Amendment No. 58 is related to amendment No. 55 and they may be taken together.
SECTION 7.
I move amendment No. 55:
In page 9, subsection (1), line 4, after "person" to insert "not later than 21 days after the receipt by the person of the direction".
As I indicated earlier, this amendment is linked to another section which I undertook to consider. However, I will deal with this amendment pending resolution of the matter. This subsection provides for witnesses who are civil servants or members of the Permanent Defence Force or Garda Síochána to apply to the Taoiseach for a written declaration that the information sought by the committee is exempt from compellability in certain circumstances.
The amendment provides that when a witness is given a direction by a committee the person has 21 days to apply to the Taoiseach for the written direction. The amendment is proposed to forestall the possibility that an investigation would be bogged down by a witness dragging his or her heels over seeking a declaration.
If a witness is given 21 days to apply to the Taoiseach for a declaration it implies that everyone must be given 21 notice of a hearing. It implies that a witness cannot be asked to appear before the 21 day period.
What is the Deputy saying?
It is yet another time constraint — 21 days is a long time. Has the committee really come to grips with section 7(1)? It means that a civil servant, a member of the Defence Forces or the Garda can request the Taoiseach to declare that the witness's information or documents come under the provisions of section 6(9). If the witness gets a certificate to that effect, the matter is then dealt with under section 6(2)(d), whereby the committee is obliged to withdraw the direction. It means that the Taoiseach will decide the public interest, which is fairly horrific. A person who may be summoned before a committee must go to the High Court to argue over the public interest issue. However, a civil servant can telephone the Department of the Taoiseach and ask for a certificate which he or she may then give the committee.
Section (7)(3) is cast in the negative. It states:
If the Taoiseach considers that it would be in the public interest to refuse to give such a declaration under subsection (1), the Taoiseach shall so refuse.
The Taoiseach must arrive at the view that it is in the public interest to refuse to give a direction. However, if he is not of the view that the public interest requires him to refuse the certificate, he simply has to consider whether the information is private and, if so, the witness can send the certificate to the chairman of the committee. That is an offensive provision.
The Taoiseach would be politically accountable to the Dáil if he issued such a certificate. There is a provision in the Ombudsman Act whereby the Minister can stop the Ombudsman investigating and it has never been used.
I appreciate that. However, these committees are in the cockpit of political existence. There will be files which contain material referring to people's private affairs. There will be occasions on which the entire Government party or parties will plead with the Taoiseach to issue a certificate.
It is difficult to form an assessment of this section until we see the final shape of section 6(9). I understand Deputy McDowell's point and I would have to bite my tongue not to be supportive of it. It is impossible to discuss this section until we see the outcome of section 6(9).
I have serious reservations about the Taoiseach deciding these matters personally.
What if the Taoiseach were involved in some activity which he wanted to cover up? I cannot be more specific than that.
Presumably somebody will challenge the Taoiseach's decision in the courts.
That is why it is put in the negative. The Attorney General's office has been clever in that regard. The Taoiseach must refuse to do so if he considers it is in the public interest. Who can challenge that decision? It does not say he must do the opposite if he considers it otherwise.
It states " . . . the Taoiseach shall so refuse".
It is similar to what happened in the extradition case when a negative was invented so that it could not be challenged in the courts.
It transfers the onus in favour of the civil servant. It is not by accident that it was drafted thus.
Who will challenge it? A Deputy or the chairman of a committee?
The amendment proposes to insert "not later than 21 days after the receipt by the person of the direction". They do not have to ask for 21 days. If they can take 21 days to make up their minds whether to ask him he will want at least 21 days to make up his mind whether he will give the certificate. What will the committee do in the meantime? If every time a person is asked to come before a committee and he or she has 21 days to decide whether to go to the Taoiseach for a direction, the system will become unworkable. It is deliberately designed not to work.
Would seven days be more sensible?
Or 24 hours, or 12 hours.
Deputy O'Malley's point is fair. Allowing 21 days to seek a direction seems odd, to say the least.
On being called before a committee a person can say that on the 21st day they will make up their mind whether to approach the Taoiseach. What will the committee do for the three weeks? Two general elections could be held before a committee could finish an inquiry. This is deliberately drafted to be obstructive and to try to ensure the system will be impotent. It is not coincidental that the provision relates to civil servants. Why do other witnesses not have these rights?
If the courts had to operate under this system the backlog of cases would be enormous.
The Minister of State should take away this Bill and come back in a couple of weeks with a new one. This is a disaster — we stagger from one horror to another.
Deputy O'Malley can be given to a certain degree of overstatement.
The overstatement is fairly limited.
We have waited 25 years for legislation in this area. Deputy O'Malley had his chances——
It was not worth the wait.
——after the Haughey case and he did not do much about it. We must use our combined reasoning to try to ensure that the final product is as good as possible. We should work on the basis that we will review the operation of the Bill after a couple of years, at least those of us who return after the next election.
Is there any reason the period should not be seven rather than 21 days?
No, I do not think there is. I hope to do something with section 6(9) and, if so, the amendments are relevant. We are looking at the matter.
It is almost too horrible to think about this provision because the mind boggles. The Bill may have taken 25 years to come about and, as Deputy O'Malley says, it looks as if it was not worth the wait. Like the early efforts at steam powered flight, it will not get off the ground.
If the subject matter was not so serious it would be a great comedy but, unfortunately, it is tragically serious.
This Bill is being rushed through to deal with the Lowry/Dunne affair. In my view, a political forum such as this could never cope adequately with, or be seen to be impartial in, political issues. There is a Government majority in the committees and if it suits the Government——
They can be whipped.
There will be no Whip involved.
I do not see how a Whip could operate under the compellability legislation.
That is only basis on which I will serve as a member of that committee; I will not serve if a Whip is applied.
In all fairness to Deputy O'Keeffe, he was impartial on the committee chaired by Deputy Dan Wallace. However, the danger always exists.
The points have been well made and have been noted by the Minister of State and everybody else.
I have an array of legal minds before me but they are not always right, even at their most machiavellian.
In relation to the double negative to which Deputy McDowell referred, section 7(3) was so phrased to ensure that a civil servant who was refused a certificate could not take the Taoiseach to court.
I meant that it could never be challenged. It was clear that the Taoiseach would never be in court. It was a technique borrowed from the extradition Bill — put it in the negative and there is nothing to challenge.
That is right.
I agree completely with the Minister of State.
Why does section 7, and all the goodies contained therein, apply to civil servants, members of the Permanent Defence Forces and the Garda Síochána but not to ordinary witnesses who might appear before a committee?
Those categories of people get information in the course of their duties. They are not like ordinary people going about their daily lives but are officers of the State, many of whom perform security and defence roles. They gather information which the Government has decided should not be brought before this committee in the interests of the State.
Is it related, for example, to export credit insurance?
I do not think that is really a security issue.
It comes under section 6(9).
It could seriously affect beef exporters if that matter has been gone into.
I have already said I will look at section 6(9).
Section 6(9) states "information whose disclosure to the committee concerned would or might be prejudicial to the State in its relation with other states".
The Iraqis might not be too happy.
We could not look into it because the Iraqis might not like what was said about them and a declaration could be obtained under section 7.
And the Russians might not find out about the rubbish that was put into the tins and sent off to them.
Under subsection (2)(b), the person concerned, in addition to the 21 days to apply to the Taoiseach, has to be allowed by the committee "such period, not being less than 30 days, [he could look for 90 or 100 days] as it considers reasonable for responding to the request". The person has 21 days to apply to the Taoiseach, the Taoiseach has at least 21 days to make up his mind and the person then has not less than 30 days to consider whether to comply with it. In which century do they expect these inquires to finish?
It must be self-evident that these provisions cannot stand.
It is absolute nonsense.
The obvious practical implication is that when that period is finished another person can do the same.
The committee would grind to a halt.
The hepatitis inquiry may finish in a shorter time than some of the time limits set out in this section. How can five people be found to conduct an inquiry which is likely to go for between two and five years? They will all have to be present all the time. If a general election intervenes the whole thing must start again because it cannot take up from where it left off, even if the five members are re-elected.
What if a member dies or resigns?
I had envisaged that this Bill would provide for very short inquiries which would be over in a week.
Or two.
However, we are now talking about people being allowed months just to object to matters.
I share those reservations. What is the Minister of State's response?
The 30 day provision is intended to give an individual time to check the various issues under this section. For example, the Secretary to the Government might have to check with the Department of Justice, the Garda Síochána and so on. There is an amount of information to be gathered before a decision can be made and I am advised the 30 day provision exists to allow that to be done.
It states "not being less than 30 days".
That is in case he might work too hard and get high blood pressure. I do not know why it is there specifically. I am told that these time periods are not consecutive but are concurrent.
It is clear this is unworkable. The question is whether it was designed to be unworkable.
I suspect it was drafted this way to make it unworkable.
That is unworthy of Deputy O'Malley.
I do not say it lightly.
It is unworthy.
It was certainly designed to make it difficult, if not unworkable.
It is a very complex Bill——
It has been made difficult.
I do not think so. We are moving into a quasi-judicial mode and bringing the powers of the Oireachtas very close to those of the courts and yet not overstepping the constitutional role of the courts. There are many issues and areas which, on the face of it, seem to thwart an easy passage of the Bill through Committee Stage; on the other hand, there is a balance between the operation of the committee and the right of the individual. I do not feel qualified to say we have moved too far in the direction of the right of the individual and how far we can roll that back.
Do Australia, New Zealand or Canada have a system whereby the premier can hand out certificates? Do they have a system to exempt public servants by way of a certificate from the prime minister?
Some of them do for different things.
I would love to know if that is comparatively——
The security of the state, for example——
I accept it in the case of the security of the state — there are D notices in England, as was illustrated by the Scott inquiry into the export of arms to Iraq. However, I do not believe that, in general terms, there would be something equivalent to sections 7(1) and 6(9).
I do not know. I have just been advised that other countries do not regulate committees by statute. Most of the countries mentioned by the Deputy do not have written constitutions so the parameters under which they can set up committees are slightly different. I cannot answer specifically in terms of prime ministers issuing certificates.
Is our real difficulty not that we are getting into uncharted waters?
That is the real problem.
There is no tradition of this. Deputy McDowell talked about the tradition whereby judges would not allow certain questions to be asked. Frankly, we do not have——
A body of tradition.
Mr. O'Keeffe
We have no traditions. I presume the innate caution of the Civil Service, in particular, is against allowing new situations to begin without putting in the necessary cautionary restraints. I think the committees will prove themselves after a time and these problems will not arise. At this stage, we have to try to find a via media and to get the best Bill we can.
While I have very serious reservations about the entire section, we should deal with the amendment which relates to the 21 day provision.
Could it be changed to seven days?
I want to get legal advice on changing it to seven days. I am well disposed to it, pending the satisfaction of my legal adviser.
Somebody can put down an amendment to have it changed to seven days.
I will recommit this amendment on Report Stage if that is in order.
Amendment agreed to.
I move amendment No. 56:
In page 9, subsection 2(a), to delete lines 12 to 15 and substitute the following:
"(ii) the person is of opinion that the evidence or document could, if given, sent or produced to the committee, reasonably be expected to have the effect specified in paragraph (c) or (d) or section 5(1),".
The subsection provides for a witness to inform that his or her opinion is not a direction given by the committee and relates to the security of the State or information kept for purposes of preventing offences. A committee shall then either withdraw the direction or ask the witness to provide a declaration from the Secretary to the Government that the direction relates to one of the above categories. This amendment is designed to make the subsection more readable. It is purely a drafting change and does not alter the meaning of the subsection.
I am getting more confused. It would make it easier for me to understand section 7 if I understood section 6. My understanding was that a person who appeared before a committee and who thought he was being asked a section 6(9) issue had a right of appeal to the commission and thereafter the High Court and the High Court could determine that the public interest required that he should deliver it notwithstanding that it is a section 6(9) matter.
Section 6(2) says if a committee is informed pursuant to subsection (1) of the opinion referred to in that subsection of a person who is not a member of the Defence Forces, the Garda Síochána or a civil servant, the committee should either withdraw the direction concerned or apply to the High Court in a summary manner for the determination of the question whether the evidence or document concerned would relate to any information specified in subsection (9). It then states if the High Court determines that it would relate to subsection (9), or if the person has the certificate, the committee shall withdraw the direction. That is totally at variance with the other system.
At one level, if one operates under section 6, does one go to the High Court? The High Court says yes, section 6(9) applies, that is the end of the matter and withdraw the direction. On a different track later, one can come in and express the same opinion to the committee and it says that one can appeal to a commission and go to the High Court and it can determine if the public interest so requires. There is a problem——
There is a conflict.
The situation is confused further because there are two streams, whether one is a civil servant. Between going to the High Court, the Public Offices Commission, the Taoiseach and the Secretary of the Government and who does what when and to whom, I am confused.
If, for instance, Mr. Ben Dunne, decides he will make a case under section 6(9), he will get a declaration from the High Court under section 6(2) and the High Court will determine it relates to his family matters and that is the end of it. I do not understand how the two provisions mesh into each other — section 6(4) and section 6(2). There are two different reliefs to the same proposition.
It will have to be examined urgently.
Is it possible that, arising from the examination, a single stream system could be established with the necessary appeals?
Make the Taoiseach an exofficiomember of the High Court.
Is it possible that there could be a simplified system which would apply to everybody? Steps would be clearly laid down as to who goes through what procedure and when. For every complex problem, there is a simple solution but we have such complex solutions we will tie ourselves in knots trying to implement this legislation.
The security of the State will have to go through the Secretary of the Government and the rest should find its way through the High Court.
On a single stream?
I will come back to the committee on that.
Will the Minister of State determine whether subsection 6(2) or 6(3) is to be the law because they are inconsistent?
They are alternatives.
I appreciate that but section 6(2) means that if somebody goes to the High Court on a summary basis and gets a determination that the information is that to which section 6(9) applies, the committee must withdraw the request. There is no public interest argument.
I am advised that before the matter goes to the High Court the committee could take the section 6(3) route.
Why would the committee take the section 6(2) route?
The committee may want to emphasise its opinion of the importance of having the question answered and to have that dealt with by a slightly different procedure in the belief that this would influence the ultimate outcome.
I did not follow that. Unless the committee was completely nutty, it would have top——
It needs to be examined.
It is similar to the appeals procedure I tried to include. It will ultimately go to the High Court anyway. The commission aspect is the same.
Amendment agreed to.
Amendment No. 57 is in the name of the Minister. Will the Minister of State move it?
If the Minister of State accepts there is a problem, perhaps it is better that she does not move these amendments.
I do not know what I am doing.
Amendments Nos. 56, 57 and 58 are consequential.
These are matters which I will either revisit or redraft.
Amendments Nos. 57 and 58 not moved.
I move amendment No. 59:
In page 9, between lines 43 and 44, to insert the following subsection:
"(4) If—
(a) a person finishes a declaration under subsection (1), and
(b) the committee determines that it is essential for the purpose of the performance of its functions in relation to the proceedings concerned that the evidence or document concerned should be given or be produced or sent by it,
the chairman of the committee shall notify the Taoiseach of such determination and shall, as soon as may be, refer this matter to the High Court for its determination as to whether it is necessary in the public interest that such evidence or document concerned should be given or produced or sent to the committee and if the High Court determines it is so necessary section 6(2) (d) shall not apply in relation to the matter.".
I tabled this amendment to try to put a halter on the Taoiseach's ability to sign a certificate and say that is it, to re-emphasise that the committees are over the Taoiseach. I did this because I considered that the Taoiseach's powers regarding certification were draconian.
What are the views of the Minister of State on the amendment?
Effectively, section 7(1) goes if section 6(9) goes, and this will go if section 7(1) goes.
On that basis I will withdraw the amendment.
Amendment, by leave, withdrawn.
Question, "That section 7, as amended, stand part of the Bill", put and agreed to.