Seanad debates

Wednesday, 10 May 2023

Regulation of Lobbying (Amendment) Bill 2022: Committee Stage (Resumed)

 

10:30 am

Photo of Vincent P MartinVincent P Martin (Green Party) | Oireachtas source

I welcome the Minister of State to the Chamber. I thank her and the Department officials for engaging with me in respect of concerns which I have flagged but are not fully allayed. I would like to raise three issues under section 13. I have not tabled an amendment, but I am discussing it now to ensure it is kept alive on Report Stage. I hope the Government will deal with this as it would save me having to do so. I hope to be given an adequate explanation with regard to section 13, which relates to sanctions. It proposes the insertion into the Regulation of Lobbying Act 2015 of a proposed new section 22A(10), as follows:

A person shall not be the subject of both an administrative sanction and a criminal penalty under this Act for a contravention under section 18(f).

I invite the Minister of State either now or on Report Stage, but preferably today, to explain the justification for what looks like an either-or provision. I say that because as a legislator I have to be conscious of the jurisprudence of the court. The background to a case before the Supreme Court which was heard in 2014 - I have brought this to the attention of Department officials - was that a person suffered a sanction in the criminal courts concerning his behaviour as a bankrupt or a person who was adjudicated to be bankrupt, and punishment was meted out.The person took the punishment; they had no choice in the matter. I think it was in the Circuit Criminal Court. A sentence was handed down. Some time later, in respect of the same behaviour, the official signing for bankruptcy invoked his statutory entitlements to impose a sanction. In that case there were a number of sanctions, the main one of which was to extend the person's term in bankruptcy during which they would be automatically entitled to be released from bankruptcy at the material time for a number of years. A unanimous decision of the Supreme Court dealt with the overlap of criminal and civil penalties, which seems to have some resonance to the matter before us today and the point on whether there is a double sanction.

I welcomed the judgment from Mr. Justice Clark, who went on to become Chief Justice and has now retired. In his judgment he stated that with regard to the fact that the appellant was subject to criminal sanction and had fully borne the burden of that sanction there was no reason in principle an additional civil sanction could not be imposed, provided in all the circumstances of the case the totality of the consequences for the appellant could not be said to be disproportionate, which is the important bit.

The challenge in the Supreme Court was not a double jeopardy argument to the effect that the man had suffered enough already and this was disproportionate. The court found it was not disproportionate. It was not quite an obiter dicta, but it was clarified that the court could clearly do that. The point arises that if the civil sanction happens first, can the court never look at this? Where does that stand legally? Has the court been ousted? If the criminal courts deals with a matter first, is the administrative sanction outlawed?

The way the section is worded is quite black and white. It is either-or, even if there is a chance to say this would apply only in exceptional circumstances. It appears to tie the hands of the Courts of Justice and say they can never look at this. My concern is that some further evidence which was withheld or unavailable at the time of the case could become available at a later stage, following the imposition of the civil sanction.

I respect that there are different parameters to sentencing and punishment. More serious sanctions have to get a stamp of the Circuit Court, which is not related to the point I am making. That is motivated and sponsored by the administrative arm. In its role, it creates a judicial role. I have concerns. I would like to hear what the Minister of State has to say about this. It appears to tie things in a black and white way, insist that there has to be one or the other and how one could be estopped at a later stage. Cases are often not brought contemporaneously. If they are brought contemporaneously, obviously civil criminal law takes precedence. That is not what I am saying. There may be a reason the criminal aspect has not come to the mind of the court. That is the first of three issues. I will outline all three now, if the Minister of State wishes, given that they are not in the form of any amendment.

I will outline the second issue. I refer the Minister of State and Members to section 13(11). It states, "The Commission in conducting an oral hearing under this section may take evidence on oath, and the administration of such an oath by any member of the Commission is hereby authorised." This provides for evidence to be taken under oath. In quasi-judicial hearings, there is no problem whatsoever with that. It might remind people about the seriousness of the matter. However, the subsection refers to an oath. Would it not be more appropriate to say "oath and civil affirmation"? I understand if people wish to elect to swear on the Holy Bible or Koran. That is fine. For those not so inclined it is a serious matter. It has been established that in some judicial hearing processes there is also an option to swear on the Holy Bible, Koran or whatever or to swear an affirmation. That is not referenced in the Bill. Perhaps it could be a decision of the board which to pick. I would like to hear what the Minister of State has to say about mentioning one without the other. I thank the Cathaoirleach for his indulgence.

My third point relates to section 13(12) which states, "An oral hearing under this section shall be conducted otherwise than in public unless the Commission, upon the application by or on behalf of the person under investigation, or of its own motion, determines that the proceedings (or part thereof) should be conducted in public." There may be reasons for that. I would like to hear what they are. I would prefer that to be flipped on its head and for the Bill to state that cases are heard in public unless there are reasons for holding them in private. Transparency is at the heart of this. I anticipate that a concern might arise in a public hearing that names could be mentioned and published, which could damage someone before there is ever a determination. I agree with that concern, but there is a way around that, such as anonymising names while still seeing justice being done in public.

We often hear of a doctor being brought before the Medical Council. There may be a long hearing and a doctor may be exonerated at the end, but for several days we may occasionally read a name in the newspaper or see a person on television walking into a hearing. I am not into that form of public hearing in case it does damage to the person's career. People forget that a person may have been exonerated. Many will just remember a person being on news bulletins on live television for four or five nights in a row. Could there be a compromise? Will the Minister of State look at this? There is still time to do so.

Rather than having a private hearing except in exceptional cases, we could flip it and state that a case should be heard in public unless there are reasons to hold it in private, with the qualification that the hearing authority may decide to anonymise names. I am conscious that damage can be done to people's reputations. I am trying to put this out there as a compromise in certain circumstances. Those are my concerns about section 13 of the Bill. The Bill is a positive step in the right direction.

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