Joe O'Toole (Independent)

I move amendment No. 40:

In page 60, lines 26 to 29, to delete subsection (2) and substitute the following:

"(2) The Tribunal may, where it considers that in the particular circumstances of a case it is appropriate to so do;

(i) conduct part or all of its proceedings in private;

(ii) make an order directing that the identities of all or one or more of the parties to an appeal shall not be disclosed.".

I raised this matter on Second Stage. There is an equal and opposite argument to what I will say. This amendment deals with appeals that could touch on matters of public morality, lawfulness, terrorist activities and activities contrary to public morality. Most of these matters are subject to an appeal. Section 77 states: "Subject to subsection (2), proceedings before the Tribunal shall be conducted in public." No flexibility is allowed. There are numerous instances in the Bill where we are required to keep matters confidential. An issue that could be part of appeal documentation will be required to be confidential. In the course of an appeal held in public, there will be reference to documents that are partly confidential. It will be like the tribunal at Dublin Castle, where there are blacked out bits of the document in order to conduct the appeal. One cannot conduct proceedings in such circumstances because one may need to reference the blacked out parts if they are core to the point being investigated. It causes an unnecessary conflict.

Having said that, I argue against myself for a moment. The approach in these appeals and tribunals and the tone of freedom of information is that we should govern and work behind a pane of glass or in total transparency. I have never agreed with that although it is a nice thing to say. One cannot do all one's business in a transparent way behind a pane of glass. There are times when one cannot maintain the spirit of the legislation and be required to do it all. The term used is "shall", not "may", with which I would be more comfortable.

Beyond that, I have been in a number of situations where appeals dealt with legislative matters and the legislation was silent on whether the appeal should be public or private. In those cases, what has been done reflects what is suggested in my amendment. One does not lose control of the whole thing if my amendment is accepted, one can decide what parts to hold in private. It does not deal with the outcome. Whichever way the proceedings are held, there will be a public statement and an explanation of the finding. Everything can be done but flexibility can be maintained in order to deal with it in a confidential way. That is the general principle.

When I tabled this amendment, the Minister had not conceded the earlier point. I refer to the damage that could be done to an auditor, whose life was concerned with auditing. This could not happen in the situation where the trustee is being investigated, but I want to examine other people who might be there. Senior people in a number of charities came under public scrutiny and as stories started flushing through the place it is very hard to recover from them. If this is to be held in public, the minute an investigation into Joe O'Toole for issues of public morality hits the headlines, one does not need to read the second paragraph on reputation. It is all over. It would not matter if one was completely exonerated, in the public image would be the front page story that the Minister of State, Deputy John Curran, was involved in something in his private capacity. We have a duty in this regard.

Two weeks ago, we heard a member of the Supreme Court articulate his frustration at the way courts were reported in the newspapers — he referred to all newspapers. Judges cannot control reports and they have extraordinary powers to stop reportage. There would be no powers here. As well as the damage done to personality, one loses control. There is an all day sitting, with a reporter sitting there, and he or she reports what he or she wants to, which is what is news worthy, interesting, sexy and sells papers. The Minister of State and I have discussed that area in other contexts. The Minister of State is put in a straitjacket. Whether he accepts my amendment — there may be better ways of dealing with it — the word "shall" should be replaced by "may". I am arguing against my amendment, which I tabled to get the discussion going. If "may" was inserted, the way the tribunal does its business would have to be covered by regulation and approved by the Minister. It comes back to the Minister. Before the tribunal begins an investigation it must have a process, and that process must comply with the principles of natural justice and be acceptable in terms of fair play, equity and various other concerns. That process is regulated by the Minister. I cannot remember under which section that is, but I read through it. At that point the tribunal would decide that aspects of a case should be held in private or that it would do an entire investigation privately to avoid condemning a person on day one. That happens regularly. This week in the FÁS case there was a person under investigation and a person under suspension. This was kept confidential until he chose to make it public. The Minister's tribunal could not do that.

I hope I have made a plausible and convincing case that this is not simple, that "shall" is definitely too strong and that the half-way point is the word "may". I would like to hear the Minister's view on it. I will accept the Minister's stance on this and will not call a vote because I do not feel I have all the wisdom on it. However I have a fair amount of experience on it.