In accordance with the order of the House, Committee Stage is to conclude within one hour if not previously concluded.
Tribunals of Inquiry (Evidence) (Amendment) Bill, 2002: Committee Stage.
On a point of order, may we have the list of amendments?
Amendments are to be circulated but we have not yet received them.
Section 1 agreed to.
SECTION 2.
I move amendment No. aa1:
In page 3, line 30, before "criminal" to insert "existing".
This amendment deals with the issue I raised during my previous contribution. I heard the Minister's response in which he said that the word "existing" was not required because the advice of the Attorney General was that it was implicit. There is no doubt that this legislation will be put under a microscope and this provision, which might be focused on by lawyers, should be as clear and unambiguous as we can make it. It is clear that the intention of the Minister is to exclude only where there is a risk of prejudicing existing criminal proceedings and to encompass a private session only where that would be at issue, not criminal proceedings which may not be current or existing. That is certainly the Minister's intention as he explained it to the House, and I think it is also the intention of the House. I ask the Minister to accept the amendment for the avoidance of doubt and to give absolute clarity to legislation which will undoubtedly be subject to the closest scrutiny. We should be as clear and unambiguous as we possibly can.
I support what Deputy Howlin has said. In my speech earlier this morning I drew attention to this issue. Unless this amendment is made and what is explicitly stated to be the Minister's intention is contained in the legislation, it is inevitable that there will be litigation in which it will be suggested that anyone at risk of a prosecution should be allowed to give evidence in private. The risk of a prosecution may be used in the context of seeking to suppress a report ultimately published by a tribunal. That is not something that should be left to be based on the advice of the Attorney General, particularly concerning this issue. Until this year, the Attorney General's advice has been that no tribunal should investigate these issues because of the possibility of future prosecutions that have not yet been instituted. I am not sanguine in relying on the advice of the current Attorney General on this issue. If the Minister's intention is that existing prosecutions, or prosecutions already initiated, are to be the subject of matters related to sections 2 and 3, the section should be so amended. I predict that if it is not so amended difficulties arising from the phraseology will inevitably delay the workings of the tribunal because of the inevitable court cases that will be brought in the context of what is contained in the Bill as presented.
I dealt with Deputy Howlin's question earlier and this is also the subject matter of his amendment. He asked whether criminal proceedings must be in existence for sections 2 and 3 to apply. I have taken the advice of the Attorney General on this matter and he says that the term "criminal proceedings" itself implies proceedings in existence, that is, pending or ongoing. Accordingly, I am satisfied that the wording is adequate.
I regret the Minister will not accept this amendment and I genuinely think it will be a mistake not to do so. The Minister says he agrees with what I intend to do, which is simply to ring-fence existing criminal proceedings rather than potential or future criminal proceedings as the reason the tribunal should be in private. If that is the Minister's intention, what burden is it to insert the word "existing"? Is there a compelling reason? The issue of it being superfluous is neither here nor there. For the avoidance of doubt we inserted our own phraseology. In legislation like this it is extremely important to be clear. If that is the Minister's intent, I urge him to accept the word "existing". Sometimes good ideas come from this side of the House. Inserting that word will do no damage to the legislation and might prove to be a valuable insertion.
"Superfluous" is the word, and Deputy Howlin used it himself. I recognise the intention behind the amendment but it is superfluous. The difficulty with inserting words which are excess baggage or superfluous to legislation is that they can create a doubt about previous or subsequent legislation where the word does not appear. In the circumstances, I regret that I cannot accept the amendment which, I realise, was put forward in good faith.
Amendment put and declared lost.
Question proposed: "That section 2 stand part of the Bill."
In the context of the amendment proposed by the Minister, the Tribunals of Inquiry (Evidence) Act, 1921, as amended in section 2(a), would read as follows:
A tribunal to which this Act is so applied as aforesaid–
(a) shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given and, in particular where there is a risk of prejudice to criminal proceedings . . .
Unfortunately, the section, which was originally drafted in the early part of the last century and employs the type of language popular at that time, was expressed in a somewhat complex manner. The words we are now adding will make it that bit more difficult to understand. It is regrettable that we do not yet have a consolidated Tribunals of Inquiry Act, but that is a matter for another day.
Based on the way the section will now read, is it proposed that the public can be excluded by a tribunal simply where there is a risk of prejudice to criminal proceedings? Will a tribunal only be in a position to exclude the public if it is in the public interest expedient to do so for reasons connected with the subject matter of the inquiry and, in particular, where there is a risk to criminal proceedings? Is it possible that a situation could arise where a tribunal might acknowledge that there could be a risk of prejudice in criminal proceedings but, nevertheless, that public interest demands that matters be dealt with in public? It seems that this is the intention of what is proposed. The tortuous language in which it is proposed and the addition at the end of the subsection will result in this issue also being the subject of litigation at some stage.
If the intention is that, despite the possibility of prejudice in criminal proceedings, the public interest may override that consideration to still permit a tribunal to conduct its business in public, in such circumstances the legislation does not delineate either the criteria the tribunal is to apply in making those decisions or the weight to be given to the public interest. That brings us back to the quotation to which Deputy Howlin referred in respect of previous litigation in which the court, in the person of the Chief Justice in the case of Moriarty v. Haughey, confirmed the statement made by Lord Justice Salmon to the effect that “There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of public life, without which a successful democracy is impossible.”
I have already expressed concern that issues which should be the subject of evidence in a tribunal to which the public has access should also come under the glare of publicity. The latter may well be in the public interest because it is important that persons who have not yet been called before a tribunal but who may be able to assist it know of the evidence being given to that tribunal. Will the Minister indicate to the House the circumstances based on the proposal before us, in which he envisages that a tribunal, despite the possibility of prejudice in criminal proceedings, may nevertheless determine that it is in the public interest that the public not be excluded?
Section 2 amends section 2(a) of the 1921 Act by adding a provision that a tribunal can avail of its power to exclude the public if there is a risk of prejudice to criminal proceedings. To that extent, it elaborates on an existing power, but it should be noted that the provision applies to proceedings which are in existence at the time a tribunal is hearing the relevant evidence and not possible future proceedings.
Deputy Shatter inquired about the circumstances in which the public interest might override the right of an individual to a fair trial in the context of the proceedings being held in public. I am not in a position to provide specific examples in relation to that matter and the circumstances would have to be examined by the tribunal itself. The fundamental objective of holding proceedings or hearings in private is to preserve the right to a fair trial. I will not seek to pre-empt what a tribunal might or might not decide in respect of a given set of circumstances. I do not doubt that the tribunal will decide on these matters in due course and perhaps then some of Deputy Shatter's questions will be answered. However, I am not in a position to pre-empt any of those replies.
Is the Minister informing the House that he is bringing legislation before it which he is unable to explain? The Minister should be able to outline, at least in theory, some instances in which he envisages that the public interest may require that matters be dealt with by a tribunal in public in circumstances where there may be prejudice to a criminal trial. If the possibility of prejudice in a criminal trial is to override the public interest in its entirety, the Minister is completely undermining the views as expressed to date by the courts about the importance of the spotlight of publicity focusing on issues of major public importance in a constitutional democracy where there are serious allegations of transgression.
At the very least, this House should not abdicate its role in this area to the courts. The Minister should be able to indicate the factors to which the courts will have regard and the extent to which these are to be weighted in determining whether the public interest is to override the right to a fair trial. By introducing this new concept, the Minister is creating a hornet's nest of difficulty and uncertainty which will lead to the emergence of huge problems in the workings of tribunals. Such problems will be compounded by the fact that he failed to take on board Deputy Howlin's amendment.
The Minister has at all stages presented this issue on the basis that the fact that there are existing criminal proceedings will mean, in effect, that a tribunal should not sit in public. It is now clear that this matter is more complex than that. However, the Minister does not know how his proposal will work in practice. It is important that he should outline the position to a greater degree. I presume that, in the context of the legislation being prepared, some attention was given to circumstances in which the public interest may require that matters be dealt with in public. Will the Minister indicate whether we are to assume that, when an issue of this sort arises and when it is argued before a particular tribunal on behalf of a witness that proceedings should be heard in private, there will be lawyers available who will argue that, despite the possible prejudice, the public interest demands that the tribunal continue to deal with matters in public?
As I understand it and as I have outlined it on many occasions in the past, the right to a fair trial is a fundamental right and has been recognised as such by the Supreme Court. That right has to be jealously guarded and I have explained that on numerous occasions. I honestly believe there are very few occasions when the public interest will override the right to an individual's fair trial, having regard to the Supreme Court ruling in the matter. We have allowed a degree of judicial discretion in this Bill which could be described as a safeguard. I am anxious that the tribunal would have the opportunity of proceeding and that it would not be inhibited from doing so. I also wish to ensure that a certain amount of discretion would be allowed to the tribunal. I am also deeply conscious, as I have been throughout, of the necessity for an individual to have a fair trial and I do not believe the provision, as it now exists, would allow, willy nilly, for the individual to have his or her case heard in public where it would prejudice that individual's right to a fair trial.
I would point out to Deputy Shatter that the reason bookmakers make money is that they are asking the questions, not answering them. I am certainly not going to pre-empt what circumstance might arise. Perhaps one might say – I want to be particularly careful here – that if the offence in question were of a particularly innocuous nature, in those circumstances a tribunal might feel the public interest took precedence. However, I am not going to speculate. My responsibility is to legislate for as many eventualities as I can in the context of this tribunal of inquiry.
I wish to raise an important point of clarification. The Minister referred to the right to a fair trial being damaged. It is important to understand that what was implied in the judgment of the Chief Justice in the case of Moriarty v. Haughey, in re-echoing the comments of Lord Justice Salmon, was not just for the avoidance of a confusion. The issue was not that, in some case, the right to a fair trial would be impugned in any way but that, in certain circumstances, the public interest was such that there should be no trial. It is extremely important that we are clear there can be no circumstances in which a person's right to have an independent arbitration would be in any way compromised before the courts of this land. The net issue is that there might be circumstances where the public interest is clearly and overwhelmingly that no trial should take place or be available because a public matter of such importance needed to be ventilated.
While I understand the point Deputy Howlin has made, I must point out that there is a right to a fair trial but there is not a right to a trial. My point is that the Director of Public Prosecutions decides whether there will be a trial – neither I nor Deputy Howlin has that decision.
My point is that there could be circumstances where information brought into the public domain could – I emphasise could – prejudice a person's right to a fair trial. Therefore, the offence would not be prosecutable in that circumstance. That is the net issue.
The Minister made an interesting comment a few moments ago. He said the public interest may override possible prejudice in a criminal trial in circumstances where the criminal proceedings that are raised as creating the difficulty may be of a minor nature. I would understand, if there are allegations of a very serious nature relating to Garda misconduct, or allegations of a very serious nature to be investigated by a tribunal in relation financial impropriety, or in relation to corruption in the planning process, a tribunal may well take the view that it is in the public interest to have those matters dealt with in public and that pre-existing criminal proceedings of a minor nature before a District Court, through which someone may be subjected to a relatively minor penalty, should not be used to prevent matters being dealt with in public. If that is the Minister's view on the matter, that is reasonable and I do not disagree, but it raises an issue to which I referred earlier.
Should not this amendment list particular factors, issues or circumstances under which the public interest in favour of matters being dealt with in public overrides the issue of prejudice? For example, why could the section not prescribe that, where a person is being prosecuted for a summary offence, as opposed to an indictable offence, there should be no possibility of that prosecution being regarded as so prejudicial as to override the public interest in public hearings by tribunals? If the offence being prosecuted could not result in the imposition of a sentence of imprisonment of more than six months, or the imposition of a fine at a particular level, why could those issues not be prescribed as taking secondary importance to the public interest? If the Minister suggests there is a constitutional difficulty in that regard, I suggest the constitutional difficulty fails to have regard to the overriding constitutional imperative of preserving this State as a constitutional democracy.
In issues where current or former Members of Parliament are being investigated by a tribunal, or where individuals employed by State agencies, the Garda Síochána or any other body are being investigated, the overriding public interest is to preserve, as the case may be, the credibility of the institutions of this House or the credibility, in the eyes of the public, of the particular State institutions, such as the Garda Síochána.
I put it again to the Minister – I am conscious of the time and I will not come back to this issue again – that, in the context of raising this issue, if he had more time, he might well come back to the House in a week or two, having thought through the matter more fully. The difficulties which arise with this issue shine the spotlight on the folly of dealing with important legislation of this nature in such a short period of time and, perhaps, focusing on only one or two issues to which we know it is relevant, such as the proposed tribunal on matters in Donegal or existing tribunals. This could cause major problems in future in other areas where tribunals may be required. Since the Minister is part of a Government which has given birth to so many tribunals, if by some mischance he is back in Government after the next election, we may continue to have government by tribunals, crisis management by tribunals and investigations by tribunals into administrative mismanagement or allegations of corruption or misconduct. It is important that we get this legislation right.
If I am back in this position after the general election it will be because of the constitutional prerogative of the Irish people and there will be no mischance about it. I have the greatest faith in their ability to discern the correct thing to do. I am loath to bring forward measures in legislation of this nature, which would place strictures on the Judiciary. The difficulty to which Deputy Shatter has referred is best pointed out by his own contribution. He outlined that circumstances could be put into the legislation where the public interests could override the individual's right to a fair trial in terms of having a public hearing and he said that perhaps we could specify the circumstances. That would be an extremely dangerous thing to do and the Deputy adverted to the fact that this might not be constitutional. In the circumstances it would be extremely foolish of me to seek to second guess the Judiciary on an issue of such fundamental importance. The right to a fair trial, as I have said, ad nauseam, is fundamental and one no democracy can abandon. Accordingly I would prefer the courts or the tribunal to deal with it in their own way, not because I am afraid to be specific but because I truly believe that the interests of justice are best served by the Judiciary coming up with their own solutions to a given circumstance, and we are dealing here with a given circumstance or set of circumstances.
Question put and agreed to.
SECTION 3.
I move amendment No. a1:
In page 4, subsection (1), line 4, to delete "might" and substitute "would".
This amendment arises out of comments I made on Second Stage. Section 3(1) provides:
If, on receipt by the person to whom a tribunal is required, by the instrument by which it is appointed or any instrument amending it, to report of an interim or the final report of the tribunal, that person considers that the publication of the report might prejudice any criminal proceedings, that person may apply to the court for directions regarding the publication of the report.
In the previous section we dealt with the issue relating to criminal proceedings as opposed to existing criminal proceedings and I believe that will give rise to a difficulty where a person considers that it simply might prejudice any criminal proceedings – not that it would, it just might. It would be helpful if we took this amendment in conjunction with amendment No. b1, which relates to subsection (3). This states that the court, where such application is made, may if it considers that the publication of the report concerned might prejudice any criminal proceedings, direct that the report or a specified part of it be not published for a specified period or until the court otherwise directs. In those instances the application can be initiated and the court can make a decision if it is felt that the publication of the report of the tribunal might prejudice criminal proceedings. “Might” is a very ill-defined word based on speculation. If we have to deal with matters in the manner in which the Minister is insisting, “might” should be replaced with “would”. That means that when the matter is being adjudicated upon by the court as to whether a report prepared and completed by a tribunal, be it interim or final, should be published in full or in part or the entire thing suppressed, there would be a heavy onus of proof on the applicant seeking to suppress the report. The only circumstances in which it could be sup pressed should be where the court forms a firm view that the report's publication or any of its contents would – not might – prejudice proceedings.
This could be used as a weapon by those who have been investigated by tribunals to seek to suppress the report of the tribunal and will inevitably result in High Court and Supreme Court cases. On the basis that tribunals are only asked to do a job of utmost urgency in regarding an issue of major public importance it is not in the public interest that the situation could arise where the publication of a report could be delayed indefinitely by a court. Nor is it in the public interest that this weapon be given to those investigated by tribunals to facilitate the report of a tribunal being delayed by the bringing of spurious court proceedings. I will ultimately be opposing this section in full.
Let us assume for a moment that the report into the Donegal affair is available in 18 months time and some of those who have given evidence to the tribunal, in public or in private, want to postpone the publication of the report because they are concerned about its implications. This will result in an application to the High Court on the basis that the report might prejudice them and I predict that application will be brought, whether or not criminal proceedings exist, because it does not refer in the section to existing proceedings. It will probably take the High Court six months before the case is heard from the date when proceedings are initiated. It will then take another couple of months, or longer, before a judgment is delivered, and that may be appealed to the Supreme Court, which may deal with it six or seven months later and maybe two or three months after that deliver a judgment. Even if, at the end of the day, the Supreme Court says the report should be published, it is a mechanism to delay publication by 18 months. This is not just relevant to an inquiry that may be ordered into allegations of Garda misconduct in Donegal, it will apply to any future tribunal of inquiry that is established by this House to investigate issues of public importance.
This section is emasculating the facility of tribunals to promptly report on issues of public concern and introducing an unprecedented concept of censorship in our laws. It is introducing something that may well be in violation of the Constitution, is anti-democratic and is completely undesirable. There is not even provision that the report could be furnished to Members of the Houses of the Oireachtas who ordered the tribunal of inquiry in the first place. Provision could be made that would allow the report to be furnished to Members of the Houses of the Oireachtas but for some period of time exclude the media from commenting on or publishing some part of the report. I am not advocating that and it is not something I want. I disagree with it, but even that is less draconian than what is proposed here.
Has this proposal been proofed against the European Convention on Human Rights and Fundamental Freedoms? Has any consideration been given to its implications in regard to the general public or the rights of Members of the Oireachtas? What consideration has been given to that? Members of the Houses of the Oireachtas formulate the terms of reference for a tribunal of inquiry, but on completion of the tribunal's work is the House to be deprived of knowing its conclusions? Does the Minister understand the implications, in the context of a constitutional democracy and of the administration of Government, if that report has serious conclusions regarding the manner in which Government operates or regarding particular decisions made by Government in relation to issues of public expenditure? In what way can it be suggested that censoring the report, or entirely suppressing it and introducing legislation which allows its suppression for an undefined period left to the discretion of the courts, serves this House?
This proposal also violates the separation of powers. This House should jealously protect its legislative and parliamentary remit and tribunals of inquiry have been recognised and acknowledged by the courts, going back over 100 years, as performing a function for the Houses of the Oireachtas. A tribunal is an inquiry ordered by Parliament, undertaken at its request to make available information on matters of major public concern so that such action as is necessary can be taken in the public interest. Whatever about the Minister's proposal to allow certain types of evidence to be given in private, this section can be abused to prevent the publication of a report prepared by a tribunal for many months in circumstances which may be spurious, yet require extensive litigation. It can be utilised to deprive Members of this House of the capacity to redress major public wrongs or issues of public concern. It is seriously detrimental to the well-being of this State, to our concept of parliamentary democracy and our ability to ensure that we have mechanisms of public accountability in place.
It is not right that we have to deal with all sections of the Bill today, particularly this one, when this legislation has received no public notice. No groups or organisations have had time to make presentations on it and the print media is so engaged with the latest Government scandal arising from the Taoiseach's Bertie bowl project, that it has not yet had a chance to digest the implications of what is proposed here. What this proposes to Members of the Oireachtas, the public and the media is that the entire report of a tribunal of inquiry into an issue of serious importance, which completes its work, draws conclusions and proposes reforms, can be suppressed indefinitely. Has the Minister considered what would happen if such a report were leaked and published by the media in circumstances where proceedings were brought against a tribunal? Would reporters be dragged before the courts for contempt?
They would.
What would happen if someone got access to the contents of such a report and published it on the web where the public had access to it? What action would be taken? What would happen if the report was published by a publication that operates outside this State or if its conclusions and recommendations were published by a satellite television channel? The Minister does not understand the difficulties of policing this, the dangers of it and its implication. This is a seriously dangerous provision which should not form part of our law. We should not create circumstances in which the reports of tribunals can be suppressed and the work that tribunal has done rendered completely irrelevant in resolving the issues it was asked to address.
I greatly regret that there are only 15 minutes left to deal with very important Committee Stage work. A coherent case has been made in relation to section 3 of the Bill which amplifies some of the concerns I began to mention in my Second Stage contribution.
All sorts of difficulties and anomalies will arise if there is a provision to suppress the report of a tribunal of inquiry. This is a charter for secrecy and secrecy has been one of the things that has characterised the issues arising from the McBrearty affair, which this legislation seeks to address. The Minister has told the House umpteen times in the past two years that there are ongoing inquiries – three of them so far. However, no report has come into the public domain from any of the inquiries that have taken place. The reason the most comprehensive report, that of the McCarthy investigation, was not put in the public domain was that to do so might prejudice prosecutions.
Will there never be a mechanism of finding the truth and bringing it into the public light of day? Is that not a very profound question for our democracy and for our law? It is a most essential question, yet in section 3 the Minister provides for a new charter of secrecy. It will facilitate those who would go to court to suppress the report of the very instrument we feel can discover and publicise the truth on the principle that not to do so might prejudice criminal proceedings.
We could and should have a very detailed debate on this because only some of the vistas that potentially flow from the provision have been enunciated by Deputy Shatter. When the Joint Committee on Justice, Equality, Defence and Women's Rights was charged with examining the Sheedy affair, which the Minister will recall, it looked at the various options available to advance its investigation – there were several. One of them was to request that this House constitute the committee as a tribunal of inquiry under the 1921 Act. Had that course of action been followed and if it is followed in a future case, under this legislation a sub-committee or committee of the House engaged in public business could be prevented by an application to the court from publishing its own report. Where does the separation of powers stand in that instance? A committee of the House, charged by order of the House with tribunal of inquiry powers under the 1921 Act, could be prevented from exercising its constitutional role leading to a constitutional crisis where the powers of the court directly abut on the powers of the Oireachtas to be independent.
This is not thought out. We have ten minutes of Committee Stage left and we have only dealt with three sections of this Bill so far. It is an ill thought out charter for secrecy and whatever the words the Minister used today, I sense the unease that this will come back to haunt us. It is a bad way to make law.
In the minute left I want to refer to two principles. I am fundamentally concerned with the general principle of this section. It enables those who wish to apply to the court to prevent publication of a tribunal of inquiry report. When all the sifting and analysis is done, involving perhaps years of work and enormous costs, a person who feels he or she can present a sustainable case that a prosecution for criminal proceedings might arise against them could seek to prevent the report's publication. It might not even be a serious criminal matter. The consequences of the truth being published might have infinitely more impact on the individual than the criminal charge that might be the subject of the application to the court yet the truth would be denied to the public and the report would remain secret.
I will not go into the issues Deputy Shatter outlined in relation to modern communications mechanisms making a nonsense of it anyway and how it would be difficult to take action against people in those circumstances. The net issue is allowing the results of a full investigation that has taken its course, involving witnesses being evaluated by a tribunal of inquiry, all the evidence and the colossal expense, to be kept secret forever or for a protracted or critical period on application to the court.
If the Minister is not moved by the compelling arguments we have made on the general principle and by the clear difficulty that will arise with regard to constitutional matters such as the separation of powers, he might at least look at the amendment put down by Deputy Shatter. It seeks to change the phrase from "might prejudice" to "would prejudice". My preference is a different formulation of words and, if I had the time, I probably would have tabled the required amendment. I prefer to use the words "is likely to" prejudice criminal proceedings. If the Minister does not accept the principle, will he at least retreat to that additional safeguard, so a clause with the word "might" could not stop the publi cation of a tribunal of inquiry's report, given all the effort involved in producing it?
If this Bill becomes law before next week, I presume it will apply to current tribunals of inquiry. We know how long some of these inquiries have taken and of how individuals have obstructed them. One individual has gone to jail three times for obstruction. Is it likely that there would not be a challenge to the publication of the final report by some individual if this provision is enacted? We must make a choice and the Minister, in the dying days of his Administration, is charged under the Constitution with defending the public good. Balances and checks will always have to be taken into account but the fundamental right of a democracy to function and to know the truth must have a high priority in the scheme of things. This section will strike a mortal blow at that principle.
I cannot accept the Deputy's amendment. There is no question of suppression of reports, no more than there is any scandal affecting the Government. I presume that with an election pending we will hear stories of fire, pestilence, brimstone, fear of the black death, plagues, scandals and crises being promulgated throughout the country.
That was your script.
Deal with the issue. It is a serious issue.
I will deal with the matter in kind.
It is the most serious case of censorship since the foundation of the State.
I will deal with it in kind. When false allegations are made in the House, I will deal with them and then I will deal with the issue.
There is no question of reports being suppressed. Publication or otherwise is a matter for the court. The court may direct non-publication if it considers that publication might prejudice proceedings. There is, therefore, an element of discretion in the court. For example, the evidence referred to in the report may have been heard in public anyway because no criminal proceedings were then pending. More importantly, perhaps, no court can decide that something would prejudice a criminal trial.
What about "is likely to"?
Whether prejudice would occur is not something a court can decide. The court, like the tribunal, under section 2 can only decide what might happen, what there is a risk in relation to or that there is a risk of something happening. I must therefore reject the two amendments.
I will put the converse scenario to the Deputies. Let us say a person does not make an application to the courts in relation to a given report, the report is published and it is abundantly clear that an individual or individuals had a prima facie case or cases to answer in relation to serious matters. If the publication of the report were to lead to the conclusion that their right to a fair trial had been interfered with, it must be clear that criminal proceedings, which might be more than well merited, could not be taken against the individual or individuals concerned. That should concern the Deputies. It certainly concerns me.
The argument that any individual can make an application of this kind is patent nonsense. Subsection (1) is explicit. It refers to the individual to whom the report is made. In normal circumstances, this would probably refer to the Minister or the Clerk of the Dáil. It does not mean any person could decide to make an application to the court for suppression.
It could be the person concerned. It is possible.
Deputy Howlin is now suggesting that the person to whom the report would be made could be the person with whom the report is concerned. This is an extraordinary situation. I have heard of people writing books and claims being made that the book must be read but I have never heard a proposition as outlandish as Deputy Howlin's.
Considering what the Committee of Public Accounts was listening to yesterday, nothing is outlandish.
Deal with the issue.
Fact has become stranger than fiction.
I have been urged to deal with the issue all afternoon but when I try to deal with it I am constantly interrupted.
When the beef tribunal report was published, the then Taoiseach wanted first sight of it.
The Minister without interruption.
We cannot have una voce in a democratic chamber—
Does the Minister not remember when the beef tribunal report was published?
Even in natural justice people are entitled to give their reprise without interruption and I expect the Deputies to respect my rights in the same way that I respected their rights when they spoke.
It is selective amnesia.
I am making logical and telling points.
They are not logical.
I am just telling the truth.
Acting Chairman
The Minister without interruption.
The position in section 3(1) is clear. It states:
If, on receipt by the person to whom a tribunal is required, by the instrument by which it is appointed or any instrument amending it, to report of an interim or the final report of the tribunal, that person considers that the publication of the report might prejudice any criminal proceedings, that person may apply to the Court for directions regarding the publication of the report.
The following subsection indicates the people whom the court might or might not wish to interview. That is perfectly clear and logical.
I do not have any foreboding about to this section. Nobody can predict what will happen with any legislation but in so far as I, my officials and the Attorney General are concerned, this is the correct way to proceed. It would be farcical if, for example, one were to hold part of an inquiry in private so an individual's right to a fair trial would not be prejudiced, and then publish the report of the matter which was held in private and end up prejudicing the right of the individual concerned to a fair trial. It is perfectly reasonable to insert this provision and I do not share the Members' concerns in relation to it. I believe it is both logical and valid.
I am pressing the amendment. I note that the Minister has not dealt with the particular issue I raised in any detail, namely the deletion of the word "might" in two places and its replacement with the word "would". In the context of the brief time we have to deal with this Bill, at the very minimum I would have thought the Minister might have treated those two particular amendments with the seriousness which they deserved.
I did. I said that one cannot predict with any certainty that something is going to happen. If I may use a racing analogy again, I wish I could tell the Deputy who would win the 2.30 at Newmarket but I cannot.
Amendment put and declared lost.
I move amendment No. b1:
In page 4, subsection (3), line 20, to delete "might" and substitute "would".
Amendment put and declared lost.
Question proposed: "That section 3 stand part of the Bill."
I am opposing the section for the reasons I have already given. I do not want to further delay the House by going into them. It is an ill-conceived section which will do great damage in the future to the capacity of tribunals to have their reports published and dealt with in this House.
Question put and declared carried.
SECTION 4.
Acting Chairman
Amendments Nos. 1 and 2 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 1:
In page 5, between lines 5 and 6, to insert the following:
"(7) An appointment under subsection (3), or a designation under subsection (5), of this section shall not affect decisions, determinations or inquiries made or other actions taken by the tribunal concerned before such appointment or designation.".
Amendment agreed to.
Section 4, as amended, agreed to.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
Acting Chairman
The time permitted for proceedings on Third Stage having expired, I am required to put the following question in accordance with the order of the Dáil of yesterday: "That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill and in respect of each of the sections undisposed of, that the section, or, as appropriate, the section, as amended, is hereby agreed to and the Title is hereby agreed to."
Question put and agreed to.
Bill reported with amendments.