Jerry Buttimer (Fine Gael)
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I welcome the Minister of State, Deputy Carroll MacNeill, to the House. She is very welcome. Amendments Nos. 5 to 7, inclusive, in the names of Senators Boylan, Gavan, Ó Donnghaile and Warfield have been ruled out of order.

Jerry Buttimer (Fine Gael)
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Amendment No. 8 is in the names of Senators Higgins and Ruane but they are not here.

Vincent P Martin (Green Party)
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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.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I will deal with the issues in reverse order.

On the oral hearing piece, the approach adopted in the Bill is based on the advice of the Office of the Attorney General. As Senator Martin said, the Bill does not require all hearings to be in public. There is no responding party, therefore it will involve only persons under investigation before the commission. The basis for this, as the Senator will be aware, is the Supreme Court decision in the Zalewski case in 2021, which related to the exercise of powers by adjudication officers in the Workplace Relations Commission. Mr. Justice O'Donnell stated in that case regarding the issue of an oral hearing that:

The rule established under the Constitution is not an absolute one, even for court proceedings, and is not expressly required under Article 37 in respect of the adjudicative processes covered by it. There is a justification for calm, quiet, and private resolution of many disputes which may be of particular sensitivity for the participants, and it may even be permissible to have a presumption in favour of private hearings at first instance, but it is not, in my view, possible to justify the absolute ban contained in s. 41(13), particularly when, on appeal, the opposite provision is made.

The advice from the Office of the Attorney General is, therefore, that there is no necessity to provide that oral hearings be held in public. Additionally, there is currently no prohibition on such hearings being held in public in the Act or in the Bill and, as the Senator said, the balance is such that it can happen. From a practical point of view, it occurs in most cases that a person subject to an administrative sanction procedure would probably prefer a hearing to be held in public and SIPO may have a similar preference, but permitting them to be conducted in a private setting in the first instance, that is, before SIPO, may tend to facilitate a more efficient running of such hearings. Indeed, in the words of Mr. Justice O’Donnell, there is justification for calm, quiet and private resolution of many disputes, which may be in the interests of both parties. That is the justification for this approach, having regard to the recent Supreme Court decision.

In regard to the administration of an oath and-or affirmation, there is an academically interesting but technical justification for why affirmation is not necessary, going back to the Oaths Act 1888. I can provide that to the Senator if that is more efficient and desirable. Essentially, the advice is that it is not necessary. Going back through the Interpretation Act 2005 and having regard to the earlier 1888 Act, it is essentially the same thing. I am happy to provide that to the Senator should it be of interest to him.

The final point concerns criminal and civil sanctions and how the interplay of the two operates. It is just for the failure to register or the failure to make returns, as I understand it, but the real balance is that the criminal proceedings will take precedence. It is up to SIPO to investigate and make a determination about its view of the seriousness of a particular matter. If there is any question about it being at the criminal level, it will simply pass it on to the relevant prosecuting authorities for a criminal prosecution, and any civil sanction or any other sanction would be simply paused in that event. SIPO is a quasi-judicial body, as the Senator said, but it is very conscious of infringing on the jurisdiction of the court in regard to any criminal matter so it is up to it to make a determination as to which prosecuting authority or which process would be appropriate. As I said, it would firmly step back in the event of any criminal matter. I hope that answers the question for the Senator.

Jerry Buttimer (Fine Gael)
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Does Senator Martin wish to come back in?

Vincent P Martin (Green Party)
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The Minister of State might take note of that.

Jerry Buttimer (Fine Gael)
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As there is no one present to move amendments Nos. 10 and 11, they cannot be moved. Amendment No. 12 is out of order as it is outside the subject area of the Bill. As there is no one present to move amendment No. 13, it cannot be moved.

Jerry Buttimer (Fine Gael)
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When is it proposed to take the next Stage?

Pat Casey (Fianna Fail)
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Next Tuesday.

Jerry Buttimer (Fine Gael)
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I welcome to the Visitors Gallery some people from the great city of Cork. They are all very welcome and, in particular, I welcome Brenda O'Connell. I thank all of them for being here this afternoon. I wish them a very pleasant visit to Leinster House.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I forgot to flag one Report Stage amendment from the perspective of the State which relates to the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act 1992. We are using this legislative opportunity to make provision for a scheme of allowances for politicians to be able to claim expenses for security upgrades to their homes and businesses, as agreed by the Government. We may bring that in on Report Stage next week.

Jerry Buttimer (Fine Gael)
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The Ceann Comhairle and I have been working at the commission on ensuring that comes into force as a matter of urgency. I thank the Minister of State for her alacrity and her proactivity with the Ministers, Deputies Donohoe and Michael McGrath, in pursuing and supporting that measure.