Joanna Tuffy (Labour)

I move amendment No. 6:

In page 29, to delete lines 37 to 39.

Having raised this issue on Committee Stage yesterday, I reviewed the relevant documentation I received from the Law Society. In its submission on the Bill, it said in regard to sections 17 and 18, "Declarations, oaths or affirmations should not be administered by persons who have an interest in the subject matter at hand but should be taken by an independent person with a duty to explain to the declarant the nature and import of the declaration, oath or affirmation which they are about to make".

I am aware there is legislation which allows other categories of persons to sign statutory declarations. In the case, for example, of a person applying for citizenship on the basis of marriage to an Irish citizen, I understand the declaration that must be provided to the Department of Justice, Equality and Law Reform may be signed by several categories of witnesses, including solicitors and commissioners for oaths. I am aware of other cases where this can be done and I presume the relevant provisions are set out in particular statutes and so on.

The Statutory Declarations Act 1938 does not deal with the question of a conflict of interest. It is standard practice on the part of solicitors that they should have no personal interest in cases where they witness or signs a statutory declaration on a client's behalf. Approximately one year ago, the Law Society wrote to solicitors, including myself, outlining the practice in this regard because it seems some people's understanding of it may have become vague with the passage of time.

If a witness makes a statement to a garda about an offence, it may well be in the interests of the garda to get the witness to make a statutory declaration to support that statement. Under section 17(2), it may be the investigating garda in question who enacts that declaration or objectively witnesses it. This seems inappropriate.

When we discussed this issue yesterday, the Minister referred to section 16(4)(a), which provides that a witness statement may not be submitted in evidence if the court decides "having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted". If judges are to take that subsection into account, they will have to rule out any statutory declaration made according to the provisions of section 17 and perhaps section 18.

It is obvious there is a conflict of interest and that section 17(2) allows for a questionable way of securing a statutory declaration. I ask the Minister to reconsider. A peace commissioner could surely be authorised to sign off on such declarations as they do in the case of other declarations. I am not sure how it is done in other legislation but perhaps something could be included in the Bill to say what categories of persons may witness a person's statutory declaration, including not only solicitors and commissioners for oaths but also peace commissioners and others included in other legislative provisions. The Passport Office, for example, has a list of persons who may be witnesses to declarations. It would not be difficult for a garda to say that a declaration must be made and that it may be witnessed by certain categories of persons. Section 17 is flawed and any declaration made under it will not be worth the paper on which it is written. Any judge would rule out such a declaration because of the conflict of interest it involves.