Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I appreciate the comments of colleagues from throughout the House. I acknowledge there has been very good collaboration from all sides. The committee chaired by Deputy McGuinness did excellent work during pre-legislative scrutiny. It identified this issue. It is my view that we have gone beyond the recommendation in the pre-legislative scrutiny report on the retrospective application of the additional protections in the Bill. What we are doing is not in breach of the directive. In fact, the directive is silent on the question of the retrospective application of the protections. It does not make any such recommendation.

As I have said, my clear directive at political level to those involved in drafting the Bill and those providing legal advice was that I wanted to maximise the retrospective application of the Bill to the greatest extent possible. I set out in my initial comments on this set of amendments the various categories of people who will benefit from retrospective application of the Bill and from the additional protections that have been provided. In essence, what I am being asked to do is ignore the advice of the Attorney General and accept the advice of other legal persons. I do not call into question their competence but in the position I have the privilege of holding, it is the advice of the Attorney General that is pre-eminent on legal issues. Colleagues from across the House are aware of this.

With regard to what the advice says, I laid out much of it and its language in the remarks I made earlier. In essence, it is that providing for the burden of proof to shift during pending legal proceedings would involve a substantial interference in the administration of justice. It would be liable to be unfair to litigants and to generate significant uncertainty in the conduct of litigation. This would clearly be an infringement of the right to fair procedures and would undoubtedly not stand up in the courts. The advice I have is that what we are doing is at the limits of what is permissible under Bunreacht na hÉireann and I cannot go beyond it, irrespective of what personal wish I may have as Minister. The advice is the advice. It is not advice that is on the one hand and on the other hand; it is categoric and I cannot go beyond it.

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