege. The wording was the best I could draft at the time. It relates to the tortuously difficult question of whether journalists should be obliged to reveal their sources. I do not need to list the well-known cases which arose in recent years, such as the Susan O'Keeffe case. In the recent Barry O'Kelly case the judge quite rightly found a way around having to force that gentleman to reveal his source without having to convict him of contempt of court.
I note that our senior counsel had views on all this. He stated in the opinion he gave us that "this vexed question has not yet finally been decided by the courts, although it is inevitable that it will be". He said that this amendment is unnecessary. I do not accept that as I believe it is necessary for a number of reasons.
In the Goodwin case a British journalist, after a long battle in the courts, eventually got a decision in the European Court of Human Rights on his right to protect the identity of his sources. In quite a number of countries journalists are given the right in law to protect their sources. In France, journalists have an absolute right not to disclose their sources. In Austria, journalists have a right to refuse to answer questions, subject to a number of restrictions. In Germany, journalists are protected from disclosing their sources, even when they are suspected of being involved in a criminal offence — which is an extreme case. In the Netherlands, the courts recently shifted their view in order to offer journalists the right to protect their sources. In the US, under the first amendment to the US constitution, journalists have significantly greater rights to protect the identity of their sources than under British law. Unfortunately, our law is mainly dictated by British law.
The Goodwin case was based upon article 10 of the European Convention on Human Rights, which gives everyone the right, subject to some restrictions, to freedom of expression. The National Newspapers of Ireland made a submission to the Oireachtas all party committee on the Constitution. It referred to the review of the Constitution which had recommended the replacement of the existing constitutional provision in order to marry it to the provisions of article 10 of the European Convention on Human Rights.
This whole area needs to be addressed. Journalists can potentially be called before Oireachtas committees and we now have a chance to deal with this issue. I would not accept a suggestion from the Minister of State that this matter should be put off until the courts deliberate on the issue because we could be waiting forever. I say that with no disrespect to the courts. We have a duty to legislate. This thorny issue has been passed over for years by both the courts and the Oireachtas.
Unfortunately, I do not think these committees will ever replace tribunals. However, while we are giving committees greater powers, we must also give protections. The Title of the Bill refers not just to compellability but also to privileges and immunities. I strongly recommend to the Minister of State that she accept the spirit of the amendment or, preferably, the amendment itself.
I strongly support this amendment. Irish law has lagged behind English law because there was an amendment to the English contempt of court legislation to make specific provision for what is loosely called journalistic privilege. The Goodwin case, to which Deputy Ahern referred, was a major landmark in European human rights jurisprudence. It established for the first time, as a matter of European human rights law at any rate, that there is an overriding interest, except in certain restricted circumstances, on the part of democratic society in allowing the profession of journalism — the word "profession" is sometimes put in inverted commas in that context — to protect its sources. We must face up to that. This country has the old common law jurisdiction where the king could do no wrong, the English Parliament was supreme and nobody could say they would not disclose their sources. At least the English have recognised there is another value at stake.
We tendered a Private Members' Bill which was rejected. We also included a provision along these lines in our defamation Bill in order to make it part of our general law as contempt of court as opposed to contempt of Parliament, which was also to apply to tribunals. The same logic required that we should do that here.
The Minister of State informally intimated earlier that she was minded to say that the law before the courts should be the law before the committees. However, the law in the courts is completely indeterminate at the moment. Nobody has tested it in the Supreme Court and the Barry O'Kelly case will not go to the Supreme Court. The most likely way this area will be dealt with is by legislation. We are now legislating for one aspect of compellability. We must grasp the issue raised by Deputy Ahern and deal with it rather than putting if off for another day by saying it is conceptually difficult or there is a balance to be struck. There are no circumstances in which a committee of this House would have any reason to demand of a journalist that he reveal his source on compulsion of committing a criminal offence and being liable to be jailed. We must do what Deputy Ahern suggests. The language of his amendment is good except for the reference in paragraph (b) to the objection. The Minister should bring forward the substance of that in an amendment on Report Stage and should not say "we will allow the law develop; I assure the House that no journalist will go to jail for defying an Oireachtas committee in such circumstances where they would not do so for defying a court". That is a cop-out. It is at a judge's discretion at present. There is no statutory exemption; it is only a judge interpreting the Constitution and the European Convention on Human Rights that would give rise to a change in the jurisprudence of this situation. I am in favour of Deputy Ahern's amendment in principle.
The intention of this amendment is to extend the absolute privilege and protection of sources to journalists as well as to Oireachtas Members.
It has nothing to do with the Houses of the Oireachtas. It is an additional subsection.
The amendment purports to extend absolute privilege and protection of sources enjoyed by Oireachtas Members to journalists. I refute what Deputy McDowell said that to keep in line with any changes in the courts would be a cop-out. I intend to come back on Report Stage with a formula of words indicating the same rules of evidence that apply in the High Court would apply in regard to journalists. The Department of Justice is looking at this area in the context of the courts at present. There will be legislation and will apply to committees. We do not need separate sets of rules in regard to conduct between this committee and what happens in the courts.
This could arise in the committee which will investigate the Dunnes Stores affair in which Deputy O'Malley will be involved. If he wants to know whether an affidavit exists, he will have to call in some of the journalists who have told us what is in these affidavits. This is not something that can be put on the back burner. We are rushing through this Bill.
It is not on the back burner. Report Stage will be taken next Wednesday.
The Minister of State says the Department of Justice is working on some journalistic privilege Bill. When will it be introduced? Will Deputy O'Malley apply this rule or some other rule next week on this committee?
The Deputy already alluded to the fact that chairpersons of such committees will have more discretion than even a judge has. I have no worries about how such chairpersons will handle the matter, if it should arise, pending any change with regard to the situation of the courts. I have great faith in my colleagues that they will not put journalists in prison for right or wrong reasons.
Deputy McDowell is being disingenuous when he speaks about Deputy O'Malley having to call a journalist because the affidavit would be known to a wider range of people other than a journalist. It would not inhibit the hearing.
We know about the affidavit because we have read about it.
I will revisit this on Report Stage.
The Minister says she will come back with an amendment which will provide a privilege similar to that which would arise in the High Court; that is not acceptable. It is because of the very difficulties in the courts that journalists do not have the privilege of being able to refuse to reveal their source. Perhaps the Minister will state what she will propose as an amendment. I will then know whether I should press my amendment which follows similar lines to the rights and duties we have coming before committees under the Constitution as opposed to the provision in this Bill, which is innocuous.
My amendment will indicate that the same rules of evidence that apply in the High Court will apply in regard to journalists and the privilege issue before these committees. If the legislation in regard to such before the courts is changed, and I expect it to be changed, it would be changed automatically for these committees. I agree that privilege on protection of sources must be extended to journalists. We are advised to extend what is extended in the courts and, hopefully, they will move quickly because there is a pressing issue in terms of the courts which is more urgent than the issue in regard to any journalist that may appear before such committees. The courts is more pressing.
Is the Minister for State waiting for a court to make a decision?
There is no decision pending.
The Department of Justice is looking at the courts.
The long list of promised legislation from the Department of Justice did not include the legislation mentioned by the Minister of State.
It has not at legislation stage.
That is the problem. We will not see a change in this. It is wrong for the Minister of State to say we should wait until it is extended. She has an opportunity to do it now. This committee's senior counsel said if the courts at some future date decide court privilege includes journalistic privilege so be it. He did not hold out much hope that journalistic privilege would be extended by the courts, quite apart from the Department of Justice which will not extend it in the near future. I am glad she clarified it because at least I know where I stand in regard to the amendment.
I know the Minister of State does not want to be unfair to the Department of Justice. There is every reason for optimism that the Department will address this because it has only been 15 years since the English changed their law to this effect and on precedent, the Department will do something about it one of these decades.
The SMI has to get into full gear in the Department of Justice, but watch this space once things starts moving.
Whenever the Minister of State is in difficulties she refers the problem to Report Stage. We will have the longest and most gruelling Report Stage ever.
Report Stage will be guillotined.
Who said that?
One can imagine what Committee Stage would have been like if it was guillotined. The Minister of State believes the Department of Justice or the courts may possibly make a change at some time in the future and that any change made will be applied to committees. If the courts make a decision on the right of journalists to protect their sources it does not automatically apply to this committee. A committee of this House can only have the power to accord that privilege to journalists if it is given it in this Bill. The Minister of State should, therefore, accept the amendment if she agrees with the principle it proposes. It is not enough to fob it off by suggesting that the courts will address the issue when its decisions will apply here. This is not the case.
Unless they ruled it was a constitutional right, which is very unlikely.
If the principle in the amendment is accepted by the Government it should accept the amendment. It will not be enough if the law is changed elsewhere afterwards; it will still not be changed for these committees. Further legislation will be required. Now is the time to include the provision. The fact that it is being done quicker than by the Department of Justice does not necessarily mean that it will be included at breakneck speed.
The apparent willingness by the Minister of State to give journalists appearing before the committee the same privilege as if they were in the High Court, is not what I propose here. The constitutional review committee acknowledged the need for change in this area. It is a fudge to agree to High Court privilege in the hope that in the future the court will then include journalistic privilege or that the Department of Justice will eventually address the matter. It is unacceptable.
If promised legislation from the Department of Justice is likely at some time in the future, any provision here could by amended by it. Other issues must be addressed. I am not sure that journalistic privilege can be absolute in all circumstances. For example, confidentiality for doctors is not absolute. It does not extend to failure to convey information that would prevent crimes, especially crimes against children. It is clear the House would wish to do something in this respect. However, the Minister of State may be limited in what she can do.
I am limited, but it would be wrong to proceed on that basis. On Report Stage I will return to the type of amendment I have indicated. It will put us in line with what applies in the High Court at any point in time. I am told it would not be possible for the legislation establishing these committees to lead the courts on what is or is not acceptable. We will have to wait the deliberations of the Department of Justice.
I see the need for resolving the matter and the ambiguity surrounding the area of journalistic privilege. There is no determination on this matter. However, pending determination by the courts or the Department of Justice — the latter is more likely — on the way forward I have no major concerns regarding a committee committing journalists to jail when, with justification, they refuse to disclose their evidence.
Especially if that committee was composed of people who had enacted a law providing that they could not be required——
From the journalist's point of view I have no worries in the short term. In the long term I have faith that the courts will resolve matters.
If Members of the House do not disclose their sources they can be penalised by the House if it is perceived that what they did was wrong. The same does not apply to journalists.
They can be penalised for not disclosing their sources.
The committees cannot put anybody in jail. They can refer matters to the High Court to ascertain if contempt exists. It is then a matter for the courts to decide. Apart from the role provided for committees in the Bill, the idea of sending journalists to jail for not disclosing their sources is unacceptable to public opinion. It will only create conflict in the future. It is an issue we must address.
There is no argument about that.
Amendment put.
The Committee divided: Tá, 4; Níl, 5.
Tá
- Ahern, Dermot.
- McDowell, Michael.
- Keaveney, Cecilia.
- O’Malley, Desmond.
Níl
- Browne, John (Carlow-Kilkenny).
- Mitchell, Jim.
- Byrne, Eric.
- Penrose, William.
- Doyle, Avril.
Amendment declared lost.
Question proposed: "That section 5, as amended, stand part of the Bill."
I am most disappointed because we had an opportunity to make progress. Nobody should be under any illusion that the Minister's proposal is along the lines of my suggestion.
It might surprise the Deputy.
Is the question agreed?
It is most positively not agreed. Section 5 is a disaster and we know it. Although we have spent painful hours discussing it, we have not rendered it anything less of a disaster. We have vague promises about what might or might not happen on Report Stage. I got the schedule for next week and Deputy Ahern and Deputy McDowell are correct. A guillotine has been imposed.
The Government proposed to sit all day Wednesday until midnight to finish the Bill.
It has been guillotined. The proposal is to adjourn at 7 p.m. on Wednesday and to conclude all Stages at 1.15 p.m. on Thursday. This means very little time is available for it — only a small fraction of the time the committee spent on it. We are aware of the problems and the difficulties. I am most disappointed.
Why not go until midnight on Wednesday and all day Thursday? Who objected to that?
Other Bills must be considered. The Government proposed a guillotine on the Employment Equality Bill. It suggested one hour and 45 minutes for it, although the Taoiseach denied that in the Dáil today.
I am not in a position——
In any event, it is totally unfair to expect people to deliberate on a Bill of this importance in one day. It is one of the most significant Bills to reach the House.
The section as amended does not, unfortunately, include the last amendment. The committee has not been given a valid reason that amendment could not have been included. There was a vague reference to something the Department of Justice might do some time in the future which would apply in this instance. It will not apply to the Bill without further legislation. There was an opportunity to include it in the amendment and without it, the section is defective. It is defective anyway because it exempts a range of matters under subsection (1)(a) to (e), inclusive, from the provisions of the legislation and the jurisdiction of a committee. This is much too wide.
The Bill seeks to give the impression that committees of the House will be able to investigate serious and contentious matters. The number of exemptions set out in section 5, in addition to the even longer list in section 6, will mean the jurisdiction of committees is severely and unnecessarily curtailed. This has been done in the interests of the Government of the day and the Civil Service. The intention of the sections is to try to ensure that as little of the truth as possible will see the light of day. That is wrong and it is unacceptable to the committee. However, the section will be pushed through in the same manner as the other sections and amendments. It is entirely unsatisfactory. There is no point in suggesting we are legislating in a vacuum, as we are not. The ostensible reason this is being pushed ahead after an interval of 14 months since Second Stage is that Judge Buchanan is to produce an interim report within the next week. A sub-committee, of which I am a member, is to examine his report.
We know the type of matter which will be referred to. I do not know what Judge Buchanan is going to say but the topics he will deal with are known. Some of them relate to financial matters which will be very professionally concealed. A committee to investigate those matters would need full powers of compellability and discovery. This section and the following section neuter any such committee, denuding it of the powers it needs and giving a huge variety of exemptions. Those exemptions will be used. I say this from my experience of other inquiries, not by committees but under the Companies Acts, tribunals and elsewhere. These exemptions will be utilised in full in the courts to challenge the work of the committee. There are people whose affairs might be investigated by a tribunal or committee who are very wealthy and have recourse to the courts time and again. One only needs to read Mr. Hanratty's opinion to us on this, where he cites cases taken by wealthy people trying to prevent the beef tribunal, in particular, from investigating their affairs in the public interest.
I appointed three sets of inspectors under the Companies Act, 1990, Part II. I know the nature of the investigations those inspectors had to make and the degree of obstruction from wealthy people who had recourse to the courts time and again to block the investigations. It will happen here and the difficulty with sections 5 and 6 is that they give literally pages of exemptions. If this Bill is passed as it is all someone needs to do if they get a summons from a committee is to hand the Act to their solicitor and say: "Get me three of the best senior counsel in the country, expenses are no object. There are four pages of reasons why I can avoid answering to a Dáil committee or avoid their investigations. If you cannot hold that up for three or four years between High Court actions and appeals to the Supreme Court you are no good". We are foolish to enact such a Bill and then give pages of exemptions in sections 5 and 6 as well as more later in the Bill. It is wrong and these exemptions are unnecessary. They aid only people that should not be let off the hook.
Some days ago I told the committee that only two classes of people can avail of these exemptions, the very rich and those with nothing at all. Even those with nothing at all are dependent on the charity of counsel and solicitors because they will not get legal aid for this. The very rich will avail of this and it does not matter if they win or lose; they will delay it for years. One need only look at that opinion to see the plethora of litigation that arose from the beef tribunal. One of the Companies Act inspectors told me there were 11 High Court actions running against him at one time. I asked him because I was a defendant in two of them and wanted to know how many more there were. That is the reality and the Companies Act did not give nearly as many outs as this Bill does. This is quite wrong and section 5 is misguided and ill-directed.
Last week I quoted the statement of the Minister for Finance when he launched this Bill. I will again refer briefly to what he said: "I do not claim to have a perfect solution in this Bill. I am open to reasonable suggestions of improvement that are constitutionally practicable". In his statement he bemoaned the fact that over the years committees had complained about not having the power to compel people to come before them. I agree entirely with Deputy O'Malley and made that point at the beginning.
This Bill, in sections 6 and 7 in particular, is a charter to muzzle the Oireachtas. I worry about where this ethos comes from. Is it from the permanent government or the members of the Government who have changed their tune on openness and transparency? Perhaps not, to be fair. We pleaded, in non-political terms, at the last meeting that members of the Government parties should go back to their respective leaders and ask them if they realised what they were doing here. There may come a time when we are on the other side.
The exemptions in this Bill allow a coach and four to be driven through the desire of the Oireachtas to make people accountable. I have tried to put out of my mind the Lowry-Dunnes Stores committee, which is waiting for this Bill to finish and its report to come, because we were taking pains with this Bill. It is a difficult Bill because of its huge ramifications for the way we as Members work from now on; the chairman may be getting out at a good time. That is why it is better to look past the Lowry-Dunnes Stores committee and the Buchanan report. That said, now the Government is bringing this legislation forward, we are restricting any committee that would investigate that issue. My amendment No. 38, which relates to journalistic privilege, may be the rock that the committee perishes on. It has been alleged that journalists have seen certain documents. It would be open to journalists whom we request to come before the committee examining the Dunnes Stores issue, not to do so and to go to law over the issue. All those whose names have been mentioned will be in a position to drive a coach and four through the provisions of this Bill. We are doing a bad days work. This Bill should have been given more time and not pushed through in this manner.
One of the features of this Bill being jackbooted through the House is the use of guillotine. Today or tomorrow the Committee Stage will finish and the Bill will go on Report Stage with a number of undertakings that many issues will be addressed and with hints from the Government that we will be pleasantly surprised. Then there is a guillotine in the Dáil and unless the legislation is recommitted to committee on each separate section we will have one speech for each Member and one reply from the Minister and it will pass.
There will be at least as many amendments on Report Stage as there are now to meet all these undertakings. We will probably not get to section 5 on Report Stage.
If some Members have watched these proceedings and have a vague inkling as to what is happening they will want to get involved in the debate. Members of this sub-committee will want to keep them out because they want to return to the issues dealt with here rather than the broad issues. This is a jackboot process and I strongly object to it. We will not have the text of the Bill as approved by this committee before the end of the weekend. We will then be asked to table amendments with just hours to go. By the time we see the Government amendments on Report Stage we will not have time to propose amendments. This is being deliberately done to prevent people from considering what is best for democracy. The Minister expressed surprise that there would be a guillotine. I was at a Whips meeting and there was no doubt there about a guillotine.
One would want to bite one's tongue listening to the Progressive Democrats Deputies and their Fianna Fáil colleagues talking about jackbooting the Bill. It is rich listening to Deputy McDowell pontificating and lecturing while conveniently forgetting that when his party was in power nothing was done about this Bill. It has been kicked about since the arms trial.
I question Deputy Ahern's outrageous doomsday scenario of the rock we will fall on when we study the Buchanan report because his amendment to exempt journalists from divulging their sources has not been accepted. I do not know if Fianna Fáil and the Progressive Democrats Party have a death wish about the Buchanan report or whether the Fianna Fáil Party are more than anxious to string out this issue — perhaps they feel an election might come before the Buchanan report is investigated. Have Fianna Fáil something to worry about in the passing of this Bill or the Buchanan committee meeting?
I am not a lawyer like Deputy Ahern, but he has implied that this affidavit has only been seen by a journalist. We all know that is codswallop.
I appreciate that we would like to have a perfect Bill but if it is in gestation since around 1975 we should give a bit of praise where praise is due. It might be imperfect but it will certainly assist the Buchanan committee.
It is rather pathetic listening to Deputy Byrne making his one and only major contribution to this Bill other than to be part of a futile Whip exercise.
We all accept the Bill is far from perfect. The Minister has made significant amendments and has proposed further amendments which will undoubtedly improve it. I hope by the end of Report Stage it will be in better shape than it is now.
I remind Deputies that the Bill has also to pass through the Seanad where the Government is in a minority and cannot railroad it through. There is plenty of time to perfect the Bill.
Question put and agreed to.
NEW SECTIONS.
I move amendment No. 38a:
In page 6, before section 6, to insert the following new section:
"6.—(1) No action shall lie against either House of the Oireachtas or a committee or any member of either House or any officer, servant or agent of either House or of a committee in respect of the broadcasting by any person of any part of the proceedings of either House or of a committee in so far as such broadcasting is authorised by or on behalf of the Houses of the Oireachtas.
(2) In this section, ‘broadcasting' shall include transmission within the precincts of the Houses of the proceedings of either House or of a committee.".
With the permission of the committee I wish to delete the words from "of a committee" to the end. Can I delete the words "in so far as such broadcasting is authorised by or on behalf of the Houses of the Oireachtas"? In subsection (2) of the amendment can I insert the words "as authorised" after the word "transmission" so the subsection will read ". . . . ‘broadcasting' shall include transmission as authorised by or on behalf of the Houses of the Oireachtas."?
I proposed this amendment because the Select Committee on Legislation and Security, under the chairmanship of Deputy Dan Wallace, recommended that there ought to be protection in relation to the live broadcast of proceedings of committees of the House. The broadcasting committee, of which I am a member, has deliberated on this for some time and has received an extensive opinion from senior counsel. He went through the law in great detail with regard to broadcasting the Oireachtas signal. There is a proposal, which has been accepted by the broadcasting committee, that the signal broadcast internally in Leinster House be relayed to Departments. The law on defamation with regard to internal broadcasts and broadcasting by RTÉ, Teilifís na Gaeilge and any other television organisation and the protection of that broadcast and those who broadcast the signal is not clear. We need to provide some protection in that regard in this legislation.
I do not claim the amendment is foolproof and the Minister of State might wish to comment on it. This matter was brought to the notice of the Minister of State's officials some time ago.
By whom?
By the broadcasting committee. Unfortunately, the lack of time means we will miss this opportunity to provide the protection in the Bill.
The effect of this amendment would be to indemnify Members of the Oireachtas and staff from legal action resulting from the broadcasting of House proceedings. Due to the short time between receipt of the amendment and today's debate I have not yet received legal advice on the implications of the amendment. Deputy Ahern said he understood this matter was brought to the attention of officials in the recent past. That did not happen. My colleague, Deputy Jim Higgins, told me on Tuesday evening that I might expect such an amendment from the broadcasting committee. However, I did not receive the notice and my officials have indicated that they did not either.
My advice is that legislation governing committees of the Houses of the Oireachtas conveys privilege to Members of the House, their advisers, officials and agents for utterances before committees and for the publication of such utterances. On the face of it, I see no need for this amendment. When the Bill was being drafted it was intended to include a section to allay any doubts which might have existed that the presence at meetings of committees of the press and the public or the broadcasting of its proceedings removed from any witness the qualified privilege which he or she enjoyed. I was advised subsequently that the provision was not necessary. Such a provision had, however, been included in the legislation which established the committee chaired by Deputy Dan Wallace. I am prepared, if Members feel a useful purpose will be fulfilled by the inclusion of a similar modified provision, to consider tabling an appropriate amendment on Report Stage.
I can give the committee an outline of how that amendment would read so we can conclude the debate on this topic. There is no huge difference between either side of the House about the intent on this issue.
Section 2(2) of the Select Committee on Legislation and Security of Dáil Éireann (Privilege and Immunity) Bill, 1994 states:
(2) The privileges and immunities of a person under subsection (1) shall not be diminished by reason of the fact that—
(a) members of the public are present at the sitting concerned of the committee,
(b) the proceedings of the committee are being broadcast to the public or a section of the public by radio or television or other means or are being recorded for that purpose,
Our legal advisers were happy with this provision two years ago, so that template of words can be included in this Bill. That will cover the point made by Deputy Ahern in his amendment.
Will it cover sub-committees as well?
Yes.
Amendment, by leave, withdrawn.
I move amendment No. 38b:
In page 6, before section 6, to insert the following new section:
"6.—(1) Subject to the provisions of this Act, a committee may—
(a) direct in writing any person whose evidence is required by the committee to attend before the committee on a date and at a time and place specified in the direction and there to give evidence and to produce any document in his or her possession or power specified in the direction,
(b) direct a person in attendance before the committee pursuant to paragraph (a) to produce to the committee any document in his or her possession or power specified in the direction,
(c) direct in writing any person to send to the committee any document in his or her possession or power specified in the direction,
(d) give any other directions for the purpose of the proceedings concerned that appear to the committee to be reasonable and just.
(2) The reasonable expenses of a person directed to attend before a committee and also of a person who under section 9 of this Act has been given consent by the committee to attend in accordance with such section where that person has established, to the satisfaction of the committee, that his attendance was justified shall be paid out of moneys provided by the Oireachtas.
(3) (a) A direction in writing shall be signed by the chairman of the committee concerned or by another member of the committee duly authorised in that behalf by such chairman,
(b) Any other direction shall be given by the chairman of the committee concerned or by another member of the committee who is acting as chairman thereof.
(4) Subsection (1) does not apply to the President or an officer of the President or a judge of the Supreme Court, the High Court, the Circuit Court, the District Court or the Special Criminal Court.
(5) Subsection (1) does not apply to the Attorney General or an officer of the Attorney General except—
(a) where the committee concerned is a committee of Dáil Éireann approved by Dáil Éireann on the nomination of the Taoiseach,
(b) in so far as that subsection relates to evidence, or a document in his or her possession or power, concerning the general administration of the office of the Attorney General.
(6) Subsection (1) does not apply to the Director of Public Prosecutions or an officer of the Director of Public Prosecutions except—
(a) where the committee concerned is a committee of Dáil Éireann approved by Dáil Éireann on the nomination of the Taoiseach,
(b) in so far as the subsection relates to evidence, or a document in his or her possession or power, concerning—
(i) the general administration of the office of the Director of Public Prosecutions, or
(ii) statistics relevant to a matter referred to in a report of and published by the Director of Public Prosecutions in relation to the activities generally of the office aforesaid.
(7) A person who—
(a) having been directed under paragraph (a) of subsection (1) to attend before a committee and having had tendered to him or her any sum in respect of the expenses of his or her attendance before the committee which a witness summoned to attend before the High Court would be entitled to have tendered to him or her, without just cause or excuse, disobeys the direction,
(b) being in attendance before a committee pursuant to a direction under the said paragraph (a), refuses to take the oath on being required by the committee to do so or refuses to answer any question to which the committee may legally require an answer,
(c) without just cause or excuse, disobeys a direction under paragraph (b), (c) or (d), of subsection (1), or
(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 in the court, would be contempt of that court,
shall be guilty of an offence.
(8) If a person gives false evidence before a committee in such circumstances that, if the person had given the evidence before a court, the person would be guilty of perjury, the person shall be guilty of that offence.".
I ask Deputy Browne to justify moving an amendment of this length.
As it might encourage the Minister of State to give a long answer, it might be best not to do so.
I await Deputy Browne's justification with interest.
There will be no debate on the amendment. It is proposed in order to facilitate amendments on Report Stage which I intend to table. It is outrageous that the present powers of the Oireachtas to compel the attendance of the Attorney General before committees is being diminished by this legislation.
This committee had a battle, under the Standing Order which permits us to ask senior public servants to come before the committee, to get the Attorney General to appear before it. He came before the committee and the roof did not fall in. We ensured that only appropriate questions were put to him; we made it clear we would rule out questions about the Attorney General as a legal adviser and even about his role as guardian of the public interest. We have a legitimate interest, especially as this is the committee which examines the Vote for the Office of the Attorney General, to ensure that the office is run efficiently and effectively and to know what policies are being pursued in relation to the charging of fees to barristers and so forth.
It is outrageous for another reason. The Committee of Public Accounts was established by Gladstone in 1868 and was continued by W. T. Cosgrave on the foundation of the State. That committee only questions Accounting Officers. It does not get involved in politics and that has been its tremendous strength.
I am glad the Chairman is here this week. I said the same last week and I was told by her ladyship that I was wrong.
This will greatly diminish the power of the Committee of Public Accounts. That committee is one of the great strengths of our parliamentary system because it acts in unison and in a non-political way. If we import political personages into that committee it will be an unprecedented departure. I can see no reason for it except that the Attorney General does not want to be accountable. He confuses accountability with independence.
I feel strongly about this. The amendment still leaves it to the Taoiseach to decide which committee it will be, but at least it does not make it a foregone conclusion that it will be the Committee of Public Accounts and thus undermine that committee and the accountability of the Attorney General. I will move an appropriate amendment on Report Stage. Does Deputy Browne wish to withdraw the amendment?
Amendment, by leave, withdrawn.
The point is a principled one. I will speak at length on it on Report Stage.
All of these points were made and were utterly ignored.
They were rubbished by the Minister but I am glad that she had the good manners not to say the same to you this week as she said to me last week.