Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) (Amendment) Bill 2004: Committee Stage.

Thursday, 27 May 2004

Dáil Eireann Debate
Vol. 586 No. 4

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Question proposed: “That section 1 stand part of the Bill.”

Mr. J. O’Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  It is not possible in the timeframe available to consider amendments. Therefore, I will raise some issues to tease out some aspects of the section a little further. The most serious question which worries me about this legislation, and on which I would like as much assurance as possible, is the basic issue of how the power of compellability sits with the right to silence. In light of the Abbeylara inquiry, there must be a question over whether a committee can use powers under the 1997 Act in a manner which might oblige someone to incriminate himself or herself. This is a general issue. In this Bill, we are dealing with judges. We must address the rationale for the change. Judges are exempt from the powers of compellability under section 3 of the 1997 Act. What has not been highlighted is that they are only exempt when, as the 1997 Bill states, one is referring to a person who holds or held that office in his or her capacity as such holder. That fits in with the independence of the Judiciary — that its members would not be compellable in any way in relation to the functions exercised by a judge in his or her capacity as a holder of that office.

[906]I raise the question of whether there is a need for legislation at all, because the issue before us does not relate to any judicial decisions of Judge Curtin. It therefore appears that effectively that judge is in the same position as anyone else from the point of view of compellability except in relation to the exercise of his judicial function and we are not inquiring into the exercise of that function. That issue has not been teased out.

There is also a question mark about the general right to silence and whether anyone coming before the committee would be obliged to incriminate themselves, which arises in the post-Abbeylara context. I am also concerned by the new power being rushed in. I do not know if that is needed, but it is my job to raise these issues. I would have preferred a more reflective approach.

If we are putting a judge appearing before a committee for reasons other than his or her judicial functions in the same position as everyone else, then I return to the point that nobody else can be in the same position because nobody other than a judge can have an Article 35 motion tabled about them in the Oireachtas. We are not putting a judge in the same position as an ordinary person and we cannot do so.

The Minister of State said that it was inconceivable that the Houses of the Oireachtas should embark on such a solemn process under Article 35 without having the capacity to require the judge to assist them in that process. Let us reflect on that. Are we saying we must have the power to require a judge to assist in a process leading to his or her removal? I wonder about that broad statement.

I emphasise that my searching comments are designed to be constructive and to try to ensure that the process we end up with is a sound and valid one which will survive judicial scrutiny. The best way to do so is to be absolutely sure that the process is fair and in accordance with natural justice at all times. That is the thinking behind my fundamental questions about this process.

We should go back to Deputy Enright’s point about whether compellability is the right approach for the committee, in directing attendance and production of documents. Under the definition of the 1997 Act a document is any class or description of document and also includes a “thing”. Are we talking about a computer? I do not know. If we are directing someone appearing before the committee to produce documents and things and to make discovery on oath then one must go back to the purpose for which the committee was set up — to investigate certain matters which may, under Article 35, lead to the removal of that person. That is my concern.

Deputy Enright dealt with admissibility at greater length in her contribution than I did. If these documents and things, computers or otherwise, are admissible, despite the fact that they were held to be constitutionally tainted at the criminal trial, then the issue of compellability may not arise. I do not know. Has that been thought through? That is my concern. [907]Admissibility is central to what we are discussing. Is this approach a fall-back if the admissibility approach fails?

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  I remind the House that this Stage and remaining Stages must be completed by 12.38 p.m.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The difficulty we face in dealing with the Judiciary is that its members are responsible for presiding over the administration of the law and these Houses make the law. In some senses the Judiciary is seen to be above the law and its members are not expected to abuse the law in any sense. However, every citizen is equal before the law and is subject to the law. Principles relating to compellability and immunity which apply to other citizens mean that the promotion of justice in serious matters of concern cannot be followed if a key witness has the right to choose whether or not to attend a committee. We are in uncharted constitutional waters when it comes to procedures, but what about our powers? Those must also be looked at to ensure that any procedure will use due process, will be comprehensive and will fulfil its functions properly.

There should be no exemptions in the legislation. I would go a step further: the legislation would be better if we ended the exemptions of the Director of Public Prosecutions and the Attorney General. Why should they be exempt under the 1997 legislation? They remain the only two citizens who are exempt from being compelled to come before an Oireachtas committee and such compellability may be relevant.

Mr. J. O’Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  The President is exempt.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The President is also exempt, though we could deal with that at a later stage.

Will the Minister of State address this matter? To what extent was this considered by the Attorney General? Did he give advice about his position or was legal advice given by other counsel retained either by the Attorney General or the Government?

The other point is whether we should have to revisit section 1.3A under which the two points arise concerning the Special Criminal Court. We have now extended the competence of this section to deal with judges of the High Court, the Supreme Court, the District Court and the Circuit Court but a judge of the Special Criminal Court is not covered under the legislation. Surely the entire Judiciary should be put within the remit of the legislation. I do not say this is a flaw in the legislation in terms of what we are trying to do. Given that we are passing legislation would it not be better to have it encompass the entire Judiciary in order that we do not have to come back with an amendment?

[908]Section 1.3A(b)provides that, “‘committee’ means a committee established, whether before or after the passing of this legislation.” Why was it deemed necessary to include “before” rather than “subsequent” to the passage of the legislation?

Mr. Boyle: Information on Dan Boyle  Zoom on Dan Boyle  On Committee Stage we can use whatever opportunity we have to question some of the wording in the Bill and highlight the fact that it is being debated in a vacuum. That we are referring to Acts of 1924 and 1946 shows the lack of consolidation in this area and the large job of work that has to be done to put this in order.

Given that we are dealing with compellability, privileges and immunities, an issue we have failed to address is how we as individual Members use our own privilege, not only within the House but in committees of the House. If we are to embark upon a process on foot of this legislation, whatever motions are likely to be put before the House, I would have liked some indication from legal officers of the State and of the House to indicate to what extent privilege can and should be used. Have statements been made by individuals that have compromised the process that may take place? While we have privilege as Members and can say things without the laws of libel coming into play, if a process is initiated under Article 35 which at the end of the day requires a full vote of this and the other House, we need answers to those questions before embarking on such a process. Has that privilege already been compromised? Are their individual Members who have said things that should not have been said and, if so, should the House decide what course of action should be open to them in terms of participating in a vote. Should we as a House decide what course of action should be open to them in terms of participating in a vote, abstaining from a vote and participating in whatever committee the House establishes to exercise its power under Article 35?

On the central principle of whether the House should exercise its power under Article 35 I do not think there is any dissension. While we have a duty as legislators to give living example to the principle of who judges the judges, we are also guided by the principles of natural justice. The procedures we are about to put in place and see through to a conclusion have to be guided by those principles. While we are judging judges we should ensure we are not a judge in our own court. All the principles of natural justice that apply to any other citizen of the State should apply to anyone who comes under the process we are trying to put in place through this legislation and whatever motions are put before the House.

When the issue at hand has been dealt with, I hope, given the Tánaiste’s commitment on the Order of Business today, there will be a wide ranging and detailed examination of the legislation that needs to be put in place and the constitutional provisions that need to be examined and, if necessary, changed and put in [909]place. This matter continues to be a constitutional and legal mess. It does no credit to any of us involved in the political process, or those who enact the legislation through decisions of the judicial process on a daily basis, that we allow this situation to continue. I hope there is a collective will to use the time of the House in a better and more comprehensive way to ensure Bills of this type are not put before us in this way for consideration in the future.

Minister of State at the Department of the Taoiseach (Ms Hanafin): Information on Mary Hanafin  Zoom on Mary Hanafin  I shall take the questions in reverse order. Deputy Boyle’s questions related to process. We have to ensure there are fair procedures and that natural justice is observed. Much discussion has taken place during the past week or so — and will continue over the next few days — to ensure the process, the motions we pass and any committee set up for a specific investigation, fulfil all those criteria. We look forward to continuing to work with the Opposition parties in that area. That is the situation regarding a specific case.

I do not accept Deputy Costello’s view that the Director of Public Prosecutions and the Attorney General are the only people exempt. All judges are still exempt from this except if they are the subject of a process to have them removed from office under Article 35.4 of the Constitution. It is only in those very limited circumstances that the Bill would allow for a judge to be called. I would not envisage a committee inquiring into other circumstances in respect of the activities of a Director of Public Prosecutions or an Attorney General. It would only gather evidence in regard to the potential removal from office of a judge. Deputy Costello asked also about members of the Special Criminal Court. Judges of the Special Criminal Court are members of the Judiciary in the first instance and are then appointed to serve on the Special Criminal Court, so they are covered by this legislation.

Deputies Jim O’Keeffe and Costello asked about compelling a judge in his or her capacity as a judge. This was the question asked during the past week or so. There were different legal opinions as to whether this legislation is needed because activities might relate to a person outside his or her role as a judge. For example, as Deputy O’Keeffe indicated, a decision of the court is not something one would be looking at. This Bill will apply to extra-judicial conduct but only in the context of an inquiry arising out of that person’s capacity as a judge. Given that it will be in the context of our constitutional power under Article 35.4, the possible end game of that inquiry would affect that person in his or her role as a judge because it would seek to remove him or her from his or her role as a judge. For that reason we sought to bring about the legislation.

Deputy Jim O’Keeffe asked about the committee requiring a person to come before it. There is every possibility in the event of people going down this road that a person in question, [910]or a judge, would come before a committee voluntarily to give information. That is allowed for. This is an enabling power. It allows the committee to have the power to call in the person who is the subject of the investigation and to get all the information from that person. It will be a different committee from the committee inquiring into the events at Abbeylara. The Abbeylara committee was set up by a rule of the House whereas in setting up any committee for this process we will be exercising our constitutional power, which gives it a different status.

Deputy Jim O’Keeffe asked about the right to silence. As he is well aware the right to silence is a feature of the criminal law. Section 12 of 1997 Act provides for the non-admissibility in criminal proceedings of evidence given under direction. That should cover that issue. A judge is autre fois acquit, a criminal law principle that he cannot be put in jeopardy in a criminal case a second time for the same offence, in the event of that arising in any process.

On the question of retrospection, this Bill relates to the process and it will apply prospectively in that it will be applicable any time after its enactment where the matter of invoking compellability arises. The purpose of this provision is to ensure that the prospective application of the power cannot be questioned solely on the grounds that a committee seeking to exercise it came into being before the measure was enacted. It is a matter of prudent precaution. It also clarifies that power to invoke compellability prospectively cannot be challenged on the grounds that the relevant behaviour occurred or capacity arose before the measure was enacted. That is the reason for introducing this. I hope I have addressed some of the issues raised.

Mr. J. O’Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I thank the Minister for her response. I do not think she is a lawyer but she seems to have grasped the principles in very short order, and has been put in a position to lead for the Government.

Ms Hanafin: Information on Mary Hanafin  Zoom on Mary Hanafin  I am a senior counsel by osmosis.

Mr. J. O’Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  If I were to make a prediction, the Minister of State will be fully qualified by the time we are through this process.

Let us confront the issues head on. The bottom line is whether the evidence in the upcoming case is tainted by unconstitutionality and can be made available to a committee set up by this House. I understand there are conflicting views on that. The Minister for Justice, Equality and Law Reform seems to be very firm that there will be no difficulty in this regard and he told me he would do a paper on it. This is central to the situation. Before the matter comes before the House again in the form of a motion or otherwise, I urge that this issue be fully clarified by the Government.

[911]The Minister of State referred to conflicting legal advice. It would be helpful if copies of such advice were made available to the Opposition, which is trying to deal with this issue in a constructive manner. While the Minister has batted well for the Government, I do not think the issue of compellability has been or is capable of being teased out in this short time. The issue of compellability for anybody post-Abbeylara is open to argument. Following from that, there are still open questions if we are talking about a judge being compelled to come before a committee where it involves giving evidence, producing documents and being liable for an offence for failure to so do, where the evidence and the documents could effectively incriminate him or her. I am concerned about the issue of due process. As far as I am concerned, judges should not be above the law or below the law. I accept their special position of judicial independence because of the separation of powers. However, in fundamental constitutional rights, a judge is not a lesser being than any other citizen of this country.

Acting Chairman (Mr. Carey): Information on Pat Carey  Zoom on Pat Carey  I am sure Members are aware that we must conclude the debate at 12.38 p.m.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  To finish Deputy O’Keeffe’s sentence, a judge is not a lesser being than any citizen but he is not a greater being either. Due process applies equally to everybody.

I accept the comment from the Minister of State on the Special Criminal Court. On the issue of the compellability, the Minister of State stated that compellability of judges only applies in relation to an issue of impeachment, as outlined in Article 35.4.1°. We probably do not need this legislation, because presumably a judge will volunteer to come forward. One is only compelled when one does not come forward voluntarily. On an issue such as this, justice cannot be promoted properly when the key witnesses can choose how they wish to deal with a committee of the Oireachtas.What is the position, should the committee decide that it wishes the Attorney General or-and the Director of Public Prosecutions to attend and they say no, because they are not bound by the legislation?

Ms Hanafin: Information on Mary Hanafin  Zoom on Mary Hanafin  There were different views as to whether it was necessary, but it brings certainty and clarity to a process which may have to be undertaken. The admissibility of evidence for the committee would obviously be a matter for the committee. In the event of such a committee being established, the committee would have its own legal advice, and it would be inappropriate to comment outside that. It will not be possible for the committee to compel either the DPP or the Attorney General because they are specifically exempted, as are all judges except those who are the subject of such a process. It would be hard to envisage a situation where they [912]would be needed to be compelled. Deputy Costello is right, a judge who is the subject of a process may well want to come in voluntarily before an investigation committee and he would not be required to do so before he would be given an opportunity to do so. This is only an enabling power for the committee to enable the Oireachtas to carry out its duties more effectively.

Question put and agreed to.

Acting Chairman: Information on Pat Carey  Zoom on Pat Carey  I am now required to put the following question in accordance with an order of the Dáil of this day: “That, in respect of each of the sections undisposed of, the sections are hereby agreed to in committee, the Title is hereby agreed to, the Bill is accordingly reported to the House without amendment, Fourth Stage is hereby completed and the Bill is hereby passed.”

Question put and agreed to.


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