I move: "That the Bill be now read a Second Time".
I am honoured to move the Second Stage of this important and radical legislation. It has taken much time to prepare and it will require detailed scrutiny by both Houses. For that reason I have specifically requested my colleague, the Minister of State, Deputy Doyle, to undertake that task. One of her responsibilities within the Department of Finance is to improve the relationship between the citizen and the institutions of the State. This Bill is central to that mission. Accordingly, she will reply to the debate on Second Stage. She will also have responsibility for steering the legislation through the Oireachtas.
Any party coming into Government carries with it some vision of the direction which it wishes society to take. In the case of my party, it is such a vision of the needs and rights of the public — ordinary workers and the underprivileged — which has animated our representatives, activists and core supporters since before the foundation of the State. For most of us, when we come into Government that vision has been made real by the influence we bring to bear on expenditure decisions, spending programmes, tax strategy and instruments for the creation of employment and the alleviation of poverty. Given the normal life span of individual Governments and the time-scale against which policies in those areas must be developed and implemented, it is, however, easy to overlook what may be called the essential underpinnings of government, the institutional framework of the public service and the machinery on which we as politicians rely to put our policies into effect and the web of custom, assumptions and practice which constitute the culture of those who work within those institutions and which, to some degree, can come to influence those of us who preside over it in a myriad of ways.
I think no Minister has left Government for the Opposition benches without a sense of things left undone or things done less than well but time out of Government can be a learning process, a time to reflect upon and analyse the obstacles encountered and the improvements needed. What I and others concluded during such a period was that our policy development, the awareness and responsiveness of our political and administrative system to public needs, could be improved, provided engines of change were incorporated into that system and that disasters could be avoided if the circumstances from which they ultimately sprang were known at an early stage outside the circle involved and were open to timely scrutiny and criticism.
We recognised that monopoly of information, privileged access to material under the control of public offices, is power and that that power is as open to abuse as any other. We noticed that those who came to our clinics and groups which approached us about their problems relied on us, as public representatives, to gain access to information affecting their daily lives, entitlements to benefits or public concerns. We recognised that in an era of high State activity, of substantial regulation and of bureaucracy, unnecessary restrictions on access to information were as effective tools of disempowerment as denial of the vote was in another age. Even within the organs of representative democracy we detected the same imbalance between the temporary custodians of Executive power and other representatives of people.
I make those points to put the Bill in a wider perspective. It is, in one sense, a stand alone measure to meet a need which has been acknowledged in recent years by all parties of this House. On another level, it is a crucial part of a family of legislation which I and my colleagues determined should represent a wider and long-term response to the problem I have mentioned — a dramatic improvement in the transparency of the process of governance and in the accountability of office-holders and public servants. Our commitments in this area, which are shared by our partners in Government, were set out explicitly in A Government of Renewal.
One such measure — the Ethics in Public Office Act — designed to protect the integrity of public decision making by politicians and senior officials has already been put in place and I expect it to be followed shortly by the freedom of information legislation on which my colleagues the Tánaiste, Deputy Spring, and the Minister of State, Deputy Fitzgerald, have worked so hard since coming into office. Work is well under way in my Department on other measures in this series, for example, a new Ombudsman Bill to strengthen the defences available to the individual citizen in situations where he or she feels that some decision or action of an administrative body has been detrimental to them, and an administrative procedures Bill which will set out, in statutory form, the basic tenets of proper administrative practice to be followed by public servants.
To put it succinctly, the Bill proposes to confer on those Oireachtas committees, whose terms of reference include provision for the calling of persons and papers, statutory powers to compel the attendance and co-operation of witnesses and the furnishing of documents. It further proposes to confer High Court privilege, virtually identical with the absolute privilege available to Members, on all witnesses giving evidence or, on direction, sending documents to such committees. Both elements of the Bill are, of necessity, intertwined. It would be manifestly unfair to compel witnesses to answer questions without according to them the safeguards essential to protect them from what might otherwise be the legal consequences of full and frank responses to the questions put to them.
Before discussing the provisions contained in it in more detail, it is worthwhile to first place the Bill in its proper context, to note the relevant background to it and to discuss some of the issues which have arisen over the past number of years which, in turn and collectively, have contributed to the realisation that legislation of this nature was necessary.
By articulating the important issues which in one way or another have given genesis to the Bill, all concerned here today will be better able to understand both the need for this type of legislation and the manner in which it is put before this House.
The current situation regarding privilege, compellability and immunity of witnesses is as follows. Under Article 15.13 of the Constitution, Members of the Houses of the Oireachtas have absolute privilege in respect of utterances in either House. Since 1976, this has been extended by legislation to cover them at meetings of committees. On the other hand, witnesses appearing before such committees only enjoy "qualified privilege". This does not prevent legal action being taken against a witness for anything she or he says before a committee but it does provide them with a defence against libel or slander unless it can be proven that she or he was actuated by a motive not connected with the privilege, for example ill will, spite or any other improper motive. The possibility of legal action with the attendant costs of representation, even where a good defence exists, constitutes a serious hazard for any witness. In addition, however, the privilege which they enjoy does not extend to other legal actions such as for breaches of confidentiality, breach of duty of care and so on which could result in their having to pay damages. One of the two major thrusts of this Bill is to correct this situation.
Certain Oireachtas committees include in their terms of reference provision for the calling of persons and papers. While these requests to attend have in general been honoured, there have been well publicised incidents which showed, all too clearly, that they have no statutory power to enforce such provisions.
It is also useful to bear in mind an important issue which has been raised in the past whereby witnesses have themselves felt unable to furnish specific information to Oireachtas Committees due to the lack of adequate privilege. While the sceptical among us may suspect that in some instances the legal ramifications provided a welcome shield for the reticent witness, the current state of the law undoubtedly provided genuine grounds to justify co-operative witnesses being cautious in the responses and comments they might offer to a committee.
The introduction of legislation to overcome this "democratic deficit" in terms of the effective working of committees of the House representing elected representative has been mooted for well over a decade. The Committee of Public Accounts recommended in 1988 that it should have the power to extend or withdraw privilege to witnesses appearing before Oireachtas committees. A resolution of this House in 1990 sought legislation to clarify the position of witnesses, specifically with reference to the broadcasting of Oireachtas committees. I think it is fair to say that many members of various committees have for some time been anxious to extend the success of the televising of the Dáil to committees, thereby having the deliberations of elected officials broadcast directly to the people who have elected them.
However, the privilege which they enjoy does not extend to other legal actions such as breaches of confidentiality, duty of care and so on. Committee members and witnesses do not, therefore, meet on a level playing field.
The time and cost involved in the establishment and use of tribunals of inquiry to carry out investigations is another issue which again and again has caused great concern in the past. While, of course, tribunals of inquiry have proved themselves incredibly useful in carrying out a wide range of investigations in the past, the length of time required for them to report, three years in the case of the beef tribunal, and the enormous costs associated with them, again in the case of the beef tribunal measured in millions of pounds, has understandably resulted in people asking if there is a better way?
There has, I know, been a knee-jerk response to that question from Members of the House, particularly those who serve on committees, who feel that such investigations could more properly be carried out by committees at distinctly less cost to the public purse and with greater expendition. I, too, think these would be desirable but my experience in getting the heads of this legislation transformed into the shape of the Bill before us at least provided me with a rudimentary and, at times, frustrating education in the requirements of our Constitution in relation to natural justice, constitutional justice and fair procedures. The fruits of those lessons have been embodied in various sections of the Bill which have the effect of imposing restraints on the manner in which committees using its provisions will have to operate, providing detailed procedures and certain rights of reply and representation.
The Bill gives committees strong coercive powers backed by serious penalties but there is a price to be paid for using them. That price is the sacrifice of the free-ranging, often spontaneous and sometimes idiosyncratic questioning to which Deputies often productively resort. That price may even be the replacement of the traditional chairpersons of committees by new chairpersons more disposed to restrict members to pre-ordained lines of inquiry. I do not see the committees involved utilizing the powers this Bill contains at all times. It will be a matter for each committee to determine when it is desirable to do so and perhaps for the Committee on Procedure and Privileges to lay down some overall procedural guidelines about how the transition from traditional to "compelling" procedures should be activated.
That said, I do expect that the strengthened role of the committees involved will restrict the need for future tribunals. Evasiveness in parliamentary questions become a less attractive option when the possibility exists of frustrated Deputies or their colleagues looking behind the answer to the documentary and other information on which it was based. I am reinforced in this belief by the judgment of the beef tribunal chairman, who said his inquiry might not have been required had fuller information been provided to this House.
Before I speak about the specific proposals contained in the Bill, it is important to note that this Bill is not the first of its kind to be debated and enacted by the Oireachtas, although it is potentially more fundamental and wide ranging than its predecessors. Once off legislation has been used twice in the past to confer absolute privilege for specific inquiries, most recently under the terms of the Select Committee on Legislation and Security of Dáil Éireann (Privilege and Immunity) Act, 1994, which investigated the fall of the last Government and under the terms of the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970 which investigated the arms crisis. That included a compellability provision, although as with the other provisions in the Act, this was confined to one specific inquiry.
The specific provisions of the Bill are set out in the explanatory memorandum and I do not intend nor wish to confuse the Members of the House by now focusing on the minutiae of very complex legislation when the Members can read the detail for themselves.
I refer to the major provisions contained in the Bill. As I have already stated, the central aim of the legislation is to grant to those Oireachtas committees, who have contained in their terms of reference the provision to call for persons, papers and records, the power to call witnesses and evidence while also allowing those witnesses to speak or offer documents in evidence freely without fear. The Bill does not specify which committees fall into this category. It is for this House and the Seanad to determine individually or jointly, in framing the orders of reference of existing or new committees, whether they are to have the specific powers to send for persons, papers and records which automatically bring into play the powers conferred by this Bill.
At present, the committees which fall into this category include the Joint Committee on Commercial State-Sponsored Bodies, the Joint Committee on the Family, the Committee of Public Accounts, the Joint Committee on Small Business and Services, the Joint Committee on Sustainable Development and the Joint Committee on Women's Rights.
Under the terms of the Bill, virtually anyone a committee believes can provide information relevant to their mandate can be compelled to appear before them or provide evidence. This applies to individual members of the general public. The Taoiseach, the Tánaiste, Ministers, Ministers of State and their officials are all compellable. In the case of civil servants, only one restriction applies — they are debarred in giving evidence from expressing opinions in relation to the merits of policy. This restriction extends to the Garda Síochána and members of the Permanent Defence Forces.
In keeping with convention, the President and members of the Judiciary are exempt from the application of this legislation. There are two possible contentious additions to this list. The Attorney General has, in addition to his role as legal adviser to the Government, other recognised functions which he exercises independently, for instance his role as defender of the public interest. As such, he and his staff will not, under this Bill, be compellable. He is, however, responsible for the general administration of the State's legal offices and in that capacity will be compellable before the committee of Public Accounts. A somewhat wider exemption is accorded to the Director of Public Prosecutions. In the light of developments last week, I am less convinced that this should still apply. The Taoiseach dealt with this matter at Question Time today. It is our intention to bring forward amendments on Committee Stage to provide for compellability for the Director of Public Prosecutions and the details of that will be available in due course.
There are, I think, two other elements of this Bill which will draw fire in this House. The first of these is the list of matters to which compellability will not in any instance apply. This list is short and, I think, focused with reasonable precision. In preparing the Bill we did not find it easy to strike a universally agreed balance in areas where disclosure could in many instances pose unusual difficulties for sensitive Government operations. What we have come up with incorporates into the proposed law the requirements of Cabinet confidentiality as they now stand, protection of State security and criminal matters as well as tax assessment information and matters sub judice.
I believe we have arrived at a reasonable balance and the sub judice exemption may illustrate the point. This provision has already drawn the fire of some Deputies in the light of the relaxation of the sub judice rule in the House's own proceedings. This Bill does not trammel the House or any committee in discussing matters which are the subject matter of court proceedings; what it does is preclude a committee from utilizing its powers of compellability to question a witness and force him or her to disclose information which could prejudice him or her in the context of such proceedings.
A second category of exemptions which we have provided for deals in the main with issues of commercial or personal privacy. We have provided two distinct mechanisms to deal with disputes as to whether particular information falls into this category. One involves what, for convenience, I may term an "official witness"— a Garda, a member of the Permanent Defence Forces or a civil servant. If they claim that the information falls into one of these categories and the committee disputes that claim, the matter is settled by the issue of a certificate by the Taoiseach, but the Taoiseach is entitled to refuse such a certificate on the facts of the case or, despite accepting that it falls into those categories, if he or she considers disclosure to be in the public interest.
The second mechanism applies to other witnesses where the fact of the matter is determined by the High Court. Instances may arise where, while it is clear that the information comes within the specified categories, the committee is convinced that obtaining it is vital to its inquiries. In that event, it is left to the Public Offices Commission to determine whether the balance of public interest warrants disclosure — with the possibility of an appeal by either party to the High Court.
The core provisions on compellability and privilege have gone into this Bill — a battalion of ancillary provisions larger than I or any parliamentarian initially envisaged or wished for. The provisions are essentially safeguards, there to protect witnesses' rights and the rights of third parties to whom there may be allusions in the course of a committee's proceedings and to give explicit statutory recognition to the right — already acknowledged by the courts — of a member of the Oireachtas not to reveal the source of information provided to him or her.
While the focus of these safeguards is on those outside this House, they are intended to fulfil another and more vital function. They are intended to arm the committees with an essential protection to ensure that nothing in their manner of proceeding will provide a weapon which can be successfully deployed in the courts to frustrate Members of this House in exercising, through a revamped committee system, their essential role as guardians of the public well-being.
I do not claim the Bill cannot be improved and I know I speak for the Minister of State, Deputy Doyle, in this regard. As it proceeds through the House, we will be open to suggestions as to how it might be perfected. Subject to that caveat, I commend it to the House.
