I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, and his officials to the meeting. We adjourned while discussing amendments Nos. 64 and 65. Deputy Costello was speaking on the amendments.
Debate resumed on amendment No. 64.
In page 39, subsection (4), between lines 5 and 6, to insert the following:
"(a) is made in the interests of protecting the integrity of the force,
(b) is made in the interests of highlighting any activity which is likely to be prejudicial to the integrity of the force,
(c) is made in the interests of the apprehension of a criminal,
(d) is made in the interests of aiding the detection of an offence,”.
— Deputy J. O'Keeffe.
My amendment No. 65 proposes that the public should be allowed to know where such disclosure is a matter of exceptional and overriding public interest in all the circumstances. Section 55 relates to why the media and the public should not have information disclosed to it. However, it can be disclosed to ten sectors but the public is excluded. There is a public right to know. Under the section, the Minister of State is imposing substantial restrictions on the public right to know with enormous penalties if it is breached. It is muzzling the media, and by muzzling the media the Minister of State is muzzling the right of the public to know. Knowledge is information. Therefore, it is important that the public is as informed as possible on all matters of public interest. As it is termed in this section, no disclosure is allowed to the public. The section states that one cannot disclose "any information obtained in the course of carrying out duties under the contract or other arrangement if the person knows the disclosure of that information is likely to have a harmful effect". It further states: "For the purpose of this section, a person is presumed, unless the contrary is proved, to know that disclosure of information ... is likely to have a harmful effect." There is a presumption of guilt immediately which makes it more difficult for a person to disclose information in any bona fide fashion. Down the line every piece of information could have a harmful effect.
The public right to know must be balanced against this provision. It would often be better if some information of a confidential nature were disclosed. In today's newspapers we read about a further module of the Morris tribunal. The second interim report has been presented to the Minister. In the context of that tribunal, the situation would have been much better if much of the confidential information relating to gardaí carrying out their duties had been put in the public domain originally. Instead the inquiries were closed down and a tribunal had to be set up subsequently. The failure to disclose much of the information discovered by that tribunal resulted in injustice and miscarriages of justice.
My concern is that this section goes too far in muzzling the media and imposing massive penalties. The penalties are significant. The penalty for contravening section 55(1) is five years and €50,000. On top of that, if a person contravenes it and receives a gift, the penalty is seven years and €75,000. No doubt those two can be added together, which would mean a penalty of 12 years and €125,000 for disclosing information. Surely these penalties are disproportionate.
The Labour Party has long sought a whistleblower's charter and has proposed legislation in this regard. There is legislation on the record which we would like to see passed which would allow people who have information garnered in the course of their duties but which would be regarded as confidential to disclose it to the media without fear of penalty. This section is so all-enveloping that it makes it impossible for anybody to do that or, if they do, they face severe penalties. The proposed penalties are the equivalent of a life sentence and the fine imposed on any Garda member who might reveal any harmful information in the course of his or her duty is significant. There is a presumption of guilt straight away.
Section 55(3) states: "For the purpose of this section, a person is presumed ... to know that disclosure of information referred to ... is likely to have a harmful effect." Will the Minister of State reconsider this section? He should recognise that while there are sometimes embarrassing or inappropriate disclosures or garish headlines or private information in the media, this legislation is not the way to deal with it. We have yet to see the legislation on defamation which has been promised by the Minister for some time or to hear what will be done if somebody's character is defamed by such disclosures. However, built into this legislation is a new section and penalty which puts a very broad, all-embracing prohibition on disclosure.
We saw in an earlier section that there will be very heavy penalties on any type of trade union activity, but at the same time the Minister is prepared to provide legal aid to a member of the force who may be charged with a criminal offence. The State picks up the tab if a member of the force is found guilty of misbehaviour in the line of duty. What sort of balance is there in the legislation? On the one hand the State picks up the tab for a garda charged with a criminal offence and on the other it may impose up to 12 years in prison and a fine of up to €125,000 on a member for a possible civil offence, namely, disclosure of information that might have a harmful effect.
I do not know where the Minister of State is going in terms of getting the balance right. The balance does not exist and he should take this issue back to the drawing board.
It is very much a question of getting the balance right. My position on this issue is clear. I do not want loose tongues within the Garda Síochána or members who, for the sake of gossip or other more serious reasons, talk out of turn. On the other hand, if there is malpractice or conduct of a more serious nature going on, as happens occasionally, I do not want a member of the Garda restricted from bringing that to the attention of those who can deal with it. Sometimes that can only be done through the media because the people in question may not be able to disclose their position because they could have their career seriously affected by so doing.
There could also be other reasons. I recollect in the course of my career as a politician being given information by members of the Garda where there was serious concern about matters that were taking place which they felt might possibly even be illegal. I know there is provision covering disclosure to a Minister or Attorney General or a Member of the Oireachtas where relevant to the proper discharge of the member's functions. This raises another issue on how that should be interpreted.
As Deputy Costello said, it is a question of getting the balance right between the two situations. We do not want loose tongues damaging the work of the Garda Síochána nor do we want them so restricted that they could face the loss of their career or the prospect of spending time in jail if they do what they consider to be right. That has happened and, undoubtedly, will happen again. I will not go into detail but I recall an assistant commissioner of the Garda once coming to me with information regarding phone tapping and otherwise. There is a provision in the Bill whereby he could have brought that information to the attention of his Minister. The slight problem was that the Minister at the time was party to what was happening. That was a long time ago and, without going into any detail, it is an indication of the kind of situation that could arise. We must stop loose tongues unnecessarily disclosing information, yet we must not shut the door on those who may want to find a route to bring to the surface information which is either damaging to the force or damaging to the country. I am not sure that the balance has been achieved here.
I am in agreement with Deputy Jim O'Keeffe. We need to stop loose tongues. There is a suspicion it is not just loose tongues but that financial gain could also be a motive. The information in the national newspapers on that period emanates from gardaí who want financial gain. We need to ensure that whatever terms are used in section 55, the right to a fair trial is paramount. Some of what has been reported in newspapers in recent years and the trend in tabloid newspapers in particular seems to me to jeopardise the right of witnesses, suspects and the accused to a fair trial.
I welcome some of the proposals in the Bill and other parts need to be tightened up. For instance, section 55(2)(j) is a very broad brushstroke and I question its meaning. It seems to be a catch-all. Can the wording be tightened up? Should another subsection be included in the Bill? Section 55(2)(g) refers to the publication of information that prejudices the right of an accused person to a fair trial. There might be something in that line. Section 55(2)(f) could refer not just to a witness but also to somebody who is the subject of a criminal investigation. Too often people have been arrested who might be subject to a criminal investigation but who in fact have the right to be presumed innocent until charged and proven guilty in a court. They are tried and convicted in the newspapers prior to anything occurring. They could have been mistakenly arrested on foot of incorrect or malicious information or there may not have been any basis for their arrest.
With reference to the point made by Deputy Jim O'Keeffe, we need to allow information to be given in good faith with a view to preventing the commission of an offence or preventing the infringement of people's rights. I will table an amendment to section 4 on Report Stage to ensure the inclusion of a disclosure made in good faith to prevent such a breach of rights. This is a difficult point because one is entering into the realms of who defines what is in good faith. There are occasions, as Deputy Jim O'Keeffe stated, where it is vital to have a mechanism to cover the situation where somebody feels they cannot disclose that information internally or who has disclosed information and does not see any action being taken.
I have a question for the Minister of State. Section 55(2)(b) refers to the safekeeping of a person in legal custody. Objects are put in safekeeping but we look after the safety of people. Would “safety” not be a better word to use in place of “safekeeping”?
I wish to make a point about amendments Nos. 64 and 65. The right to a fair trial and a fair hearing must be accepted in all democratic societies but, sadly, the drift in society and political and judicial circles is heading away from this right. We must wake up to the reality that it is not happening in the majority of cases.
I wish the media would calm down and be a little more responsible when dealing with particular cases and with sources from within the Garda Síochána or other information from the public about criminal matters. I have seen many examples where the media get it wrong and misrepresent and mislead in particular cases. If democracy and justice are to be taken seriously, media commentators should calm down and report on the facts and go back to old-fashioned journalism.
I am glad all the Deputies recognise there is an issue to be addressed under this section. The confidentiality of internal communications within the Garda Síochána is a very important matter and must be protected. This is the reason section 55 is in the Bill.
Deputies referred to the need to ensure that persons suspected of an offence and before the courts have a fair trial and are not affected by prejudicial publicity prior to the fair hearing and determination of the issues in relation to their case. The Director of Public Prosecutions always has the power to invoke the contempt of court procedures to strengthen the protection for an accused person in that position and he has had recourse to that from time to time. This is the context in which this section has been brought forward. Apart altogether from the question of the protection of an accused person which should be of paramount concern to us in the Houses of the Oireachtas, there is also the question of the efficient conduct by the Garda of its investigative powers and operations and in which a necessary element of confidentiality is required. This has also been recognised by the courts in the context of the examination of Garda witnesses before the courts.
Deputy Jim O'Keeffe's amendment to section 55 proposes to widen the range of matters which can be disclosed and which effectively exempt a person from any liability under section 55(4). He says any disclosure made in the interests of protecting the integrity of the force or highlighting any activity likely to be prejudicial to the integrity of the force should of itself afford a defence. However this is already covered in the exceptions provided for in the section because these matters can be brought to the attention of any of that list of designated persons.
Deputy Jim O'Keeffe referred to events and transactions which happened many moons ago and he was unhappy at having to bring them to the attention of the appropriate Garda authorities. Under this legislation, the member can bring them to the ombudsman commission, an officer of the commission or to the Garda Síochána inspectorate which is being established under this legislation. Most crucially and exactly in the circumstances which Deputy Jim O'Keeffe outlined, the member can bring them to a Member of the Houses of the Oireachtas where they are relevant to the proper discharge of the Member's functions. It is clear it is part of the proper discharge of a Member's functions to ensure the integrity of the Garda Síochána is protected and that any activity prejudicial to the integrity of the force is addressed. Section 55(4), which contains exemptions from the prohibition from disclosing information, meets the concerns raised by Deputy Jim O'Keeffe in this regard.
The Deputy has proposed in amendment No. 64 that the exemption should apply if information is disclosed in the interests of "the apprehension of a criminal" or "the detection of an offence". These suggestions are also covered in the Bill, not in section 55(4) but under the primary prohibition measures in section 55(2). The release of information in the circumstances referred to by Deputy Jim O'Keeffe would not necessarily be harmful. Under the criminal provision we are creating in section 55(1), a person cannot disclose information if he or she knows that "the disclosure of that information is likely to have a harmful effect". Section 55(2) sets out the circumstances in which it is deemed that there is a harmful effect from the disclosure of information. I suggest that the concerns expressed by Deputy Jim O'Keeffe are met in section 55(2).
Deputy Costello's amendment seeks to introduce a wider exemption from the prohibition on disclosing information. He seeks to add "the public where such disclosure is a matter of exceptional and overriding public interest in all the circumstances" to the list of people, such as Members of the Houses of the Oireachtas, to whom information can be disclosed by a member of the force. I remind the Deputy that this Bill relates to the Garda, which is a disciplined force. Section 55(4)(a) of the Bill provides that a member of the force is perfectly free to talk to the Minister, the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor, the Criminal Assets Bureau, the Comptroller and Auditor General, the ombudsman commission, the Garda inspectorate, the Revenue Commissioners or a Member of the Houses of the Oireachtas. Deputy Costello seeks to add any member of the public to that list.
I have doubts about whether this section would be workable if I were to accept the Deputy's amendment. I appreciate that the Deputy has qualified his proposal by providing that information can be supplied to a member of the public if "such disclosure is a matter of exceptional and overriding public interest in all the circumstances". His proposal would allow a member of the force to use such an argument as a defence against a criminal charge. It would be difficult to try a person in court if such a defence were available to him or her. Acceptance of this amendment would probably make the operation of this section unworkable as a matter of practicality. There has to be some guarantee of the confidentiality of information entrusted to members of the Garda.
Deputy Costello castigated some of the penalties prescribed in section 55(6) if a member of the force "receives any gift, consideration or advantage as an inducement to disclose the information". In plain language, we are talking about bribery. I do not understand why stiff penalties should not be imposed if a member of the Garda engages in such conduct.
We should not waste taxpayers' money on imprisoning such a person for 12 years.
Deputy Ó Snodaigh raised a number of issues. He is free to table amendments on them on Report Stage. He argued that section 55(2)(j), which states that the disclosure of information does not have a harmful effect unless it “affects adversely the international relations or interests abroad of the State, including those with Northern Ireland”, is worded too loosely. I do not doubt that it is the widest “harmful effect” proviso in the definition of the section 55 offence. We believe that such a proviso should be included in the Bill. It should be borne in mind that, because it is in a criminal statute, the prosecution will bear the burden of proving the harmful effect in a concrete case. That will be a difficult exercise. Like Deputy Costello’s amendment, it raises wide questions. At least the onus will be on the prosecution to establish that an offence has taken place under section 55(2)(j).
Deputy Finian McGrath called for media responsibility. In fairness, the media is often very responsible in these areas. The director has reserve powers. We have to keep the situation under review. This section will improve the general position.
What is the essential difference between the current position and that which is proposed in this Bill? To what extent will the position be hardened under these proposals?
This section will lead to a considerable improvement on the current position. I understand the present position is regulated under the Official Secrets Act, which is broad in scope. It is like a colander because it has many holes. The provisions of this section are specific to the Garda. A person who commits an offence under the section will be a member or a former member of the Garda Síochána.
The Minister of State did not quite answer my question. One person's improvement might not be——
It is a matter of choosing one's words.
Does this section toughen the rules governing the disclosure of information by members of the force? Does it simply offer a more comprehensive clarification of what is allowable and what is not?
It gives matters a much more concrete form. It spells out in great detail what can and cannot be disclosed. When a certain member of the force visited Deputy Jim O'Keeffe many moons ago, he might have had some doubt about his precise legal position. Under this legislation, such a member will know he is free to communicate with a Deputy about a matter of that nature. The legislation is an improvement, therefore. Similarly, a member of the force will know he is out of bounds if he discusses a matter of that kind with the editor of a leading national newspaper.
By saying that matters will have a "concrete form", the Minister of State has said that the Bill hardens the position.
I ask the Minister of State to outline the sanctions currently provided for in the Official Secrets Act. This Bill will mean a person who discloses information illegally can be imprisoned for 12 years and fined €125,000.
I do not see a reference in the Bill to "12 years".
Section 55(5)(b) provides for a sanction of five years’ imprisonment and a fine of €50,000 for an offence under section 55(1). If a person who is given such a sentence has also received an improper gift, section 55(6) states that he or she may be imprisoned for a further seven years and fined a further €75,000.
I see.
Such a person can be imprisoned for 12 years and fined €125,000. He or she might also face the penalties in place under the Official Secrets Act. Can the Minister of State clarify whether another couple of years can be added to such a person's punishment under that Act? What are the relevant penalties?
This machinery has been designed to deal with the problem.
I want to know how many prisons will have to be built.
The Office of the Chief Parliamentary Counsel has cautiously stated in section 55(7) that the provisions of section 55 are "in addition to, and not in substitution for, the provisions of the Official Secrets Act". The reality is that the Director of Public Prosecutions will prefer to pursue an indictment under this legislation because it spells out in detail the precise rights and responsibilities of a member of the Garda Síochána in this regard.
Regardless of the Minister of State's remarks, section 55(7) clearly states that the provisions of section 55 are "in addition to, and not in substitution for, the provisions of the Official Secrets Act".
It is a real belt and braces approach.
Absolutely. The kitchen sink is being included in this section. I have argued from the outset that there is a need for balance in this legislation. The Minister should not be seen to be going overboard, in this section and in the sections to which I referred earlier, by trying to penalise gardaí who may have been leaking information in some instances in the past. It is probably the most natural thing in the world, especially when one considers that some Ministers have been known to leak information to the media. I would not be surprised to learn that the current Minister for Justice, Equality and Law Reform is not above giving the media the odd bit of information that might not be available to the Oireachtas or the general public.
That is always beneficial.
Does Deputy Costello mean a regular daily diet of information, rather than an "odd bit of information"?
A great deal of the information leaked is confidential. We should not adopt a "holier than thou" attitude to this issue. The media function is investigation and reporting. We will all have seen the various "Prime Time" programmes in recent weeks during which very significant issues were teased out in a way in which no one listed in section 55 could have. A significant level of resources, time and information is required. People inside the tent provided confidentially much of the information used by "Prime Time". If that had not happened, it would have been impossible to present the programmes and investigate the matters in question. The media is completely ruled out when it comes to receiving information under the Bill.
A harmful effect.
My amendment seeks to include the media in the public area as the public has a right to know. In most instances, the only way the public can find things out is through the media. If the media is muzzled, the public will not be very knowledgeable. While the Minister contends Members of the Oireachtas are entitled to know, the provisions set out include the caveat that a Member of either House of the Oireachtas is only entitled to receive information "where relevant to the proper discharge of the Member's functions". Why is the caveat included? Surely, a member of the Garda should be free to make any information available to a Member of the Houses of the Oireachtas.
Why should the information be relevant to functions? What are the relevant functions and what is "the proper discharge of the Member's functions"? Does it mean a garda can provide information to a member of the Committee on Justice, Equality, Defence and Women's Rights as it is involved in dealing with justice issues? Does it mean a person who is not a member of the committee cannot have information disclosed to him or her as it cannot be deemed relevant to the proper discharge of the Member's functions in the Oireachtas?
Is a Member indemnified for any legal costs that might be incurred as a result?
Having received information as a Member of the Oireachtas, is one entitled to disclose it? If one discloses information, will penalties accrue and, if so, what will those penalties be? Will circumstances arise in which a garda can get information to the media by passing it first to a Member of the Oireachtas, thereby avoiding a hefty 12-year sentence? I am not sure whether the Member of the Oireachtas would be subject to a penalty in such circumstances. While the avenue appears still to be open, the State took Deputy Howlin and former Deputy and current Senator Jim Higgins to court when they disclosed information in the context of events in Donegal. The State action was taken despite the fact that the very first step the Members took was to approach the Minister who failed to pay them much attention.
There are many matters that require clarification before we impose heavy penalties for disclosure of information by gardaí in the course of their duties. The right of the public to know exists and not everything that takes place is above board. While we do not want to have to spend millions of euro on tribunals to deal with matters, the Bill seeks heavy-handedly to impose a complete restriction on the right to know of any confidential matter. The normal mechanisms whereby such information is channelled to the public are being prohibited.
The Minister at the drawing board should revise the whole section. Its provisions are entirely new. While the Official Secrets Act has been in place, nothing like section 55 has existed elsewhere. On foot of a couple of bad experiences, the Minister is introducing provisions in what can only be described as a "vindictive fashion". While that puts it strongly, the provisions are over the top and smack of vindictiveness. It would be better to achieve an improved balance, which makes it clear that damaging information may not be revealed. The Minister has yet to get around to providing us with a press council or other structure to deal with the media, which is how the issues in question might otherwise be addressed. The media should be provided with the code of ethics it currently lacks. A press council or ombudsman should be put in place to ensure that media operations are above board and ethical.
If a press council or other measure were put in place first, the Bill would not have to include provisions that attack gardaí. Where will it end? Will we turn to civil servants next? Will legislation of this type be imposed on public servants in Departments in addition to the Official Secrets Act, which makes them subject to 12 years imprisonment and very significant fines if information that might be regarded as confidential is divulged or where there is a presumption that they knew the disclosure of such information might prove harmful?
I have some sympathy with Deputy Costello's amendment. If the Minister of State is inclined to take it on board, will he consider also including the Human Rights Commission as one of the bodies? Would the inclusion of the commission interfere with its functions?
I do not seek longer prison sentences or greater fines for a person found guilty of contravening the legislation. I presume someone who has been found guilty under sections 55(5) or 55(6) will also face dismissal, which sanction is not mentioned. Is automatic dismissal provided for in the disciplinary code where a person is found guilty on conviction on indictment?
I want to move on. We have spent almost an hour on the amendment already.
Certain comments have been made about the Minister who has no personal interest in the matter. The Minister introduced the section on foot of issues outlined clearly to the committee by members. Deputies Ó Snodaigh and Jim O'Keeffe referred to several matters. The Minister referred in the Dáil to a case in which a file was taken from Garda records and given to a journalist. The case involved a very serious sexual assault, lurid details of which subsequently appeared in a newspaper adding enormously to the distress of the victim. The matter was drawn to the Minister's attention by a former Garda Commissioner who felt legislation in the area should be tidied up.
I agree with Deputy Costello that the fact that Members of the Oireachtas were threatened with court proceedings was wholly improper. It is very good that we have taken in section 55 a clear and progressive step to set out in black and white the provision that a member of the Garda may make a disclosure to a Member of either House of the Oireachtas where relevant to the proper discharge of the Member's functions. The original provision permitted disclosure "where necessary to the proper discharge of the Member's functions", which was felt in the Dáil to be far too restrictive. The word "relevant", which is much looser, was introduced by way of substitution for the word "necessary".
I have always sensed among members of the Garda a great sense of fear and apprehension about making disclosures to Members of the Oireachtas on matters of public interest. The legislation lets gardaí know that disclosure to a Member is open to them where their motives are pure, disinterested public service and the need to bring to the attention of the Oireachtas matters that must be addressed. On the other hand, the section must also address members of the Garda, former members and civilian staff who disclose information likely to have a harmful effect. The need to prevent such disclosure is the policy basis of the section. While Deputy Costello mentioned whistleblowers, a press council, media freedom and investigative journalism, we must make a decision on whether we want to permit disclosure of information that has a harmful effect.
The section is drafted on the basis that we will not have such disclosure. It is drafted with great precision. One of the difficulties with the official secrecy legislation is that it is general and loose in scope. It could, for example, cover the case of a tea-lady who discloses what tea is used in a Garda station. What we have covered here is a far more precise list of what is and is not acceptable.
Regarding the penalties in subsection (6), it is quite clear that the penalties prescribed where there is a question of financial remuneration for the disclosure is not cumulative with subsection (5). One cannot aggregate the penalties of the two subsections. Subsection (5) contains the basic penalties while subsection (6) applies if there is a question of financial remuneration. They are not cumulative but separate. It is important to put that on record.
I still think it is over the top. The Minister of State did not refer in any detail to the point I made about a Member of the Houses of the Oireachtas receiving the information and what liability would accrue if information were disclosed to a Member of the Houses of the Oireachtas. There is nothing to guarantee that the State would not take somebody to court to try and prevent him or her from doing something with that information.
A Member has parliamentary privilege and is entitled to raise any matter he or she wishes to raise.
In the House.
Yes. There is ample scope for Members to raise any issue in the House and be fully protected under parliamentary privilege. The press can report on that and it would also be protected in respect of bona fide reporting of such utterances. The proper discharge of a Member’s functions in each House includes the questioning of the Government and raising matters on the Adjournment, the latter in the case of the Seanad. Motions can be tabled in either House on matters of public interest. That is the practice of the Houses and is part of the proper discharge of Members’ functions. Any information brought to the attention of a Member of the House can be raised in the House.
The nature of the case was that the State sought to discover the sources of documents and information that were revealed to Members of the House. Is the Minister of State saying the State would not seek to discover the sources of information or documents that might be supplied to Members of the House, as it has done in the past?
The legislation clarifies the position for the purposes of any criminal law argument the State would wish to invoke. It makes clear that a Member can be given the information. The State was not successful in the proceedings to which the Deputy referred.
It did its best and made it very expensive and difficult for the Members of the Oireachtas involved.
I agree.
The State learned its lesson.
One cannot say as a matter of law that we have followed that case but if that section were in force at the time it would have strengthened the Members' case further.
I asked a question earlier about whether if somebody was found guilty of an offence under either subsection (5) or (6), he or she would face dismissal.
We have provided for that under the existing disciplinary regulations.
Is Deputy O'Keeffe pressing the amendment?
Arising from the matter of disclosure to a Member of the House——
There is one matter I wish to draw to the attention of the committee because I may have inadvertently misled it. Breach of confidence has always been a disciplinary matter within the force. It has always been possible under disciplinary regulations to proceed against a member for breach of confidence. It is formulated in very bald terms and not with the details of this section.
What was the penalty for breach of confidence?
It was a disciplinary matter, it was not a criminal matter. It could lead to dismissal.
Perhaps the Minister of State could clarify one aspect of the section. It relates to somebody disclosing information who is or was a member of the Garda Síochána. Issues have arisen in regard to disclosure to a Member of the Oireachtas where relevant to the proper discharge of the Member's functions. Is the Minister of State categorically saying that under this provision and following the court case, there is no onus on Members of the Oireachtas to disclose the source of information if they deal with it as they consider proper?
It strengthens that argument. It does not specifically address that issue, which is dealt with in the previous section.
If there is the slightest doubt about it I feel I should——
I am sure that would apply to all of the paragraphs (i) to (x).
I am prepared to have that issue examined. I will revisit it at some stage. It is a fair point. We will examine it and come back to it on Report Stage.
It is important that we would tease out the section. I understand that an effort has been made to strike a balance but I am not certain that the right balance has been achieved. I appreciate the Minister of State will look at the various points raised and that we will have a further opportunity on Report Stage to revert to this section. On that basis I will not press my amendment at this stage.
Amendment, by leave, withdrawn.
I move amendment No. 65:
In page 39, subsection (4)(a), between lines 6 and 7, to insert the following:
"(i) the public where such disclosure is a matter of exceptional and overriding public interest in all the circumstances,".
It is an important issue that was raised. While the section clearly creates a criminal offence, wider issues are raised about the constitutional position of Members in receipt of information. I will have the Department examine this matter and see whether in the context of this section we can strengthen the position of Members of the Oireachtas. If we are looking at disclosure to Members — we are valuing that in the legislation — there must be an effective way of permitting the disclosure.
Is Deputy Costello pressing the amendment?
I am. I do not believe the Minister has made any effort to strike a balance. A sledgehammer approach is being used in terms of the virtual ban on the media and the penalties imposed. When a ban is imposed on the media there is a ban on the public.
The point is well made.
Amendment put and declared lost.
I move amendment No. 66:
In page 40, between lines 10 and 11, to insert the following subsection:
"(9) Where an order under section 2 in respect of the commencement of this section is proposed to be made, a draft order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.”.
It is more a fall back amendment that I am merely moving for the record at this stage. This section is such an important one that before it commences there should be an affirmative resolution of the House rather than the usual way of burying it in the back of the Order Paper and placing it in the Oireachtas Library.
The intention is that this section will come into effect in the usual way at the same time as the Act will come into force, in accordance with the making of a commencement order by the Minister under section 2(1). The notice of the making of that order will be published in the usual way in Iris Oifigiúil.
Amendment, by leave, withdrawn.
Yesterday Deputies Ó Snodaigh and Ferris mentioned they would flag amendments to be tabled on Report Stage. Are there any items in regard to this section?
I flagged some of them in the course of my comments. I have covered them all.
Section 55, as amended, agreed to.
This is a good place to stop. We will conclude because Part 3 concerns the establishment and functions of the ombudsman commission. We will adjourn and meet again at 5.15 p.m. on Tuesday, 31 May 2005. Is that agreed? Agreed.
Progress reported; Committee to sit again.
The select committee went into private session at 10.31 a.m. and adjourned at 10.39 a.m. until 5.15 p.m. on Tuesday, 31 May 2005.