Michael McDowell (Independent) | Oireachtas source

There would be very little to be learned from that. However, at least it would be clear, if that approach is being taken, how the Department proposes to address the issue.

The second thing is that if we simply say – this is the point – that the initial draft instructions for the regulations are all that this committee should see, first, are we to be told that a later instruction will not be shown on the basis that either there has been a change of mind, or the Attorney General has, for instance, told the Department its initial approach was wrong and to come back with another approach and it is coming back with another approach? I do not see what is secret or confidential about the fact that they have decided on a second approach. We do not have to have the whys and wherefores of the Attorney General’s advice on the matter but what they actually propose to do at a later stage is not secret.

I appreciate that the Minister of State is operating on the advice of the Attorney General. However, the third bullet point in the very helpful statement provided states, “You will understand that subsequent drafts of such regulations exchanged between the OPC and individual Departments represent a form of legal advice...” A draft coming from the Attorney General’s office to the Department may be legal advice but as for a revised approach to how to deal with the issue by the Department, whether considering the Attorney General’s advice it received or the OPC’s advice it received or else further second thoughts on the issue, however, I do not see that as confidential. I can see advice going in one direction - from the OPC to the Department - as being legal advice from the Attorney General’s office, just as advice from the Attorney General’s office or the OPC’s advice to a Department prior to the drafting or the publication of a Bill is privileged. However, I do not see it the other way around. For instance, if you have a Green Paper and then produce a White Paper on a topic, the White Paper does not become privileged because it reflects Attorney General advice which it does not actually recite. I ask the Minister of State to refine the third bullet point, which is the assertion made by the Attorney General’s office that subsequent drafts of such regulations sent by the OPC to an individual Department represent a form of legal advice. What the Department then decides it wants to do is, in my view, not privileged. In other words, it is part of the legislative process. Once the Department makes its mind up, the fact that it is subsequent to a first document does not seem to impress it with a confidentiality legal privilege status. I am prepared to concede that one-way traffic on that street, from OPC to the Department, is privileged, but I do not see the other way - traffic down the street from the Department to the Minister, the OPC, other Departments and anywhere else - as privileged in that sense. The Minister of State’s third bullet point, which doubtless reflects the Attorney General’s advice, is too extensive. I do not accept the proposition that anything exchanged is privileged and amounts to advice. If a lawyer advises me to do something, that is advice. If I then communicate to some third party or whatever that I am going to take a different course, that is not privileged, even if it is taken on foot of the Attorney General’s advice.

Third, I do not at all accept the proposition that unless and until a Minister makes the regulations, every iteration of the draft regulations, stamped or unstamped, is subject to legal professional privilege and cannot be provided to the committee. That is a huge overstatement of the extent of privilege. If the Minister has made up his or her mind to go down this road and a document is prepared for the Minister to do that, the statement that unless the Minister actually makes the regulations, any document in his or her hands is legally professionally privileged and cannot be disclosed to anybody else is simply wrong. It can be disclosed to other people. To take a simple example, suppose there was a sectoral organisation that had an interest in a particular regulation. The first thing that happens is that the Department sends off initial instructions like heads of a Bill to the Parliamentary Counsel’s office and it comes back with a whole series of other proposals. Is it suggested that if the Minister decides to engage with the Irish Farmers Association on his reconsidered position, that it is subject to legal professional privilege? That cannot be right. If the Minister can go to the Irish Farmers Association and tell it what he is going to do about brucellosis testing under an EU directive, how can he not come to us and say, “This is what I now propose to do”? It is a gross overstatement by the Attorney General’s office that until the Minister puts his or her biro down to paper, that is legally professionally privileged.

That is grotesque as a proposition. It would make a farce of this committee if we accepted the proposition that the Minister would be free to show draft regulations to any sectoral organisation, any interested party or Members of Dáil and Seanad Éireann and all the rest to show them how he or she proposes to deal with an issue, but the one group that cannot see it is the committee of Dáil Éireann or Seanad Éireann because it has not yet been signed by the Minister. I know the Minister of State is acting on the advice of the Attorney General and the OPC. I am not saying this in any sense personally, but it is grotesque to suggest that proposition. If it is the case that until the final iteration is signed, the matter is subject to legal professional privilege and cannot be provided to the committee, how could it be shown to anybody else?