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SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Wednesday, 19 May 2004

Commissions of Investigation Bill 2003: Committee Stage.

I welcome the Minister for Defence, Deputy Michael Smith, and officials from the Department of Justice, Equality and Law Reform. The purpose of the meeting is to consider the Commissions of Investigation Bill 2003.

Section 1 agreed to.
SECTION 2.

Amendments Nos. 1 and 2 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 1:

In page 5, subsection (1), line 23, to delete "means" and substitute "includes".

The amendment I am proposing introduces a significant degree of flexibility in how the term "document" is to be interpreted. The Labour Party amendment introduces new elements that are not relevant and it is not necessary in view of my amendment. Therefore, I do not propose to accept it. To delete "means" and substitute "includes" creates more flexibility and goes a long way towards what Deputy Costello set out to achieve.

The Minister's amendment is not as good or as inclusive as mine but it goes a considerable distance to accommodate what I propose.

Amendment agreed to.

I move amendment No. 2:

In page 5, subsection (1), line 26, after "form" to insert ", and includes a thing".

Amendment, by leave, withdrawn.

Amendments Nos. 3 and 69 are cognate. Is it agreed to discuss amendments Nos. 3 and 69 together? Agreed.

I move amendment No. 3:

In page 6, subsection (1), line 10, to delete "2002" and substitute "2004".

This amendment updates the collective citation for the tribunal's legislation to take account of the recent 2004 Act.

Amendment agreed to.

I move amendment No. 4:

In page 6, subsection (2), line 14, to delete "any" and substitute "a director or any other".

This amendment defines a person in control as defined in section 2(2). This is an important subsection. It defines the person who will be regarded as the person in control in any organisation. It is important to remember that the term "organisation" as used here may be applied not only to commercial or structured bodies but more widely. To that extent, references to a director, as proposed by the amendment, are not necessary. The proposed amendment does not appear to add to the subsection and therefore I do not propose to accept the amendment.

Is the existing wording, "any individual", not a little vague? I am focusing on the person who is normally in possession of company documents, namely, the director. The presumption is always that the director or any other individual will be the one who can reasonably be expected to have control over the document. This amendment would improve the wording rather than leave it in its current vague form.

Deputy Costello legitimately had companies in mind but we want to broaden the provision beyond companies. It is phrased in this way to be more effective in circumstances where we are not just dealing with companies but taking a wider scope, so to speak.

Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
SECTION 3.

Amendment No. 5 is in the name of Deputy Jim O'Keeffe. Amendments Nos. 6 to 11, inclusive, 14 to 21, inclusive, 47, 52, 54 to 59, inclusive, and 65 to 67, inclusive, are related. Is it agreed to take these amendments together? Agreed.

I move amendment No. 5:

In page 6, subsection (1), line 32, to delete "Government" and substitute "Houses of the Oireachtas".

This is the core point in the Bill, and I understand my concerns are shared by my colleague, Deputy Costello. I am very much in favour of this Bill, and I want to see it going through the House——

I realise that.

——but I am concerned about the way the Oireachtas is being totally sidelined. It has no role whatever other than making a positive resolution to establish a commission. In every other respect, the powers of the Minister are paramount and they are exercised without reference to the Oireachtas. That is in total contrast to the tribunals of inquiry legislation. I appreciate we have to get away from many of the downsides of the tribunals of inquiry legislation but not at the expense of sidelining the Oireachtas.

On the powers of the Minister as opposed to the Oireachtas, first, the Minister will establish the commission with the approval of the Minister for Finance — it is the Minister who will make the order; second, it is the Minister who will have overall responsibility for the working of the commission; third, the terms of reference are set by the Minister; fourth, the costs and timeframe are to be determined by the Minister; fifth, the Minister can amend the terms of reference without reference to the Oireachtas; sixth, the members of the commission are appointed by the Minister; seventh, the draft report is to be submitted to the Minister; eighth, the interim report is to be sent to the Minister; ninth, the final report goes back to the Minister; tenth, publication of the report is in the hands of the Minister; and 11th, the Government has the power to terminate the commission.

That is not good democratic practice. I would not point the finger at any of the current Ministers but I have had occasion to point the finger at some of their colleagues in the recent past. There may be occasions where a Minister may be involved in some wrong-doing, he or she may want to cover up what is going on or may feel uncomfortable about the activities of his or her Department being exposed, all of which are not unheard of.

As a parliamentarian, it appears it is a dangerous precedent to put the Executive in total control without reference to the Oireachtas. I hope the Minister, Deputy Smith, who is a senior Minister, senior even to the Minister for Justice, Equality and Law Reform, will have the flexibility to decide that if this amendment is not accepted, he will agree there should be a greater role for the Oireachtas. I have outlined 11 different areas in which the Oireachtas should be included. That probably should not apply in all cases but I outlined them to give an à la carte menu to the Government in the hope that it will agree that the Oireachtas should have a role. I cannot make a stronger case than that but I genuinely believe there are areas where the Oireachtas should be involved to a greater degree.

There must be public confidence in this new system, to which I give my blessing, but I cannot see how there can be such confidence in an inquiry system which is so much under the control of the Executive.

This is an important amendment which is one of a series that follow from our main proposals in regard to sections 3 and 4. This is the meat of the character of the commission that will be set up under this legislation. The entire authority is given to the Government, particularly the Minister and the Minister for Finance. It is kept within the remit of the Government. The order is made and presented to the Houses of the Oireachtas but that order cannot be amended. There can only be a resolution from the Houses of the Oireachtas on the draft order. There is no provision in the Bill to amend it.

Under section 4, the order establishing the commission may authorise, specify and set the commission's terms of reference. The Minister will then set the terms of reference or if the Minister fails to do so, the Government will set them. There is no role for the Oireachtas other than to rubber stamp the commission of investigations.

The whole thrust of what we are trying to do is to get a credible alternative to the current tribunals. As the Chairman is aware, one of the areas in which we discussed this legislation was in the context of the justice committee deliberating on the Barron report and the importance of having investigations established under this legislation. We specifically referred to two investigations that would be established under the aegis of this legislation, namely an inquiry into why the 1974 Garda inquiry ended so abruptly, and an investigation into why so many documents relevant to the Barron report went missing.

To give credibility to any of those inquiries or investigations, it is extremely important that they should not be seen as coming only from the Government or the relevant Minister. They should be seen as coming directly from the Oireachtas, which should have power to draw up, or a role in drawing up, the draft order and the terms of reference. In that way, it would not be solely a governmental or ministerial function, as it is at present. This would not undermine the effectiveness or speed with which these investigations can take place. It will, however, give them an aura of credibility that would replace the tribunals which, in many people's eyes, have become an inadequate vehicle or channel for dealing with matters of major public concern and which are now to be addressed by this legislation. It is important for us to get it right this time. The public at large is not thanking us for much of the procedures and costs involved in the tribunal system. I hope the Minister can take our concerns into account. Even if he does not accept the amendments today, he may be able to return on Report Stage with an amendment to suit what we regard as an important change in the legislation.

I will reply under a number of headings, including establishment, setting terms of reference, appointments to commissions, and the submission of reports. The Fine Gael and Labour amendments seek to replace the roles of the Government and the specified Minister as regards the establishment of commissions, the setting of terms of reference, appointments to commissions and the receipt of reports. Instead it is being proposed that these roles be assigned to the Houses of the Oireachtas. In addressing these amendments, I am aware that the Bill arose from a need to provide a new mechanism for investigations that was quick, cost-effective and provided reassurance for the public about how matters of major concern could be investigated. The arrangements in the Bill must be read in that light.

The Bill, as presented, provides that a commission is to be established by Government order, but only after the order has been approved by the Houses of the Oireachtas The draft order must be accompanied by a reasoned statement on the need for the commission. I am sure both Houses will have a clear idea of the likely terms of reference at the conclusion of the debate on the establishment order. The establishment of commissions and the setting of their terms of reference will not take place in a vacuum from which the Oireachtas is excluded. It retains a meaningful role.

The Bill also provides, under section 4, that the terms of reference are to be set by the specified Minister or the Government. Amendments to the terms will be carried out in conjunction with, and with the consent of, the commission. I recognise that these provisions for the establishment of the commissions and the settings of the terms of reference, are different to current arrangements relating to tribunals of inquiry, but in this Bill we are seeking to establish a new mechanism and in doing so, to address several of the perceived shortcomings of tribunals.

One of the fundamental issues relates to the need for tight and focused terms of reference. The proposals in the Bill take account of the views expressed in the report prepared after the DIRT inquiry by the Office of the Attorney General and the Department of Finance, and quoted in the Law Reform Commission's consultation paper. The proposals are likely to result in tighter terms than might arise if the terms were set in the way that currently applies with tribunals. They are therefore to be preferred and I therefore do not accept the opposition amendments.

One of the functions given to the specified Minister is the receipt of the report, under section 3(3)(b). Deputies will also be aware that under section 37(1)(a) the Minister is obliged to publish the report as soon as possible after receiving it, subject to the need to avoid any intrusion into ongoing or proposed criminal proceedings. It will then be available to the Oireachtas and may be the subject of questions, Adjournment debates or may be taken up by a committee. In this regard I draw attention to the Barron report and the hearings held by this committee as an example of what is possible.

As regards appointments to a commission, the Minister was aware of remarks made on Second Stage about the need to ensure public confidence about the independence of commissions, and for the need to avoid situations where it might seem inappropriate for a particular Minister to make appointments, especially if the investigation was concerned with matters coming within the area of responsibility of that Minister or his or her Department. I therefore propose amendments to address these concerns. The amendments alter the arrangements for appointing a commission. It is now proposed by amendment No. 7 that appointments can be made by the Minister or the Government. Previously, only the specified Minister had this function. This change ensures that any difficulties in public perceptions about the appointing process, where the Minister's area of responsibility was being investigated, can be allayed. A new section 9 is also being added by amendment No. 21 to underline the independence of a commission in the discharge of its functions. I therefore propose that amendments Nos. 7, 15, 17, 19 and 21 be accepted.

We are trying to ensure the tightest and most focused approach possible. If we have learned anything, and I think we have, in terms of our previous experiences, it tells us that this never-ending chain of circumstances — where there is no control or insufficient control and references over where they lead — is unacceptable. I have no argument with some of the points that have been made both by Deputy Jim O'Keeffe and Deputy Costello concerning their determination to ensure the same kind of results. There is general agreement in the House on that. The argument is about achieving the same result but going about it in a slightly different way. The Government's position is very clear-cut, succinct, tight and will give us the kind of results we are setting out to achieve. It is with regret therefore that I cannot accept the amendments proposed by both Deputies.

I am disappointed with the Minister's response. To take the two changes that have been made, it is a matter for the Executive as to whether it is done by the Government or the Minister. It is not of huge relevance. As regards the mere insertion of a statement in the Bill that a commission shall be independent, surely it is a sine qua non that if a commission of investigation is established it must be independent in the exercise of its functions. The Government has not accepted the need to restore balance to some degree between the Executive and the legislature. I agree absolutely that there is a need for tight and focused terms of reference, but that does not mean they have to be solely decided on by the Minister or even by the Government. When the Government needs the Opposition and the Houses of the Oireachtas it will consult them. There is no difficulty in having the Oireachtas discharge its functions in that regard. This is a topical matter because I spent the better part of 90 minutes with the Attorney General dealing with it.

Stating that because tight and focused terms of reference are required for a commission of investigation is a reason to exclude the Oireachtas is not acceptable. I appreciate the Minister, who is here in the absence of the Minister for Justice, Equality and Law Reform, may have a brief that does not allow him a great deal of flexibility. I do not intend to labour the point further. However, I believe that this is wrong and it will not contribute to the development of a democratic system. This appears to be an attempt to treat the Oireachtas as either a rubber stamp mechanism or to sideline it, which would be the tendency of an autocratic Government. It is a natural tendency and when the next Administration has been in power for ten or 15 years it might re-emerge.

It will probably be the same Government as that which is in power at present.

I am not sure whether I will be here for the next 15 years. It is a natural tendency but I believe it is wrong. I had genuinely hoped that some gesture would be made to the Oireachtas rather than completely sidelining it. It may be a pointless protest because of the Government's majority on the committee but I intend to press the amendment to a vote. I also intend to continue to pursue this matter on Report Stage.

I am also disappointed because the changes that have been made do not reflect what is contained in our amendments. We are referring to the authority of the Oireachtas behind these joint commissions of investigation, whereas the Minister is proposing a narrow change in the form of terms of reference specified by the Minister or the Government. As presented, the legislation gives no role to the Oireachtas in terms of the content of the order or in respect of the terms of reference. The Oireachtas will have no role in the matter other than to act as a rubber stamp. It will effectively be bypassed and will be obliged to either take it or leave it. If Members are unhappy with certain aspects of the order the Minister is proposing in respect of the establishment of the commission, all they will be able to do will be to articulate their reservations. They cannot have a role in having it amended. The position is similar with the terms of reference.

The position is unsatisfactory and the Minister should return to the drawing board. This is a fundamental issue regarding how commissions of investigation will be established in the future. Such commissions are intended to deal with matters of public concern which cannot be dealt with in other ways by the normal laws of the land. The Oireachtas should be responsible for taking such matters on board and establishing structures to deal with them. As matters stand, the Government will be responsible for doing so. I am concerned about the lack of credibility which may apply to the structures to which I refer if the Oireachtas is not satisfied.

What will happen if the Minister for Defence puts forward a proposal to the effect that an investigation is required in respect of a matter relating to defence and Opposition spokespersons are unsatisfied with aspects of the investigation he proposes? Under this provision he will merely make a presentation to the House and there is no provision for him to accept an amendment. There is also no mechanism under which he can engage in prior consultation to ensure that he will get matters right in the first instance. I am not presuming that he would get it wrong but we are talking about democratic procedures and certain matters should be discussed.

As a result of the enactment of this legislation, commissions will be established which will, at best, have only the half-hearted support of the Houses of the Oireachtas and which may be unsatisfactory. As a result of the fact that the Government has a simple majority, it will be in a position to railroad through any investigation. Does that not defeat the purpose of investigating matters of major public concern and replacing the mechanisms that are in place at present which, in many ways, are unsatisfactory? There is no point in putting in place another unsatisfactory mechanism. We should seek to get matters right. If there is a procedure for the Minister of the day to establish a commission, there should also be a procedure for the Oireachtas to do so in respect of a matter of major importance. I am concerned that none of the amendments is being accepted.

There is a host of areas in our democracy — which may appear frail at times and in which there is always the possibility of errors being made — where the Government or individual Ministers, whether they are dealing with Estimates or other matters, are obliged to make decisions. At times those decisions are popular and at others they are not but, at least for the time being, responsibility for making them rests with the democratically elected Government. That Government and its members, generally speaking, try to interpret in the best way they can what is possible and what is in the national interest.

Deputies Jim O'Keeffe and Costello agree that there have been serious difficulties in terms of how these matters have been dealt with in the past. Costs have escalated and there has been a never-ending chain of events. There is broad consensus that a different arrangement should be put in place and that this should be tighter and more focused. Deputies O'Keeffe and Costello will agree that no matter how one tries to achieve this, the broader a consensus one can obtain the better. However, it is not easy to reach such a consensus, particularly when one must do so within a certain timeframe and put in place terms of reference that will have a catch-all effect. If I were on the Opposition benches, I would make the same case the Deputies are making. However, as Deputy O'Keeffe is aware from experience, it is somewhat different for a Minister because the buck stops with him or her in terms of making decisions and they must operate within particular timeframes etc.

I have a great deal of sympathy for the approach being taken by the Deputies. However, it is not consistent with trying to get the result we wish to obtain here. We must agree, therefore, to differ.

There are different mindsets at work here. A term in opposition for the Government is the only thing that would change its mindset. A change of Government would be in the interests of democracy.

Amendment put.
The Committee divided: Tá, 3; Níl, 7.

  • Costello, Joe.
  • McGrath, Paul.
  • O’Keeffe, Jim.

Níl

  • Ardagh, Seán.
  • Callanan, Joe.
  • Hoctor, Máire.
  • Ó Fearghaíl, Seán
  • O’Donovan, Denis.
  • Power, Peter.
  • Smith, Michael.
Amendment declared lost.
Deputy Hoctor took the Chair.

I move amendment No. 6:

In page 6, subsection (2), lines 38 to 43, to delete all words from and including "if—" in line 38 down to and including "House" in line 43 and substitute the following:

"if a resolution approving terms of reference for the proposed commission has been passed by both Houses of the Oireachtas".

Amendment put and declared lost.

I move amendment No. 7:

In page 7, subsection (3)(b), lines 4 to 7, to delete all words from and including “making” in line 4 down to and including “reports” in line 7 and substitute the following:

"overseeing administrative matters relating to the establishment of the commission, for receiving its reports and for performing any other functions given to him or her under this Act".

Amendment agreed to.
Section 3, as amended, agreed to.
NEW SECTION.

I move amendment No. 8:

In page 7, before section 4, to insert the following new section:

"4.—The terms of reference of a commission may be amended if a resolution approving the proposed terms of the amendment has been passed by both Houses of the Oireachtas.".

Question, "That the new section be there inserted", put and declared lost.
SECTION 4.

I move amendment No. 9:

In page 7, subsection (1), line 12, to delete "specified Minister" and substitute "Houses of the Oireachtas".

Amendment put and declared lost.

I move amendment No. 10:

In page 7, lines 13 to 15, to delete subsection (2).

Amendment put and declared lost.
Question proposed "That section 4 stand part of the Bill."

I will not rehash the arguments. However, if the Minister does not accept our amendments to the draft order, the terms of reference in section 4 will only allow for the Government to set up the terms of reference. Surely a role could be given to the Oireachtas. This allows no scope for discussing or amending the terms of reference, which we must either accept or reject. Why not give some flexibility on the terms of reference and allow the Oireachtas a role in drawing them up?

I admire Deputy Costello's ingenuity. He is familiar with the argument we had just a short time ago on this matter. We went through it in detail and I have no more to say. I made the position clear.

Is flexibility not the Government's middle name?

Question put and agreed to.
SECTION 5.

I move amendment No. 11:

In page 7, subsection (2)(a)(ii), line 42, to delete “specified Minister” and substitute “Houses of the Oireachtas”.

Amendment put and declared lost.
Question, "That section 5 stand part of the Bill", put and declared carried.
SECTION 6.

Amendments Nos. 12 and 13 are related and will be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 12:

In page 8, subsection (2), line 7, after "reference" to insert "so as to incorporate a particular matter".

Amendment No. 12 proposes, after the word "reference" in the line reading "that the commission may not consent to or request an amendment of its terms of reference" to insert the words "so as to incorporate a particular matter". Amendment No. 13 applies to the same section and there I seek to include after the word "information" the words "on that particular matter".

Section 6(2) is unusual and gives rise to some concerns. It effectively states that the terms of reference cannot be amended where to do so would prejudice the rights of any person who has co-operated with or provided information to the commission. My concern is that this is too legalistic. This provision may grant immunity from further and deeper investigation to those who assist the commission, irrespective of whatever negative detail of their role later becomes available. Is it wise to tie the hands of the commission in this unusual way? My amendment would give some protection to a person who is helpful to the commission on a particular matter but would not confer broad immunity as is provided in the section. I am worried that if we leave the section as it stands, it may give rise to this unforeseen and undue consequence.

Now that I have explained my point and if the Minister is unable to accept my amendment, I will be happy if he agrees to look again at the matter for Report Stage. It is a somewhat legalistic point. I believe the amendment would improve the Bill but am not asking the Minister to go to the wall on it. I would like his officials and the draftspersons to examine it.

This subsection provides that amendments to the terms of reference may occur only with the consent of the commission. I do not consider that the proposed amendments would assist either the Minister or the commission. They could, in certain circumstances, have the effect of limiting the discretion of a Minister or commission and therefore I do not propose to accept them. However, Deputy O'Keeffe has made a different point and without making a commitment I would like further time to consider that between now and Report Stage.

Under those circumstances I am prepared to withdraw the amendments. I am entitled to resubmit on Report Stage, which will give the officials an option to examine their worth.

Amendment, by leave, withdrawn.

I move amendment No. 13:

In page 8, subsection (2), line 9, after "information" to insert "on that particular matter".

Amendment, by leave, withdrawn.

I move amendment No. 14:

In page 8, subsection (6), line 26, to delete "specified Minister" and substitute "Houses of the Oireachtas".

Amendment put and declared lost.
Section 6 agreed to.
SECTION 7.

I move amendment No. 15:

In page 8, subsection (2), lines 41 and 42, to delete all words from and including "by" in line 41 down to and including "commission" in line 42 and substitute the following:

"as follows:

(a) by the specified Minister, if authorised to do so by the order establishing the commission;

(b) by the Government, in any other case".

This is where members will be appointed by the Minister if so authorised by the Government. Perhaps it is a marginal improvement. I am happy with it.

Appointments are made by the Minister or the Government.

It is not what I want but it is a fractional improvement on the original proposal.

Amendment agreed to.
Amendment No. 16 not moved.

I move amendment No. 17:

In page 8, subsection (4), lines 46 to 48, to delete all words from and including "specified" in line 46 down to and including "appropriate" in line 48 and substitute the following:

"appointing authority (the specified Minister or the Government) shall be satisfied that, having regard to the subject matter of the investigation, the person has the appropriate experience, qualifications, training or expertise".

Amendment put and declared carried.
Amendment No. 18 not moved.

I move amendment No. 19:

In page 9, subsection (5), line 2, to delete "specified Minister" and substitute "appointing authority".

Amendment put and declared carried.

I move amendment No. 20:

In page 9, subsection (7), line 11, to delete "specified Minister" and substitute "appointing authority".

Amendment put and declared carried.
Section 7, as amended, agreed to.
Section 8 agreed to.
NEW SECTION.

I move amendment No. 21:

In page 10, before section 9, but in Part 2, to insert the following new section:

9.—A commission shall be independent in the performance of its functions.

Question, "That the new section be there inserted", put and declared carried.
SECTION 9.

I move amendment No. 22:

In page 10, subsection (2) (b), line 31, before “facilitate” to insert “may”.

This section deals with conduct of investigations. Under the Bill, the commission is required to seek the voluntary co-operation of persons whose evidence is desired by the commission in relation to any matter within its terms of reference and to facilitate such co-operation. I am slightly concerned that, as drafted, the section appears to make mandatory the obligation to facilitate co-operation. I propose the inclusion of the word "may". It might not suit the circumstances to impose a mandatory obligation on co-operation. It might require the commission of investigations to travel to any destination at the request of the witness. I recall the Flood tribunal sitting in Guernsey for a number of days. While relocating the commission might be a good idea, I would not like to tie the hands of the commission.

This is a legalistic point, but as currently drafted, there appears to be a mandatory obligation on the commission to facilitate co-operation and, while it might not suit the commission to facilitate that co-operation, it might put a person in a situation where he or she could make unreasonable demands on the commission to which it might feel it should accede. It is a legalistic point but I put it forward in a way that might improve the Bill. If the Minister accepts it, that is fine, and if he has doubts about it, that is fine also, but I would like to have it considered as a measure that might improve the Bill.

There is not the same obligation on the witness in this case. It is important to bear in mind that there may be cases where for access to premises, seizure of documents and various other circumstances these kinds of powers are essential for the effective discharge of the commission's work.

That is not the point I was making. I am concerned at what appears to be the imposition of a mandatory obligation on the commission. Subsection (2) states that in conducting an investigation, a commission shall — we are talking about a person who is co-operating with the commission — facilitate such co-operation. It might not suit the commission to facilitate that co-operation, particularly if an unreasonable demand is made on it. There appears to be a mandatory obligation. We are talking about the conduct of investigations. As currently drafted, if one is dealing with someone whose evidence is desired by the commission, the commission shall facilitate such co-operation. I want to give discretion to the commission.

The Deputy is correct that it is a mandatory obligation.

Is it not tying the hands of the commission, which is not what we should be doing?

It would be up to the commission to decide in what way it will discharge that mandatory function, which is the case in all other legislation of this kind.

There are a thousand different ways of discharging this function. The commission has the power and the mandatory obligation, which it will discharge.

I raised the issue that, as drafted, this may unnecessarily tie the hands of the commission. Perhaps the Minister will ask his officials to examine the proposal. If they think it is worthwhile, we can come back to it on Report Stage and if they think it is unnecessary, that is fine also. It is very much a legalistic drafting point.

Amendment, by leave, withdrawn.
SECTION 10.

Amendments Nos. 23 and 24 are related and will be discussed together.

I move amendment No. 23:

In page 10, subsection (1)(a), line 41, after “commission” to insert “on foot of the exceptional circumstances presented to it,”.

I am not sure I am hugely convinced by the merits of my own amendment No. 23, but it is a drafting point as to whether we should ensure such a request would only be granted in exceptional circumstances and that we should so provide. The purpose here, as established also by the Law Reform Commission, is that such commission should conduct its investigation in private and that essentially it will only go public in exceptional circumstances. It is a rather legalistic drafting point.

The principal purpose of the Bill is to address the question of speed at which investigations can take place. The work of tribunals has got bogged down in legal argument and all the baggage that lawyers can sometimes bring. If we are to achieve increased speed and efficiency with the commission proposed, we must work to ensure that the private aspect of the commission's work is almost sacrosanct. As the Bill is drafted, one could say the circumstances in which a private hearing can become public are too broad.

The basic point is that it should not go public except in exceptional circumstances. Otherwise one gets into what some have described as the morass into which some of the existing tribunals have got. If we are talking about speed and want to ensure the work of the commission is not delayed, then there may be a case for including the words in my amendment so that going public should only arise in exceptional circumstances.

That is all it involves. I am quite prepared, if the Minister does not want to accepted it, to have it treated on the basis that it be looked at. If the officials and the draftsmen think it is worthwhile, they can take it on board. If not, we can deal with it on Report Stage. I will not press the issue.

It is intended that taking evidence in private will be the norm and this is a central element in the overall scheme of this Bill. It will result in savings in fees and time and will facilitate frankness and co-operation from witnesses.

The amendments are not necessary. We can rely on commissions to make decisions in light of circumstances in any particular case. As is clear from the section a commission will be required to observe fair procedures throughout. I am therefore satisfied the present formulation is suitable and I am not in a position to accept the amendments.

Amendment, by leave, withdrawn.

I move amendment No. 24:

In page 11, subsection (2)(b)(i), line 7, after “would” to insert “in the exceptional circumstances prevailing,”.

Amendment, by leave, withdrawn.
Section 10 agreed to.
SECTION 11.

Amendments Nos. 25 and 26 are related and may be discussed together.

Deputy Ardagh took the Chair.

I move amendment No. 25:

In page 11, subsection (2), line 41, to delete "require" and substitute "compel".

Section 11 deals with the duty to disclose the substance of the evidence to other witnesses and to give them a chance to comment. It is a rather important point. The section requires the commission to disclose to a person who is directed to attend as a witness, who attends voluntarily or about whom evidence is given to the commission, the substance of any evidence in its possession. Then subsection (2) states that subsection (1) does not require the disclosure of the source of any evidence.

Subsection (2) would be improved by changing the word "require" to "compel". The interests of justice would require the disclosure of sources in all circumstances where that is possible and helpful. It surely should be an aim of subsection (1) that there is a requirement to disclose sources but that requirement should not go so far as to compel the disclosure of sources.

It is a drafting point and I am not unduly pressing the issue. If the Minister can take the amendment on board, that is well and good. If he has a problem with it, I can accept that too. It is merely an effort to improve the Bill.

The points Deputy O'Keeffe and I are presenting here are fairly important. It is not good enough for the section to state that the commission will adhere to "fair procedures", as is stated at the top of the page. One must also incorporate them in the legislation. All that is allowed a person is an opportunity to comment, under subsection (3), "by written or oral submission on the evidence".

The committee will recall that we discussed in the past the issue raised in re Haughey and the entitlement of due process and fairness. While there is an opportunity to comment by written or oral submission on the evidence, what about the right to cross-examine or to give contrary evidence? Is that not required in fair procedures and due process? I am not sure that the Minister has fulfilled the constitutional requirements in this fashion. He needs to go a step further before he has given a person fair procedures and due process.

Section 11(1) provides that the a witness is to be informed about any evidence received by a commission that may be relevant to the witness or the evidence he or she is about to give. Subsection (2), to which amendment No. 25 relates, provides that a commission is not required to reveal the source of information to another witness unless this is in the interests of fair procedures and of the investigation generally. Subsection (3), to which amendment No. 26 relates, provides that a person who is informed under subsection (1) about evidence already available to a commission shall have the right to comment, etc., on that evidence. I am satisfied that section 11 strikes the correct balance between ensuring confidentiality about sources and the need to allow named persons to protect their name and reputation. I therefore do not propose to accept the amendments.

We must distinguish here between a public hearing and a private hearing. The kinds of circumstances raised by both Deputies refer to public, not private, hearings.

Some of these may be public hearings.

Only in circumstances where the commission would decide to do that or where the witness would request that.

As Deputy Costello mentioned, there can be public hearings, even though generally the idea is to have private hearings. Perhaps it goes a little beyond an earlier technical drafting point I made in that I would share some of the concerns outlined by Deputy Costello to ensure that the Bill is completely in accordance with the Constitution and is within the bounds of precedents on this point. It is another matter which could be looked at by the officials.

In a public hearing the source of the information would be known. A private hearing would be different.

The source of the information is one matter but what of the right to cross-examine? The rights that are being given in the Bill to the person in question are rights to comment, particularly in subsection (3) where "an opportunity" to comment is being given. It is almost as though it is a privilege to comment by written or oral submissions on the evidence, but there is no right given to ask questions, to cross-examine or to come up with contrary evidence. It must stand up to constitutional scrutiny. The Minister stated he is providing for fair procedures but they may not be fair enough.

The Deputy will be aware that fair procedures are written into all such provisions. The thrust of the change is to avoid costs associated with legal representation, cross-examination and so on. We are seeking a better, safer and secure way of doing difficult business.

I appreciate that.

Amendment, by leave, withdrawn.

I move amendment No. 26:

In page 12, subsection (3), line 5, after "evidence" to insert the following:

"and, where evidence adverse to the good name of such a person is disclosed under subsection (1), the commission shall not rely on or disclose such evidence in a report unless the person concerned has had an opportunity to challenge such evidence by cross-examination and by presenting contrary evidence whether written or oral”.

Is the amendment being pressed?

No, the Minister is satisfied there is no constitutional problem with the procedures. However, I believe there is a problem in that regard.

Amendment, by leave, withdrawn.
Section 11 agreed to.
SECTION 12.

I move amendment No. 27:

In page 12, subsection (2), line 16, after "shall" to insert "in so far as is practicable,".

The aim of this amendment and a number of the others which I have tabled is to tighten up the Bill. If the expense of tribunals is anything to go by, this Bill will be the subject of considerable scrutiny at the request of litigious people. It is essential, from that point of view, that we ensure the Bill is as watertight as possible.

Section 13 imposes an obligation on the commission that if no legal representative is present to advise the witness, it shall advise the witness of his or her legal rights and obligation while giving evidence on oath or affirmation. I am concerned that the imposition of broad and sweeping obligations, without qualification, on the commission could be a springboard for a subsequent challenge. That is unwise. It is a drafting amendment, the objective of which is clear: to ensure the currently framed broad and sweeping obligation on the commission is qualified by the words "in so far as is practicable". It is purely a drafting point but I believe it would improve the Bill and would ensure the commission is not tripped up by people who might subsequently say they were not fully and properly advised of their rights and legal obligations and that, in that context, the proceedings are legally suspect. It is a matter for the Minister and his officials if they wish to accept the amendment.

This subsection provides that in the absence of legal representation the commission shall advise the witness about legal rights and duties while under oath. The proposed amendment does not appear to add to the subsection, the purpose of which is to ensure the person is not without legal advice and assistance on key issues. It is important this facility is available to all witnesses as it will reduce pressure on people to bring along their own representation.

I do not believe it.

The Deputy and I could argue about this. I would know from where the Deputy is coming and he would know from where I am coming.

The Minister would not know from where I am coming, I am not coming from a legal angle on this one.

I am not anxious to broaden the debate.

I am merely seeking to tighten the provision. Perhaps the Minister's officials will reconsider it for Report Stage.

Amendment, by leave, withdrawn.
Section 12 agreed to.

I wish to clarify that the ministerial amendment inserting a new section before section 9 was agreed.

Section 13 agreed to.

I seek the agreement of members that the committee adjourn at 6.50 p.m. to enable members to make contributions to the Private Members' debate.

When will we complete Committee Stage of the Bill?

We will discuss that matter with the Minister and his officials. Deputies will be informed as soon as possible by telephone and if the proposed time is satisfactory we will reconvene.

We can reconvene tonight if that is suitable to the Minister.

I have another commitment.

It is possible we will reconvene on Tuesday, 1 June 2004.

There is an urgent need to complete Committee Stage of this Bill. A number of lobby groups are anxiously awaiting its enactment.

We can meet next Tuesday, 25 May 2004.

We had agreed to avoid meeting on Tuesdays.

I realise that.

We could complete Committee Stage in one hour. We have addressed our main concerns. I have one other issue on which I would like to speak.

I understand the Chairman's difficulty in terms of his involvement in Private Members' Business.

If there is not to be a vote, we can facilitate members' wishes, but if there is to be a vote perhaps members will agree to hold it over until, at the earliest, 7.45 p.m.

I want to address the issue of legal costs though not in terms of their not being costly enough.

I will give the Deputy the benefit of the doubt.

What are Deputies' suggestions in terms of when we can meet to complete Committee Stage of this Bill?

Perhaps we can meet for an hour on Wednesday week.

We will deal with the Defence Estimates next week.

Perhaps we can meet for an hour on Tuesday.

Will an hour be sufficient?

Yes, or an hour and a half.

Are members agreeable to meet at 3 p.m. on Wednesday, provided there is a room available? The clerk will check to see what rooms are available on Wednesday if that is agreeable to the Minister.

Is the other Bill not going ahead?

The terrorist offences Bill is not yet ready. There is a room available at 2.30 p.m. on Tuesday next but we had agreed not to hold meetings on Tuesdays because of the elections. The clerk will liaise with members on the matter.

Progress reported; committee to sit again.
The select committee adjourned at 6.50 p.m.sine die.
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