MEMBERS OF JOINT COMMITTEE
Review of Terms of Reference and Resources
1.Drawing on its own experience and that of its predecessors, the Joint Committee has decided to make a special report to the Houses of the Oireachtas on certain deficiencies which have become apparent in its terms of reference (see Appendix I) as follows:
(i) when the Joint Committee exercises its power to send for persons, papers and records under paragraph 4 of its terms of reference it has no power to enforce the attendance of witnesses nor has it power to subpoena documents in the event of refusal;
(ii) while the Joint Committee discharges its responsibilities when it reports to the Houses under paragraph 1 of its terms of reference, there is no mechanism whereby the Houses are obliged to debate or even to take cognisance of Joint Committee reports. To this extent there may be a perception, even among the scheduled State-sponsored bodies themselves, that as reports of the Joint Committee are not debated in the Houses, the role of the Joint Committee, notwithstanding its considerable powers, is a token one; and
(iii) witnesses before the Joint Committee are not afforded explicitly the protection of privilege enjoyed by Members of committees pursuant to the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act, 1976 [No. 10 of 1976].
2.The Joint Committee also draws the attention of the Houses to
(a)the paucity of resources available to it to discharge its remit, and
(b)its experience of the application of the sub judice practice to its proceedings.
3.The Joint Committee considers that the merits of the improvements it recommends in this special report are self-evident and consequently does not propose to labour its arguments in favour of their adoption. The Joint Committee is, of course, aware that the question of Oireachtas reform is being examined by the Committees of Procedure and Privileges of the Houses and it trusts that this report will contribute to and expedite the process of reform.
4.Non-compliance - redress open to Joint Committee
In instances where the power to send for persons, papers and records is exercised, the only redress open to the Joint Committee in the event of non-compliance is to report that fact to the Houses. There have been a number of instances over the years where persons have declined to meet with, or make papers available to, the Joint Committee and a number of these are summarised in Appendix II. While accepting the bona fides of persons who decline to meet the Joint Committee either by their own decision or as a result of Ministerial direction, non-appearance can only tend to frustrate or perhaps thwart the Joint Committee in discharging its responsibilities.
5.Privilege of witnesses
Members of both Houses enjoy the absolute privilege provided by Article 15.12 of the Constitution in respect of utterances therein wherever published. This privilege was extended by the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act, 1976 to Members of parliamentary committees but not to witnesses. It is the Joint Committee’s understanding that witnesses before Oireachtas Committees enjoy qualified privilege. The Joint Committee further understands that this type of privilege can be defeated only by proof that the witness was not using the occasion honestly for the purpose for which the law gave it to him and was actuated by some indirect motive not connected with the privilege, e.g. malice in the popular sense of the term or irrelevant statements of a defamatory nature. However, in some cases, qualified privilege will obtain only so long as no third parties, e.g. representatives of the press, are present.
6.While the absence of the protection of privilege has not hampered the present Joint Committee nevertheless it would seem prudent to the Joint Committee that the legal position of witnesses before parliamentary committees should be made explicit in law. In 1976, an attempt was made in the Committees of the Houses of the Oireachtas (Privilege and Procedure) Bill, 1976 to address this issue but section 3 of the Bill which would have conferred absolute privilege on witnesses was deleted during the Dail Committee Stage. The texts of the Bill, as initiated, and as enacted are set out in Appendix III. The Joint Committee is satisfied that it is preferable and reasonable that witnesses should be clear as to their standing before Committees. In this regard in a special report to the Houses in September, 1982, the then Joint Committee requested the introduction of legislation which would provide that, for the purpose of the enquiry into Udaras na Gaeltachta, a witness before the Committee and a person sending a document to the Committee would be entitled to the same immunities and privileges as if he were a witness before the High Court. The Joint Committee also suggested that the two Houses might consider it worthwhile to provide that the recommended legislation apply to all enquiries conducted by the Committee.
7.Following the appointment of that Joint Committee’s successor a request issued to the Leader of the House in October, 1983 asking him to arrange for the expediting of the requested legislation. In a reply dated 1 November, 1983 the Private Secretary to the Leader of the House stated that “this matter is receiving urgent attention and he (i.e. the Minister) expects to bring it before Government shortly”.
8.Further correspondence ensued and on 23rd November, 1984, the Private Secretary wrote to the then Clerk to the Joint Committee as follows:
“Following consideration of the matter by the Government, a draft Bill is in the course of preparation by the Parliamentary Draftsman. As you will appreciate, this is a complex and technical matter particularly when its application relates to the much expanded Committee system. Accordingly, drafting is taking longer than expected.
However, I can assure you that every effort is being made to expedite the matter and it is the intention to have the legislation enacted as soon as possible”.
9.In January, 1985 the then Joint Committee met the then Minister for Industry, Trade, Commerce and Tourism and Leader of the House, to discuss
(a) the future role of the Joint Committee and the resources to be made available to it in the light of the proposals contained in the White Paper on Industrial Policy and in “Proposals for Plan 1984-87”,
(b) the making of arrangements for the debating of the Committee’s reports in the Dail, and
(c) progress in regard to the proposed legislation on privilege.
As a result of that meeting, the Joint Committee’s terms of reference were amended in November, 1985 - essentially by the addition of paragraph 1(b) of the existing terms of reference. However, no progress appears to have been made in regard to (b) or (c).
10.However, notwithstanding the then Joint Committee’s recommendation in 1982 on the privilege of witnesses (paragraph 6), the present Joint Committee would not be in favour of conferring absolute privilege on witnesses.
11.Debating of Joint Committee’s Reports
Reference has already been made in paragraph 1 of this report to the need for an appropriate procedural mechanism to enable the Joint Committee’s reports to be brought before the Houses for formal debate. It is the view of the Joint Committee that a formal mechanism would go some way to validating the role of the Joint Committee in seeking to make the commercial State-sponsored sector more accountable to Parliament. The Joint Committee understands that during the lifetime of one of the previous Joint Committees on the Secondary Legislation of the European Communities (1977 - 81 inclusive), sessional orders were made to enable any reports of that Joint Committee containing a request for a debate thereon to be debated within a specified sitting period in the Seanad initially and latterly in the Dail also. This provision was availed of on a considerable number of occasions. The Joint Committee understands that the debates were deemed to be extremely valuable and constructive. However, the formal facility provided under the sessional orders has not been renewed since 1981 for whatever reason though certain of the reports of that Joint Committee’s successor Committees have been debated in the Seanad and two were debated in the Dail.
12.The Joint Committee is therefore of the view that formal procedures should be put in place in each House to enable any report of the Joint Committee containing a request for a debate thereon in either or both Houses to be debated within a specified sitting period.
13.Resources available to the Joint Committee
To the extent that any body can itself be objective in reporting on or evaluating its own resources, the present Joint Committee is conscious that in the early and formative years of the Joint Committees a full-time consultant (initially a civil servant on secondment from a Government Department but subsequently a consultant employed directly by the Joint Committee) was available to each Committee in addition to a substantial budget which enabled other specialist advisers to be engaged. In latter years and obviously because of budget constraints, the recent Joint Committees have had no full-time consultant and only access to a reduced overall budget allocation which is made available for parliamentary committees generally e.g. £200,000 in 1986 compared to £80,000 in 1991.
14.On its establishment, this Joint Committee was seen as heralding a new development in parliamentary accountability. However, the passage of time has seen a diminution in the resources available to the Joint Committee rather than a gradual, realistic and intelligent increase in its resources to meet the considerable and important remit entrusted to it.
15.Sub judice practice
In its second report - on the Irish National Petroleum Corporation Limited in July, 1990 (Pl. 7381), - the Joint Committee drew the attention of the Houses to certain difficulties it had experienced in its examination of that Company because the sub judice practice was invoked as the reason for the Company’s refusal to appear before the Joint Committee. As the Joint Committee is conscious that the sub judice practice may be invoked again in respect of certain inquiries it is at present engaged in, it wishes again to highlight the need to define clearly, as a matter of urgency, the criteria to be employed by the Joint Committee in deciding to defer to the sub judice practice. It will be self-evident that the Joint Committee does not wish its inquiries to be frustrated by appeals to a practice, albeit a long-standing one, which requires to be clarified in succint and unambiguous terms.
In the context of recent developments/revelations in certain State-sponsored bodies, it is clear that the Joint Commitee as currently resourced and empowered is severely hampered from carrying out the incisive and pervasive examinations that are required. While the Joint Committee believes that the mere fact of considerable resources will not of itself guarantee one hundred per cent effectiveness, nevertheless it can be argued convincingly that it is unreasonable and disingenuous to require the Joint Committee to act as an alert watch-dog with only extremely limited resources. Consequently, the Joint Committee recommends that
(i) it be given power to compel witnesses to attend or produce documents and that penalties apply for non-compliance in accordance with procedures to be determined by law,
(ii) the question of the privilege of witnesses be resolved by extending qualified privilege to witnesses before public meetings of the Joint Committee,
(iii)a formal mechanism be provided to facilitate debates on its reports,
(iv)adequate resources be provided, and
(v)the review of the sub judice practice be expedited as a matter of urgency.
In the absence of appropriate powers, realistic resources and follow up debate or action on its reports, the existence and operation of the Joint Committee will be seen or perceived to be only a token exercise in public accountability rather than the genuine monitoring body it was intended to be.
26th November, 1991.