Kathleen Lynch (Cork North Central, Labour)

I reply as someone who has had some little experience of this issue. Like Senator Crown, my speech will use slightly exaggerated language, but we will balance each other out. I wish to express my appreciation and that of the Government to Senator Crown for publishing the Reporting of Lobbying in Criminal Legal Cases Bill 2011. Through the Bill, the Senator has put on the agenda once more the fraught issue of lobbying.

It goes without saying that lobbying is part and parcel of our lives as public representatives. Representative democracy has at its core the concept of us representing our constituents, those who in a general sense put us in these Houses to represent them and their interests. Beyond that, there is lobbying by various interests, representative bodies and associations, as Senator Quinn correctly highlighted. The Government is an active lobbyist in its own right, in particular, on the international stage.

Lobbying has got a bad name in some quarters, particularly from those who believe that Members can function in a sealed bubble, immune from the realities of everyday life and concerned only with their role as legislators. As we all know, the reality is different. The making of representations, that is, lobbying, is part and parcel of the democratic process everywhere that democracy is practised. It is not unique to Ireland and there is nothing intrinsically wrong with it. In certain circumstances, it may need to be regulated, but this does not make it wrong.

There are bounds to acceptable lobbying and both sides of the lobbying process must be conscious of the boundaries, particularly where professional lobbying is concerned. The Government committed in the programme for Government to introduce a statutory register of lobbyists and to introduce rules to regulate lobbying. This is a priority for my colleague, the Minister for Public Expenditure and Reform. Our commitment is proof of the seriousness with which we approach the issue of lobbying. The public has a right to know who the lobbyists are and to have their activities regulated. There can be no sense that professional lobbying can provide a covert inside track to power.

It is in this context that I welcome the Bill. Its underlying principles are noble and to be commended. They echo the philosophical underpinning of the Government's view of lobbying generally. As I hope I have made clear, neither I nor my Government colleagues see anything intrinsically wrong with lobbying, provided that it is available to all and not the preserve of the few. To be fair to Senator Crown, he appears to share this opinion. What the Bill seems to aspire to achieve is an open, transparent regime where representations in the criminal justice system are made public by both the lobbyist and the lobbied and where the Minister for Justice and Equality is advised that the lobbying has taken place.

While transparency in lobbying is something to which the Government is committed, we are committed to it in clearly defined circumstances where it is required. We have never envisaged regulating lobbying where it does not already exist and, more particularly, would never countenance providing for or regulating lobbying that is already unlawful or, if made lawful, would undermine well established constitutional and legal principles. The Judiciary, the Office of the Director of Public Prosecutions and the Garda Síochána are three cornerstones of the criminal justice system. They are independent in the performance of their functions and that independence is a fundamental underpinning of our democracy.

Article 35 of the Constitution enshrines the independence of the Judiciary. Its independence has served the nation well since 1937. As one of three arms of the State, the Judiciary's independence is at the heart of our democracy. The boundaries of that independence are at their most acute at the interface between the Executive, the Parliament and the Judiciary. Any encroachment by one on the other disturbs the delicate balance on which the edifice is constructed and undermines the separation of powers, the doctrine at the core of our democratic State.

In this Bill, Senator Crown is proposing to legislate for an encroachment on this independence that is unconstitutional. He is proposing to legislate for the lobbying of the Judiciary by Members of the Oireachtas. The only brake, if brake it is, on this lobbying is that the lobbyist and the lobbied must make the lobbying public and, in the case of lobbyists, inform the Minister for Justice and Equality of the fact of the lobbying. Once they have complied with this, the wall of independence comes crashing down and Oireachtas Members are free to make whatever representations they wish to make to the Judiciary.

Rather than being free as at present to conduct their courts as they see fit and to administer justice without fear or favour, members of the Judiciary would be subject to a legalised lobbying regime with no boundaries. The independent Judiciary, a cornerstone of our democracy, would be no more. It would be replaced by a Judiciary whose every decision would be parsed to see if it accords with any of the representations made to it by Members. While I have every faith in the capacity of the Judiciary to ignore such representations and to continue acting independently, to allow the perception to take root that outside influence could be brought to bear on the Judiciary would fatally undermine its independence.

Judicial independence and the separation of powers are the bedrock of our democracy. The suggestion that we should blithely legislate them away is breathtaking. I am not aware of any previous legislative proposal whose effect, if not its intent, could be so injurious to the institutions of our State. Judicial independence is not just a legal or constitutional nicety. It is fundamental to our constitutional construct. To tamper with it, even with the best of intentions, is to undermine it. It is independent or it is not; there is no halfway house. There is no regulated independence. The Judiciary is constitutionally independent and must be allowed operate independently and without interference from Members of the Oireachtas. To allow regulated interference is to undermine independence.

In addition to falling foul of the constitutional provision in regard to the separation of powers, the Bill, if enacted, would conflict with the common law offence of perverting or attempting to pervert the course of justice as well as the offence of criminal contempt of court. I fail to see how the legal precepts contained in these two offences can be reconciled with the regulated interference in the judicial process provided for in this Bill.

In saying all this, I am not questioning for one minute Senator Crown's bona fides. As he rightly points out, he is a new Member. I am sure that at the end of his term here, whenever that will be, he will be far more familiar with the niceties and definitions required in legislation such as this. I understand what he is trying to achieve and believe he is motivated by good intentions. It is unfortunate that these good intentions have been undermined by an attack on judicial independence, which I accept cannot have been his intention.

Let me turn now to other aspects of the Bill which are almost as undermining of our system of justice as the attack on judicial independence. The Office of the Director of Public Prosecutions and An Garda Síochána are, with the Judiciary, key elements of our prosecution service. This was recognised in the enactment of the Prosecution of Offences Act 1974, which states in section 6(1)(a):

Subject to the provisions of this section it shall not be lawful to communicate with the Attorney General or an officer of the Attorney General, the Director or an officer of the Director, the Acting Director, a member of the Garda Síochána or a solicitor who acts on behalf of the Attorney General in his official capacity or the Director in his official capacity, for the purpose of influencing the making of a decision to withdraw or not to initiate criminal proceedings or any particular charge in criminal proceedings.

Section 6(1)(b) states: "If a person referred to in paragraph (a) of this subsection becomes of opinion that a communication is in breach of that paragraph, it shall be the duty of the person not to entertain the communication further." Under section 3(1) of the Reporting of Lobbying in Criminal Legal Cases Bill 2011, which is before the House, a member of the Oireachtas may communicate with the prosecution services, which in Schedule 1 includes An Garda Síochána and staff of the Director of Public Prosecutions, provided he makes the communication public and addresses it to the Minister for Justice and Equality. This major legislative change is to be enacted without any reference to the Prosecution of Offences Act 1974. The least one would expect is that section 6 of that Act would be amended, if not repealed. Instead, if the Bill were to be enacted, we would have on the Statute Book two entirely contradictory legislative provisions in regard to the making of representations to the Director of Public Prosecutions and An Garda Síochána.

The Prosecution of Offences Act states it is unlawful for anyone, other than specified interested parties - Members of the Oireachtas are not among those interested parties - to make representations to these institutions. The Bill before the House would meanwhile legislate for the making of representations by Members of the Oireachtas. The legal quagmire that the existence of two entirely contradictory Acts on the Statute Book would create is not, of itself, a reason to dismiss the proposals in this Bill in regard to the institutions concerned. If there were merit in the proposition, then the Bill could be amended to allow for the necessary amendments to the Prosecution of Offences Act to be brought forward.

Is there merit in legislating to allow for Members of the Oireachtas to lobby An Garda Síochána and the Director of Public Prosecutions with the safeguards of disclosure provided in Senator Crown's Bill? Is it now time to amend the Prosecution of Offences Act to allow Members of the Oireachtas to lobby our prosecution services? Are there grounds for believing the 1974 Act has not worked and that wholesale interference with the prosecution services by Members of the Oireachtas is the order of the day? There have been instances in which Members have made representations that were considered inappropriate and there have been resulting resignations in a small number of cases. However, the small number of such instances and the fact that they ultimately come to light do not provide a sound basis to legislate in the manner proposed.

No more than in the case of the Judiciary, an independent prosecution system is at the heart of our system of justice. The people who drafted the Prosecution of Offences Act 1974 were seized of this fact and legislated to protect that independence. Save for in a small number of high-profile cases, I am convinced that the law is observed by Members of the Oireachtas and that in the rare case where it is not, the Garda Síochána and the Director of Public Prosecutions are sufficiently robust to apply the provisions of section 6(1 )(b) and not ''entertain the communication further".

I cast no aspersions on Senator Crown's motives. I have no doubt that he is motivated by the best of intentions. Like us all, he wants the highest standards to be observed. I am quite certain his intent is not to encourage or facilitate lobbying in our criminal justice system but to regulate it by making it public when it happens. That is fine up to a point. However, in seeking to do this, he runs the risk of unintended consequences.

The controversy that the relatively few cases of interference in the prosecution system gives rise to is entirely related to the fact that they are so rare. If, as a result of the enactment of this Bill, lobbying of the prosecution services were to be made legal, it is possible that rather than deterring the practice, it would give it legal underpinning and encourage it.

It is not fanciful to imagine that the vast majority of Members of the Oireachtas who, as matters stand, would never countenance making representations of the type concerned could now be forced by competitive electoral considerations to be seen to do so. Senator Crown referred to people being put under pressure regarding constituency colleagues. This Bill would encourage that further.

The scale of potential representations is demonstrated by the fact that just under 500,000 offences were dealt with in the District Court in Ireland in 2010. In trying to deal with, and presumably eliminate, the relatively rare phenomenon of contact with the prosecution services, this legislation could have the unintended effect of making such representations mainstream, and on a scale that the Senator can hardly have envisaged or intended. However, even if we take the benign view and assume the fact of disclosure will dissuade the would-be lobbyist, we must question whether change is necessary or desirable? No more than in the case of the Judiciary, to tamper with the independence of the prosecution services is to undermine their independence. At present, it is unlawful to make representations to An Garda Síochána or the Director of Public Prosecutions. What is proposed here would, allowing for the need to amend the 1974 Act, make such representations lawful, once they were disclosed. Is that what we want? An alternative approach, if there is a problem to be addressed - I do not believe there is - would be to strengthen the 1974 Act to make provision for an offence of unlawfully communicating with the prosecution services, with attendant sanctions. The route proposed in this legislation is to make what is unlawful lawful and to regulate it.

We are not prepared to do anything that would have the perverse result of making lawful that which is currently unlawful and entirely undesirable. Given what I have said already, I am not sure that it would serve any useful purpose for me to engage in a detailed analysis of the Bill. The flaws are so fundamental and the outcome, if not the intent, so undermining of our democratic structures and prosecution system that there would be no point in highlighting technical or drafting deficiencies in the Bill. I accept fully we all make such mistakes in our first attempt at drafting a Bill.

It will come as no surprise to Senator Crown or the House that the Government is opposing this Bill on Second Stage. This Government has shown itself to be open to legislation emanating from the Opposition benches. It is not given to the knee-jerk rejection of ideas on the sole grounds that they come from the other side or, in this case, an independent Member, a practice which characterised previous Administrations. This is a new Government with a new approach. However, the Government parties would be in dereliction of their duty as legislators if they were to stand back and permit the onward journey of legislation that strikes at the heart of the democratic institutions of this State just because it is a Private Members' Bill.

As countries around the globe embrace democracy and work to build up the democratic institutions we sometimes take for granted, it would be perverse of the House to give fair wind to a Bill which, if enacted, could only severely damage our democracy. I say this with the greatest respect for Senator Crown and reiterate that I welcome his initiative in bringing forward the Bill. I encourage him and other Members of the House to bring forward Private Members' Bills in the future. I can assure them that provided they address a problem or gap in the law and are constitutional, they will get a fair hearing. Unfortunately, this is not the case with the Reporting of Lobbying in Criminal Legal Cases Bill 2011, and for this reason, the Government will oppose it on Second Stage.