The quotation I am about to give — some of which I believe is in the newspapers this morning — is a memorandum which the Attorney General gave to members of Government last night. I propose to have it circulated to the Whips for further circulation if they deem it necessary. I have the permission of the Attorney General to circulate it to the Whips and I will do so. The Attorney General's note states:
The Bill in its initial form contained a basic provision giving witnesses the same privilege afforded to witnesses giving evidence in the High Court. This is not an absolute privilege. If a witness in the High Court was to take advantage of his or her position to utter something defamatory, having no reference to the cause or matter of inquiry but introduced maliciously for his or her own purpose, no privilege or immunity would attach. The privilege provided for in the Act will be similarly limited."
Privilege applies not only to evidence given before the committee but also to any document or thing — the most obvious example being a tape recording or video — produced or sent to the committee at its request. It protects the witness not only from civil, but also from criminal proceedings.
Doubts have been expressed about the impact on privilege of the presence at committee hearings of the public, press or broadcasting facilities. The Bill seeks to put this beyond all possible doubt by providing that their presence will not diminish the privilege which it is intended to confer on witnesses.
The Taoiseach and the Tánaiste have already emphasised to this House that it is not within the power of the Oireachtas even when its Members are animated by the most high minded motives to deprive citizens of this State of certain fundamental rights which derive from the Constitution. Failure in the past by a committee of this House to pay due regard to those rights culminated in its actions being set aside in the courts. Two sections make explicit provision for the protection of the rights of witnesses and identifiable third parties referred to at the committee's proceedings. It was implied some days ago in this House that protection of this type was a mechanism to obstruct the legitimate pursuit of the committee's mandate. To set the matter beyond doubt, I will quote the specific explanation, furnished by the Attorney General, for the addition of these sections to the initial draft of the Bill. This is part of the document to which I referred earlier. It states:
I understand that questions have been raised regarding the constitutionality of the Bill. Having considered possibilities in this area, I have considered it advisable to insert in the Bill a provision providing for the procedural safeguards necessary to ensure compliance with the principles of constitutional justice. These were laid down in the case of Re. Haughey (1971 I.R. 217 at P. 263.) They are
(a) the right to be furnished with a statement of evidence to be given by other witnesses,
(b) the right to cross-examine by counsel or solicitor,
(c) the right to give rebutting evidence and
(d) the right to address, by counsel or solicitor, the Committee in his or her own defence.
Apart from providing the above safeguards for witnesses it has appeared to me too to be advisable to make provision for the position of a third party who is not called to give evidence before the Committee and finds him or her being prima facie defamed in evidence given. Such a person should be given the right to give evidence and enjoy the other procedural safeguards set out above. In addition witnesses as well as such third parties should be entitled to call witnesses on their behalf if necessary.
It may be that the above procedural safeguards could be provided for in an informal way such as by amendment of the Standing Orders of the Committee. Including them in the Bill however will make it clear that parties likely to be adversely affected by statements made by witnesses before the Committee will enjoy all procedural safeguards.
The issue in relation to the provision of procedural safeguards is of course only relevant in a situation where a person's constitutional right to his or her good name is in issue.
Arguably, in the present case the good name of a number of proposed witnesses at least may be called into question.
The Act when passed will enjoy a presumption of constitutionality. Whilst the position may not be entirely without doubt the Act as it stands in my opinion is constitutional. In the event however of the Committee conducting its proceedings in such a way as there is not strict compliance with the rules of constitutional justice, a question mark could be placed over the entire of same. The possibility of a person who considered himself or herself adversely affected by the failure of the committee to comply with such rules having recourse to the courts for appropriate relief could not, in my view, be ruled out. Obviously the courts would have to think carefully before granting injunctive relief in respect of the proceedings of a Dáil Committee. However, if the manner of conduct of those proceedings was such as not to provide adequate protection for the constitutional rights of witnesses to their good name the courts would, in my view, be prepared to intervene. This factor is another one that should be taken into account in considering the desirability of proceeding in the way proposed.
Another section provides for the payment of reasonable costs to a person appearing either in person or through a legal representative before the committee or furnishing evidence. This requirement, too, arises from a specific High Court judgement based on the Haughey case which recognised that inquiries by an Oireachtas committee or tribunal could put a witness in "a position more analogous to that of a person accused of a criminal offence than to that of a witness to facts" and therefore entitled to legal representation and to "be indemnified by the State against the expense incurred for such legal representation".
Members of all parties in this House will be aware that the Bill I am introducing was the subject of inter-party consultation yesterday. The text which has been produced attempts to address the various concerns expressed in those discussions. I am aware that potential problems are still being teased out and it may be necessary to make some adjustments to the Bill on Committee Stage.
One point made to me repeatedly when my original Bill underwent the scrutiny of Ministers and civil servants was that changes in the power of committees could not leave us with committees functioning as they had before invested with this new authority. Changes in the relationship between a committee and its witnesses, I was told, had to bring about fundamental changes in the way in which committees worked. Anyone who believed that committees with an inquisitorial dimension could function in the same way as a court or a tribunal without the checks and balances built into the operation of those institutions, I was informed, had got things totally wrong.
Once a committee set out upon an investigative road, involving witnesses making statements under privilege and a compulsion on witnesses to attend, the basic concepts of natural justice which underpin our Constitution come automatically into play. What we have seen this week suggests that this particular message has not been adequately communicated to or absorbed by Members of this House.
What the change means is that a freeranging, spontaneous line of questioning initiated by a Member, as the spirit moves him or her, has to be reviewed so that a witness has a clear indication of the matters about which he or she is to be questioned.
The latitude traditionally, often very productively, accorded to committee Members in interpreting the terms of reference of their committee will have to be reined in. Most of all it will require that Members abandon at the door of the committee room the preconceptions they might bring to bear on the same issue were it before the whole House. This places a particular burden of responsibility on the Chair but does not stop there. Even the most astute and vigilant chairperson will find it impossible to predict whether a particular line of questioning initiated by a Member will elicit a reply improperly damaging to a third party. It is true that mechanisms to correct or rebut such statements can be put in place but if, as the proverb has it, the spoken word cannot be recalled, the immediate impact of a sound bite on a live broadcast of committee proceedings is even less susceptible to effective correction. This fact alone shifts the burden of responsibility from the chairpersons towards the individual Member. From my experience as a committee Member, I am conscious of the difficulty of shedding old and valued modes of working but there will have to be changes effected.
I mentioned the difficult task facing chairpersons in controlling the contribution of Members whose quirks and proclivities they know from working in the intimacy of a committee. These difficulties are increased immeasurably when, as in the present instance, non-Members of a committee exercise their right to attend and be heard. I suspect that in the transition committees questioning privileged witnesses or functioning in an investigation mode, in the interests of effective operation, the right to participate will have to be curtailed in some way.
Lastly, I come to witnesses who are to be invested with privilege and rendered substantially, if not totally, unamenable to the law for what they say or transmit. This is a very unusual circumstance. It is my contention that it is essential that the privilege to be confirmed in this Bill be balanced by a clear recognition that they have clear responsibilities. I referred to this matter of privilege and abuse thereof in the House in a speech I made within the past month or so. I said then that privilege was a very precious facility for Members of this House, very essential to democracy. I said also that privilege brought corresponding responsibilities. This becomes even clearer when considering the type of committee about which we are now talking. Members cannot come into this House and utter a sound bite that will sound good on television or make accusations against Members within or outside this House, as happened in the recent past. I am not referring specifically to the events of the past couple of weeks.
I hope one hypothetical danger with which the Bill, in its present form, will not have to deal is the possibility of a witness appearing before this committee, making an allegation, then withdrawing when his or her statement is to be put to the test of cross-examination. Ideally some sanction should be available to prevent such an occurence.
The Bill I had earlier planned to bring before this House did address this problem. It provided a trade off between compellability of witnesses and the grant of privilege. A witness could be compelled under strict penalties to come before certain committees or produce certain documentation which in normal circumstances could bring adverse legal consequences down about their ears. Obviously in these circumstances, it was essential to provide a corresponding level of immunity from the law.
Such a balance is absent from this Bill and the thinking which influenced the Government in this regard will be evident to all. Compellability involves, as those who read the preliminary draft text yesterday will appreciate — recognition that certain categories of information or even certain categories of person be exempted.
Clearly the choices which this or any Government envisages in that respect will be a matter, at any time, of legitimate political controversy. But, since this measure is purpose-built for one inquiry and the persons whom the committee indicated they wished to question would be expected to be co-operative, once their constitutional rights were adequately protected it is presumed, in this case, that compellability is not essential or required.
I began by referring to another Bill which I had hoped for some time past to introduce in the House in the present session. While this Bill falls much short of that, it does afford an opportunity to ascertain how elements of what I wished to introduce might work in practice. Manufacturers and marketers resort to trial runs to see how innovations can be improved. Rarely are we in this House afforded an opportunity to test drive a new process. It is vital to the future development of our committees that this exercise be approached with the sense of justice, fairness and non-partisanship which has for so long characterised committees of this House.
I should like to bring one matter to the attention of Members which will be dealt with on Committee Stage. I am referring to the Order of Dáil Éireann, mentioned in the Bill, which lapsed because the Committee reported back yesterday. The Bill will be amended on Committee Stage to take that into account, which means there should be no problem in that respect.
I am not sure in what form my script has been distributed. I apologise for some of the possible bad constructions in parts. Nonetheless it contains in general what I wanted to say. I must emphasise the Bill has resulted from the decision of party leaders yesterday. I have no doubt that it will be amended on Committee Stage.