Seán Power (Kildare South, Fianna Fail)

The amendment proposes that the report of an investigation carried out by the HIQA should be absolutely privileged. Absolute privilege gives a complete defence to a defamation action. The legal advice is that absolute privilege applies even where the words complained of are published with knowledge of their falsehood and with the intention of injuring another. Although the Minister has every confidence that reports by HIQA of investigations will be objective, fact based and free of deliberate falsehood, the Minister is reluctant to include such a wide provision as absolute legal privilege in the Bill.

However, in view of the debate on this issue in the Dáil, legal advice was sought in regard to what provisions, if any, might be included. Following this consultation, a new section 78 was inserted in the Bill on Report Stage in the Dáil to expressly provide for qualified privilege in respect of reports or documents prepared by, or communications made by, HIQA, an authorised person, the chief inspector, inspectorate and qualified persons. As is normal in this area, such reports, documents and communications must be made in good faith with regard to the carryingout of relevant functions by the persons concerned.

The Senator's amendment also proposes that due process and fair procedures be observed, that any person called to give evidence shall be allowed legal representation and told of this right and that there shall be a duty on a staff member to co-operate with an investigation, except where the staff member receives legal advice to the contrary. The legal advice on due process and fair procedures is that these are implicit under common law and the specific inclusion of this provision would be redundant and perhaps even result in an unintentional effect on common law. Any person connected with an investigation can have access to legal representation if he or she wishes. If the Bill is silent on this matter, the right to legal representation is part of due process and common law.

With regard to a duty to co-operate save where the staff member receives legal advice to the contrary, the legal advice is that this provision would weaken the Bill. It would be odd if the legal advice was that somebody should not co-operate given the obligations under the Bill for co-operation. In this regard, a person in charge of a premises or service or who possesses or is in charge of relevant records is required to furnish any information required by an authorised person appointed by HIQA to carry out an investigation. There is also a requirement under the Bill to provide an explanation of any record or other information provided or of other matters which are the subject of the functions being exercised by the authorised person. Moreover, section 77 provides that authorised persons cannot be obstructed or impeded when conducting an investigation and that false and misleading information must not be given to an authorised person. Contraventions of these provisions are offences under the Bill.

On the basis of the foregoing, I do not intend to accept the amendment.