Amendment No. 64 is related to amendment No. 61 and amendment No.62 is an alternative and all may be taken together. Is that agreed? Agreed. If amendment No. 61 is agreed, amendment No. 62 cannot be moved.
Private Members' Business. - Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Bill, 1995: Report Stage (Resumed).
I move amendment No. 61:
In page 9, to delete lines 11 to 19.
This amendment provides for the deletion of section 7(1) of the text debated on Committee Stage. That subsection provided for the Taoiseach to give a declaration in writing to public service witnesses that information sought from them was exempt from compellability through being listed in section 6(9). As section 6(9) has already been deleted through Government amendment No. 57, the issue of the Taoiseach giving a declaration is redundant and is, therefore, being deleted. This is effectively a consequential amendment on those that have been just discussed.
Amendment No. 62 would delete all of section 7, which deals with the Taoiseach giving declarations to certain public services witnesses and the Secretary to the Government giving declarations to all witnesses. Government amendments Nos. 61 and 64 delete section 7, subsections (1) and (3), from the text, which removes the role of the Taoiseach from the section.
However, the Government has decided that the role of the Secretary to the Government in determining whether questions relating to State security, international relations and crime intelligence should be retained and has decided to retain section 7(2). Therefore, I am not in a position to accept the amendment.
Amendment No. 64 provides for the removal of the provision for the Taoiseach to refuse to furnish a declaration to a witness if he considers such a refusal to be in the public interest or that the information sought by the committee is exempt from compellability in certain circumstances. As the giving of a declaration by the Taoiseach is removed by this amendment, and amendment No. 61, there is no longer any need to provide for the Taoiseach to refuse to make such a declaration.
I thank the Minister of State for the amendments which relate to one of the core issues of the Bill. Although she has not conceded some issues, the amendments go a long way towards addressing a concern this side of the House had about the original Bill which was drafted in such a way that civil servants, members of the Army and others were treated differently. The terms of the original Bill in several areas worried many Members on this side but particularly in relation to this matter. It appeared the Taoiseach, who professes openness, transparency and accountability, was suggesting sections which effectively meant he would be the final arbiter with regard to whether a civil servant, a member of the Garda Síochána or a member of the Army could give evidence to a committee of the House. I thank the Minister of State, and members of her party, for the manner in which they addressed this issue on Committee Stage. The amendments are a way forward which most Members would welcome.
Amendment agreed to.
Amendment No. 62 not moved.
I move amendment No. 63:
In page 9, lines 28 and 29, to delete ", the committee shall either withdraw the direction or" and substitute "and the committee does not withdraw the direction, it shall".
Section 7(1)(a)(ii), formerly section 7(2)(a)(ii) prior to deletion in the previous amendment of section 7(1) of the text debated on Committee Stage, provides for a witness to inform a committee that it is his or her opinion that questions relate to the security of the State, international relations or information kept for the purposes of preventing offences and are, therefore, exempt from compellability. If it is so informed, the committee can either withdraw its direction or ask the witness to provide a declaration from the Secretary to the Government that a committee direction relates to those categories. It is a drafting amendment to clarify this point and it does not alter the meaning of the subsection.
Amendment agreed to.
I move amendment No. 64:
In page 10, to delete lines 1 to 3.
Amendment agreed to.
Amendment No. 66 is an alternative to amendment No. 65 and they may be discussed together. Is that agreed? Agreed.
I move amendment No. 65:
In page 10, to delete lines 4 to 14 and substitute the following:
8—(1) Proceedings in the High Court under section 6(2) shall be heard otherwise than in public.
(2) In proceedings in the High Court under this Act, the chairman of the committee concerned, the person to whom the direction concerned was given and any other person concerned (including, where appropriate, a person specified in subsection (1) of section 10 who is referred to in proceedings before the committee and a person referred to in subsection (2) of that section) shall be entitled to be heard and to adduce evidence.”.
This is a new section which replaces the text debated on Committee Stage. Subsection (1) provides for the holding in private of High Court hearings to determine whether a witness is entitled to disobey a committee direction on the basis that the information sought would be privileged in that court. Subsection (2) provides that the committee chairman, the witness and any third party identified in evidence shall be entitled to be heard and to provide evidence. As this subsection has been substantially amended, I oppose amendment No. 66.
Will the Minister of State outline the reason the proceedings should be heard otherwise than in public? Section 6(2) relates to certain exemptions and the committee would apply to the High Court in a summary manner for a determination. Why should all the hearings be held in private? In this day and age, the proceedings should be in public. Will the Minister of State consider that aspect? My amendment No. 66 relates to the exemptions in section 6(9), which this side opposed.
If I understand the Deputy correctly, his query relates to why proceedings should be in private. I am advised that the element of discussion held in camera could involve a witness refusing to disclose information and being pressed by the chairman on his or her reasons for that. The committee may go into private session to allow an explanation to be provided. There will be circumstances in which proceedings will move into private session as distinct from being reported throughout. However, it is expected that generally the proceedings will be held in public and in the presence of the press.
Will the Minister reconsider this issue before the Bill goes to the Seanad? The amendment states that individuals "shall" be heard. It does not give the court the option. It should be up to the judge to decide whether the proceedings should be held in private or in public. I tabled a later amendment in that regard because I considered this aspect was restricted to private sessions in the High Court. I do not understand why this provision is included in the Bill. The judge involved should have discretion in this area and I ask the Minister of State to reconsider this matter.
My initial response was inaccurate. I understand proceedings will move to the High Court or before a judge if witnesses refuse to disclose certain matters. Hearings will be held in private to enable the judge to determine the case being made without the person incriminating himself or herself, or others who may be linked to the case, in public.
Section 6 has been dramatically changed by previous amendments. If a person is directed to give evidence and he or she forms the opinion that they are entitled to High Court privilege under section 11, they may then decide that they are entitled to disobey the direction.
That is correct.
The determination relates to whether they are entitled to disobey the direction of the committee. I accept some cases may involve issues relating to that person which should be heard in private. However, the amendment proposes that all the proceedings in this regard shall be held in camera. That should not be the case. It is should be left to the discretion of the judge involved.
I have allowed Members much latitude in this regard. Let us not forget that we are dealing with Report Stage and not Committee Stage.
Amendment agreed to.
Amendment No. 66 not moved.
I move amendment No. 67:
In page 10, line 26, after "may" to insert ", if the committee so decides".
The amendment is self-explanatory. It seeks to give the committee an option if a direction is given in relation to a person. It amplifies the issue.
This section provides for committees to notify employers that one of their employees and, in the case of bodies one of their representatives, has been given directions by the committee. It provides for the employer or body concerned to nominate another employee or representative to attend. The amendment would allow the committee to decide if an employer can appear and give evidence before it in person or through a nominated employee or representative. The onus would be on the committee to determine whether an employer or his or her representative can appear and give evidence. There would be no automatic right of audience under the section, as amended, but an employer or body identified by name or otherwise would retain a right of audience. In view of this, I am not in a position to agree to the amendment.
Concern has been expressed on this side of the House that the heavy hand of an employer may be used to intimidate a potential witness, be they an employee of a State or private company. If an employee of a State or private company is directed to appear before a committee, the company must be notified within ten days. Where the relationship between employer and employee is difficult, the employer may wish to dictate to the employee. The amendment would give the committee discretion to decide whether the employer should be asked to appear before it to give evidence.
I will accept the amendment.
Amendment agreed to.
We now proceed to amendment No. 68. Amendment No. 69 is related. It is suggested that they be taken together. Is that agreed? Agreed.
I move amendment No. 68:
In page 11, line 37, to delete "committee" and substitute "committee,".
This section confers High Court privilege on witnesses acting under a committee's direction. This means that proceedings cannot be used against a witness for the purpose of defamation or self-incrimination. These amendments are designed to make subsection (1) more readable by making it clear that privilege will apply to evidence or a document given following a direction. Concern was expressed on Committee Stage that the meaning of the subsection was open to misinterpretation.
Amendment agreed to.
I move amendment No. 69:
In page 11, line 38, to delete "committee" and substitute "committee,".
Amendment agreed to.
We now proceed to amendment No. 70. Amendment No. 71 is an alternative and it is suggested that they be discussed together. Is that agreed? Agreed.
I move amendment No. 70:
In page 11, to delete lines 43 to 47.
This section places an unacceptable onus on chairpersons of committees who, in effect, will be the arbiter of whether the evidence of a witness is covered by High Court privilege. Chairpersons of committees will be in the same position as a High Court judge who can say to a witness that they are straying from the matters covered by privilege. Chairpersons of committees, particularly those who do not have a legal background, will find it impossible to determine, as evidence is being given, whether a witness is straying from matters covered by High Court privilege towards matters covered by qualified privilege. In view of the fact that committees will not have the ability to retain a legal adviser — amendment No. 73 in my name which deals with this matter has been ruled out of order as it involves a potential charge on the Exchequer — chairpersons of committees will be placed in an invidious position.
The Deputy has highlighted the responsibility that will be placed on chairpersons of committees under the Bill. This matter was discussed on Second and Committee Stages. Legal advice will be available at all times to chairpersons of committees, if necessary during proceedings. The matter is being dealt with separately by the House through the provision of a legal adviser.
Subsection (2) provides for the loss of High Court privilege for witnesses who continue to give evidence on a particular subject despite having been instructed to stop giving such evidence by the committee chairperson. Qualified privilege only will apply to any evidence given after such an instruction. The amendment would delete this provision which would remove the discretion of the Chair in conducting committee meetings. I am not in a position, therefore, to accept it as it would dilute the power of a committee as exercised through the Chair. Amendment No. 71 will provide that the only loss of High Court privilege under subsection (2) will be in relation to defamation. Witnesses will retain High Court privilege for other areas.
Amendment, by leave, withdrawn.
I move amendment No.71:
In page 11, line 45, after "privilege" to insert "in relation to defamation".
Amendment agreed to.
I move amendment No. 72:
In page 12, line 3, after "person" to insert "or specified in an affidavit of documents made by a person and given to a committee by the person pursuant to a direction of the committee to the person".
This section provides that material supplied by a person to a committee cannot be used as evidence against that person in criminal proceedings. The amendment ensures that only evidence provided to a committee, either directly in a document or in an affidavit, following a direction by that committee shall be inadmissible as evidence in such criminal proceedings. This is to prevent a situation whereby a person could voluntarily send material to a committee for the sole purpose of rendering that material inadmissible in criminal proceedings against that person. The amendment provides that evidence included in an affidavit cannot be exempted from criminal proceedings, unless the affidavit is produced following a direction from the committee.
Amendment agreed to.
Amendment No. 73 not moved.
We now proceed to amendment No.74. Amendment No. 76 is consequential. It is suggested that they be discussed together. Is that agreed? Agreed.
I move amendment No. 74:
In page 12, to delete lines 8 to 14 and substitute the following:
13.—(1) The appropriate subcommittee or, where appropriate, the appropriate subcommittees acting jointly may make rules and draw up and issue guidelines relating to the conduct of proceedings, and to the procedure generally, of committees.
(2) A committee shall, in so far as is reasonably practical, conduct its proceedings and perform its functions in accordance with any rules and guidelines under subsection (1).
(3) Proceedings of a committee may be heard otherwise than in public.
This is a rewording of a Committee Stage amendment in the name of Deputy Ahern which I accepted, subject to the actual form of words being consistent with other provisions of the Bill. The amendment achieves what Deputy Ahern's amendment achieves in that it allows the Oireachtas to appoint a committee or subcommittee to issue guidelines which investigating committee's using the provisions of the Bill would follow and provides that hearings may be heard privately. The wording is consistent with Government amendment No. 1 to section 1 which provides for the establishment of a subcommittee to oversee committees in their use of the powers conferred under the Bill.
Amendment No. 76 is a technical amendment and is consequential on amendment No. 74. As subsection (3) of amendment No. 74 provides that hearings of a committee may be heard otherwise than in public the section providing for the same matter is superfluous.
Amendment agreed to.
I move amendment No. 75:
In page 12, line 18, after "concerned" to insert "or any other member of the joint staff of the Houses of the Oireachtas".
This amendment provides that a member of the Oireachtas staff as well as the clerk of the relevant committee may administer an oath that a committee may require a witness to give. Previously only the clerk could administer the oath. The amendment follows my acceptance of comments made on Committee Stage by Deputies O'Keeffe, McDowell and others that the taking of an oath should not be confined to the clerk of the committee.
Amendment agreed to.
I move amendment No.76:
In page 12, to delete lines 20 to 22.
Amendment agreed to.
Is it agreed that we take amendments Nos. 77, 78 and 79 together? Agreed.
I move amendment No. 77:
In page 12, to delete lines 23 to 33.
This amendment proposes to delete section 16. Does the Minister propose to amend this section?
My amendments Nos. 81, 82 and 83 deal with section 16.
If amendment No. 81 amends section 16 by inserting a subsection (2) then there must be a subsection (1). Is it proposed to include a subsection (1) in the section?
Yes.
Debate adjourned.