Caít Keane (Fine Gael)

This proposed legislation relates to lobbying in criminal cases. I know it was out of the goodness of Senator Crown's heart that he thought it necessary to put forward this Bill as many a fine politician has fallen on the sword of lobbying in criminal cases. We all remember a few such politicians. I can see Senator Crown's reasons for presenting this Bill which I have read in detail. The general rationale of the Bill is to be commended as the process of lobbying is completely unregulated both in criminal as well as in the wider area of law. However, the Bill is fundamentally flawed in a number of ways.

Some speakers have made different comments. I refer to section 3 of the Bill, which provides for the permitting of communication by a Member of the Oireachtas with a member of the Judiciary or any employee of the State's prosecutorial or custodial service, with the intention of influencing decision-making in criminal proceedings. There is no other way of reading this provision. I ask why there is a need to lobby if one does not have an intention to make the person act in one's favour. There is no other point. The Bill further states:

(3) It is not an offence pursuant to subsection (1) if the communication concerned—

(a) is made public at the time of the communication,

(b) is also addressed to the Minister for Justice and Equality,

This does not make it right, however, because the separation of the Judiciary and the State cannot be interfered with. By permitting such communication, the Bill would run in direct conflict with Article 35 of the Constitution and the principle of the separation of powers which protects the administration of justice.

Section 6 of the Prosecution of Offences Act 1974 outlaws communication with the Attorney General, the Director of Public Prosecutions, members of the Garda Síochána. Senator Byrne has made the distinction but lobbying a judge is 110 times worse, in my view, than lobbying the Garda Síochána, with the aim of influencing decisions to stop or initiate criminal proceedings.

The Minister of State, Deputy Lynch, raised this point. She stated this was in conflict with the common law offence of preventing or attempting to prevent the course of justice. The practice of lobbying in criminal legal cases should not be allowed under any circumstances. As the Minister of State said, when the water is muddied and a little bit of lobbying is permitted, so long as one tells the boss or the Minister, this will open the floodgates and the judges would be right to throw out every single letter they receive from any Member of the Oireachtas. Moreover, even if the communications were not taken into account by those being lobbied - which I doubt they would be and which might even result in a heavier sentence for the person - the public would still perceive there had been interference and a lack of fairness. There should not be lobbying for one and not for the other.

In addition to its shortcomings in respect of the anomalies it presents with existing legislation, the Bill is narrow in its scope because it deals solely with lobbying in criminal cases while it is clear that a Bill which addresses lobbying in a broader policy-making process is needed. The Minister of State outlined the Government's action on the register of lobbies.

The concept of lobbying requires definition. A definition of what lobbying is has proven problematic, as academics have failed to find consensus on a definition. However, we all know what lobbying is in so far as the role of lobbyists in the public policy area is concerned. Its role is to influence decision making among policy makers. Although the public perception of the lobbyist is often negative, throughout the democratic world, the role of lobbyist is essential when policy is formulated. Lobbyists are an acceptable element of society - but not in this society because we have seen too much bad lobbying - as they provide a necessary input and feedback into the political system. It is vital that openness and transparency are promoted within our political system. Senator van Turnhout referred to this and I will not repeat what she said. The purpose of this Bill is not to provide openness and transparency. Those issues can be better addressed in the register of lobbyists. That is the place to address the openness, transparency and accountability to which all politicians and lobbyists should adhere and where these should be regulated.

The integrity of Government decision making is imperative and measures to ensure accountability and clarity are essential. Nine political jurisdictions in the democratic world have lobbying rules in place, including, Germany, Hungary, Poland and the USA. Of the nine, both the USA and Canada have had regulation in place for more than 50 years. Therefore, we are behind the door in coming forward to provide for even a register of lobbyists. I can understand why Senator Crown finds it necessary to seek regulation, particularly considering the media attention given to all the cases coming to the fore here.

I commend Senator Crown on putting forward this Bill as a Private Members' Bill. Reference was made to the speech of the Minister of State and some cheap shots were made at the Minister of State herself.