Michael McDowell (Dublin South East, Progressive Democrats)

I think the Senator is trying to provoke me by using the phrase "constitutionally illiterate". I do not accept that the thought process behind subsection (8) falls into that category. Subsection (8) provides that a statement of evidence by a witness taken in accordance with the letter of request and certified by, or on behalf of, a court or tribunal, is admissible as evidence of any facts stated therein, if such oral evidence would be admissible. All evidence is admissible and cross-examination may take place following the evidence. That is a different matter. The admissibility of the evidence is a matter for determination by law.

Section 47(10) provides as follows:

A court, when considering whether any evidence taken from a person pursuant to a letter of request should be excluded in the exercise of its discretion to exclude evidence otherwise admissible, shall, where appropriate, have regard to—

(a) whether the law of the state concerned allowed the person and any other party concerned, when the evidence was beingtaken, to be legally represented and cross-examined . . .

There is the first safeguard. The court can have regard to whether such a right was afforded to a person in the first place. The subsection continues that the court shall have regard to:

(b) any other respects in which the taking of the evidence may have differed from the taking of comparable evidence in the State.

From that point of view, there is a clear preservation of the Irish courts' right to uphold a person's right not to have uncontroverted evidence used against his or her wishes in circumstances in which it would be unconstitutional to do so. Therefore, in defence of my officials and the Parliamentary Counsel, I enthusiastically repudiate the charge of constitutional illiteracy.