Damien English (Meath West, Fine Gael) | Oireachtas source

I thank the Senators for their contributions and for tabling amendments, which are proposed in good faith. I accept we had a discussion in this House and in the Dáil earlier in the week on the issue of public versus private proceedings. I understand the concerns about that but we have a duty to respect the Supreme Court decision, and to implement legislation as best we can to reflect it, while getting the balance right. I believe we are doing that. Discretion is provided for in the Bill and it is important to do that.

The Supreme Court has been clear that the administration of justice, even when its ambition is to provide an efficient, user-friendly and cost-effective dispute resolution system outside the formal courts, must maintain certain cornerstones of the justice system. A fundamental aspect of the administration of justice is the requirement that it should be done in public. There are exceptions to that rule and I am satisfied that the draft Bill delivers on this policy. There is room for discretion, as we have discussed previously. It is important that that would be there and we can certainly reflect that. We will bring forward regulations and guidelines to inform the decision-making of the adjudication officer on that issue, in addition to the public versus private aspect of it.

In recognition of the fact that in certain circumstances the administration of justice is more appropriate behind closed doors, we have introduced in this Bill clear entitlement to address the issue with an adjudication officer.This means that either party may request a private party or that they are not named in a publicised decision. The other party must be on notice of said request and have an opportunity have their say on the matter. I am sure that the Senator accepts this. Such exemptions are subject to special circumstances, such as where a case involves a minor, sensitive health or other social matters, sexual harassment, protected disclosures and so on. It is at the discretion of the adjudication officer, who is the person in charge of the case, like the judge in that situation. Such officers have the ability, on their own opinion, to make that call. That is probably as far as we can go with the legislation to build in that discretion, while reflecting the advice of the Supreme Court that it is in public. In recognition of the fact that the WRC is the court of first instance and that some parties may not have considered privacy issues, we have included a power for the adjudication officer in circumstances in which the facts of the case may warrant such inquiry to raise the matter with the parties. Therefore, they can bring it up themselves and they can give advice. I am conscious that it might be the first engagement of some members, certainly of some employees. They might not have brought any support with them. The adjudication officer will be able to recognise that and give advice or suggestions and help to inform the people coming through that. In my view, the legislation, as drafted before us, is the only acceptable way of balancing the rights of the complainant, the respondent and wider civil society by ensuring fairness in an impartial way. The necessity for transparency and impartiality are essential parts of our justice system. Persons who are tasked with administration of justice must adhere to fair procedures at all times. Adjudicators do not make decisions based on feelings. Their role is to decide on facts applicable to the law . In doing so, they have a duty to enquire into matters before reaching a decision. Reasons supporting a decision must also be given. A statutory provision which in any way anticipates victimisation or penalisation of a person is undesirable from a fairness and public interest point of view. For this reason and for the reasons previously stated, I cannot accept this amendment. However, I understand what is behind it. I think we have achieved what the Senator wants in the legislation. Again, regulations and guidance will come after we have completed our work on it in this House.