Michael McDowell (Independent) | Oireachtas source

The result was that the then Attorney General, David Byrne, asked the Garda Commissioner to use all of his powers to identify the source of the leak and prevent this kind of thing from happening. The Garda Commissioner at the time was Mr. Patrick Byrne. He attempted to comply with the Attorney General's request and found himself being effectively stonewalled, with people refusing to make any statements to the investigating gardaí. At the end of this futile investigation in which he could find out nothing, he informed the Attorney General's office that unless and until a power of arrest and questioning was conferred on him, he could do nothing to investigate the unauthorised leaking of sensitive Garda information of that kind.

That led, when I was the Minister's predecessor, to the insertion of an indictable offence in the Garda Síochána Act 2005 so that where leaking of sensitive information took place unlawfully, there was a power for An Garda Síochána to arrest persons suspected of leaking or inciting other people to do so and the power of detention for questioning under the terms of the Criminal Justice Act 1984.

In effect, the Garda Commissioner was saying was that the Official Secrets Act 1963 was no help to him because of the penalties involved. In the circumstances, therefore, he needed to have investigatory powers. If leaking confidential information is to be an offence, it must the case that if a member of An Garda Síochána knocks on the door of a journalist or whoever else and asks how that person seems to have published leaked minutes of a certain body, he or she is not in a position to simply say the Garda must talk to their solicitor and bid them good night. That is the position if it is a summary offence of this kind. If the Minister wishes to make it an offence and give its enforcement teeth, An Garda Síochána must be given the right to investigate where egregious breaches of confidentiality take place.

I have no doubt the Minister will be tempted, and perhaps prompted, to say that this is a very black scenario, that he hopes this never happens and that I am conjuring up an unlikely scenario. I do not accept that proposition. People will be expected to apply to this commission in confidence, knowing the information concerning their application and, even more seriously, their assessment will be handled. Can Members imagine if the assessment of a professional person or a judge were to be leaked to a newspaper? Whether the assessment was carried out by a consultant or the commission itself, imagine the discrediting damage not merely to the person involved and to the commission, but also to the Judiciary itself.

Either we are serious about keeping some level of confidentiality in this matter or we are not. I refer to material such as the marking of assessments, the results of an interview process or pre-screening carried out by a consultant or advisory group. Either we are serious about preventing that from appearing on the front page of a newspaper or we are not. I have no problem with making such leaking a criminal offence, because purely civil duties of confidentiality do not inhibit journalists from printing material. They do not inhibit people from leaking material unless they can be identified as the source by their employer, by one means or another. A member of the commission may be stupid enough to leak information to a third party, even in good faith. If any of that information gets on the front page of a newspaper, it will be deeply damaging to the people who are being assessed, to the commission itself and to public confidence in the Judiciary. I shudder to think what the result would be if a Circuit Court judge who applied for appointment to the High Court were to find that his or her assessment was on the front of a newspaper.

I believe that leaking such information would have to be made a criminal offence. The JAAB does not leave a trail of that kind. When I was there, it never had minutes that could be leaked. The worst secret that could be revealed about somebody is that they applied to JAAB, because there would not be a record of any kind beyond that. In the new world which has been conjured up for us in this legislation, there will be formal interviews, ranking of applicants and a pre-interview process of winnowing out unsuitable people. Presumably these will be documented, stating the reasons why Joe or Josephine Soap never even made it to an interview process. If happens there will have to be a documentary trail.All of that is going to happen, so there will have to be a documentary trail. If there is a documentary trail, it might have consequences for sitting judges and others. Take, for example, a solicitor in practice in rural Ireland. If it was revealed that there was a document somewhere created by this commission or its advisers or consultants saying that, in the view of a particular person, the person was wholly unsuitable to be a judge for one reason or another, it would have a serious affect on that person. There will be a chilling effect if the protections against breach of confidentiality are not observed. Whether or not the Minister is attracted to the substance of subsection 2 of my proposed section 28 in amendment No. 70, one has to have the five year term in order to make it possible for An Garda Síochána to investigate and bring to book those who breach the obligation of confidentiality.

To return to the point I made about former Attorney General David Byrne and me when I was Minister for Justice, Equality and Law Reform, it was the appreciation of the effect on ordinary people's lives of the absence of an effective remedy to stop the leaking of Garda files to members of the press due to salacious material contained in them that led to the amendment of the Garda Síochána Act.

On amendment No. 69 proposed by the Minister, I have the strongest possible objection to it becoming a summary offence. If it is to be an offence, it has to be an indictable offence for the purpose of making it properly investigable by An Garda Síochána. If it is not an indictable offence, a person can simply get his or her solicitor to write to the local sergeant to say that he or she will not be available for interview on this subject and does not propose to say anything about it, even if he or she is the prime suspect for the leak. The same applies to a journalist who publishes it. The journalist will be able to say that he or she has nothing to say and does not want to participate in any interviews with An Garda Síochána. He or she would be able to just walk away from it, and An Garda Síochána would have to prove that a particular person was the person who leaked the document by some extraneous means. To return to the case I mentioned of An Garda Síochána files identifying alleged victims of backstreet abortions in Dublin which led to reporters appearing on their doorstep, it proved so damaging to those people, but the Commissioner was effectively powerless to deal with it because the offence was a summary offence which did not carry a five-year term of imprisonment. Perhaps it was statutory as well, but it carried a two-year term. Under the Official Secrets Act, the garda in question was effectively immune from arrest or interrogation in respect of the action, as was the journalist.

I strongly advise the Minister that the remedy has to be effective. If it is not, because of the complexity and the documentary nature of the procedures this commission is supposed to undertake, the effect of breaches of confidentiality could be enormous. The Minister may well say that this contrasts with my willingness to have the Attorney General tell the Cabinet that a particular applicant was unsuccessful. My answer to that, if that point is made, is simply that the Government is entitled to know who wants to be appointed. I have never heard, in all of my time as a barrister, Attorney General, Minister, Deputy and Senator, of a breach of confidentiality coming from Government of a type which is damaging to a lawyer. I have never heard that happen. Members of the Government, as very senior constitutional office holders, would understand the absolute importance of confidentiality in such circumstances, while at the same time believing that it is totally right to know who was seeking the job, including those who were not shortlisted. Under the present Judicial Appointments Advisory Board procedures, which are very informal, I have never come across a newspaper, television or radio report indicating that a person applied and was not recommended for the job, even though that information is available to the Minister and the Government under the present system. There is no paper trail. It is one person's word against another's, and it is not the kind of thing a journalist would publish, even if he or she got news of it over a pint in a pub. The journalist would not dare to publish it because he or she would not know if it was true or untrue and would not know what the situation was, unless he or she heard it from a disappointed applicant.

I ask the Minister to deal with the textual problem I raised, and also the seeming illogicality in amendment No. 66, whereby members of staff do not have to have the consent of the commission in writing whereas the director does. I cannot follow how that would work. Real problems will arise if this is backed up solely by a summary conviction and penalty. It will mean any breaches of this criminal law will be impossible to investigate unless the person doing the leaking is foolish enough to volunteer a confession to An Garda Síochána, even though he or she is not capable of being arrested or questioned about it.