Dick Roche (Wicklow, Fianna Fail)

I thank Senator Tuffy for her explanation as the amendments are complex. As a general point, many of these matters will be under the overall direction of the High Court in any event. I will record a lengthy rationale as to why I will not be accepting the amendments.

The amendments relate to section 21 and arise from a concern that having seen and examined documents about which privilege has been claimed and which have not subsequently been entered as evidence, a commission may be considered to have contaminated the process by having knowledge of matters it may no longer consider as evidence. The mere sight of a document does not necessarily mean evidence has been contaminated. These are questions which touch on the impartiality of commissions and their processes.

The purpose of section 21 is to ensure that claims of privilege do not frustrate a commission's work while protecting genuinely privileged and confidential information. The section seeks to strike a balance. The problem identified by the amendment is a recurring difficulty for all legal and quasi-judicial bodies including the courts themselves. The problem can be overcome by reliance on the good judgment of the bodies concerned and the observation of fair procedures. One would expect a commission to exercise good judgment and be bound by fair procedures. Commissions will be subject to judicial review by anyone who feels that privileged material has not been properly handled. The protection of the individual is ensured through the judicial review process and by the fact that inquiries will be carried out in general under the direction of the High Court. It should also be recalled that evidence will have been received in private.

Several provisions are included to ensure that material cannot appear in reports without the affected person first having an opportunity to see it and seek changes if fair procedures were not followed. There is ample opportunity for an affected person to protect himself or herself from any privileged information. As the constitutional protection of the individual is the central issue touched on by Senator Tuffy, it is important to record these points. We do not propose to accept the amendments because we are satisfied that the provisions in the Bill, which were drafted with particular care and attention, strike the correct balance between, on the one hand, the need for a commission to have access to documents and, on the other, the need to reserve privilege and confidentiality. I am concerned that amendment No. 24 in particular could encourage lengthy and costly litigation, which is to be avoided at all costs, that being a central issue in the Bill.

Amendment No. 28 deals with section 28, and the provision and the procedures in section 21 concerning determination about privilege attached to documents apply also to any document that may be seized using the powers of seizure under section 28, the final point about which Senator Tuffy was concerned. The amendment seeks to provide that privileged documents would not be subject to powers of seizure etc. being exercised by an officer under section 28. The question is who determines that a document is privileged. It is important to state that it is not a matter solely for the affected person to determine whether a document attracts privilege because clearly if the affected person were to be the determinant of what is and is not privileged, the affected person would view as privileged every document that is sensitive and that reflects negatively. The Bill foresees that it is the commission working with the affected person and, if necessary, under the direction of the High Court that determines these issues.

Section 21 sets out a detailed procedure to enable a commission to identify what is a genuinely privileged or confidential document or confidential information. It involves asking the person who is claiming privilege to set out the grounds for the claim and allows the commission to examine the relevant documents. Where the claim is upheld the document is not entered into evidence, except where it is possible to extract certain relevant information from it without infringing on privilege. The section also provides provision for appeals to the High Court against a commission's determination as to the status of the document.

The provision gives, on the one hand, a clear basis for deciding where privilege exists and, on the other, provides the necessary balance and the protections to ensure that the rights of the citizen are protected but that people cannot falsely claim privilege in order to frustrate the work of the commission. Simple sight of a document does not necessarily mean that the whole evidence has been contaminated.

I accept fully the points Deputy Tuffy made, but from what I have said she will note that a considerable amount of thought has been given to them. The compelling nature of the arguments would suggest that the amendments are not acceptable.