Michael McDowell (Independent) | Oireachtas source

This section must be viewed in the context of the previous section. It will be noted that we have just voted to insert into the Bill, although personaly I was opposed to it, a provision to enable the director of the commission to testify before the Committee of Public Accounts on the economy and efficiency of the commission in the use of its resources, as well as on the system procedures and practices employed by it for the purpose of evaluating the effectiveness of its operations. These are two topics of which the Committee of Public Accounts is supposed, under section 21(2)(b) and (c), to be seized and over which it will have jurisdiction to require the director to come and deal with them. We then find, however, that the chairperson of the commission will be asked to appear before any other committee of the Houses, other than the Committee of Public Accounts or the Committee on Members' Interests of either House, or a subcommittee of a committee. The chairperson will be capable of being brought in, at the request of a committee, to account for the general administration of the commission. What is the difference? Section 21(2)(b) and (c) refer to the economy and efficiency of the commission in the use of its resources and the systems procedures and practices used by it for the purposes of evaluating the effectiveness of its operations. The chairperson can be dragged before another committee to be answerable and account for the general administration of the commission.

We come to what is excluded from what is covered by general administration referred to in section 21(3). It states the chairperson of the commission shall not be required to account before a committee for any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State. Let us stop there and ask ourselves what that provision covers? It refers to "any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State". Therefore, the chairperson cannot give evidence on anything about which there is a dispute which has been resolved in the courts, perhaps even in a manner that is condemnatory of the commission, and will not be held accountable for it. If he or she loses a case in court or is found to have acted unlawfully, he or she cannot be asked about that fact that has already been determined by the High Court. It goes on to state "or may at a future time be the subject of proceedings before a court or tribunal". I am trying to work out with what category we are dealing with. This is so broad it refers to anything that could or may be argued about in court, or which may at a future time be argued about before a court or tribunal in the State. One way or another, something serious seems to be excluded.

We come to an issue to which we will return when we get to section 28. Section 22(3) reads: "where the giving of such an account would involve disclosure of proceedings, communications or matters contrary to section 28". Section 28 applies to the following categories: a member of the commission, the procedures committee or any other committee of the commission. I am a little surprised. Can the procedures committee of the commission have people, other than members of the commission, on it? I am not clear on that aspect. Can other people be co-opted or does it just apply to a member of the commission? Can any other committee of the commission have non-commission members on it? That is not clear and it is a matter the Minister might clarify.

Section 28(1)(b) applies to "the Director, a member of staff of the Office, a consultant, advisor, or other person engaged under contract or other arrangement by the Commission". These are the two categories on whom an obligation of confidentiality is put.It is notable, for instance, that a politician or former politician who receives a report from the commission does not seem to be covered by this. That is an issue that must be addressed.

Section 28 also states:

In addition to what is provided for in section 27, a person to whom this section applies shall not, except for the purposes of this Act, disclose—(a) in relation to persons applying for, or recommended for appointment to, judicial office—

(i) proceedings of the Commission and of its committees,

(ii) communications to and from the Commission and its committees, and

(iii) communications to and from the Commission or its committees to the Minister,

or

(b) any matter concerning the removal of a member of the Commission (before such removal takes place) under section 20.

I do not know what the sanction is for breaching that. Section 27 states that a person shall not disclose confidential information obtained by him or her while performing functions as a member of the commission, the procedures committee or any other committee of the commission - this again implies that one can be on the procedures committee without being a member of the commission - or as the director, a member of staff of the office or a consultant, adviser or other person who is or was engaged under contract or other arrangement by the commission, unless he or she is duly authorised by the commission to so do. It is not quite clear what "confidential information" means if the commission is entitled to excuse a person from the duty. Subsection (2) states:

“confidential information” includes—(a) information that is expressed by the Commission to be confidential either as regards particular information or as regards information of a particular class or description, and

(b) proposals of a commercial nature or tenders submitted to the Commission by contractors, consultants or any other person.

This is very worrying because it means that if the chairman of the commission comes before the Committee of Public Accounts or any other Oireachtas committee, he or she can, if the commission so requires, say that tenders and proposals of a commercial nature submitted to the commission by "contractors, consultants or any other person" will not be disclosed because they are confidential. What kind of accountability is this? If the commission is brought before the Committee of Public Accounts and allowed to excuse itself from accepting the lowest tender by simply stating that the information is confidential and that, therefore, it does not agree to it being imparted, the result is that financial accountability is very seriously compromised.

The broader statement that "confidential information" includes information that is expressed by the commission to be confidential effectively allows the commission to write its own rules. It can say it deems A, B or C to be confidential and, therefore, this material may not be disclosed to anybody. This gives it a right to write its own privacy and secrecy law.

Going back to section 22, which depends on these provisions, there is a prohibition on the commission chairperson disclosing proceedings or communications that are contrary to section 28. The section then sets out a very complex procedure whereby the Dáil committee is effectively bound, if the commission chairman refuses to give it information, to go to the High Court to get a hearing as to whether the chairman is justified in resisting the application of the committee for particular evidence to be given. Subsection (6) states that pending the determination of the High Court proceeding, "the chairperson shall not attend before the Committee to give account for the matter the subject of the application." The High Court would then tell the Oireachtas committee that it must either withdraw the application or, if it does not apply, that "the chairperson shall attend before the Committee and give account for the matter." This section provides for a whole procedure whereby the High Court will become the referee between the Oireachtas committee and the chairman of the commission.

Subsection (8) states that in the performance of his or her duties under this section, in other words, testifying as to the general administration of the commission, the chairperson shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government, or the objectives of such a policy. To give a concrete example, if the chairperson were to say the commission was radically underresourced and Government policy was that the commission had perfectly good resources, under this section, the commission chairman would not be entitled to query the judgment of the Government or a Minister of the Government as to whether the commission had adequate resources to carry out its functions. That is a very strange situation, but it is what we are proposing to put into law. A person who is brought in to an Oireachtas committee to discuss the general administration of the commission, and who is the chairman of that commission, will be prohibited from dealing with any matter on which the commission is at variance with the policy of the Government or a Minister of the Government and from expressing any opinion or answering any question in that regard.