Dick Roche (Wicklow, Fianna Fail)

Senator Brian Hayes is correct in that if somebody tries to obstruct or impede the work of a commission, he should certainly bear the cost of doing so. Section 24 deals with criteria under which fees may be recovered. The amendment proposes new criteria to be considered before payment is agreed. For example, it proposes that the extent to which a person co-operated with the commission should be a factor.

Section 24(3)(e) was inserted on Report Stage in the Dáil and it enables the commission to take account of instances where the witness fails to co-operate and does so in a manner regarded specifically as improper. It therefore takes into account cases where, for good and proper reasons, a person would prefer to be under direction before handing over documents. There could be good and proper reasons why a person would not wish to hand over documents. For example, doing so could have some prejudicial impact on the witness. Public servants covered by the Official Secrets Act could fall into this category. The amendment inserting section 24(3)(e) was introduced specifically to address such innocent reasons for a person's wish to be directed to hand over documents before doing so. A witness who wishes to be directed before handing over documents should not automatically be assumed to have acted improperly or to have obstructed the commission.

This section permits account to be taken of cases where there is deliberate or persistent failure to co-operate and provides that a commission can make an assessment of the degree, if any, of an improper failure to co-operate with the commission when making a determination of costs. It covers some of the Senator's concerns while at the same time accepts that a person might not be fully co-operative yet is not acting improperly.

Section 17 is also important in that it provides that where there is an obstruction, the party causing the obstruction may be held liable for costs incurred by others as a result of that obstruction.

In light of section 24(3)(e), amendments Nos. 26 and 27 are not really necessary. In any event, it would be inappropriate to require a person to "fully and completely co-operate with the commission". Some flexibility is required and the provisions of the Bill strike the correct balance, particularly in that withholding a document until one is directed to produce it does not necessarily mean one is not facilitating the commission's work and behaving in an improper way. I am not sure if I have clarified the issue but it is clear that there are circumstances in which it is not improper to adopt the aforementioned approach. There may be good, cogent reasons for doing so.