Select Committee on Finance and General Affairs debate

Mrs. Doyle

I move amendment No. 39:

In page 6, subsection (1), line 37, after "opinion" to insert "and, unless the information is conveyed to the committee at a time when the person is present at a meeting of the committee, it shall be so conveyed in writing".

This subsection provides for a witness to inform a committee either orally, or in writing, that his or her opinion is that the committee's direction relates to a category of information which is exempt from compellability in certain circumstances. These categories are specified in subsection 6(9).

The Government's amendment specifies that the witness may give his or her opinion in writing. This was not made specific in the text of the Bill and the amendment takes on board points made by the Opposition on Second Stage.

Parts of this section are intimately linked with the provisions in Section 7(1) and (3) which refer to an arrangement under which a distinction is made between the treatment of certain public servants and members of the public. In light of the committee's strongly expressed views on this issue I am keeping an open mind on the possibility of eliminating it on Report Stage. Any amendments which I propose to section 6 are on the basis that further amendments to section 6(2) may be tabled for Report Stage.

Mr. M. McDowell

What is in the Minister's open mind? Is she going to get rid of section 7(1) and (3)?

Mrs. Doyle

In light of the committee's strongly expressed views, I am keeping an open mind as to the possibility of doing that. I chose my words carefully.

Mr. M. McDowell

In other words, we are being lulled into a false sense of security.

Mrs. Doyle

No. I am saying that I am not sure at this stage how far I can go.

Mr. M. McDowell

That is fair enough.

Chairman

Amendments Nos. 40, 41 and 43 form a composite proposal and may be together by agreement. Is that agreed? Agreed.

Mrs. Doyle

I move amendment No. 40:

In page 6, subsection (2), line 40, after "person" to insert "and does not withdraw the direction concerned".

This subsection provides for an adjudication procedure for cases where witnesses feel that a committee's questions relate to matters which are exempt from compellability in certain circumstances.

Witnesses who are civil servants, members of the permanent defence forces or the Garda Síochána may apply for a declaration from the Taoiseach that questions relate to such matters, whereas other witnesses may apply to the High Court.

The Government amendments are drafting points purely to avoid repetition of the phrase "either withdraw the direction or" in subsections (a) and (b). They do not alter the meaning of the text. Subsection (d) provides that if the Taoiseach or High Court, respectively, agree with the witnesses, the committee shall withdraw the relevant direction. Otherwise the witnesses will be obliged to comply with the terms of the direction under section 3(1).

Members will recall that the sub-committee commented that no distinction should be drawn between public servants and others in terms of how an opinion that evidence sought is evidence which is exempt in certain circumstances——

Chairman

The Minister is on the wrong amendment.

Mrs. Doyle

No they are tied, they are part of the overall story.

Mr. M. McDowell

The Minister is saying that she is considering a radical change to this so there is not much point in having a lengthy discussion on it.

Mrs. Doyle

I have not said that I will. I want to be honest because if I did not the Deputy would say "you told me on Committee Stage. . ." I am not in a position to say how far I can go at this stage.

Mr. M. McDowell

I do not want to sound like a broken record but it is unfortunate that we are dealing with this section on Committee Stage and that the Report Stage will be guillotined. Whether this will be reached in the debate on Report Stage is doubtful. The first we will hear about it is when we see the Report Stage amendments.

Mrs. Doyle

The timetable is out of my hands.

Chairman

These amendments are to provide for the possibility of withdrawing directions, so it makes it clear that a direction can be given and withdrawn.

Mr. M. McDowell

Nobody objects to that.

Mrs. Doyle

I move amendment No. 41:

In page 6, subsection (2)(a), lines 43 and 44, to delete "either withdraw the direction concerned or".

Mrs. Doyle

I move amendment No. 43:

In page 7, subsection (2)(b), line 6, to delete "either withdraw the direction or".

Mrs. Doyle

I move amendment No. 45:

In page 7, subsection (2)(c), line 10, to delete "the committee shall" and substitute "that Court shall determine the question concerned and the committee shall, if necessary.".

As the High Court is the ultimate arbiter for both categories of witnesses through appeal to the public offices commission under section 6(3) and (4), there is no need for the distinction between them in subsection 6(2)(a) and (b). In practical terms, the only time that the High Court would adjudicate on directions involving the public would be when a witness refused to accept the Taoiseach's written declaration on an investigating committee's direction. As this is extremely unlikely the decision making role for the Taoiseach will reduce appeals to the High Court and speed up the process of investigation.

Mrs. Doyle

I move amendment no 48:

In page 8, subsection (5), line 8, to delete "Act" and substitute "section".

Mrs. Doyle

I move amendment No. 51:

In page 8, subsection (8), lines 23 and 24, to delete "a period of not less than 2 days" and substitute "such period as it considers requisite".

Chairman

Amendment 1 to amendment No. 52 and amendment No. 54 are related. Amendment No. 53 is an alternative. We will take amendments Nos. 52, 53 and 54 and amendment No. 1 to amendment No. 52.

Mr. M. McDowell

I move amendment No. 52:

In page 8, lines 26 to 41, to delete subsection (9) and substitute the following:

"(9) The information referred to in subsection (1) is any information that would be privileged from disclosure as evidence or in the High Court.".

I do not want to speak for long because I am anxious to hear the Minister's reply. I am concerned about subsection 9 because it seems to cover information of interest not already in the public domain. In the text, paragraph (a) states: "information which was given to and received by the person concerned in confidence and whose disclosure to the committee concerned has not been authorised by the person by whom it was given to the person aforesaid,". That is virtually any information of any commercial significance. Apart from day to day idle chatter, nearly every piece of important information would come under paragraph (a). I do not see why the authority of the person who imparts information in confidence should be relevant as to whether the committee should receive the information.

Paragraph (b) states: "information relating to the business, profession or occupation of a person (not being a person to whom the proceedings concerned of the committee concerned directly relate) whose disclosure to the committee concerned would or might be prejudicial to the person in relation to his or her business, profession or occupation,". We have already been told by Deputy Lowry that further disclosure of his affairs would affect his business and that is why he had to resign. I shudder to think what Dunnes Stores' lawyers would make of paragraph (b) but the matter will be in the High Court for a long time. Although the paragraph does not afford a remedy to go there, it will take State side applications to require to mandamus people to consider whether paragraph (b) applies to them. I can see that a mile away.

Paragraph (c) states: "information relating to the family life or other private affairs of a person,". Where are we going with this? One's public affairs is what is not one's private affairs.

Mrs. Doyle

This specifically refers to third parties. I refer the Deputy to section 6(9)(b).

Mr. M. McDowell

Section 6(9)(b) deals with third parties. I saw that. However, if we are investigating whether Mr. "You Know Who" received £1.1 million, is Dunnes Stores or Mr. "You Know Who" the subject of the inquiry? It is by no means clear who is the third party in an investigation.

Mr. Penrose

The terms of reference would have to be very strict.

Mr. M. McDowell

I cannot imagine a committee of this House investigating someone's family life. If the information is relevant and necessary to the activities of the committee, it should not matter if it fits into the categories of family life or other private affairs. The paragraph is so broadly drafted, it includes everything except the public affairs of that person. I do not know what that means.

Paragraph (d) is the only one with which I would be happy, that the disclosure of information would be prejudicial to our relations with other states. I have no doubt that when we get a foreign affairs committee which operates on the basis of most parliamentary foreign affairs committees, the Department of Foreign Affairs will constantly rely on paragraph (d) to avoid commenting on anything happening in Europe at any stage and also to avoid saying what the Irish Government did or did not do in the course of negotiations because it would involve disclosure of information prejudicial to international relations.

My problem with subsection (9) is that it is the most vague menu of categories of information which it is possible to conceive. It is difficult to see anything with which a committee might be concerned, apart from import and export statistics, which would not fit into one of those categories. The matter of confidentiality leaves me utterly unimpressed as well as the business, profession or occupation of a person and their private affairs. What is a private affair? Is it that which one does not want made public? I do not know what my public and private affairs are.

Mrs. Doyle

I wonder if the Deputy had availed of the tax amnesty whether that would be private or public?

Mr. M. McDowell

That is a good question. However, the Minister should examine the Lowry affair. How much of that comes under paragraphs (b) and (c)?

Mr. O'Malley

All of it.

Mr. M. McDowell

There will be nothing left. This committee will be left pussyfooting around the edge of the matter asking Deputy Lowry if there is anything he would like to say in public.

Mr. O'Malley

Profession or occupation?

Mr. M. McDowell

We do not know if he or payments to him is the subject of the investigation. This is very vague and it is, as Deputy O'Malley said earlier, the stuff by which lawyers will be made millionaires and by which they will fatten up rapidly. My idea is simpler in that it only allows for information inadmissible in a court to be covered by subsection (9).

Mr. D. Ahern

I tabled my amendment No. 1 to amendment No. 52 which reads:

In the second and third line to delete "as evidence or in the High Court" and substitute "as evidence in a court of law".

on the advice of Mr. Hanratty who gave his opinion on this subsection. When I examined this with him, we had grave difficulties with it and were both of the view that it was a lawyers' charter which would negate the strength of this Bill. I am not sure if Deputy McDowell's amendment is the answer——

Mr. M. McDowell

Neither am I.

Mr. D. Ahern

——but it comes close. The other issue is that the use of so many "ifs", "buts" and "ands" and issues which can be used as exemptions entices people to follow those routes, so I suggest a more succinct subsection.

Mrs. Doyle

Amendment No. 52 provides that the categories of information which a witness can refuse to provide, for example, private life, given in confidence, prejudicial to business of a third party, prejudicial to relations with another state, would be substituted by a single category of information which is information which would not have to be disclosed in the High Court. This is a narrower and probably less clear cut category, especially when a witness without a team of lawyers is involved.

Mr. D. Ahern

That is unlikely.

Mrs. Doyle

No free legal aid will be available to witnesses coming before this committee.

Mr. M. McDowell

Everybody will have a lawyer.

Chairman

Do you think a witness will appear before a quasi judicial inquiry set up by a committee with these powers without legal advice?

Mrs. Doyle

It could happen.

Chairman

Even if he cannot afford it, he will go to the courts and say it is a breach of his rights.

Mrs. Doyle

It is a possibility, perhaps not a likelihood, that witnesses on limited means may not have recourse to legal advice.

Mr. D. Ahern

I am sure there are many young solicitors or barristers in this city who would be only too willing to appear before the cameras and sell their wares for nothing to a particular client.

Chairman

He could appeal to the High Court on the grounds that he does not have the means to be represented, therefore, he does not want to appear.

Mr. M. McDowell

Subsection (4) is the operative one because it states that where "a request is made or deemed to have been made to a committee under subsection (3)(ii), the committee shall, as soon as may be, refer the matter concerned to the Commission [this is the Commission under the Ethics in Public Office Act] and the Commission shall determine whether it is necessary in the public interest that the evidence or document concerned should be given . . . . .". If a committee wants a particular document, the person could say it relates to his private affairs and decide to go to the commission. If the commission rules in his favour, the committee will not get the document. However, if the commission rules against him, he can go to the High Court which could take months and years.

I am the chairman of the Law Reporting Council and one volume of our reports is almost exclusively devoted to tribunal cases. The High Court will now determine what is fundamentally a political issue — whether it is necessary in the public interest to examine somebody's private affairs. It is wrong for the High Court to express such views because it would be politically embarrassing for judges. They must decide whether the public interest or Deputy Michael McDowell's private family affairs should be given greater weight. That is an appalling thing to ask a High Court judge to do.

Mr. O'Malley

It will have to be decided each time. There will be no precedent for it because each case will be separate.

Mr. M. McDowell

It will take months. If a witness comes in here and a Deputy puts a question to him, he could say he is pleading section 9(1)(c), for example. The chairman would then have to confer with the legal adviser to the committee and ask the witness if he is insisting on his course of action. If he confirms this, the matter will be referred to the commission. A week later the commission will consider the matter and lawyers will make submissions to it. If the commission says it is in the public interest, a letter will be sent to the committee chairman informing him that the matter has gone to the High Court. If that happens in the Ben Dunne case, which it will, it might as well be forgotten because it will be a year before anything is done.

Mrs. Doyle

I have already made the point that amendment No. 52 is narrow and probably less clear-cut particularly when a witness without a team of lawyers is involved. If this amendment is accepted, an adjudication procedure would have to be introduced to decide in cases of dispute between committees and witnesses as to what constitutes information which would not have to be disclosed in the High Court. As there is already such a procedure in relation to the categories which a witness can refuse to provide, I do not understand how this amendment improves the operation of the provision. Amendment No. 1 to amendment No. 52 would broaden the scope of amendment No. 52 to provide that witnesses could refuse to provide information that would not have to be provided to any court, not just the High Court as proposed in amendment No. 52. My comments on this amendment are similar to those on amendment No. 52.

As regards amendment No. 53, the Bill currently provides for circumstances in which the requirement to disclose information need not apply where the information was given and received in confidence and where the person who gave the information has not authorised its disclosure; in other words, it applies to all information given in confidence. Deputy McDowell's amendment would allow such information to be disclosed unless it came within the categories of information which would be privileged High Court proceedings. In order to protect the confidentiality of informants who supply information to public representatives in the public interest, I cannot accept this amendment. In any event, section 6(4) provides for a mechanism whereby the Public Officers' Commission can decide that the national interest requires information, which is normally exempt, to be compellable. The categories set out in section 6(9), therefore, are not always exempt.

Mr. M. McDowell

They are prima facieexempt.

Mrs. Doyle

Amendment No. 54 would formally put the onus on a witness to prove his or her claim that information asked for falls within one of the categories which is normally exempt from compellability. Section 6(1) already puts the onus on the witness to give an opinion that information sought relates to a category in section 6(9). Amendment No. 54, therefore, is also unnecessary.

We want to strike a balance between individual rights and the public interest. We must avoid committees going on what the Taoiseach described as fishing expeditions out of curiosity. I would be happy with an amendment which could ensure that committees were tied to strict interpretation of their terms of reference, which could then be tied in with Deputy Michael McDowell's amendment.

Section 26 of the Freedom of Information Bill contains exemptions relating to information obtained in confidence; section 27 deals with commercially sensitive information; section 28 deals with personal information; and section 24 deals with international relations. These exemptions are spelt out in great detail in the Bill and there are exceptions to the exemptions. However, they cover the same subject matters as those mentioned in section 6(9) of this Bill.

Mr. M. McDowell

I concede that but there is a distinction. The Freedom of Information Bill prevents nosy parkers walking in off the street to get information about the Minister's income tax affairs, her private family affairs or social welfare application forms. While I accept that, the same rule should not be applied to an Oireachtas committee. I cannot understand why an Oireachtas committee, which is investigating a matter of significance within its terms of reference, should be told that certain things are off limits or prima facie.

Mrs. Doyle

The Taoiseach spoke of the need to avoid fishing expeditions so obviously a doubt exists.

Mr. M. McDowell

I accept the point about fishing expeditions but that is a matter for the chair. It is open to a barrister to ask any question of a witness in court if it is relevant to the issue. However, if in the middle of a motor accident case a barrister suddenly asks the defendant where he sends his children to school, the judge will immediately ask him what he is talking about. One cannot do such things. It is up to a chairman to ensure that the proceedings are relevant. We do not write into law that people should not refer to the private affairs of an individual or to confidential information on Committee Stage of a Bill. People will not make speeches in the Dáil about these issues which are just harmful as issues of compellability. Why not get rid of this notion and have a set of procedures for the protection of witnesses? There should be guidelines for committee chairmen so that they are respectful of the privacy, etc., of a witness, subject to the purpose for which the committee is established. If anyone considers he is getting a rough time from a committee he should have an immediate right of appeal to another person or body, such as the Ceann Comhairle or the Public Offices Commission, to the effect that the committee is investigating everything and is being irrelevant.

Chairman

How is this done in the courts? Are there rules?

Mr. M. McDowell

There are no rules. It is a self-evident proposition that one does not ask "fishing expedition" questions, one sticks to the business. We would be far better to assume that committees would act with a degree of regularity and respect, rather than writing into law all the areas in which abuse could arise. If a law were passed to prevent witnesses in court cases being asked various questions and to allow them to go to a higher court if the wrong question is asked of them, justice would collapse. I am sure there will be an appeal to the High Court if Deputy O'Malley's committee gets underway.

Mrs. Doyle

I am prepared to look at this because Members are making a lot of sense. I would ask that the amendments be withdrawn and we will look at them before Report Stage.

Mr. Penrose

Someone said that those of us who arrived late to the meeting had nothing to say but I made my points earlier. Section 6 (9) was a bone of contention for me, among other provisions, but I am constrained by matters outside my control. The Minister's explanation does not stand up to my scrutiny and I am not an eminent barrister. If one brings a motion for discovery to the Master's Court he sets out "tramlines", he does not allow one to go over irrelevant terrain or to trick the other side into conceding a point. That is what chairpersons should do. We are giving powers to chairpersons and if we do not give them proper guidelines for exercising those powers they will be in an unenviable position. We should stop going around in circles dealing, with respect, in tautologous nonsense. Let us consider the best aspects of Mr. Hanratty's amendment. The Office of the Attorney General should be able to devise an amendment that would be far superior to anything we might propose. If section 6 (9) is introduced we will be redundant because everyone from the poorest to the richest will utilise it, not that many poor people will be before a committee of the House.

Chairman

The Minister said she has listened to the contributions and will bring forward a revised section, is that right?

Mrs. Doyle

I am looking at the amendments and have a lot of sympathy with the case made about amendment No. 52. I want to see if it can be married to advice we have been given and if that can be achieved we will remove that part of the section.

Mr. O'Malley

I am glad to hear this but we have been given these assurances by the Minister of State both today and the last day and, without wanting to doubt her, we have no guarantee that a proper section 6 will come out of her deliberations. She seems to be extraordinarily under the hold of her advisers, who are not necessarily the people at the meeting.

Mrs. Doyle

How observant of the Deputy.

Mr. O'Malley

I have never seen anyone as deferential to advice. This committee consists of people who are elected and are clear in their minds as to what they do and do not want, so it is time they took precedence over the private views of anonymous or semi-anonymous advisors. That would be more democratic and make much more sense. Section 6 is beyond redemption, it is a load of nonsense but in whatever form it resurrects itself on the third day I hope it no longer has subsection (9), because that is the ultimate joke. It would mean that a person does not have to appear before a committee or give it any information if any of that information "might be prejudicial to the person concerned in relation to his or her profession, business or occupation". There is almost nothing which could be relevant which might not be prejudicial. It does not even have to be prejudicial, the section applies if it could be conceivably prejudicial, which could cover everything. It is a loophole for all types of rogues and worse who will avail of it. The Minister knows she is under pressure, she wants to end the debate on this section and these amendments. Her way of doing it is to acknowledge the points being made and try to recast section 6. My fear is that the new section 6 she will propose will be 95 per cent the same as it is now. The only thing which will be satisfactory is a complete recasting, certainly the removal——

Mrs. Doyle

I did not say I would satisfy all the Deputies' requirements. I said the matters referred to in the amendments before us made good sense to me. I did not say I would recast the section.

Mr. J. O'Keeffe

This is my first contribution today because until now I have been in the Seanad discussing the constitutional committee of which I am chairman. It was a new experience for me because the last time I addressed that House I was in office.

We are at a crucial point in this debate because we are dealing with an important amendment. I have expressed my views on this in robust fashion both privately and publicly. I am glad the Minister is now able to admit to sympathy for the views expressed. Leaving politics aside, the purpose of a Committee Stage debate is to tease out the problems with legislation. This is an exceptionally complex Bill, a constitutional minefield, but the work which went into it before Committee Stage on an all-party basis, coupled with the teasing out both publicly and privately since Committee Stage began, is having an effect.

When I chaired the previous meeting the Minister of State, Deputy Doyle, made it clear that she felt she had no discretion in some cases and she was not going to mislead the committee in that regard. I thought that was a fair, honest and open way to approach matters. I know the Minister for many years and once she gives an undertaking that she feels good points have been made and there is room for manoeuvre, I have no hesitation in accepting her bona fides. As to this subsection, which is a cause of great concern to Members, I am glad the Minister has felt herself free to give a commitment to return with a revised approach. The Minister's bona fides has not been in question at any time in this discussion and I feel we could make a lot of progress towards completing Committee Stage if we accept that from now on.

Mr. D. Ahern

I fully accept what Deputy O'Keeffe has said with this rider — I would be happy to accept that the Minister will come back on Report Stage if I could be sure we would reach section 6(9) on Report Stage. One of our major problems is that we have been given many undertakings and it might be no harm if she gave the view of this sub-committee that it would not be right to guillotine this issue. More time should be given or the amendments might be structured in some way. I am at a loss to know what amendments to table. I will probably have to table all the Committee Stage amendments, in which case we will not reach section 6(9).

Mr. J. O'Keeffe

There are time limits for obvious reasons. In the past I have found it satisfactory to divide the sections into groups and allow a certain amount of time for each section. Perhaps such an arrangement might be the way to get over the problem Deputy Ahern has raised.

Mr. M. McDowell

I object to the fact that we have a short time frame. I suggest that the drafts of the Minister of State's proposals should be faxed to the spokespersons at the earliest opportunity for their comments. We have seen the draft of one proposal today. If the drafts of the proposals were made available it would assist us.

Mr. D. Ahern

I expect to be confronted with a long list of amendments on Tuesday next which I will not have time to examine. It is the wrong approach.

Mrs. Doyle

I understand the Deputy's problem as his party's Whip and as spokesperson on this Bill but that is a Fianna Fáil housekeeping issue.

Mr. M. McDowell

When does the Minister of State intend to circulate the Report Stage amendments?

Mrs. Doyle

I would like to give as much notice as I can but the time constraints apply to the draftsman also. He has two or three Bills on hand at present. It would be wrong of me to pretend that I could accede to a reasonable request that I circulate the draft form of the proposals. I will try to have that done but I am not sure if it will be possible. It will be extremely difficult to have this organised even with all the advice I have to hand and to be ready for Wednesday. It is unlikely that we will be ready to have a briefing session or have material to circulate in advance of Wednesday. I am willing to do so but, logistically speaking, it is probably unlikely.

Mr. M. McDowell

Therefore, whether or not Deputy Ahern is the Fianna Fáil Whip, he will have no time to consider the amendments.

Mr. D. Ahern

We will not get a copy of the Bill, as amended, until Monday.

Mr. M. McDowell

We will not get the Minister of State's proposals until Wednesday.

Mrs. Doyle

That looks like being the case. It is due to the constraints on Deputy Ahern's time that we are faced with this eleventh hour situation. I have been ready to work on this since 3 January. We tried to accommodate the committee's wishes. This has dragged on for almost four weeks, meeting on Thursdays only at the Deputy's request. That is why we are faced with——

Mr. D. Ahern

Only two weeks.

Mrs. Doyle

I was happy to meet in the week of 6 January. I wanted to deal with the business over three days during the recess.

Mr. M. McDowell

We have not had time to consider the Minister of State's amendments which she furnished on 23 December.

Mrs. Doyle

We are considering amendments we only received this morning.

A Deputy

The Minister of State has officials to do that for her.

Mrs. Doyle

I am not happy with the late notice.

Mr. J. O'Keeffe

Should we proceed as per my suggestion of putting time limits on the sections by agreement?

Mr. O'Malley

Such an arrangement would work if the Bill involved is non-controversial or has very many sections. This Bill is very controversial and there is great disagreement on its provisions. Furthermore, it is a short Bill. It is quite complex and it is highly disputed. It should not be debated in sections of the kind suggested because some parts of it would not be debated properly.

I note that it is due to be guillotined at 1.15 p.m. on Thursday next. Following Question Time, the next item of business is the resumption of the debate on the Financial Motions, that is, a budget debate which will at that stage be two weeks out of date. Why can we not have that time for this Bill?

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

SECTION 6.

A Deputy

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