Michael McDowell (Independent) | Oireachtas source

Section 22(3) provides that the chairperson shall not be required to give an account before a committee for any matter which has been the subject of proceedings before a court or tribunal in the State. Subsection (2) imposes on the chairperson of the commission the obligation to attend before an Oireachtas committee to give account for the general administration of the commission. In that context, I cannot see why the chairperson would not be answerable in a case such as, for example, where there had been a dispute with an employee or an officer which had gone to the Workplace Relations Commission or the courts and a judgment had issued. If it had been found by the court that an employee in such a case had been dealt with very badly, why would the chairperson be able to say that, as it had been dealt with by a court, he or she was not accountable? It is one thing for somebody to win in the Four Courts but a different matter completely for a person, found to be to blame for something, declining to answer questions about it on account of the case having already been dealt with by the High Court. I cannot see why the fact something has been dealt with by a court takes it out of the ambit of the phrase "general administration of the Commission".

Section 22(3)(b) gives another reason for the chairperson to refuse to come before, or give an account to, a committee, that is, "where the giving of such account would involve disclosure of proceedings, communications or matters contrary to section 28." However, I will keep my powder dry on section 28 and the issue of disclosure until we discuss that section.

The Minister should be aware that section 22(4) of the Bill, as currently drafted, provides, "Where the chairperson is of the opinion that a matter in respect of which he or she is requested to give an account before a Committee is a matter to which subsection (3) (a) applies, he or she shall inform the Committee of that opinion". That triggers the potential circumstances which apply for a court application under subsections (5), (6) and (7) proceeding before the High Court. It is strange that it only applies to subsection (3)(a) but not to subsection (3)(b). If the basis of the chairperson not accounting to a committee is that the giving of such an account would involve disclosure of proceedings, communications or matters contrary to section 28, there is no recourse to the High Court because the second line of subsection (4) confines it to the earlier ground of refusal, which is that it is, has been or may be at a future time be the subject of a proceeding before a court. I find it difficult to understand why the procedures from subsections (4) to (7) should apply only to disputes as to whether something was, is or may be about to come before a court or a tribunal, and not whether it would involve disclosure of proceedings, communications or matters contrary to section 28.

If the High Court deals with the matters under subsections (5) to (7), it will presumably deal with them in public. There will be a public debate in the High Court about whether the chairman was right to refuse to discuss it on the basis that it may come before a court. That seems to me to be a very strange provision. Can the Minister imagine an application to the High Court by an Oireachtas committee for the chairperson to discuss something which he or she does not want to discuss on the basis that it has been, or may be, before the courts?We want the High Court to adjudicate in public on whether it may come before a court. It is a very strange procedure and I really wonder what useful purpose all of this very convoluted procedure serves. I know that there are probably members of the Law Library sticking proverbial daggers in my back at the moment on the basis that this is a potentially lucrative form of new jurisdiction for the courts, to argue about what might come before them and what should not be discussed because it might come before them.

It seems to me that this is a very elaborate set of rules to determine whether the chairperson is right to say that the matter has been, may be at present or may in future come before a court, as a reason for not answering a question and then to say the whole thing should be shifted to the High Court to decide whether he or she is right to say that it may come before a court and refuse to be accountable on that basis. I cannot understand, if a refusal to give an account involves his or her invocation or view on the confidentiality provisions in section 28, which is much more likely to arise in reality, why that would not be the subject matter of some recourse to the High Court if he or she gave a blanket refusal on that ground. Why allow for an elaborate procedure to go to the High Court on the ground set out in subsection (3)(a) and exclude explicitly a refusal under subsection (3)(b)? It simply does not make sense. I am extremely dubious as to whether any value at all would really be served if the High Court is to be invested with jurisdiction to adjudicate between committees and the chairperson of the commission on the sole issue of whether something is, was or might in the future come before a court. That is very difficult to understand and I would like an explanation as to why that is in the Bill.