Michael McDowell (Independent)

I welcome the Minister. I congratulate Senator Ruane on her initiative in tabling this legislation. The Minister's request for more time to consider what is involved is sensible and reasonable in all the circumstances. The whole idea of a special advocate is novel in Irish law. A series of issues arise in respect of restricted evidence confined to legal practitioners who are not in a position to disclose that material to the person on whose behalf they have been appointed to act. It is a concept that is well-known is European law, perhaps, and has crept into UK law too. However, let us remember that secret evidence is available in European law in circumstances that would cause most Irish lawyers’ eyebrows to raise to somewhere around the backs of their necks when they consider the very concepts.

I wish to make two points. If we are going down this road we must, as I think the Minister hinted, carefully work out what the obligations, sanctions and rules are that would ensure the special advocate does not end up imparting this information either formally or informally to third parties, especially the affected person. Can they test it out with the third parties? Can they bounce it off others, so to speak? In so doing, does a trail of confidentiality, an obligation of confidentiality and a legal duty of confidentiality attach to that process? These are serious questions that must be considered very carefully.

The second point, which I think Senator Ruane will agree is legitimate, is the question of what the duties of the special advocate are. If they come to the conclusion that information is being suppressed, effectively, for the criteria set out in the Bill, are they entitled to initiate a judicial review or are they simply stuck with the outcome? There is not clarity in the Bill as it currently exists as to what the potential consequences are for what might appear to the special advocate to be an entirely unreasonable invocation of the confidentiality procedures that exist and what the consequence of that would be in terms of the entitlement to challenge it legally. That goes to the point that the Minister has made and made well, which is that we do not want to create some kind of cathedral of complexity over a principle which, in Senator Ruane's Bill, is just a basic principle of equity, that somebody should have the right to know whether information is being properly or improperly brought into the statutory parole process. In that context, there needs to be further balancing consideration put into this project. We need to examine what the consequences are in the appointment of a special advocate. We need, in particular, to consider very carefully what sanctions, duties and enforcement there will be for special advocates and what penalties there will be for breach of those duties. We need to consider their powers and whether they are entitled to test out the material which they have seen by, as I said earlier, bouncing it off anybody else for credibility, proportionality or anything like that. Are they to be given that right? If so, what are the consequences in terms of extending the duty of secrecy to them? If there were judicial review proceedings, and I can well imagine that there would be because so many people in this predicament have nothing better to do than to cook up a judicial review if they can possibly do so - I am not talking here about special advocates but, rather, the people who are dissatisfied with the outcome of the process - would those judicial review proceedings be held in public? Would the material which was excluded from the purview of the affected person be amenable to High Court judicial review and examination as to its substance and weight? Would that process be entirely secret or would it be semi-public? Would there be redaction? No one knows.

What appears to be a very simple precept of fairness carries with it very serious implications for the administration of justice and for a fair parole system. The Minister should take six months to think very carefully through where all of this might lead.