I move amendment No. 28:
In page 10, subsection (1), line 24, after "subsection (2)” to insert the following:
"and without prejudice to the operation of sections 32 and 36”.
This is a drafting amendment required to insert the necessary cross-reference to sections 32 and 36 in section 10.
I have tabled an amendment to section 11 which the committee will deal with in due course. I am not all that attached to the amendment. However, I wish to raise a matter with the Minister. As I understand it, if, under section 10, a tribunal is dissolved, the papers will be sent to the relevant Minister. However, section 11 is silent on this point in the context of a tribunal ending rather than being dissolved. What is the Minister's attitude to this matter? I understand that the papers relating to the beef tribunal were lodged with the Department of Agriculture, Fisheries and Food and I am sure that those who in the future write the history of the period, will be extremely interested in gaining access to that archive.
What is the position with regard to a tribunal ending rather than being dissolved? Will the relevant papers also be sequestered by the Minister with line authority? What is the Minister for Justice, Equality and Law Reform's view on that matter? There would be many papers available to a tribunal — some opened and some not — containing a great deal of personal information. A recent newspaper report indicated that 400 witnesses appeared before the planning tribunal. I do not know how many went before the Moriarty tribunal. What is the Minister's view with regard to tribunal papers in the two instances I have outlined?
That is an interesting point and the Bill is silent in respect of it. We did not reach a conclusion with regard to the eventual destination of these papers. In practice, they are returned to the sponsoring Department. In light of the fact that tribunals are established by order of the Oireachtas, perhaps the Oireachtas commission should take ultimate ownership of the papers relating to such tribunals. However, I do not know whether that should be the case. We might not necessarily be able to deal with that matter in this legislation, particularly as there would be financial implications. For example, should such papers be deposited with the National Archives and, if so, what would be the cost involved? We do not have a hard and fast view on this matter.
What would be the position in circumstances where documents have been furnished to tribunals but have not been opened or educed in evidence? Ought those papers be sequestered in the normal way, ought they be returned to the relevant witnesses or ought they be available for scrutiny by journalists? What is the Minister's view?
The practice is that all of the documents would be returned to the sponsoring Department. I can return to this matter on Report Stage. As already stated, we do not have a hard and fast view with regard to what should happen to such documents. It may be the case, however, that the Oireachtas should have seisin of them and perhaps we should make provision in this regard in the legislation. I am not sure whether the Oireachtas commission would want the job of archiving such material.
I do not wish to delay progress. It would be useful if, before Report Stage, the Minister established the views of the tribunals in respect of this matter. What do they intend to do with the tonnes of documents they have and so on?
I can do that.
It is important that the legislation should address the handling of this documentation because it is easier to deal with the issue now than at a future date when a request is made for access to it or a question is raised regarding its continued storage. This is the time to deal with the question. Will the Minister ask his officials to consider and, perhaps, discuss it with the tribunals and the various sponsoring Departments which store documentation? For example, the Department of Agriculture, Fisheries and Food has responsibility for documentation and it would be pertinent to ascertain the thinking of its officials on the issue before the Minister comes forward with a proposal on Report Stage. It is important that the documentation is not left in a legal limbo. There is no clear direction as to how and where it will be stored and who will be responsible for the release or partial release of documents.
I have nothing further to add. I will revert to the Deputies on Report Stage.
The power to dissolve tribunals should be limited to exceptional circumstances or a tribunal having completed its remit. We should outline explicitly when a tribunal will be dissolved. I will table amendments on Report Stage to deal with this aspect. The way the section is drafted gives too much power to the Minister and the Houses of the Oireachtas to dissolve tribunals without specifying the exceptional circumstances and compelling reasons that clearly outweigh the public interest, in which a tribunal is set up in the first instance. Perhaps the Minister might examine this to tighten the wording on the suspension and dissolution of tribunals.
I have gone as far as I can, particularly given the Law Reform Commission's views on the establishment and dissolution of a tribunal of inquiry. I will await the Deputy's amendments.
Amendment No. 31 is related to amendment No. 30 and both will be discussed together.
I move amendment No. 30:
In page 11, before section 11, to insert the following new section:
"11.—Where a tribunal has submitted the final report to the responsible Minister and thereafter gives notice to the responsible Minister that the tribunal has fulfilled its terms of reference—
(a) the inquiry comes to an end on the date on which that notice is given, and
(b) the tribunal shall thereupon stand dissolved as if it were the subject of an order under section 10(1), and section 10(3) and (4) shall apply accordingly.”.
The amendment revises the current text of section 11 to better set out the exact date of the ending of an inquiry and its dissolution. Deputy Rabbitte's amendment has a similar purpose. In the circumstances, I ask him to withdraw it in favour of the text drafted by the Parliamentary Counsel.
If the Minister is advised his wording his superior to that of my amendment, I accept that. The import of what I am seeking to do is incorporated in his amendment. However, it is not enough for him to shelter behind the line that he is doing what the LRC told the Department to do and that he will not move one inch. The commission did its job and it is good that its report is available because the commission is usually sensible and reforming. However, the proposition that the Minister should not exercise his own creativity on an issue that arises is questionable. I am not aware that if the LRC was seized of the issue I raise in the amendment but I am sure the Minister's officials will point out whether that was the case.
Section 11 will be amended to deal with the issue I raise and that is fine but I am still intrigued. What was the practice? Does the 30-year rule apply? If I live that long, I would be interested in going into the Department of Agriculture, Fisheries and Food to go through the beef tribunal documents to write a different report from that written by the late and much admired Mr. Justice Hamilton for my memoirs. Questions arise and the Minister should establish what happened, say, in the case of the beef tribunal. Are the documents in the Department of Agriculture, Fisheries and Food? When may they be accessed? Are documents ever returned to those who gave evidence or were called as witnesses? Deputy Naughten is correct that this is the only opportunity we are likely to have, as we will not revisit this issue again easily. I am not pressing the Minister now but would be obliged if he would establish the answer to these questions before Report Stage.
I will do so.
Amendment No. 105 is related to amendment No. 32 and both may be discussed together.
I move amendment No. 32:
In page 11, before section 12, but in Part 2, to insert the following new section:
"12.—An order under section 9(1) suspending an inquiry, an order under section 10(1) dissolving a tribunal, or the ending of an inquiry in the circumstances specified in section 11, shall not of itself cause any civil or criminal proceedings relating to the tribunal concerned that are pending or in progress to be discontinued or otherwise fall.”.
The amendment inserts a new section before section 12, making specific provision for the continuation of legal proceedings relating to a tribunal where it is suspended, dissolved or has completed its inquiry. Such an occurrence would not adversely affect the legal proceedings that have not been completed at the time of suspension or dissolution of the tribunal. The effect of the amendment will be to ensure such legal proceedings will proceed to finality in the normal way. This is a technical provision advised by the Attorney General's office and the Parliamentary Counsel.
Amendment No. 105 provides for a similar provision to be inserted in the Commissions of Investigation Act 2004 as a consequential amendment.
Does amendment No. 105 amend the Commissions of Investigation Act 2004 to be consistent with this legislation?
Yes, to have the same import.
Amendment No. 34 is related to amendment No. 33 and both will be discussed together.
I move amendment No. 33:
In page 11, subsection (1)(b), line 16, after “of” to insert “any contention as to”.
The section will establish what we know already, that is, that a tribunal cannot determine a person's civil or criminal liability. A tribunal should not be inhibited by that fact or by someone drawing an inference from evidence given in the performance or discharge of its duty. As the tribunal report, of itself, does not create any liability, it seems it would be more appropriate to refer to a contention as to liability being inferred from the tribunal. I have often pressed amendments with more fervour and conviction, but I look forward to hearing what the Minister has to say on the issue. As mentioned, amendnment No. 34 is related. Subsection (2), as it stands, appears very general and could render subsection (1) almost meaningless. It needs to be narrowed down to make it clear that only the exercise of a tribunal's function could give rise to a liability, for example, a liability created by an order made by the tribunal.
I am advised by the Parliamentary Counsel that neither of the amendments would add to the text. I listened to what the Deputy had to say on amendment No. 34 and will get back to him. I am not convinced on the issue but will return to the Parliamentary Counsel. With regard to amendment No. 33, we do not consider it would make any difference to what is already in place.
AmendmentsNos. 35 and 36 are related and will be discussed together.
I move amendment No. 35:
In page 11, paragraph (a), line 22, after “person” to insert “to or”.
This may seem a minor drafting point, but it is not quite that. The amendment relates to the section dealing with non-admissibility in criminal proceedings. Its purpose is to make it clear that information given by a person to a tribunal such as evidence at a formal sitting or an oral hearing, as well as evidence before a tribunal, would be covered by the section. The amendment could, for example, cover evidence given in a letter to the tribunal in advance of a hearing.
Amendment No. 36 seeks to insert a new phrase in subsection (2) to the effect that the statement or admission, as the case may be, "was not brought into existence for the purposes of the tribunal and" is capable of being proved independently of its being given as mentioned in paragraph (a) or (b).
What I am seeking to do is to give expression to my view that the existing section 13(2) is too wide. For example, if a tribunal requests a person to make a statement and the person receives the assistance of another in making the statement to the tribunal, it would not be covered by the section because it would be capable of being proved by the evidence that the person was assisted. In those circumstances, it would not be protected by the section. Clearly, the intention of the section is to give protection to any statement brought into existence for the purposes of the tribunal. Amendment No. 36 seeks to achieve this. As it stands, the section does not do so. We have sufficient experience of tribunals to know the situation I put forward where somebody assists in the circumstances described would be quite normal.
Deputy Dermot Ahern We believe the amendments improve the text and will accept both.
I move amendment No. 36:
In page 11, line 30, after "be," to insert the following:
"was not brought into existence for the purposes of the tribunal and".
Amendments Nos. 37 and 38 are related and will be discussed together.
Deputy Dermot Ahern I move amendment No. 37:
In page 12, subsection (4), lines 7 and 8, to delete “subsection (1)” and substitute “subsection (1) or (3)”.
Like the previous amendments, this amendment aims to improve the text of the section. Amendment No. 38 is related, but I am at a loss to understand what Deputy Rabbitte is getting at. In the event that a non-national or citizen of another state was appointed as a tribunal member, I cannot see why it would be necessary to first seek the permission of his or her government. Obviously, if the person concerned performed certain official functions, it would be necessary to seek a release from those functions from the authorities concerned in order that he or she could take up the position as a member of the tribunal. Therefore, I do not believe the Deputy's amendment is necessary.
I commend the Minister on putting forward amendment No. 37 as it takes the right approach.
Amendment No. 38 is self-explanatory. It is designed to provide for a situation where, if the tribunal was international — in the sense that it had to deal with cross-border issues or another international dimension — the same safeguard as applies in the section otherwise would apply. In other words, the amendment envisages that an international judge could be appointed and that this might be desirable. The clearing of the appointment with the said judge’s government only coincides with the provision in place here, in the sense that the approval of the President of the Circuit Court or High Court would be sought if the Minister was appointing a judge to these courts. The amendment would do no more than this or import the same safeguard into circumstances where an international judge would be appointed because of a cross-border dimension to the issues being inquired into.
My reading of the amendment is that it would make it more difficult for us to appoint somebody such as an international judge. If we were to accept the amendment, we would have to go to the foreign government which would have to make a decision at governmental level. In normal practice, if we wanted a judge from a foreign jurisdiction, we would ask the judge to participate, but obtain consent from the president of his or her court. We would not necessarily go to the foreign government, as that would involve another government in our internal affairs. I am not convinced the amendment would add anything to the Bill. It would be more restrictive and make it more difficult for us to get people from outside the country to participate.
As it stands, does it state approval will be obtained in the same way as, for example, in the normal way the Minister seeks the approval of the President of the High Court or the Chief Justice if it is a Supreme Court matter? In the case of international circumstances, where does it state——
It is silent.
That is what I thought, but ought it to be so?
It is probably preferable, otherwise one would be putting on a statutory basis a whole bureaucracy for the appointment of someone from outside the State, whatever about from inside the State. As a matter of courtesy we are specifying it. The Deputy's amendment proposes that the responsible Minister would have the consent of the Government for the appointment. I am trying to envisage a circumstance where perhaps a foreign government might block an appointment for its own particular political purposes. The Deputy's amendment would make matters more difficult.
It pains me to say it but the Minister may be correct.
This section gives power to appoint tribunal members, while section 15 gives power to appoint reserve members. The termination of such appointments requires Oireachtas approval, which is to be welcomed. However, it is strange that the making of appointments in the first instance does not require Oireachtas approval. It is desirable that the appointment of members and reserve members require a resolution of the House. This would address a perceived culture of cronyism or jobs for the boys. It should be provided at a minimum that Members of the Houses of the Oireachtas would give their endorsement. Also, there are no criteria for selecting suitable appointees. A transparent mechanism is desirable in the making of public appointments. I suggest such a provision also be included in other Bills. I will table amendments to address both these points.
The public perception of tribunals and inquiries is that they are too lengthy, that it is a case of jobs for the boys and that they are set up as much to prevent the truth coming out. We must do what we can to ensure an open process and that the Bill will not be seen as the same as the British inquiry Act which is widely believed to be designed to prevent the holding of a public inquiry into the Pat Finucane murder. What we are putting together should get to the truth rather than prevent it coming out. Anything contained in it, including provisions governing the appointment of members, should not jeopardise the ability of tribunals to uncover the truth, in particular any inquiry into the Dublin and Monaghan bombings, the Ludlow murders or the murder of Eddie Fullerton. There is a list which is connected with recent history; many other issues have come to the fore in recent days. There needs to be a public appointments procedure, as well as Dáil approval of appointments, rather than leaving too much discretion to the Minister. I find it strange that, on the one hand, there is a requirement to seek Oireachtas approval to terminate appointments and, on the other, we do not have a role in making the appointments in the first instance. I ask the Minister to consider this point.
As a result of my acceptance of amendment No. 10 in the name of Deputy Rabbitte, we have included a new paragraph (a), which reads “the member or members of the tribunal”. The order establishing a tribunal shall specify the member or members.
Does it include reserve members?
It should. If not, it can be arranged by an amendment on Report Stage.
I thank the Minister.
I move amendment No. 39:
In page 14, subsection (7), line 16, after "subsection (1)” to insert “or (5)”.
This is a drafting amendment to correct an error in the current text of section 15, concerning reserve members of tribunals so as to include a reference to subsection (5) in the provisions of subsection (7).
I move amendment No. 40:
In page 15, between lines 5 and 6, to insert the following:
"being an interest or association that was not disclosed to the relevant Minister before the appointment of the member".
This is the section that gives the Minister the power to terminate the appointment of a member or even the chairman of a tribunal in the circumstances set out in paragraphs (a) to (d). My amendment seeks to add a number of words to give some protection to advanced disclosures of interest or association. I think the Minister would agree with me that clearly it would be unfair for a Minister to remove a member where that member had disclosed that interest before being appointed. I seem to recall, subject to correction, a circumstance where a chairman of a tribunal was required to inquire into affairs surrounding a particular company in which he had a shareholding of whatever order or size and that he had disclosed this information prior to taking up the appointment. If a member or chairman of a tribunal discloses to the responsible Minister that he or she has such an interest and, having evaluated the matter, the Minister goes ahead and appoints him or her, presumably this would be because the Minister considers that it is not of sufficient significance to involve a conflict of interest as envisaged in this case, that it is minor or that the Minister has confidence in him or her to discharge his or her function. I think the Minister would agree with me that it would be unreasonable in those circumstances to remove a member. My amendment seeks to make plain that such a situation would be provided for. This is a small country. With the limited number of candidates who want to offer for membership of tribunals, it is quite distinct from those who do the examining before tribunals, who may at least have a monetary incentive to continue to do so. It might be more difficult to get somebody to actually preside over a tribunal. It would not be unusual to have this kind of minor association or interest. If that is declared in advance to the Minister it would be very unfair for the Minister to remove him subsequently because that became public.
While I have some sympathy with the Deputy's proposal, were the Government to seek to appoint a person to be a member of the tribunal, that person should and would need to make known any potential conflict of interest or close association, having regard to the terms of reference of the tribunal. Either that person would not accept the appointment or the Government would not proceed with that appointment. I believe the integrity of those who have served as tribunal members to date is beyond reproach in this regard.
I am advised that it might not be possible in all circumstances in advance of appointment of a member of a tribunal to notify the responsible Minister of a conflict of interest or a close association, as that conflict or association might simply not be apparent at the outset of the tribunal. Even if the responsible Minister was notified of the conflict or association of a member of the tribunal concerned before the appointment, the nature of the conflict or association could change over time as the tribunal was proceeding. I would expect that any such member of a tribunal who found himself or herself in a position of potential conflict would then bring that matter to the attention of the responsible Minister as soon as possible and would take the necessary action.
The Deputy might agree with me that the existing provisions of section 16(1) adequately deal with any such matter, however unlikely, should it arise. Thus I believe it might be better not to add this condition in section 16. It is difficult to be excessively prescriptive in this area. It could very well happen that only as proceedings go on would a member become conscious of a conflict of interest. We need to consider what we are trying to do in this section. The terms of reference will be considerably more constrained and defined than with some of the tribunals heretofore which have gone off into all sorts of directions. The member of the tribunal may find it going into areas not originally envisaged. That could have happened up to now. It has not, I think. The terms of reference for future tribunals, if they are to be held under this legislation, will be considerably tighter.
After we pass the Bill and in so far as this legislation will be invoked in the future, we are likely to have a sole-member tribunal. Under the provisions of section 16(2) as it stands, it would be tantamount to terminating the tribunal and restarting again, if we do not have the safeguard that I provide here. Is that not an appalling vista to contemplate?
The Bill provides for multi-member tribunals and also reserve members of tribunals. It is not necessarily correct to say——
I appreciate that. However, in the real world if such a tribunal arises again it is more likely to be a sole member than a bevy of beaks. In those circumstances the invocation of section 16(2) would effectively mean the tribunal would be terminated and we would need to start all over again. Is that not right? Can the Minister imagine starting all over again after a short span of five years?
That may be but the Deputy's amendment might result in the judgment as to whether the tribunal should continue in effect being the Minister's rather than that of the members of the tribunal, who would need to make a judgment themselves. The Deputy could unwittingly involve a political judgment by the Minister on the issue of the termination of a single-member tribunal.
The purpose of the section is to give the Minister that responsibility. I hope he is not suggesting any Minister would ever terminate a tribunal because of any politically partisan reason. That would be unthinkable.
No. However, the Minister would have a judgment if the member brought to his or her attention the fact that the member might have a conflict of interest. Reading it again I believe it would be far better leaving it more general and not as specific as the Deputy is trying to make it. Who knows what conflict of interest might arise? Even with the constrained terms of reference we envisage as a result of this legislation, it may very well be that a member of a tribunal would find himself or herself in a difficult position and he or she would need to make that judgment.
I do not want to hold things up all day. However, I ask the Minister to consider the matter between now and Report Stage. I am not wedded to my particular wording. I do not mind if the Minister wants to frame a different amendment. Nobody contradicted me in the example I gave of a serving member of the Bench who happens to have a shareholding in a company making widgets. If that company comes to be inquired into in the course of his inquiry that should not automatically disqualify him from being able to serve. If he had put this on the table to the Minister in advance of him being appointed and the Minister made that appointment in that knowledge, it would leave the Minister open to more question if the member were removed after it having been disclosed to him at the outset and him having made the appointment anyway.
I will consider it before Report Stage. I am not convinced, but I will consider it.
How stands the amendment?
Not very successful it would appear.
The Minister will look at it.
I move amendment No. 41:
In page 16, lines 1 to 3, to delete subsection (2).
This relates to the calling of expert witnesses to give advice to the tribunal. Fine Gael believes the tribunal should have discretion in this respect, that it should not have to run to the Minister every time. The provision in the Bill, as it stands, is somewhat restrictive. We are proposing this amendment to deal with the matter. We consider the appointment of expert witnesses should be left to the discretion of the tribunal.
If the Deputy had been sitting where I have been sitting in recent years, he would be in favour of this section of the Bill which gives the Minister for Finance a valuable degree of oversight of expenditure. I would have thought it would be preferable for the Minister who acts as the paymaster, in effect, on behalf of the taxpayer to be allowed to express his or her views on the appointment of experts and the cost of appointing them. If some form of oversight is not provided for, who knows how many experts might be called and what cost might ultimately be incurred by the taxpayer?
I take the Minister's point that there is a need for checks and balances every time an expert witness is brought before a tribunal. However, we are arguing that the manner in which these checks and balances are set out in the legislation is somewhat restrictive.
I am not convinced by the Deputy's argument. Most of the recent tribunals have cost far more than was originally envisaged. There has to be some financial oversight. I am reluctant to give carte blanche to a tribunal. That is not to say parties before a tribunal should not be entitled to call experts — of course, they should. However, I do not think they should have carte blanche in so doing.
I am not asking for them to be given carte blanche. I am arguing that the proposed approach is somewhat restrictive. It is possible that this measure could be watered down.
I move amendment No. 42:
In page 16, subsection (2), line 25, after "inquire" to insert the following:
"(otherwise and by way of private preliminary investigations)".
This section of the Bill requires a tribunal to perform its duties efficiently, expeditiously and quickly. I presume it is motivated by the experiences of recent tribunals which appear to have continued for an unconscionably long time. Section 18(2) of the Bill which I am seeking to amend states "a tribunal shall not inquire into a relevant matter unless it is satisfied that the cost and duration of the inquiry into the relevant matter are likely to be justified by the importance of the facts that are likely to be established in consequence of such inquiry". While I have a great deal of sympathy with what the Minister and his officials are seeking to do in section 18(2), it is a remarkable paragraph nonetheless. The last time we met we had a long debate on whether a statute that predated the foundation of the State could suitably or appropriately be used to inquire into matters of public interest in the 21st century. Regardless of what we say now, it is probable that circumstances will arise in which a public inquiry will be the only way to assuage public concern about a grave matter of public interest.
Section 18(2) provides that a tribunal may not proceed unless it is satisfied that the costs involved in its work can be justified by the importance of the facts that are likely to be established. Section 18(3) states "a tribunal may carry out such private preliminary investigations as it considers appropriate for the purposes of ensuring that it complies with subsections (1) and (2).” It seems there is a possible contradiction between what the Minister is providing for in section 18(2) and what he is stating in section 18(3). Section 18(2) prohibits any inquiry unless a tribunal is satisfied of certain facts. The tribunal will not be able to satisfy itself of these facts if it cannot engage in some form of private preliminary inquiry. My amendment seeks to permit such a preliminary inquiry.
The last time the select committee considered this legislation members detailed the five most recent occasions on which the 1921 Act had been amended, provoked by various things that had happened. I was under the impression that a tribunal was required to establish a prima facie case before it could start to take evidence in public. Some tribunals have followed that understanding, whereas others have initiated public hearings on the basis of what the Minister has referred to as “distractions”. It seems he is seeking to address that difficulty by saying in section 18(3) that a tribunal may conduct “private preliminary investigations”. I do not think anyone would dispute this.
The contradiction to which amendment No. 42 draws attention requires the Minister to insert the qualification "otherwise and by way of private preliminary investigations" in section 18(2). If that provision is not included, not only will the legislation continue to contain a contradiction and an inconsistency, but section 18(2) is likely to give the sole member of a tribunal quite a headache. We are giving the sole member responsibility for inquiring into relevant matters, but at the same time providing that he or she may not proceed with the inquiry if he or she is not "satisfied that the cost and duration of the inquiry into the relevant matter are likely to be justified by the importance of the facts that are likely to be established in consequence of such inquiry". The determination of the "importance of the facts" will be very much in the eye of the beholder. As the sole member will not know what facts are likely to be established, it will be even more difficult for him or her to determine their importance. I suggest this section should include the qualification I am seeking to advance in amendment No. 42.
I am not sure that the manner in which the amendment is phrased is correct. If it were to be accepted, section 18(2) would state a tribunal should not inquire into a relevant matter "otherwise and by way of private preliminary investigations". That does not read correctly to me. Perhaps the phrase "otherwise than by way of private preliminary investigations" should be used. Perhaps that would not even get at what I think the Deputy is trying to get at. Section 18(3)——
I am quite sure the Minister is correct. There is a typographical error in my amendment. The relevant phrase should be "otherwise than by way of private preliminary investigations".
Yes. The whole import of section 18(3) which states a tribunal "may" carry out private investigations is to give the tribunal some discretion. I think the Deputy is trying to suggest the tribunal "should" or "shall" carry out private investigations. Some of the tribunals have been criticised for being in private session most of the time and rarely being in public session. It is only right and proper that we should have some statement that they should use their best endeavours to be efficient and cost effective. To some extent I accept the Deputy's point that we are making compliance with subsections (1) and (2) a condition of a tribunal proceeding and it will be required to carry out preliminary private investigations. I can re-examine this issue. We are endeavouring to lay down some principles requiring tribunals to be efficient and cost effective and not go off into the middle distance and spend money here, there and everywhere, while affording them discretion to have their inquiries in private or public. That is a matter for them to decide.
If I were to agree with the Minister on this issue, I would still believe it should be made explicit. I have no hang-up about the paternity of the phrase I use and the Minister can change it if he wishes.
I will review the position before Report Stage. The Deputy may have a point. He is suggesting we are trying to make cost effectiveness a precondition of a tribunal inquiring into relevant matters. While cost effectiveness is a general principle, we do not want it to be a precondition, as it were.
I respectfully submit that it is a more weighty point. As matters stand, the subsections constitute an injunction to a tribunal not to go messing down mucky boreens unless it is certain about what will emerge. The tribunal may not know what is at the bottom of the boreen until it establishes the facts. For this reason, it should be permitted, by means of private preliminary investigation, to probe whether there is anything to be found. If I were a tribunal chairman operating under the straitjacket of subsection (2), I would not be minded to accept the proposition that I should inquire into the purchase of a football club which was not even in contemplation at the time the Oireachtas set up my tribunal. A tribunal chairman should be free to make private preliminary inquiries. The subsection should be explicit that the Minister is not preventing a chairman from engaging in private preliminary inquiries where the chairman exercises a judgment that it might be worth probing a particular boreen.
We are not doing as the Deputy describes. Rather, we are giving the tribunal chairman or member discretion in that a tribunal "may carry out" private preliminary investigations to ensure it complies with subsections (1) and (2). While I accept the Deputy's point, we are not trying to impose an injunction on tribunals but giving them an option of carrying out private preliminary investigations. One must also bear in mind that the term "relevant matter" is defined in subsection (4) as a matter of interest which, in the opinion of the tribunal, is not central to its terms of reference. Subsection (2) is to a certain extent restricted by subsection (4).
This section is excessively complicated. Deputy Rabbitte's amendment has validity. This takes us back to sections 6 and 7 on the terms of reference of tribunals and Government powers to amend them. The Government will have the power to amend the terms of reference if a relevant matter needed to be inquired into. I suggest subsections (1) and (3) should stand, whereas subsections (2) and (4) are not necessary because the terms of reference are specific.
If we are to amend subsection (2), the wording should be changed to state a tribunal shall not inquire into a relevant matter unless it falls within its terms of reference. The remainder of the text should be deleted. Obviously, if the tribunal wishes, it can approach the Government to amend the terms of reference to encompass other relevant matters if it considers it likely that additional evidence will be found. This is the area in which the Government has control over the terms of reference and whether they should be extended and in preventing an inquiry from being a trawling exercise. If the Government and relevant tribunal chairman invest time and effort in drawing up proper terms of reference, they can limit the scope for trawling and travelling down side roads, courses of action tribunals have taken in the past. While I agree with some of what Deputy Rabbitte seeks to do in the amendment, I suggest we go further.
I do not believe Deputy Rabbitte and I are 1,000 miles away from each other on this issue. Deputy Ó Snodaigh suggests this section amounts to a restriction imposed by the Government. The section does not have anything to do with the Government. It gives a tribunal member the normal riding instructions that the tribunal should be efficient and effective and adhere to its terms of reference. If other issues arise which are not central to the overall examination, the tribunal may inquire into such issues in private session. We are not ordering tribunals to do this and they can hold such inquiries in public session if they wish.
I will address this issue on Report Stage and it may be possible to juxtapose the sections in a better manner. It has been said both inside and outside political circles that some tribunals have gone off into the middle distance on particular issues which, as Deputy Rabbitte suggested, were not part of the original terms of reference. The purpose of the section is to provide general riding instructions to tribunals that they must be cost efficient and keep to the relevant issues and if other issues arise which are not central to the terms of reference, these may be examined but in a manner that is circumscribed by subsections (1) and (2).
Subsection (4) states the relevant matter must come within the terms of reference of the tribunal. It is not as if it is an issue a million miles away.
The term "relevant matter" means a matter of interest which, although falling within the terms of reference of a tribunal, is, in the opinion of the tribunal, not central to those terms.
A tribunal cannot decide to investigate matters beyond its terms of reference. The reason I suggest the Minister retain subsections (1) and (3) is that everything else falls within the terms of reference. Subsection (2) is too restrictive. While it allows a tribunal to get on with its work and comply with the terms of reference, it must approach the Government to amend its terms of reference if it is necessary to go beyond them.
This brings us back to the point raised by Deputy Carey when he referred to the involvement of the Minister for Finance in the appointment of experts. There has to be some financial oversight of these matters. If I understand the Deputy correctly, he wishes to remove section 18(2) altogether. That would mean not imposing a general condition on a tribunal that it should be cost efficient. I do not think that is what Members of the Oireachtas generally want. They want tribunals to be cost efficient and not continue forever and a day.
That is included in section 1 which includes the word "efficient".
Section 18(2) states, "unless it is satisfied that the costs and duration of the inquiry into the relevant matter are likely to be justified". It is up to their judgement. At the same time they have to take account of costs and duration.
Obviously, that is done in the preparation of the terms of reference and also in the statement of estimated costs and duration of the tribunal, a matter covered in section 8.
The Minister has stated he will examine whether the proposal has merit. On that understanding I will withdraw the amendment.
As there is a vote in the Dáil, we will suspend for its duration and resume thereafter.
Amendments Nos. 43 and 45 are related and are to be discussed together.
I move amendment No. 43:
In page 17, subsection (2)(b), line 6, after “transmission,” to insert the following:
"provided that where evidence is given otherwise than orally, a party may require the evidence to be given orally in accordance with section 20,”.
The purpose of the amendment is to harmonise sections 19 and 20 and make clear that evidence given in written form may subsequently be the subject of cross-examination. While this is an important point, I do not want to labour it. I am sure the Minister understands why I am making it.
With regard to amendment No. 45, I always understood it was fundamental to cross-examination that one is entitled to keep one's powder dry and not reveal to other parties the nature and scope of the cross-examination proposed. If a tribunal is to be given the power to question a party on why he or she wants to cross-examine, that party should be, at a very minimum, entitled to exclude other parties while giving detailed reasons, otherwise one would be infringing on a cardinal principle of cross-examination in that one would be setting out one's stall. One is entitled to have applied to one the normal rules relating to cross-examination.
The objective of amendment No. 43 is not altogether clear. Do I understand the Deputy to be seeking to permit a party to request, through the objection procedure in section 20, to have certain evidence received by the tribunal through non-oral technical means under section 19(2)(b) to have to be given again orally to the tribunal? If so, it is one of the costly procedures associated with current tribunals that we are trying to avoid.
I propose that it would be capable of being subjected to cross-examination. That is a cardinal point. I am not saying one must regurgitate the evidence taken in written form or by technical means but that the witness may be cross-examined thereon.
There may be a better way of putting it. The amendment states, "provided that where evidence is given otherwise than orally, a party may require the evidence to be given orally". I will re-examine this on Report Stage and the same goes for amendment No. 45.
Amendment No. 45 would require an objection by a party to written evidence being accepted by the tribunal without having to be given again orally to be held in private. This would defeat the purpose of this provision in the Bill, which is based on efficiency, effectiveness and the reduction of costs. Again, it is not clear as to the Deputy's reasoning for the amendment. It is a procedural matter that would best be left to the tribunal to decide rather than having an express provision in the Bill.
If the Deputy is trying to ensure it will be possible to cross-examine somebody on evidence given to a tribunal, we could phrase his proposal in a better way.
If the Minister is considering one of the amendments for Report Stage, perhaps he can consider the two.
I move amendment No. 44:
In page 17, before section 20, to insert the following new section:
20.—(1) This section applies to information communicated to a person, for publication to another, for the purposes of journalism or another purpose of importance in the public interest, on an understanding that its source would be treated as confidential.
(2) A tribunal shall not require a person to disclose, nor shall a person be guilty of an offence for refusing to disclose, the source of any information to which this section applies given by that person to the tribunal, unless the tribunal is satisfied that disclosure of the source is essential in order to protect the constitutional rights of some other person and outweighs the public interest in preserving the confidentiality of the communication.
(3) Subject to the foregoing provisions of this section, a tribunal may at any time adjourn its proceedings for the purpose of receiving from a person otherwise than in public information to which this section applies.
(4) Save for the purpose of a tribunal directing the course of its inquiries, no finding of fact shall be made or inference drawn, adverse to the interests of any person, upon uncorroborated information to which this section applies.".
I seek to enshrine a new section in the Bill pertaining to the protection of journalistic sources and other confidential information. These issues have arisen. We will not revisit this legislation again easily, no matter what we say, and I therefore do not see how we can pass up this opportunity to provide the necessary protection.
My amendment states:
20.—(1) This section applies to information communicated to a person, for publication to another, for the purposes of journalism or another purpose of importance in the public interest, on an understanding that its source would be treated as confidential.
(2) A tribunal shall not require a person to disclose, nor shall a person be guilty of an offence for refusing to disclose, the source of any information to which this section applies—
The latter point is important. Notwithstanding manifest wrongdoing, the only person to be punished in one case was a journalist. In any event the type of information envisaged here ought to have the protection for which I am providing. I cannot really see the argument against it. There is a somewhat related but different question as regards Members of the Dáil being furnished with confidential information, a matter on which Mr. Justice Hamilton made a ruling in the case of former Deputy Dick Spring and me a long time ago. Essentially, I am seeking here to deal with this journalistic question and I hope the Minister can take it on board.
Obviously, I can see what the Deputy is talking about, but a Supreme Court decision is imminent, I understand, on the issues that are the kernel of what he is trying to do. I do not believe we should pre-determine the outcome of the highest court in the land on this entire issue. One of the big problems to date with the tribunals is that many of the participants, in effect, have been obstructing their work by selectively leaking, as they see fit, portions of their particular cases, to try to get a hit in first before a tribunal has had the opportunity to hear evidence, make a relevant judgment and have the matter in the open. While I can see what the Deputy is trying to do in this regard, journalists have a code of ethics in revealing their sources. The Supreme Court will make a very significant judgment in this regard as to whether that should be totally unfettered. What we are trying to do here is, basically, to ensure that when a tribunal compels people to come before it, both in private and in public, it will be able to deal with these issues in a way that it sees fit, not in a manner that could be detrimental to the examination by having the facts ventilated in public.
Information put out that had already been tendered to a tribunal might, in effect, be defamatory or injurious to people who would not have had an opportunity to respond to it at the tribunal. I would caution the Deputy that given that these are significant issues that are being looked at, it may well be that before this Bill passes the Supreme Court will have given its decision. In the event, that would give us a better indication as to how we might proceed. I suggest to the Deputy that this is not appropriate at present. In effect, he is trying to prejudge the decision of the Supreme Court.
When this amendment was drafted, its purpose was not to guess the outcome of the Supreme Court adjudication, but rather to ensure that tribunals did not intrude unreasonably on journalistic or other confidences. We live in a democratic society and a free press is a very important component of it. No more than the Minister, I may not always like how the free press chooses to use that privilege, but I believe it is worth protecting. The Minister is obviously correct that in recent events we have, indeed, seen people manoeuvring to obstruct tribunals to condition the public mind by way of what they might subjectively consider to be judicious leaks and so on. Personally, I would be happy to leave that for the tribunals' consideration and judgment, rather than being prescriptive in the type of detail we may find in the outcome. I do not believe that in the matter of obstruction of tribunals and the manipulation of evidence or skewed presentation of facts the best way to deal with these is to intrude on journalistic confidences. I would prefer if that were not the case. Those were the considerations in my mind at the time of framing this amendment, rather than trying to pre-empt or anticipate any decision of the Supreme Court in related matters.
Subsection (2) states that a tribunal shall not require a person to disclose the source of any information, to which this section applies, given by that person to the tribunal unless it is satisfied that such disclosure is essential to protect the constitutional rights of some other person and outweighs the public interest in preserving the confidentiality of the communication. In effect, that subsection is going against the heading which Deputy Rabbitte says is the protection of journalistic sources and other confidential information. He is more or less confirming that the tribunal is entitled to protect itself. It has to protect itself otherwise the tribunal is at nought. Based on having this explicitly put into statute, that would give carte blanche to anyone who is affected or potentially a witness to a tribunal, who has given evidence orally or in private, to spin as he or she sees fit.
It does not give carte blanche. It is very carefully balanced. On the one hand it makes plain that a tribunal should not require a person to disclose such information while on the other it gives the tribunal the power to make its judgment about the effect of the disclosure in terms of protecting one’s constitutional rights. The tribunal is, I believe, best placed to know whether that outweighs the public interest in preserving the confidentiality of the communication. The tribunal is best placed to judge that balance.
I do not want to go into the facts of cases in trying to prejudge the decision of the Supreme Court. However, the Supreme Court will set out in significant detail, I expect, because of the importance of this case, the parameters under which the tribunal has to satisfy itself that the source is essential to protect the constitutional rights of some other person, and the balance between that and the public interest. The Deputy is effectively prejudging what the Supreme Court will ultimately decide in this significant case. I firmly believe that the Deputy is trying to second-guess the Supreme Court's decision. It would be better for the Supreme Court to provide the parameters and conditions on what determines the balance between the protection of a source and the public interest.
I have given the Chairman notice of another commitment, but I consider this important. Is the Minister saying that in the event of not enacting this Bill prior to the Supreme Court judgment, he is prepared to see that judgment inform this type of amendment? In other words, if the Supreme Court makes its judgment before we get to Report Stage, will he take on board the substance of its decision?
I cannot say that because I do not know what will be the decision of the Supreme Court. I am not altogether sure whether the Oireachtas would go down the route of specification, unless it was a very blunt decision that required the amendment of existing legislation. We should be loath to restrict in any way the discretion of a tribunal and ultimately the discretion of a court. However, if the Supreme Court made it obvious in its decision that there was a requirement to change the law, we would have to look at that, whether the Bill is passed.
The Minister cannot say that he is seeking to anticipate the Supreme Court on the one hand, yet on the other hand say that no matter what the Supreme Court decides, he may be minded to ignore it.
I am not saying that. It depends on what the Supreme Court decides. However, the Deputy must accept that it will be an extremely important and illustrative decision on the point that he is trying to make in the amendment.
I accept that it is highly unlikely that it will have relevance. We are not normally inhibited by that in making law here in this House. The Minister is asking me to bide my time, but I am only trying to get a broad commitment from him that the principles of the Supreme Court judgment, whatever they are, will be taken on board by us if we have not enacted the Bill by that time.
I cannot say that because I do not know what the Supreme Court will come up with. As is always the case with seminal decisions, we will have to examine them and get the advice of the Attorney General on how to proceed following the implications of the judgment.
I do not want to hold up the passing of this Bill — I accept it has been in gestation for quite a while — to await the Supreme Court decision. It may be that, had we passed this Bill, we might have to come back to it following the Supreme Court decision, but that would not be the end of the matter. The amendment effectively tries to deal with this very complex area, but it is best left to the Supreme Court to decide on it and we can then take stock at that stage, even if the Bill has already been passed.
I am in some trouble and I ask the Chairman's indulgence to allow us adjourn on this point and resume as soon as possible.
The clerk will liaise with the Minister's office and with the Opposition spokespersons to get a slot to continue this discussion.
