I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials, to the meeting, the purpose of which is to resume consideration of Committee Stage of the Commissions of Investigation Bill 2003. Before we begin, I confirm that the original agreement on section 9 stands — it stands part of the Bill.
SECTION 14.
I move amendment No. 28:
In page 13, between lines 19 and 20, to insert the following subsection:
"(2) A commission shall publish in Iris Oifigiúil any rules and procedures adopted pursuant to this section and shall make such rules and procedures available to persons likely to be affected thereby.”.
The amendment is desirable. Its purpose is self-evident.
Section 14 provides that a commission may establish or adopt rules and procedures, especially relating to the taking of evidence. While I fully accept the Deputy's point that it is nice to have transparency, formality and up-front rule-making, rules and procedures vary from time to time. The amendment would add a burden to the commission without adding greatly to the transparency of its operations.
I direct the Deputy's attention to section 12(1) which requires that all witnesses are to be provided with a written statement setting out the commission's powers to give directions to attend to answer questions, produce documents, etc. This is to be produced in advance of a witness giving evidence. In addition, section 22(4) requires that all witnesses are to be provided with a copy of the guidelines and costs before they give evidence. There are other provisions — for instance, in section 33 — that require that the commission provide all persons being identified in a report with an opportunity to respond in advance of the report being finalised.
Witnesses and other parties will be well informed about the commission's powers and functions in advance of giving evidence and at later stages of the investigation. To require publication of the commission's procedures and powers in Iris Oifigiúil would slow matters down, especially in cases where an ad hoc approach was taken to invent a new procedure for something unforeseen that might have arisen. The purpose of this section is to introduce flexibility and speed into the operation of commissions and ensure they are not as hidebound as the tribunals are at present. From that point of view, we have gone a long way to lay down prescriptive guidelines for the commission in the text of the Bill. Going further by requiring them to publish everything in Iris Oifigiúil would tend to give rise to complication, litigation, argumentation, interpretation of details, etc. It would lead to a lawyer’s feast day which would be in no one else’s interests.
That sounds plausible. However, I am concerned because section 14 grants powers to establish rules and procedures relating to evidence and submissions. It appears that the legislation is defective because those rules and procedures will not be published. The Minister has stated there may be an ad hoc approach which is surely the last thing we want when dealing with legislation. If the Minister is going to grant powers to establish rules, those rules must be published.
The commission can adopt rules and procedures in respect of various matters under section 14(1). It is implicit in this that those rules and procedures must be available to anyone affected by them. They cannot remain secret. Publishing them in Iris Oifigiúil——
If there cannot be secret rules——
I am stating it is implicit that anybody affected by the rules can find out where they are available. However, Iris Oifigiúil is not available to most and hunting in that publication does not help them very much. If a person is concerned about the commission, he or she can contact it by telephone and request a copy of the rules. This is better than ringing an answering service and being told that he or she will find them in Iris Oifigiúil.
I am concerned about the fact that there is no prescription in the Bill to the effect that the rules and procedures provided for in section 14 should be published.
In a particular case a commission might decide, having regard to the need to observe fair procedures, to vary the rules for an unforeseen reason. This is a maximising of flexibility. I do not want commissions to be in a position where they cannot proceed with a matter or make new rules until Iris Oifigiúil is published and they are obliged to order and produce copies thereof. That would not be a good idea.
I accept the Minister's view that there should be flexibility and Deputy Costello's view that there cannot be secret rules. If the commissions are not going to be permanent, will the rules established by one commission apply to the next one to be established? Will a body of wisdom transfer from one commission to another? Is this not relevant in terms of the point raised by Deputy Costello? Will there be a permanent commission secretariat?
No.
If not, where will be the repository for the rules? The Minister stated a person concerned about them could contact a commission by telephone. It is like an American ringing Europe in the old days and someone saying, "Whom do we ring when we are looking for Mr. Europe?" Whom should people contact when they need information about commissions? I accept the Minister's views in respect of flexibility. However, is he leaving a gaping hole in this part of the legislation?
I suggest that we explore the possibility of accepting an amended version of Deputy Costello's amendment which would state, "A commission shall make such rules and procedures available to persons likely to be affected thereby". The reference to Iris Oifigiúil is not required. One might as well tell people that the rules and procedures are listed in the Chinese telephone directory.
Perhaps the Minister will give further consideration to the matter rather than making an amendment on the hoof. I agree with him about Iris Oifigiúil. Publishing in that organ would be tantamount to including a reference to the rules and procedures in the Koran. If there is a reference to the effect that a commission “shall make such rules and procedures available to persons likely to be affected thereby”, will this place an onus on a commission to make them available to all such persons? Should we not state a commission shall make the rules and procedures available to anyone who requests them?
They would be made available to persons likely to be affected. The word "available" does not mean "shall publish and chase around the world", it means that people may seek them out.
If the Minister is satisfied on that point, it is a reasonable compromise.
Does Deputy Costello want to know what will be the rules and procedures of any commission which might be established?
No, the Minister has made a good point in the sense that——
Will the Deputy advance the proposition that he buys and studies Iris Oifigiúil on a weekly basis?
That begs the question of the reason we publish Iris Oifigiúil at all if nobody looks at it. My point is that there should be some mechanism whereby the rules and procedures adopted or made by a commission will not be kept on a secret list available only to that commission. I will wait to see what the Minister comes up with for Report Stage.
Amendments Nos. 29, 30 and 33 are related, while amendments Nos. 29 and 30 are cognate. They may be discussed together. Is that agreed? Agreed.
I move amendment No. 29:
In page 15, subsection (6), line 2, after "member" to insert ", on notice to the person concerned".
Section 15(6) reads, "Where a person does not comply with a direction given by a commission under this section, the Court may, on application by the chairperson or, if the commission consists of only one member, by the sole member...". I am seeking to have the phrase ", on notice to the person concerned" inserted at the end. Applications to the High Court to compel persons to comply with directions will invariably be made on notice. However, this should be set out in the text of the Bill.
Generally, the High Court would only decide some contentious issue on notice to a person concerned. However, if, for example, it was giving a person a direction not to destroy a document or something of that nature where giving notice might be impossible, it might, in the interests of the proper operation of the legislation, give such a direction on an ex parte basis. High Court rules state someone can seek to vary an ex parte order. If a person was doing something likely to result in the irreparable loss of material, for example, that would be relevant to a commission. In those circumstances, it would be better not to have it as an absolute precondition that notice be given of an application. However, I stress that the procedures of the High Court are that in general judges do not make decisions which are onerous on any persons or which affect them, without giving them an opportunity to be heard. The exception is emergency cases where orders are made ex parte. Anybody against whom such an order is made is entitled to apply to the High Court to vacate it if they are wrongly affected by it.
It might be the case that one might not be able to find the person in respect of whom one wanted to make a direction. However, the making of the direction would be urgent in order that the person in question would be in contempt of court if he or she destroyed documents or whatever. That is the one matter about which I am concerned. I would prefer not to do it because it would mean that one could never make an ex parte application.
As in other circumstances, it would be made on notice to the person involved in so far as practical.
Perhaps the Deputy will withdraw the amendment in order that the Minister can reconsider the position for Report Stage.
I will check if it is necessary to do what the Deputy is suggesting. However, my impression is that the rules of the superior courts provide that ex parte applications can be made and subsequently vacated. It may be the case that we could include a phrase such as “where practical, on notice to the person concerned” or “where reasonable, on notice to the person concerned”. I would prefer not to accept the amendment in its present form as it is too emphatic.
I move amendment No. 30:
In page 15, subsection (3), line 43, after "member" where it secondly occurs to insert ", on notice to the person concerned,".
Amendments Nos. 32, 34 and 42 are related to amendment No. 31 and all may be discussed together.
I move amendment No. 31:
In page 17, subsection (3), line 21, after "information" where it firstly occurs to insert "or requires production to it of a document for the purpose of determining whether or not such document is privileged".
The section sets out a detailed procedure to enable the commission to identify generally privileged or confidential information. It involves asking the person who claims the privilege to set out the grounds for the claim and allows the commission to examine the relevant documents. Where the claim is upheld, the document is not entered into evidence, except where it is possible to extract certain relevant information from it without infringing on the privilege. The section also includes provisions for appeals to the High Court against the commission's determinations about the status of a document. In other words, the matter proposed in amendment No. 34 is addressed.
Section 27 deals with powers of entry and seizure. The Bill's provisions were drafted with particular care and attention and strike the correct balance between the need for the commission to have access to documents, on the one hand, and the need to preserve privilege and confidentiality, on the other. The purpose of section 20 is to ensure claims of privilege will not frustrate the commission's work while also protecting genuinely privileged and confidential information.
The powers, provisions and procedures in the section also apply to documents seized under the powers provided under section 27. However, it is not a matter solely for the affected person to determine whether a document attracts privilege. Amendment No. 42 could give that impression because it states they are not liable to be produced. It gives the person in possession of the document an absolute right to say, "No, they are privileged, go away."
The issue is how questions of privilege are considered. For example, currently, a tribunal of inquiry considers the question of privilege in the first instance and, if it overrides the interest of the person claiming privilege, he or she can apply to the High Court. That is a better way to address the issue, otherwise people will say everything is privileged. The commission will then wonder whether it is privileged or whether it is being given the run around as people take liberties with the notion of privilege. It is better to allow the commission to do the same as tribunals, that is, to examine a document to determine whether it is privileged rather than force it to play blind man's buff and go to the High Court arguing against privilege being claimed in respect of documents it has not seen.
Is there not a practical problem? The commission will have to read every document to determine whether it is privileged. That would be impractical. I presume every member of the commission will not be a legal expert. Is it not a difficult scenario whereby to determine whether a document is privileged the commission must first examine it and that every other document will be subject to such prior examination?
I agree with the Deputy that this presents a dilemma. If it is privileged, why is the commission being allowed to see it in the first place to determine whether it is privileged? On the other hand, currently, a tribunal of inquiry requires the production of a document, examines it and states whether it believes it is privileged.
What happens if the tribunal decides the document is privileged?
It sends the document back.
Would the proceedings be contaminated at that stage because the commission would have read the privileged document?
That happens at tribunals and frequently in the courts. If one side claims privilege in a court case, the judge asks to see the document. If he says the document is privileged and returns it——
It is still excluded from consideration. Is that the effect?
Yes.
A sort of mental blockage.
I accept people may think the document has been read and the commission will be aware of what is in it but, by the same token, if a determination of privilege is always made by somebody outside the process, a claim of privilege can be made and the only weapon open to the tribunal, commission or whatever is take a High Court action to decide the issue. Since the material is never seen, that is the nuclear button every time. Somebody says he or she has a privileged document and the inquirer cannot see it and, if the inquirer wishes to see it, he or she must go to the High Court. That would hand baddies a significant weapon with which to obstruct the commission.
If the commission determines that a document is privileged and discards it having established a mental blockage regarding its contents, the person who is the subject of the commission investigation could go to the courts and say the contents of a privileged document are in the possession of the commission members and that their minds are in danger of being contaminated by it. One cannot rule the contents out of one's mind. It is not similar to a judge in a court who has legal experience. The members of the commission may not have legal experience. Therefore, people would have the right to access the courts to overturn the commission's work.
If a document containing a solicitor's advice or a statement made to a solicitor for the purpose of obtaining legal advice, which attracts professional privilege, was at issue, it would be open to the person involved to say his solicitor would outline that it was such a document. If the commission insists on production of a document unreasonably, it will bias itself completely and render itself liable to be disqualified further.
It could make the work of the commission difficult.
It could but its absence could make it equally difficult. I have done the odd little bit of work before tribunals, though I have never been one of the great tribunal lawyers, and sometimes one feels that if the tribunal examines a document, the consequences are prejudicial, no what matter the tribunal members pretend afterwards. However, the alternative is to use an independent referee in every case and that is not——
The alternative, if there is a serious question about the privilege of documents, is that they could go outside the commission for determination.
Who questions what is serious?
It could operate like this. If a person received a request to produce a privileged document in circumstances where it would poison proceedings seriously against him or her when examined by the deciding body, it would not be beyond the wit of lawyers to go to the High Court to quash the request on the basis it would have such an effect and, thereby, take it away from the commission or tribunal. I am not saying that would happen in most cases but I am not saying it would not happen either. If it was going to have a radical effect on the outcome one could invoke the courts' jurisdiction to stop the tribunal. For instance, if one had a game plan to deal with a tribunal chairperson, including an analysis of his personality, and he insisted on seeing it, then one could say, "This is ridiculous as it will only prejudice you against me." One could go to the High Court and stop the tribunal from forcing one to show something that would be prejudicial against one's case.
And that would be possible as things stand?
I think it would. Even though the normal decision on privilege falls to be decided by the body itself, there are circumstances in which someone could say that revealing documents which are manifestly privileged would be so damaging to that party that the order to produce should be quashed. That is a possibility and would prevent gross injustice.
There is still a dilemma and a difficulty here.
It will not go away easily.
It will not, but the last thing we need is unworkable legislation. I am sure in the course of any commission's hearings there will be an incredible number of documents and there will also be the question of privilege. We do not have a mechanism for dealing with this and the commission will end up reading 25% of all the privileged documents. There is no way of finding out. There is a serious dilemma here and there is no point in saying it will not go away. We must find a mechanism whereby that dilemma does not poison the proceedings, as the Minister says, otherwise the proceedings could be under way before finding it has to be thrown out. The Minister should look at this again.
We will do so but the alternative is very clear to me, with people running rings around the commission.
That is what the legislation seeks to address.
I move amendment No. 32:
In page 17, lines 23 to 40, to delete subsections (4) to (6).
I move amendment No. 33:
In page 17, subsection (7)(a), line 47, after “Court” to insert “, on notice to the person concerned,”.
I move amendment No. 34:
In page 18, subsection (8), line 7, after "subsection (10)" to insert the following:
", and if the commission has already inspected such a document, the Court shall give directions for remedying any prejudice or potential prejudice caused thereby, and if the inquiry or a particular aspect thereof has been fundamentally contaminated as a result, the Court shall direct the commission to cease the inquiry or that part of it and the commission shall comply with such a direction".
Amendments Nos. 35 and 71 are cognate and amendments Nos. 36 and 72 are related. Therefore, amendments Nos. 35, 36, 71 and 72 may be discussed together by agreement.
I move amendment No. 35:
In page 18, subsection (2), line 29, to delete "10" and substitute "21".
This is a question of time limits for appeal and I am suggesting 21 days instead of ten.
I see what the Deputy is driving at but 21 is too long, therefore, I propose a period of 14 days.
There could be a bank holiday weekend in between.
We need to compromise. The Minister is getting soft.
It is Deputy Costello's irrefutable logic.
I did not even argue the case.
I move amendment No. 36:
In page 18, subsection (2), line 30, after "determination" to insert "or such longer period as the Court may allow for sufficient reason".
Amendments Nos. 37 and 38 are related and may be discussed together by agreement.
I move amendment No. 37:
In page 19, before section 23, to insert the following new section:
"23.—Within three months of the passing of this Act, the Minister in consultation with the Minister for Finance shall publish a table of the maximum level of legal fees payable by the State to barristers and solicitors engaged by witnesses or other persons appearing before or connected with a commission.".
This is one of my central points regarding the Bill. It may be difficult for someone who was a lawyer in a former life to argue this, but there is a perception that tribunals are there for the benefit of lawyers and that the Exchequer is being ripped off. That is not to point a finger at the excellent work being done by lawyers in the tribunals but the starting point with this issue is that there must be a better way to ensure we get a return on Exchequer tribunal costs. The whole approach of the Bill may lead to a better way of doing this but here I am trying to focus on the issue of legal fees payable to barristers and solicitors. I am trying to suggest a procedure which will address this issue.
The Bill provides for an estimate of costs in advance, which is insufficient. It is only an estimate and since the procedure is under the control of the Minister of the day it will not solve the problem. I am putting forward the view that we should have a league table of fees so that people can know what they are getting into when talking about a commission or tribunal. We should have a system of tendering. That might be anathema to the legal professions, including my own, but I am a believer in competition. If one looks at the numbers available to do the work then there are many people able to do it and who would be prepared to compete if they were not restricted by rules of the Law Society or the Bar Council. It would have to be taken as read that those restrictions would not apply. Are we dealing with all the amendments on costs and tendering together?
Yes.
I want to establish a tendering procedure so that prior to the engagement of a solicitor or barrister, the commission would be obliged to embark on this process and could only take on board those solicitors or barristers who had completed it. This is a tentative suggestion and is not the last word on the matter but in looking at tenders the commission should have regard to the volume of barristers and solicitors available——
When the Deputy says the volume of practitioners——
I am trying to get to the point.
"Number" might be a better word.
I stand corrected, or only rotund barristers would be acceptable.
Perhaps the Deputy means the sound volume.
There are many barristers and solicitors available and while we all know the top names there are many other barristers and solicitors who are very competent and who would do an equally good job. They would be prepared to tender if encouraged. Is there a better way to do this? This is only one approach. The Competition Authority is looking at this area, with its final report due soon. Can we improve an area seen by many as scandalous? I am not saying this is a perfect answer but it may contribute towards an answer.
Deputy O'Keeffe has made a practical suggestion, as many complaints about the tribunals centre on costs and delays. There should be some mechanism to improve procedures and reduce costs. We do not require a reduction in the numbers of the legal profession involved in matters of this nature, what we need is a reduction in costs. In many ways we are reducing the role of the legal profession, whereas if their costs were reduced, we could retain their role. We must be careful that due process is adhered to in all cases. An examination of legal costs is currently taking place. I do not know whether it will produce results because nothing has been successful in the past. I cannot understand how there can be such extravagant legal costs, which are totally out of kilter with any other charges in the public arena of either a public or private nature.
There has never been a serious attempt to address this issue. We have spoken about imposing a ceiling on costs in certain areas and whether the State could intervene in terms of price control legislation if the profession does not regulate its costs in line with what is available to ensure access to what is a necessary part of the livelihood of the citizenry of the country. There is a principle to be resolved as well as the practical aspect. The legal profession is out of control in regard to costs. It is not currently within the ability of ordinary people to be able to access the services of the profession or, if they do, they will be on their uppers for the remainder of their lives.
It would be an answer to many of the problems we have been encountering with the tribunals and so on if the issue could be addressed. Whether a tendering process is the correct one is an issue we need to tease out. Perhaps a legislative process is another means which could be considered.
We are not talking about buttons, but about €100 million being spent in the past four or five years. This is very big bucks. If the OPW was putting out a tender to build a cow house it would have to get three or four different tenders and go through an elaborate process to build something which might cost €10,000. If we go to so much trouble to have a tendering process for the supply of goods of that nature, why not use the same process in regard to the supply of services on behalf of the State?
On amendment No. 37 and the question of publishing a table of a maximum level of legal fees, it is a bit like publishing a table of the maximum cost of the pint in a pub. Invariably the figure given is the maximum figure, which becomes the standard. It takes away from the capacity of a negotiator to introduce a lower price. While I would be wary of this aspect, I agree with Deputy O'Keeffe on the type of public procurement tendering process. Something very transparent and competitive needs to be put in place in respect of tendering.
I am sympathetic to the amendments and the notion of tendering. We can include in the Bill a requirement in regard to the services of the commission whereby it would comply with whatever tendering requirements are imposed on it by the Minister in consultation with the Minister for Finance. The current situation where the public in any form of inquiry are price takers, not price makers, is not a good thing. In retaining its own lawyers, a requirement on a commission to go to tender when directed to do so by the Minister and Minister for Finance should be included in the Act. One could argue that there is nothing in the Act which says it should not be done at present. I have sufficient knowledge of the way the world works to know that if it is not included in the Act it will not happen, therefore, it should be included.
There are a couple of technical problems in respect of Deputy O'Keeffe's amendment in its present form. It states, "Within three months of the passing of this Act, the Minister in consultation with the Minister for Finance...". The Minister means the Minister in response to any individual inquiry, therefore, this would cause a complication. There would also be a problem as to whether such a maximum level of fees would be for all time. I agree with Deputy O'Keeffe that it should be possible in advance of an inquiry for everyone who participates to be aware that they will get no more than "x". I sympathise with what the Chairman said, which is if one says one will get no more than "x", it is "x" one will get. We are not choosing between a perfect world and an even more perfect world, we are choosing between levels of imperfection. If provision is made to fix maximum recoverable costs in some shape or form, as long as they are reasonable, it is a step forward.
The current taxation system more or less says that the lawyer gets whatever he charges, unless it is an unreasonable amount. This is not driven by notions of economy, but to resist an application for costs one must somehow demonstrate it is not simply high but unreasonable.
What if the onus of proof is wrong?
One must shift the onus of proof the other way round. We will examine this aspect between now and Report Stage to see how the two concepts can be introduced. A requirement can be included whereby the commission will have an obligation, when directed by the Minister and the Minister for Finance, to tender out services. In other cases, tendering would not apply. Private individuals cannot be required to tender their representation, which would be too complicated. If one is being brought before an inquiry, to say that one must now place advertisements in the Evening Herald to tender out——
The level of fees applicable to the inquiry would have a compelling influence on people to bring in their own lawyers.
I would imagine that. It would be difficult to imagine that the parties being brought in would be remunerated on a radically higher scale than the one they had succeeded. Rather than doing what Deputy O'Keeffe suggests, which is that some type of scale should be included in the Act for all time, some other method, such as including it in the terms of reference of the tribunal, could be examined, which would be a better way of dealing with the issue.
Will Deputy O'Keeffe withdraw the amendment?
The debate on my amendment has been useful, not least the Chairman's remarks regarding the maximum levels of fees. This is an issue which must be examined. I am pleased the general approach I have suggested will be examined to see how it might be included. We would be tackling one of the most serious problems with tribunal inquiries if we adopted an approach along the lines I am suggesting. On the basis of the Minister's assurances in that regard I am prepared to withdraw the amendment.
I move amendment No. 38:
In page 19, before section 23, to insert the following new section:
23.—(1) Prior to engaging barristers or solicitors in any capacity, the commission shall embark on a competitive tendering process.
(2) Save in exceptional and stated circumstances, the commission may only engage barristers or solicitors who have successfully completed the tendering process.
(3) In examining the tenders of barristers or solicitors for selection for each position, the commission shall have regard to—
(a) the volume of practising barristers and solicitors,
(b) the projected workload of a commission,
(c) the projected number of sitting days of a commission,
(d) the experience of the candidate,
(e) the level of experience required, and in particular,
(f) the lowest cost.”.
Amendments Nos. 39 and 40 are related and may be discussed together by agreement.
I move amendment No. 39:
In page 19, subsection (2), between lines 20 and 21, to insert the following:
"(a) the witness fully and completely co-operated with the commission,”.
This question arises from requests for recovery of legal costs. They are an attempt to put pressure on witnesses before an inquiry to co-operate fully with the commission. I am anxious to ensure that a witness who does not completely co-operate with the tribunal will not recover his or her legal costs. I hope my amendments are framed in a way which will achieve that effect. If the Minister sees the sense of the proposal but considers that the amendment could be better phrased I will accept that.
The intent of the amendments is to put further pressure on witnesses to co-operate fully with the tribunal. I have been outraged by some of the evidence emerging from Dublin Castle about the way people have flouted the tribunals by delaying co-operation and placing extra costs on the tribunal. This has contributed to the problems being experienced by the tribunals.
It is important that witness costs have a co-operation issue built into them. I will look at that matter between now and Report Stage. It might be appropriate to word the section in the negative and refer to the person in question failing to co-operate with the tribunal. People are entitled to their rights and to test some things out. I would not want them to be mangled by the process and then coerced into abandoning their rights on the basis that they did not show the white flag to every proposition put to them. I will look at the amendments between now and Report Stage to see if there is some way to include the absence of an improper failure to co-operate as a precondition for people receiving costs.
I go along with that.
I move amendment No. 40:
In page 19, subsection (3), between lines 25 and 26, to insert the following:
"(a) the level of co-operation provided by the witness,”.
Amendments Nos. 41, 43 and 44 are related and may be discussed together by agreement.
I move amendment No. 41:
In page 21, subsection (1)(a), line 20, after “or” to insert “there is”.
The purpose of the amendment is to insert the words "there is" before the words "information in any form" so that the subsection reads, "enter at any reasonable time any premises in which the authorised officer has reasonable grounds to believe there are any documents or there is information in any form". It is a technical amendment.
I move amendment No. 42:
In page 22, between lines 9 and 10, to insert the following subsection:
"(2) Documents subject to privilege are not liable to be produced under this section.".
I move amendment No. 43:
In page 22, subsection (1), line 22, to delete "there is".
I move amendment No. 44:
In page 22, subsection (1), line 24, to delete "documents, or" and substitute "there are any documents, or there is".
I move amendment No. 45:
In page 22, subsection (1), line 31, to delete "that section" and substitute "section 27”.
The subsection will now refer to the powers given by section 27 and not to the powers given by that section.
I move amendment No. 46:
In page 23, subsection (3)(a), line 34,to delete “indentified” and substitute“identified”.
I move amendment No. 47:
In page 23, subsection (4), line 45, to delete "specified Minister" and substitute "Houses of the Oireachtas".
I return to an issue I raised during the debate on Second Stage. Section 31(2) states:
If for any reason (including insufficient, conflicting or insufficient evidence) a commission considers that the facts relating to a particular issue have not been established, the commission in its report—
(a) shall identify the issue, and
(b) may indicate its opinion as to the quality and weight of any evidence relating to the issue.
Has the Minister reconsidered the wording of paragraph (b)? Would it not create problems?
My colleague, the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea, dealt with this matter at an earlier point in the debate on Committee Stage. Let us suppose 100 people say they saw a concrete block landing on someone's head and one person says he saw the man head-butt a concrete block. It is appropriate that the commission should be in a position to say the preponderance of evidence suggests one thing rather than another. I agree that this measure raises some issues but, on balance, if we were to take it out we might emasculate the whole procedure completely. I prefer to leave the section as it is.
I repeat a point I made to the Minister for Defence when he attended the committee on the first day of the debate on Committee Stage.The Minister did not appear to have much flexibility in dealing with the point I raised, which is that, throughout the Bill, the Oireachtas is sidelined. I am concerned that the Oireachtas has been pushed aside on all fronts, and not merely in this section, which allows for the Minister and not the Oireachtas to receive the commission's report. This sidelining takes from the democratic process.
I have not had an opportunity of putting this point to the Minister who is responsible for the legislation. At every hand's turn matters are under the control of the Executive, apart from the initial motion before the House. This is not the proper way. There can be conflicts between the Legislature and the Executive and there can be issues to be investigated in which the Executive may have played a role or problems to which a current or previous Executive contributed.A system which is totally under the control of the Minister of the day is the wrong way to deal with matters and will be so perceived by the public. Everything, from terms of reference, to directions, the commission, draft reports and interim reports is under the control of the Minister. Perhaps the Minister will reconsider for Report Stage the points raised at our first meeting to see if we cannot include a role for the Oireachtas thereby injecting broader public support into the legislation. Such a provision could be included in at least ten different sections. I have tabled approximately 20 amendments in this regard. The Bill would be improved if it included, in some areas, a role for the Oireachtas.
I echo Deputy O'Keeffe's remarks. The matter has already been discussed but perhaps we could come back to it on Report Stage. In that regard, I hope the Minister will attend because much concern has been articulated on the manner in which the commissions are being established in that there is no remit for the Houses of the Oireachtas to be directly involved.
The issue is one which the Opposition is keen to address.
I appreciate that. However, the purpose of this legislation is to produce something different from tribunals of inquiry. We are all aware of what happens when such inquiries believe they have auto-pilot instructions from the Oireachtas. It is hard to retrieve them in that they have a type of juggernaut characteristic to them. This legislation seeks to create a new, fast and effective way of dealing with these issues. It is important, if the Oireachtas is in recess for two or three months or is dealing with other matters such as the budget, that the process can be moved on rather than having endless public debate on where the inquiry is going.
The inquiries continue in situ.
Yes. I made the point earlier that we have a choice in this matter. This Bill is not designed to end tribunals of inquiries which will continue in the future, though hopefully on a less frequent and shorter basis. This is a different proposition. I accept points made by Deputies that it would be nice to include as much accountability, transparency and public dimensions as are to be found in tribunals. However, we are trying to move away from that philosophy.
We do not want to have endless Dáil debates on issues such as trying to find out what happened in a particular hospital regarding a particular doctor. We want to get on with our inquiries and to produce a report.
Notice has been given that this item will be returned to on Report Stage.
It is not a question of it being nice to include such provisions, it is necessary to include them if the legislation is to have public confidence. Will the Minister consider providing that the matter rest with a committee of the House at times when the Houses are in recess? There is a danger in not providing for the involvement of all parts of the democratic process.
Amendments Nos. 48 to 51, inclusive, are related and will be discussed together by agreement.
I move amendment No. 48:
In page 24, subsection (1), line 1, to delete "by the specified Minister".
These amendments fit into the same category. This is one of the areas where I believe there is an over-emphasis on the Minister and in that regard I suggest we substitute "by the specified Minister" with, perhaps, a committee of the Oireachtas or the Houses of the Oireachtas. We have already dealt with this issue.
I move amendment No. 49:
In page 24, subsection (1), line 2, to delete "him or her" and substitute "a committee of the Houses of the Oireachtas".
I move amendment No. 50:
In page 24, subsection (2), line 4, to delete "specified Minister" and substitute "committee".
I move amendment No. 51:
In page 24, subsection (3), line 9, to delete "specified Minister" and substitute "committee".
I move amendment No. 52:
In page 24, subsection (1) line 13, to delete "specified Minister" and substitute "Houses of the Oireachtas".
I move amendment No. 53:
In page 24, subsection (2), lines 37 to 42, to delete paragraphs (a) to (c) and substitute the following:
"(a) inform the person that it intends to amend the report, including by omitting any part of the report based on evidence received without observing fair procedures, and give the person an opportunity, if desired, to apply to the Court pursuant to subsection (1)(b)
(b) apply to the Court for directions, or
(c) inform the person that it proposes to submit the report to the specified Minister without making any amendments, and give the person an opportunity, if desired, to apply to the Court under subsection (1)(b).”.
The purpose of the amendment is to try to reduce litigation. I hope the Minister will take it on board.
The amendment would remove the provision that following consideration of a statement submitted under subsection (1) and reviewing the draft report, the commission may amend the report including by omitting any part of the report based on evidence received without observing fair procedures. The amendment seeks to change that but I believe the current situation is preferable. I am not motivated to accept the amendment.
Does the Minister not believe the likelihood is that people will automatically apply to the court for directions?
We would simply be providing two opportunities to achieve the same thing. I prefer to leave the provision as it stands.
I move amendment No. 54:
In page 24, subsection (2)(c), line 41, to delete “specified Minister” and substitute “Houses of the Oireachtas”.
I move amendment No. 55:
In page 25, subsection (3)(a), line 3, to delete “specified Minister” and substitute “Houses of the Oireachtas”.
I move amendment No. 56:
In page 25, subsection (3)(c), line 9, to delete “specified Minister” and substitute “Houses of the Oireachtas”.
I move amendment No. 57:
In page 25, subsection (4), line 11, to delete "specified Minister" and substitute "Houses of the Oireachtas".
I move amendment No. 58:
In page 26, subsection (1), line 1, to delete "specified Minister" and substitute "Houses of the Oireachtas".
I move amendment No. 59:
In page 26, subsection (2), line 9, to delete "specified Minister" and substitute "Houses of the Oireachtas".
This is another part of the very wide menu of possibilities in the Bill for the involvement of the Oireachtas.
I move amendment No. 60:
In page 26, before section 38, to insert the following new section:
38.—Section 4 of the Data Protection Act 1988 does not apply to personal data provided to a commission for as long as the data is in the custody of——
(a) the commission,
(b) the specified Minister after being deposited with him or her under section 40(2),
(c) a tribunal of inquiry after being made available to it under section 42, or
(d) a body after being transferred to it on the dissolution of a tribunal of inquiry to which the data was made available under section 42.”.
This amendment seeks to add a new section, following the restriction on the Freedom of Information Act, to provide a complementary restriction on the Data Protection Act 1998. The new section provides that there will be no right of access under the Data Protection Act to personal data provided to a commission. It is designed to ensure confidentiality in respect of data collected in private and in confidence. The effectiveness of commissions would be damaged if that confidentiality were prejudiced by the application to that material of the Data Protection Act.
We will have to trust the Minister on this one.
The Data Protection Commissioner is satisfied with the provision.
That is reassuring.
Amendments Nos. 61 and 62 are related and will be discussed together by agreement.
I move amendment No. 61:
In page 26, between lines 41 and 42, to insert the following subsection:
"(2) Subsection (1) applies whether the record concerned is held by——
(a) the commission,
(b) the specified Minister after being deposited with him or her under section 40(2),
(c) a tribunal of inquiry after being made available to it under section 42, or
(d) a body after being transferred to it on the dissolution of a tribunal of inquiry to which the record was made available under section 42.”.
The Bill as published restricts access to commission records under the Freedom of Information Act and the amendments clarify the records affected and updates the definition of the term "records" and the collective citation to FOI legislation.
I move amendment No. 62:
In page 26, subsection (2), lines 42 and 43, to delete "meaning given by section 2 of the Freedom of Information Act 1997" and substitute the following:
"same meaning as in the Freedom of Information Acts 1997 to 2003".
I move amendment No. 63:
In page 27, before section 39, but in Part 5, to insert the following new section:
"(1) Records of a commission that constitute Departmental records within the meaning of section 2(2) of the National Archives Act 1986 are, on the expiry of 30 years after the date of the commission's dissolution, deemed to have been prescribed under section 8(11) of that Act as a class of records to which a certificate granted under section 8(4) of that Act may relate.
(2) As soon as practicable after the date on which records of a commission are deemed to have been prescribed as described in subsection (1), an officer of a Department of State authorised for the purposes of section 8(4) of the National Archives Act 1986 shall consider whether, subject to any consent required under that section, the commission’s records should be certified under that section.
(3) Subsections (1) and (2) apply whether the records concerned have been——
(a) deposited with the specified Minister under section 40(2),
(b) made available to a tribunal of inquiry under section 42, or
(c) transferred to a body on the dissolution of a tribunal of inquiry to which they were made available under section 42.
(4) Subject to this section, the National Archives Act 1986 applies to records of a commission that constitute Departmental records within the meaning of section 2(2) of that Act.".
This amendment is similar to that dealing with the data protection provision. It seeks to protect the confidentiality of information given to a commission. The amendment provides that records of a commission are not to be released by the National Archive until they are examined to ensure that living persons are not defamed or compromised or that undertakings about evidence given in confidence are not breached.
A man or woman in their fifties could be affected by the release into the public domain of confidential information given by him or her or about him or her 30 years previously. In that regard, we want to assure people and give them confidence when providing that type of material to tribunals, that it will not be automatically released into the public domain.
How will that be determined? These are records of a commission, which constitute departmental records within the meaning of the legislation, and could form a large quantity of the commission's documentation. Could aspects of the draft report come within the Act's remit? Who will determine what exactly comes under the National Archives Act and which documentation should be withheld for 30 years?
Under the Act it is an authorised officer who carries out these functions. It is not the Minister of the day who sits and goes through everything. The authorised officer has the duty to decide what portion of the commission's records should be certified. This is not a new principle. However, it is a new safeguard with regard to this material so that when it forms part of a departmental record, it will not be thrown into the public domain on an automatic basis. It will be the duty of the authorised officer, for the time being under the National Archives legislation, to ensure people are protected from unfair disclosures of the kind mentioned.
I move amendment No. 64:
In page 27, between lines 3 and 4, to insert the following:
"(a) utterances by witnesses, solicitors or barristers, whether oral or written, to a commission;”.
This amendment seeks to insert in section 39 another category of people entitled to privilege. This is reasonable.
I want to think about this.
This is not unprecedented. This type of privilege is conferred by other statutes also.
Is there any court where one would expect absolute privilege would apply?
I am not sure a barrister can attract absolute privilege and say anything he likes or that he can just make an utterance in the middle of something.
Is it not the situation currently that anything said in court is said under privilege?
It usually attracts privilege but it must be within the four walls of the court case. Barristers cannot stand up in a court in the presence of a press reporter and suddenly accuse some other person of a terrible wrong. If they did the reporter could say it was out in the open and could be published. I would want to think very carefully before conferring rights on people to defame somebody other than within the narrow confines of the process.
I would not like to think that some barristers and what they say and how they say it would be under privilege in any circumstances.
One would imagine that relevance would be a matter that should be taken into account.
Generally there should be privilege. However, some comments were made in Dublin Castle, not necessarily by lawyers, that one would not in all circumstances want to allow privilege to.
I will look at the issue between now and Report Stage. However, I am not inclined to give absolute privilege to people to make utterances, without some control.
Not after what was said in the Abbeylara case.
Let it be relevant utterances then.
Perhaps the Chairman is a bit scarred by experience.
I move amendment No. 65:
In page 27, subsection (1), lines 15 and 16, to delete "specified Minister" and substitute "Houses of the Oireachtas".
I move amendment No. 66:
In page 27, subsection (2), line 19, to delete "specified Minister" and substitute "Houses of the Oireachtas".
This is part of the issue of the Oireachtas and its influence on the commission and will be discussed on Report Stage.
The same principle applies.
I move amendment No. 67:
In page 27, subsection (2), line 38, to delete "specified Minister" and substitute "Houses of the Oireachtas".
I move amendment No. 68:
In page 28, between lines 3 and 4, to insert the following subsection:
"(2) Nothing in this section prevents a commission whose terms of reference are amended under section 41(2) from retaining copies of any evidence or documents made available by it to a tribunal of inquiry.”.
This amendment clarifies that a commission and any subsequent tribunal can share or copy records where they have an overlapping interest. It provides that nothing in a section shall prevent a commission whose terms of reference are amended under section 41(2) from retaining copies of any evidence or document made available by it to a tribunal of inquiry.
I move amendment No. 69:
In page 28, subsection (2), line 8, to delete "2002" and substitute "2004".
I move amendment No. 70:
In page 28, subsection (1), line 9, to delete "record" and substitute "document".
This amendment will delete the word "record" and substitute "document" so that the line will read, "if any evidence or document made available to a tribunal". This is in line with FOI requirements and earlier amendments made to section 2.
I move amendment No. 71:
In page 28, subsection (3)(b), line 33, to delete “10” and substitute “21”.
I move amendment No. 72:
In page 28, subsection 3(b), line 34, after “disclosure” to insert the following:
", or such longer period as the Court may allow for sufficient reason".
Amendments Nos. 73 to 75, inclusive, are related and will be discussed together by agreement.
I move amendment No. 73:
In page 29, lines 35 to 38, to delete subsection (1).
I will shorten Deputy O'Keeffe's task by saying I am considering accepting this amendment. I will consider the matter between now and Report Stage. It will make everything prosecutable either way.
The Minister is in receptive form this morning.
On that basis, I am prepared to withdraw the amendments and raise the matter again on Report Stage.
I move amendment No. 74:
In page 29, lines 39 and 40, to delete subsection (2).
I move amendment No. 75:
In page 29, subsection (3), line 42, after "section" to insert "10,”.
I thank the Minister and his officials for attending today's meeting to complete the consideration of Committee Stage of the Commissions of Investigation Bill 2003.
