John McGuinness (Carlow-Kilkenny, Fianna Fail)
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We move now to the International Co-operation (Omagh Bombing Inquiry) Bill 2026. Amendments Nos. 1 to 6, inclusive, and 10 to 17, inclusive, are related and will be discussed together. Amendment No. 1 arises out of committee proceedings. Deputy Mark Ward is taking these amendments in the name of Deputy Matt Carthy.

Mark Wall (Kildare South, Labour)
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I move amendment No. 1:

In page 6, to delete lines 18 to 24 and substitute the following: “(2) A request for assistance under this section shall specify—

(a) the topics, areas of inquiry, or matters on which the Chairman requests that evidence be taken in accordance with this Part,

(b) any documents, records, or categories of documents relevant to those topics or

areas of inquiry,

(c) the purpose for which the evidence is requested, and

(d) where the Chairman so wishes, any office holder or former office holder of whom the Chairman requests that evidence be taken in relation to a particular topic or area of inquiry specified in accordance with paragraph (a).”.

Sinn Féin supports the families of the victims and survivors of the 1998 Omagh bombing in their search for truth and justice. The families who have campaigned for 27 years for this inquiry deserve full transparency and full disclosure about the events that led to the killing of their loved ones. In order to ensure the fullest co-operation possible with the Omagh inquiry and to allow the inquiry to get on with its work, it is important this legislation is facilitated in getting through the Oireachtas in a timely manner.

That is why we at the justice committee agreed to waive pre-legislative scrutiny but this legislation must also be done right. This is what these amendments that I will move today aim to do. A key concern Sinn Féin has is the lack of meaningful engagement with victims' families. Families were not shown the draft legislation before publication and have expressed disappointment that the Minister has not met them, despite earlier commitments to place their needs at the heart of the process. This has left some feeling sidelined in a process that should be trauma-informed and centred on their experience. A number of the amendments Deputy Carthy tabled for Report Stage reflect concerns raised directly with him by representatives of the families and the victims and survivors.

Under the Bill, any provision of oral sworn evidence to the inquiry by former members of An Garda Síochána, former members of the Defence Forces, former Ministers and former officeholders of Departments of the State will be done on a voluntary basis. There are some concerns regarding the voluntary nature of this evidence and how that might work in practice. Concerns have also been raised that national security limits could restrict disclosure because governments, particularly the Government of our nearest neighbour, often protect intelligence services and operations.

Under the terms of this Bill, as they stand, officials may decline to provide evidence and broad security claims could be used to justify withholding sensitive or potentially embarrassing information. Far too often in the past, we have seen the British Government, in particular, misuse these types of provisions in relation to national security to fail to disclose information related to collusion, for example. We have to be clear that national security cannot be used to conceal failings or wrongdoings. While every jurisdiction has lawful national security issues, we all recognise that the question is how wide or narrow these aspects are and how they are defined in law. We have seen national security clauses used as a vague, undefined concept by the British Government to effectively veto the release of information it did not want to release, so the way the concept is applied here is of paramount importance. A number of the amendments that Sinn Féin has tabled deal with this matter.

The families and survivors of the Omagh bombing also have genuine concerns that the current draft may give rise to difficulties that could undermine its intended purpose. These concerns need to be addressed. As Deputy Carthy said during Second Stage, we were surprised when a representative for the families told us the Minister refused to meet them to discuss the draft legislation. The amendments that Sinn Féin has tabled are designed to strengthen this Bill and to ensure that the concerns of the families and survivors, as brought to our attention, are addressed insofar as is possible. I hope the Minister of State will engage with this aim in a constructive spirit, recognising that Sinn Féin’s amendments are intended to be helpful, and give genuine consideration to accepting them.

Amendment No. 1 addresses a matter raised by legal representatives of the Omagh families. It replaces the requirement to pre-specify exact questions with a requirement to outline topics, areas of questioning and relevant documents. It preserves fair notice for witnesses while preventing rehearsed, scripted answers. It also aligns the legislation with the inquiry’s own rule 10 protocol, ensuring consistency and effective evidence gathering.

The Omagh inquiry’s rule 10 protocol sets out who can question witnesses, when others can request permission and how this keeps proceedings fair, focused and non-adversarial. This amendment clarifies that any request for assistance must outline the specific topics, documents, purposes and, where relevant, the officeholders from whom evidence is sought. It replaces references to "questions" with "topics, areas of inquiry, or matters". A number of subsequent amendments that will substitute “topics, areas of inquiry, or matters” for "questions" are consequential amendments to this amendment. I hope the Minister of State will accept this amendment and subsequent consequential amendments grouped with this amendment.

Niall Collins (Limerick County, Fianna Fail)
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I thank the Deputy for his amendments. Amendment No. 1 seeks to substitute section 5(2) of the Bill and, in doing so, seeks to provide that the chairman of the inquiry would, instead of specifying the questions he wishes to have asked of an officeholder or former officeholder, specify, “the topics, areas of inquiry, or matters on which the Chairman requests that evidence be taken". I note that the Deputy has not put down a similar amendment to section 6, which deals with requests for assistance from former holders of ministerial office. This creates drafting and technical difficulties in respect of the Deputy’s other amendments to later sections of the Bill.

Leaving aside such issues, the effect of this amendment would be to fundamentally alter the nature of the bespoke legal mechanism provided for in this Bill to assist the Omagh bombing inquiry.

It would do so in two respects: by weakening the in-built safeguards designed to enable the taking of oral evidence for the purposes of an inquiry established in another jurisdiction, and by altering the role of the nominated judge of the High Court who is to act only as the conduit for the oral evidence.

When considering the amendments, it is necessary to recall why a bespoke legal mechanism, namely, this legislation, was required to assist the inquiry in the first place. As outlined on Committee Stage, there are legal complexities that must be navigated in the relationship between Ireland as a sovereign state and an inquiry established under the laws of another sovereign state. While the Government is fully committed to assisting the inquiry, we must ensure that we do so in a manner that is consistent with our sovereignty, laws and obligations to protect the safety and security of the State and the rights of citizens. Following extensive engagement with the Office of the Attorney General on how these two goals could be navigated, what is provided for in the Bill is a robust legal mechanism akin to that legislated for in 2019 to assist the UK Troubles-related inquest. The mechanism enables the taking of oral testimony in a manner that protects the rights of witnesses while also providing for the possibility of protecting sovereignty, national security and other essential interests of the State, and meeting obligations to, inter alia, investigate crime, protect life and comply with data protection obligations. The Bill does this by requiring that the questions to be answered by the witness must be approved in advance by the head of the State body concerned.

The proposed amendment, by only requiring the chairman to specify topics, areas of inquiry or matters, is not compatible with an obligation on the head of the State body concerned under section 5(4) to refuse to accede to a request on the basis of any of the grounds listed in that subsection. The head would not have sufficiently detailed information to do so. Were the head to accede to broad topics, witnesses could be put in the invidious position at a later stage of the process of having to decide whether answering a specific question would give rise to a risk of prejudice to the security of the State and so forth. We do not believe that this is a workable proposition.

There is a second fundamental problem with the proposed amendment, and this becomes clear when the later proposed amendment to section 9 is considered, which is amendment No. 20. It appears that it would be for the nominated judge of the High Court to examine the witness on the topics, areas of inquiry or matters and decide what questions to pose. This would involve the judge putting himself or herself in the place of the chairman of the inquiry, but without factual knowledge of all the material available to the chairman through the disclosure process or the chairman’s lines of investigation. This would be to greatly alter the intended role of the nominated judge, who is to act only as a conduit for the evidence. The nominated judge is not acting judicially or involved in the administration of justice. In addition, assigning the judge a decision-making role would likely raise the issue of whether the judge’s decisions could be challenged or appealed. As the Deputy is aware, Article 34.5.4° of the Constitution gives the Supreme Court appellate jurisdiction from a decision of the High Court. There is no intention to create such an avenue, and doing so would certainly risk prolonging the process. Our preferred approach is set out in the Bill and has been carefully designed to maximise the evidence available to the inquiry in a manner that is consistent with our sovereignty, laws and obligations to protect the safety and security of the State and the rights of its citizens. We are unable to accept the amendments.

Mark Ward (Dublin Mid West, Sinn Fein)
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All of our amendments were drafted in consultation with the Omagh families and their representatives. That is where we are coming from. They should be at the heart of this legislation. It is disappointing that the Minister did not take the time to meet them before this Bill was drafted.

Under this amendment, the procedure would preserve fair notice for the witness and give him or her the fair notice that he or she needs. It stops rehearsed or scripted answers and allows for a flow of conversation, which is more transparent and gets to the truth of things. That is one of the reasons for this amendment.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 2:

In page 6, line 27, to delete “questions” and substitute “topics, area of inquiry or matters”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 3:

In page 6, line 29, to delete “questions” and substitute “topics, area of inquiry or matters”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 4:

In page 6, line 31, to delete “any such question” and substitute “regarding any such topics, area of inquiry or matters”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 5:

In page 6, line 36, to delete “questions” and substitute “topics, area of inquiry or matters”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 6:

In page 6, line 38, to delete “questions” and substitute “topics, area of inquiry or matters”.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Amendments Nos. 7 and 8 are related and will be discussed together.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 7:

In page 7, to delete lines 1 and 2 and substitute the following: “(i) be likely to cause a specific, identifiable and substantial risk of prejudice to the sovereignty or security of the State, and only where such risk cannot reasonably be mitigated through redaction, protective measures, or partial disclosure,”.

Sinn Féin has repeatedly highlighted how national security has frequently been cited in Britain to restrict disclosure in legacy investigations, often leaving families without full access to information about past events. This amendment reinforces that such an approach cannot apply here. It would ensure that co-operation with the Omagh inquiry was not undermined by broad or undefined national security claims and that designated individuals could be questioned in a structured, transparent process. The purpose of this amendment is to support truth and recovery, provide clarity for those affected, and guarantee that legitimate security considerations cannot be used to prevent the inquiry from receiving relevant evidence.

Amendment No. 8 is designed to ensure no misuse of national security as a rationale for not providing information to the inquiry. This amendment would ensure that refusals of co-operation could not rely on vague or speculative claims of security risks. It would require officials to set out clearly the specific harms they allege and to explain why less restrictive options would not suffice, strengthening transparency and accountability within the inquiry process.

Niall Collins (Limerick County, Fianna Fail)
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I thank the Deputy for these amendments. As we understand it, the intent of the amendments to section 5(4) of the Bill is to narrow the circumstances in which the head of the State body is required to refuse to accede to a request for assistance for reasons linked to the sovereignty or security of the State or other essential interests of the State.

We do not believe that this amendment achieves that. Rather, it would seem to have the effect of lowering the threshold for refusal. The test, as set out in section 5(4)(i), requires the head of the State body, be that the Garda Commissioner, the Chief of Staff of the Defence Forces or the Secretary General of a Department, to be of the opinion that acceding to a request would be likely to prejudice the fundamental concerns of the State. The language mirrors that used in the Criminal Justice (International Co-operation) Act 2019, which provides for co-operation with UK Troubles-related inquests and has been used successfully.

The test as set out is, in our view, a higher threshold for the head to overcome than that proposed by the Deputy. The Deputy’s proposed threshold as set out in amendment No. 7 simply requires that the head be of the opinion that acceding would be likely to cause a risk of prejudice to these fundamental concerns of the State. I note that the Deputy’s amendment seeks to qualify the risk of prejudice that would be required by stating that it must be a specific identifiable and substantial risk and that it should only be used as a ground for refusal where risk mitigations such as redactions or partial disclosures would not afford sufficient protection. We do not believe that these qualifications overcome the ultimate effect, which would be to lower the threshold.

Amendment No. 8 picks up a similar theme and seeks to provide that a refusal may not be based on a general speculative or unparticularised assertion of harm. We do not believe that this amendment is necessary or adds anything when the totality of section 5 is considered. First, it is clear from section 5(3) that the head of a body may refuse a request for assistance in full or in part. This option is essential. It is our firm view, and that of the Government, that we must do everything possible to ensure that the chairman of the inquiry has access to the information that he needs to carry out his work and answer the questions of the families. This position has informed all of the actions that we have taken to support and facilitate the work of the inquiry, including putting in place a memorandum of understanding in relation to the disclosure of materials implementing measures to support the disclosure of sensitive personal data and bringing forward this Bill, and it will inform our consideration of any request from the head of a body to refuse to accede to a request on any grounds set out in section 5(4).

Second, the decision to refuse rests with the most senior officers in our State bodies. They are bound to act lawfully and with integrity and to make decisions on an objective, reasonable and rational basis in the public interest.

Third, as I alluded to, where the head of a body is of the opinion that acceding to a request would be likely to prejudice the sovereignty or security of the State, the head must consult with the line Minister, and where the Minister for justice is not the line Minister, also the Minister for justice. This is an important safeguard in the process. It will, of necessity, require the head of the State body to set out in writing the basis of their opinion, including the nature of the prejudice that is likely to occur and why it cannot be mitigated by, for example, a partial disclosure, the provision of a gist of the evidence or the use of codes to anonymise certain persons.

Fourth, I would draw the Deputy's attention to the requirement in section 5(6) that where a decision has been taken to refuse a request in respect of a particular question, that decision and the reason for the refusal must be set out in writing to the chairman of the inquiry.

Taking the section as a whole, we are satisfied that it has been designed in a manner that ensures that any decision to refuse will be taken only after very careful consideration and be well founded on the assessment that prejudice is likely to occur. The Deputy referred to a concern that national security grounds must not be misused to prevent the disclosure of information that might be embarrassing to services or to conceal wrongdoing or failures. We are entirely at one on that point and we are satisfied that the test as set out in section 5(4) and the layers approach adopted, which require consultation with the Minister or, in some instances, two Ministers, safeguards against this risk.

For these reasons, we cannot accept the amendments.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 8:

In page 7, between lines 6 and 7, to insert the following: “(iv) for the purposes of paragraph (i), a refusal may not be based on a general, speculative, or unparticularised assertion of harm to State security or essential interests. The relevant head shall record in writing the precise nature of the risk relied upon and the reasons why less restrictive measures would not adequately protect that interest.”.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Amendments Nos 9 and 19 are related and may be discussed together.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 9:

In page 7, to delete lines 7 to 11 and substitute the following: “(5) A relevant head to whom a request for assistance is made shall notify the former office holder of the request. The consent in writing of the former office holder shall be required only where the former office holder demonstrates that answering the specified question would give rise to a substantial and objectively reasonable risk of prejudice to their legal rights or to the performance of functions lawfully exercised during their tenure. A refusal to consent shall—

(a) be provided in writing,

(b) set out the specific grounds relied upon, and

(c) be subject to review by the Chairman for adequacy and reasonableness.”.

Amendment No. 9 is about ensuring that the process delivers truth for families. It clarifies that a former officeholder may withhold consent only when they can show a substantial, objective, reasonable risk to their legal rights or past lawful functions. Any refusal must be written, specify the grounds relied upon and can be reviewed by the inquiry chair for adequacy and reasonableness. This safeguard is important because it limits refusals to genuine demonstrable risks, requires written justification and ensures the inquiry chair can review decisions, strengthen transparency and prevent unjustified barriers to providing evidence.

Amendment No. 19 seeks to strengthen the effectiveness of this legislation in helping the families of victims and survivors of the Omagh bombing to get to the truth. The amendment provides that a former Minister’s consent is only required where they can show a substantial objective, reasonable risk to their legal rights or past lawful functions. Any refusal must be written, set out on specific grounds and may be reviewed by the inquiry chair for adequacy and reasonableness.

Niall Collins (Limerick County, Fianna Fail)
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I thank the Deputy for his amendments. As I understand the Deputy’s proposed amendment to section 5(5) and its equivalent in section 6(5), he is seeking to introduce a form of compulsion for former officeholders, be they past members of An Garda Síochána, the Defence Forces or the Civil Service or former ministerial officeholders, to give evidence before the High Court. This would be subject to the person concerned having the right to demonstrate that answering the questions would give rise to a risk of prejudice to their legal rights or to the performance of functions lawfully exercised during their tenure. The risk of prejudice would need to reach the level of a substantial and objectively reasonable risk of prejudice. In such cases, their consent would be required.

Leaving aside some confusion in the wording of the amendment, which refers to consent being required in the first paragraph and to a refusal to consent in the second part, the proposal is fundamentally flawed. It seeks to assign the chairman of the inquiry the role of reviewing the case set out by the persons for refusing to consent for adequacy and reasonableness. In effect, the amendment appears to assign to the chairman the role of deciding whether the person has the right to refuse to consent to provide oral testimony before the nominated Irish High Court judge. In considering this proposal, it is necessary to recall that the inquiry is established under the law of another sovereign state. The chairman of the inquiry is necessarily limited to applying the law of the United Kingdom and were he to be assigned a role in determining the adequacy and reasonableness of the case put forward by the person concerned, he could only do so by applying UK law. I respectfully say that this is not a tenable proposition.

It is also the case that the chairman's powers do not extend beyond the United Kingdom and any view that he might take on the case made could have no validity under Irish law. The amendment raises many other issues, for example, whether the outcome of the chairman's review would be subject to appeal before the courts here or in the UK, thereby introducing delay into the process, or whether a person suffering ill health may have any means of declining a request to assist, but these are secondary to the fundamental problem with the proposal.

An important consideration when developing this Bill was how provision might be made for past officeholders to assist. Like everyone, I am conscious that the inquiry will likely wish to seek to hear from those with first-hand information of the events prior to the bombing. I am also conscious that, due to the passage of time, most, if not all, of those persons will be well into retirement. While such persons can, of their own volition, decide to attend before the inquiry in the UK, they would remain subject to certain residual obligations in respect of sensitive information acquired during their service, but without the benefit of the privileges and immunities to which they are entitled under Irish law. They would, in effect, be putting themselves at risk of being held criminally liable for failure to comply with orders of the chairman. These considerations resulted in the scope of the Bill going beyond what was provided for in 2019 in respect of the provision of assistance to UK Troubles-related inquests. While what is provided for is voluntary assistance in recognition of the fact that past officers are private citizens and cannot be compelled to provide assistance to a foreign inquiry, as I stated on Second Stage, I expect co-operation from all concerned who are requested to provide assistance.

As will be clear from our remarks, we cannot accept these amendments.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 10:

In page 7, line 9, to delete “question” and substitute “topic, area of inquiry or matter”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 11:

In page 7, line 17, to delete “questions” and substitute “topics, area of inquiry or matters”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 12:

In page 7, line 19, to delete “questions” and substitute “topics, area of inquiry or matters”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 13:

In page 7, line 22, to delete “question” and substitute “topic, area of inquiry or matter”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 14:

In page 7, line 29, to delete “questions” and substitute “topics, area of inquiry or matters”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 15:

In page 7, line 34, to delete “question” and substitute “topic, area of inquiry or matter”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 16:

In page 7, line 38, to delete “questions” and substitute “topics, area of inquiry or matters”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 17:

In page 7, line 39, to delete “questions” and substitute “topics, area of inquiry or matters”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 18:

In page 8, between lines 9 and 10, to insert the following: “Written statements from office holders and former office holders

6. (1) This section applies where a relevant head has, under section 5, acceded in whole or in part to a request for assistance for the taking of evidence from an office holder or former office holder of a designated State body.

(2) Before any oral evidence is taken in accordance with sections 9, 10 and 11, the relevant head shall ensure that the office holder or former office holder concerned provides to the designated persons a written statement addressing—

(a) the topics, areas of inquiry or matters specified in the request for assistance,

(b) any documents, records or categories of documents identified as relevant under section 5(2)(b), and

(c) any additional matters on which the designated persons consider that a written account is reasonably required for the purposes of the Inquiry.

(3) A written statement provided under subsection (2) shall—

(a) be signed by the office holder or former office holder,

(b) contain a declaration that it is true to the best of his or her knowledge and belief, and

(c) be furnished within such period as the relevant head may specify, having regard to the efficient conduct of the Inquiry.

(4) Upon receipt of a written statement under this section, the designated persons shall provide it to the Chairman as soon as practicable, subject to the condition referred to in section 11(8).

(5) Where the Chairman, having considered a written statement provided under this section, is satisfied that the statement adequately addresses the matters for which evidence was sought, the Chairman may notify the relevant head in writing that oral evidence from the office holder or former office holder is not required.

(6) Where the Chairman determines that oral evidence remains necessary, the written statement shall form the baseline account for the purposes of any subsequent examination, and the oral evidence shall be confined, insofar as is practicable, to—

(a) clarification of matters contained in the written statement,

(b) examination of inconsistencies or omissions, and

(c) any further matters reasonably arising from the written statement or relevant documents.

(7) Nothing in this section shall prejudice the power of the Chairman to request further written information or clarification from an office holder or former office holder where necessary for the purposes of the Inquiry.”.

This amendment reintroduces a requirement for witnesses to provide a signed, truthful written statement before giving any oral evidence. It establishes a clear baseline account and ensures that key issues and documents are addressed in advance, and allows the chair to dispense with oral testimony where the written material is sufficient. Where oral evidence is still needed, questions can focus on clarifying gaps, inconsistencies or outstanding matters. The inquiry and draft memorandum of understanding both support this approach, which strengthens the clarity and overall effectiveness of the co-operation process.

Niall Collins (Limerick County, Fianna Fail)
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The Deputy is seeking to insert a new section after section 5 of the Bill providing for the taking of written witness statements from officeholders and former officeholders. The statements would be provided to the designated person, who would in turn provide them to the chairman of the inquiry. If the chairman is satisfied with the contents, he may decide that he does not require the person concerned to give oral evidence. I note that no provision is made in respect of former ministerial officeholders, which presents technical and drafting issues with the Deputy's proposed amendments to later sections of the Bill. There is some confusion in the drafting of the amendment, since, for example, the officeholder may well be the designated person who is to give the oral evidence before the nominated judge of the High Court. What is proposed is at odds with the mechanism provided for in the Bill and does not take account of how the State is working with the inquiry. The mechanism provided for in the Bill is, of necessity, given that the inquiry is established under the laws of another sovereign state, premised on the chairman of the inquiry specifying the questions that he wishes to be asked and the answers to those questions, insofar as they are acceded to, being put into evidence under oath before a nominated judge of the High Court. The questions specified by the chairman will arise from his consideration of the materials that the inquiry has gathered in the course of its work, including witness statements.

As the Deputy will be aware, a memorandum of understanding is in place with the inquiry regarding the disclosure of Irish State materials. A substantial volume of material has been disclosed to date - over 26,000 pages - and that process is ongoing. The inquiry is examining those materials and materials disclosed by the UK state authorities, including the PSNI and intelligence services. The legal representatives of the core participants of the inquiry, principally family members, are also examining the materials shared with them by the inquiry and drawing any potential lines of questioning to the attention of the inquiry team. Through this process, the inquiry is identifying persons from whom it wishes to take written statements. My Department, as the central point of contact for the inquiry, has already received requests for assistance relating to the taking of witness statements from a number of persons and is engaging with An Garda Síochána about the processing of those requests.

Insofar as they may be former officeholders, it will be a matter for them as private citizens to decide whether they wish to provide witness statements, as they cannot be compelled to provide assistance to a foreign inquiry. It is not the case, as proposed in the Deputy's amendment, that the head of a State body can ensure that a former officeholder provides a written statement. A head of a State body has no power to direct a former official and no sanction available to impose in the case of non-compliance. However, as we stated on Second Stage, we expect co-operation from all concerned who are requested to provide assistance.

We anticipate that more requests for witness statements may be received and my Department is giving consideration to formally setting out an agreed process for handling such requests. This will be in the interests of transparency and ease of the inquiry. As I understand how the inquiry is approaching its work following its examination of a written witness statement, it may decide that matters remain that necessitate the taking of oral evidence or that there are no outstanding matters and it does not require the person to provide oral evidence. This applies in the case of UK witnesses as it does in the case of Irish State witnesses.

I am satisfied, following our consultations with the Office of the Attorney General, that there is no need for legislation to support the provision of assistance in relation to the gathering of such written statements. It can be done administratively.

6 o’clock

Finally, I am doubtful as to the logic of creating a mechanism whereby the inquiry makes a request for assistance in the form of oral evidence under section 5 even though it may not be evident that oral evidence is required until after the preparation of witness statements. This seems rather back to front. I prefer the logic of the mechanism in the Bill, which is based on the chairman only making a request for assistance where he has established the taking of oral evidence is required.

We are not accepting the amendments, basically.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 19:

In page 8, to delete lines 31 to 33 and substitute the following: “(5) The Minister shall notify the former holder of ministerial office of the request. The consent in writing of the former holder of ministerial office shall be required only where that person demonstrates that acceding to the request would give rise to a substantial and objectively reasonable risk of prejudice to their legal rights or to the lawful performance of functions exercised during their tenure. Any refusal to consent shall—

(a) be provided in writing,

(b) set out the specific grounds relied upon, and

(c) be subject to review by the Chairman for adequacy and reasonableness.”.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Amendments Nos. 20 and 21 are related and will be discussed together.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 20:

In page 10, to delete lines 21 to 36 and substitute the following:

“Questioning of designated person by nominated judge 9. (1) For the purpose of taking the evidence specified in a decision under section 5(3) to which subsection (6)(c)(i) of that section applies, or specified in a decision under section 6(3) to which subsection (6)(c)(i) of that section applies—

(a) no person other than the nominated judge shall ask questions of the designated person, and

(b) the nominated judge shall examine the designated person on the topics, areas of inquiry or matters specified in the relevant decision, and may, for that purpose—

(i) put to the designated person any document, record or information relevant to those topics or areas of inquiry,

(ii) ask any questions that arise reasonably from the designated person’s answers, from any written statement provided under section 5(5)(a), or from any relevant document, and

(iii) pursue such supplementary or follow-up questions as the nominated judge considers necessary and appropriate for the effective and fair examination of the designated person.

(2) Nothing in this section shall require the nominated judge to confine the examination to any predetermined or pre-approved list of questions, provided that the examination remains within the scope of the topics, areas of inquiry or matters specified in the relevant decision under section 5 or 6.

(3) The nominated judge shall conduct the examination in such manner as he or she considers necessary to ensure that the evidence taken is full, accurate and capable of assisting the Inquiry in the performance of its functions.”.

As it stands, this section overly tightly restricts questioning to the exact questions authorised in advance. It creates a narrow, predetermined scope that limits flexibility and prevents broader or exploratory lines of inquiry needed to get to the truth. The amendment will ensure examinations are fair, thorough and not restricted to preset questions, allowing the judge to pursue relevant documents, follow-up queries and full evidence for the inquiry's work. The amendment gives the nominated judge explicit authority to present relevant documents and pursue follow-up questions within the defined topic. The purpose of the amendment is to enable effective and responsive examinations, which representatives of the families want to see.

Amendment No. 21 will allow the chair, or counsel on their behalf, to question a witness after the judge's examinations, probing any matters arising from the evidence. It permits follow-up questions, use of documents and exploration of inconsistencies, while keeping all questions within the defined scope of the inquiry's authorised topics.

Niall Collins (Limerick County, Fianna Fail)
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I touched on the difficulties with amendment No. 20 in my remarks on amendment No. 1. As it is linked to the change proposed to section 5(2), which has not been accepted, I cannot accept this amendment. This also applies to amendment No. 21. The amendment to substitute section 9 would fundamentally alter the bespoke legal mechanism being provided for in the Bill, which is designed to enable the taking of oral evidence in a manner that protects the essential interests of the State and the rights of witnesses. On this reason is founded the principle of the questions asked of the designated persons by the nominated High Court judge being only those approved in advance. Under section 9, the role of the High Court judge is solely to act as a conduit for the evidence to be given by the designated person in response to approved questions. The judge dealing with the matter is in effect carrying out a commission-on-oath-type role. It is not a hearing per se and the judge does not have a judicial role in relation to the content of the questions, the answers or the clarifying questions that may be asked under section 10.

The amendment seeks to turn the process into a hearing, which would see the judge take on the role of examiner deciding the lines of inquiry to pursue and the questions to ask the designated person. This is not the intended role of the judge, nor is it one he or she would be equipped to undertake as he or she would not have the factual knowledge to do so. The judge would, in effect, be putting him or herself in the place of the chairman to the inquiry, but without the factual knowledge of extensive materials available to the inquiry. In addition, assigning the judge a decision-making role would likely raise the issue of whether the judge's decisions could be challenged or appealed. This is not the intention and would risk prolonging the process.

Amendment No. 21 seeks to replace section 10. It would see the chairman of the inquiry, or counsel to the inquiry on his behalf, having a similar role to that proposed for the nominated judge under section 9. While the chairman or his representative would have access to all factual knowledge to examine the designated person and pursue any lines of inquiry, such a role is incompatible with the rationale underpinning the bespoke mechanism provided for in the Bill. Section 10 as it stands goes as far as possible. It has been drafted in ease of the inquiry so that, in the event of minor points arising that could be clarified on the day, the chairman will have the opportunity to seek clarity on the answers given.

There are also drafting and technical difficulties with the amendments. They purport to refer to section 6, which concerns requests for assistance from former ministerial officeholders, but no amendments equivalent to those proposed to section 5 were proposed to section 6. We cannot accept the amendments.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 21:

In page 11, to delete lines 1 to 9 and substitute the following:

“Questioning of designated person by or on behalf of Chairman

10. (1) Upon completion of the examination of a designated person by the nominated judge under section 9, the Chairman, or counsel to the Inquiry on his or her behalf, may ask questions of the designated person.

(2) The Chairman, or counsel to the Inquiry on his or her behalf, may ask questions for the purpose of examining the designated person on any matters arising from the evidence, including— (a) matters arising from answers given to the nominated judge,

(b) matters arising from any written statement provided under section 5(5)(a),

(c) matters arising from any document, record or information relevant to the topics, areas of inquiry or matters specified in the relevant decision under section 5 or section 6, and

(d) any inconsistencies, omissions or issues reasonably requiring further exploration for the purposes of the Inquiry. (3) For the purposes of subsection (2), the Chairman, or counsel to the Inquiry on his or her behalf, may— (a) put documents or records to the designated person,

(b) pursue supplementary or follow-up questions, and

(c) probe any matter that reasonably arises from the evidence, provided that the examination remains within the scope of the topics, areas of inquiry or matters specified in the relevant decision under section 5 or 6. (4) Nothing in this section shall require the Chairman, or counsel to the Inquiry on his or her behalf, to confine questioning to clarification of answers given under section 9.”.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 22:

In page 12, between lines 4 and 5, to insert the following: “(5) A person referred to in subsection (3)(f), (g) or (h) may—

(a) propose to the Chairman, to counsel to the Inquiry, or to the nominated judge any questions or topics that the person considers relevant to the evidence being taken under section 9 or 10,

(b) make submissions or representations to the Chairman, to counsel to the Inquiry, or to the nominated judge in relation to the evidence being taken, and

(c) apply to the nominated judge for permission to put questions directly to the designated person giving evidence, and the Chairman, counsel to the Inquiry, or the nominated judge, as the case may be, shall consider any such proposal, submission, representation or application.”.

This amendment strengthens participation rights by allowing certain affected parties to propose questions or topics, make submissions on the evidence and even apply to put questions directly to a witness. It ensures their concerns are formally considered by the chair, counsel or judge, enhancing fairness and transparency in how evidence is tested.

Niall Collins (Limerick County, Fianna Fail)
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The amendment would insert a new subsection in section 11 after subsection (4) dealing with the rights of core participants to the inquiry. The core participants are largely family members and have a formal status before the inquiry with rights to receive documents and make submissions to the chairman. There are 62 core participants, of whom 58 comprise families or groups of families represented by a range of legal firms. The Bill makes provision for them to attend and hear at first hand the evidence given before the nominated judge of the High Court. This is an important new feature compared with the 2019 Act and I am pleased it was possible to make such a provision in the Bill, notwithstanding the process is to be conducted otherwise than in public.

Amendment No. 22 is linked to the amendments to section 5 which sought to dispense with the requirement for the chairman to specify the questions he wished to have answered and to instead submit a more open request identifying topics, areas and matters. That amendment has not been accepted and I cannot accept this amendment.

The inquiry is established under the law of the United Kingdom and operates in accordance with the rules and procedures applicable to such inquiries in that jurisdiction. Those rules govern the right of core participants to make submissions, suggest lines of questioning to the chairman and ask questions of witnesses with the permission of the chairman. It is entirely a matter for the chairman to decide if or how core participants may make submissions to him in relation to the matters on which he may seek assistance from State authorities under section 5 of the Bill. It is not a matter that is appropriate to the Bill.

The elements of the amendment that would see the core participants making submissions to the nominated judge as to lines of questioning and seeking the judge's permission to directly question the designated person are wholly incompatible with the bespoke mechanism provided for in the Bill and the rationale underpinning such a mechanism.

Apart from these fundamental problems with the amendment, giving the chairman, counsel to the inquiry and the nominated judge decision-making roles would likely bring legal challenges or appeals into play. In the case of the chairman or his counsel, it is unclear whether such challenges would be determined under Irish law or UK law.

As will be clear from my remarks, I am satisfied the mechanism in the Bill is both legally necessary and legally sound, and is capable of operating reasonably efficiently so as to ensure requests for assistance are responded to as comprehensively as possible and without any undue delay. As such, we cannot accept the amendments.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 23:

In page 12, between lines 4 and 5, to insert the following: “(5) Without prejudice to subsection (4), the Chairman and counsel to the Inquiry shall be entitled to make submissions or representations to the nominated judge concerning the scope, relevance and permissible extent of questioning under section 9 or 10.”.

This amendment confirms that the chair and counsel may make submissions to the nominated judge on the scope and relevance of questioning. It reinforces judicial oversight while ensuring the inquiry's leadership can guide how evidence is tested, help and maintain fairness, focus and consistency during examinations conducted under sections 9 and 10.

Niall Collins (Limerick County, Fianna Fail)
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The Deputy is seeking to insert a new subsection in section 11, after subsection (4), dealing with the right of the chairman and counsel to the inquiry to make submissions or representations to the nominated judge concerning the scope, relevance and permissible extent of questioning under sections 9 and 10. It appears to extend to the questions that might be put by the nominated judge, core participants or their legal representatives, or the nominated judge him or herself. In any event, it is linked to the Deputy's amendment to section 5(2), which has not been accepted, as it would change the whole basis of the bespoke mechanism that has been carefully designed to ensure the provision of assistance to an inquiry established in another jurisdiction, while ensuring necessary safeguards are in place, so we are not accepting the amendment.

Mark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 24:

In page 12, to delete lines 5 to 10 and substitute the following:

“(5) For the purpose of giving evidence— (a) under section 9, a designated person shall not be compelled to give any evidence which he or she could not be compelled to give in criminal proceedings in the State,

(b) under section 10, a designated person may refuse to answer a question only where answering would give rise to a substantial and objectively reasonable risk of prejudice to a legal right or privilege recognised in criminal proceedings in the State. Any refusal shall—

(i) be provided in writing or on the record,

(ii) set out the specific legal basis for the refusal, and

(iii) be subject to review by the Chairman for adequacy and reasonableness,

and

(c) subject to paragraph (b), a designated person giving evidence under section 10 shall answer all questions put to him or her, including supplementary or follow-up questions arising from—

(i) answers given under section 9 or 10,

(ii) any written statement provided under section 5(5)(a), or

(iii) any document, record or information relevant to the topics, areas of inquiry or matters specified in the relevant decision under section 5 or 6.”.

This amendment clarifies the limits on compellability when evidence is taken. It preserves the same protections a person would have in criminal proceedings but requires that any refusal to answer under section 10 be specific, justified in writing and reviewable. Subject to those safeguards, witnesses must answer all relevant follow-up questions arising from their evidence or documents.

Niall Collins (Limerick County, Fianna Fail)
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The Deputy's amendment seeks to limit the grounds on which a designated person may refuse to answer a question asked by or on behalf of the chairman of the inquiry under subsection (10). The amendment is drafted on the basis that many of the Deputy's earlier amendments have been accepted and is therefore not amenable to being accepted for that reason alone.

Providing, as section 11(5)(b) of the Bill does, that the witness is not required to answer any of the questions put by the chairman, or by counsel to the inquiry on his behalf, is necessary to avoid negating the safeguard of the head of the body making a decision, following consultation with Ministers, to refuse to answer certain questions at the outset on the grounds of likely prejudice to sovereignty, security or other essential interests of the State and to discharge obligations, including in relation to the investigation of criminal offences. The proposed amendment is incompatible with the legal framework being provided for in the Bill.

As I set out in my response to the previous amendments, the mechanism provided for in the Bill is a bespoke mechanism designed to enable the taking of oral testimony in a manner that protects the essential interests of the State and the rights of witnesses. It is for this reason that it is founded on the questions to be asked of the designated persons by the nominated High Court judges being only those approved in advance. Furthermore, it is difficult to see how the process proposed would work in practice in the course of the evidence being taken before a High Court judge. It would certainly require an adjournment of the process and would prolong it.

In regard to the proposal that a refusal to answer a question would be subject to a review by the chairman of the inquiry for adequacy and reasonableness, it is necessary to recall that the inquiry is established under the law of another sovereign state. The chairman is necessarily limited to applying the law of the United Kingdom and, were he to be assigned a role in determining the adequacy and reasonableness of the case put forward by the person concerned, he could only do so by applying UK law. I respectfully suggest that is not a tenable proposition.

It is also the case that the chairman's powers do not extend beyond the United Kingdom and any view that he might take on the case made could have no validity under Irish law. The amendment raises many other issues, such as whether the outcome of the chairman's review would be subject to appeal before the courts here or in the UK, thereby introducing delay into the process, and whether it is appropriate that the chairman would be a judge in his own cause. These are secondary to the fundamental issues with what is proposed and for these reasons we are not accepting the amendment.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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The Bill will now be sent to the Seanad.