Reporting of Lobbying in Criminal Legal Cases Bill 2011 Speech by Minister of State at the Department of Justice and Equality, Ms Kathleen Lynch, T.D. Second Stage Speech (Seanad Éireann) 21 September 2011

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A chathaoirligh,

Let me at the outset express my appreciation and that of the Government to Senator Crown for publishing the Reporting of Lobbying in Criminal Legal Cases Bill 2011.  The Senator has, through this Bill put on the agenda once more the fraught issue of lobbying.

It goes without saying that lobbying is part and parcel of all our lives as public representatives.  Representative democracy has at its core the concept of us all representing our constituents, those who in a general sense put us in these Houses to represent them and their interests.  Beyond that, there is of course lobbying by various interests, representative bodies and associations and so on.  And of course, the Government itself is an active lobbyist in its own right, including in particular on the international stage. 

Lobbying has got a bad name in some quarters, particularly from those who think that members of the Oireachtas can function in a hermetically sealed bubble, immune from the realities of everyday life and concerned only with their role as legislators.  The reality, as we all know, is very different.  The making of representations, lobbying if you like, is part and parcel of the democratic process, everywhere that democracy is practiced.  It is not unique to Ireland, and there is nothing inherently or intrinsically wrong with it.  In certain circumstances, it may need to be regulated.  But that something should be regulated does not make it wrong. 

Having said that, there are clearly bounds to acceptable lobbying and both sides of the lobbying process must be conscious of the boundaries, particularly where professional lobbying is concerned.  The Government has committed itself in the Programme for Government to introduce a statutory register of lobbyists and to introduce rules to regulate lobbying and I know that it is a priority for my colleague, the Minister for Public Expenditure and Reform.  This commitment is proof of the seriousness with which we approach the issue of lobbying.  The public has a right to know who the lobbyists are and to have their activities regulated.  There can be no sense that professional lobbying can provide a covert "inside track" to power. 

It is in this context that I welcome this Bill here today.  The principles underlying the Bill are noble and to be commended.  As I have just said, they echo the philosophical underpinning of the Government’s view of lobbying generally.  But as I hope I have made clear, neither I, nor my Government colleagues, see anything intrinsically wrong with lobbying, provided that it is available to all and not the preserve of the few.  To be fair to Senator Crown, neither, it would appear does he.  What the Bill seems to aspire to achieve is an open, transparent regime, where representations in the criminal justice system are made public by both the "lobbyist" and the "lobbied", and the Minister for Justice is advised that the lobbying has taken place. 

However, while transparency in lobbying is something that the Government is committed to, we are committed to it in clearly defined circumstances where it is required.  We have never envisaged regulating lobbying where it doesn’t already exist and more particularly, would never countenance providing for or regulating lobbying that is already unlawful, or which if made lawful would undermine well-established constitutional and legal principles.

The Judiciary, the Office of the Director of Public Prosecutions and An Garda Síochána are three cornerstones of the criminal justice system in this State.  They are independent in the performance of their functions and that independence is a fundamental underpinning of our democracy.  Article 35 of the Constitution enshrines the independence of the Judiciary, and that independence has served the nation well since 1937.  The independence of the Judiciary as one of three arms of the State is at the heart of our democracy.  The boundaries of that independence are at their most acute at the interface between the Executive, the Parliament and the Judiciary.  Any encroachment by one on the other disturbs the delicate balance on which the edifice is constructed, undermining the separation of powers - the doctrine at the core of our democratic state.  And I have to say that in this Bill, Senator Crown is proposing to legislate for an encroachment on that independence that is to my mind unconscionable and demonstrably unconstitutional.
 
Senator Crown is proposing to legislate for the lobbying of the Judiciary by members of the Oireachtas.  The only brake, if brake it is, on this lobbying is that the "lobbyist" and the "lobbied" – in this case the Judiciary -  must make the lobbying public and in the case of "lobbyists" inform the Minister for Justice of the day of the fact of the lobbying.  Once they have complied with this, the wall of independence comes crashing down and Oireachtas members are free to make whatever representations they wish to make to the Judiciary.  Rather than being free, as at present, to conduct their Courts as they see fit and to administer justice without fear or favour, our Judiciary would be subject to a legalised lobbying regime, with no boundaries.  The independent Judiciary, a cornerstone of our democracy, will be no more.  It will be replaced by a Judiciary whose every decision will be parsed to see if it accords with any of the representations made to it by Oireachtas members.  While I have every faith in the capacity of the Judiciary to ignore such representations and to continue to act independently, I believe that to allow the perception to take root, that outside influence could be brought to bear on the Judiciary, would fatally undermine its independence. 

At the risk of repeating myself, judicial independence and the separation of powers are the bedrock of our democracy.  The suggestion that we should blithely legislate them away is breathtaking.  I am not aware of any previous legislative proposal whose effect, if not its intent, could be so injurious to the institutions of our State.  Judicial independence is not just a legal or constitutional nicety.  It is fundamental to our constitutional construct.  To tamper with it, even with the best of intentions, is to undermine it.  It is either independent or it is not.  There is no halfway house.  There is no regulated independence.  The Judiciary is constitutionally independent.  It must be allowed to operate independently and without interference from members of the Oireachtas.  To allow regulated interference is to undermine independence.

As well as falling foul of the constitutional provisions in relation to the separation of powers, the Bill, if enacted, would conflict with the common law offence of perverting or attempting to pervert the course of justice, as well as the offence of criminal contempt of court.  I fail to see how the legal precepts contained in these two offences can be reconciled with the regulated interference in the judicial process provided for in this Bill.
 
In saying all this, I am not for one moment questioning Senator Crown’s bona fides.  I understand what he is trying to achieve and I believe that he is motivated by good intentions.  It is unfortunate that these good intentions have been undermined by this fatal attack on judicial independence, which I accept cannot have been his intention. 

I want to turn now to other aspects of the Bill that are almost as undermining of our system of justice as the attack on judicial independence.  The Offices of the Director of Public Prosecutions and An Garda Síochána, are with the Judiciary, key elements of our prosecution system.  This was recognised in the enactment of the Prosecution of Offences Act 1974, which provides in Section 6(1)(a) as follows:
Subject to the provisions of this section, it shall not be lawful to communicate with the Attorney General or an officer of the Attorney General, the Director or an officer of the Director, the Acting Director, a member of the Garda Síochána or a solicitor who acts on behalf of the Attorney General in his official capacity or the Director in his official capacity, for the purpose of influencing the making of a decision to withdraw or not to initiate criminal proceedings or any particular charge in criminal proceedings.

Section 6(1)(b) goes on to say that:
If a person referred to in paragraph (a) of this subsection becomes of opinion that a communication is in breach of that paragraph, it shall be the duty of the person not to entertain the communication further.

In Section 3(1) of the Reporting of Lobbying in Criminal Legal Cases Bill 2011 before the House today, a member of the Oireachtas may communicate with the prosecution services, which in Schedule 1 includes An Garda Síochána and staff of the Director of Public Prosecutions, provided they make the communication public and address it to the Minister for Justice of the day.  This major legislative change is to be enacted without any reference to the Prosecution of Offences Act 1974.  The least one would expect is that Section 6 of that Act would be amended, if not repealed.  Instead, if the Bill before us today were to be enacted, we would have on the statute book two entirely contradictory legislative provisions in relation to the making of representations to the Director of Public Prosecutions, and An Garda Síochána.  The Prosecution of Offences Act says that it is unlawful for anyone, other than specified interested parties - and Members of the Oireachtas are not among those interested parties - to make representations to these institutions.  The Bill before the House would meanwhile legislate for the making of representations by Members of the Oireachtas.

The legal quagmire that the existence of two entirely contradictory Acts on the statute books would create, is not of itself a reason to dismiss the proposals in this Bill in relation to the institutions concerned.  If there was merit in the proposition, then the Bill could be amended to allow for the necessary amendments to the Prosecution of Offences Act to be brought forward.  So is there merit in legislating to provide for Members of the Oireachtas to lobby An Garda Síochána and the Director of Public Prosecutions, with the safeguards of disclosure provided in Senator Crown’s Bill?  Is it now time to amend the Prosecution of Offences Act to allow Members of the Oireachtas to lobby our prosecution services?  Are there grounds for believing that the 1974 Act has not worked and that wholesale interference with the prosecution services by Members of the Oireachtas is the order of the day?

I have to say that in my time as a member of the Oireachtas, including more recently as Minister of State at the Department of Justice and Equality, I have had no sense that there is interference with the prosecution services that would merit legislating for a regulated form of lobbying.  Yes, there have been instances where Members have made representations that were considered inappropriate, and there have been resultant resignations in a small number of cases.  However, the small number of such instances and the fact that they ultimately come to light does not provide a sound basis to legislate in the manner proposed here.

No more than in the case of the Judiciary, an independent prosecution system is at the heart of our system of justice.  The people who drafted the Prosecution of Offences Act 1974 were seized of this fact and legislated to protect that independence.  Save for a small number of high profile cases, I am convinced that the law is observed by Members of the Oireachtas and that in the rare case where it is not, the Garda Síochána and the Director of Public Prosecutions are sufficiently robust to apply the provisions of Section 6(1)(b) and not "entertain the communication further".

Again, I have to say that I cast no aspersions on Senator Crown’s motives here.  I have no doubt that he is motivated by the best of intentions.  Like us all, he wants the highest standards to be observed.  I am quite certain that his intent is not to encourage or facilitate lobbying in our criminal justice system, but to regulate it by making it public when it happens.  And that is fine up to a point.  However, in seeking to do this, he runs the risk of unintended consequences.  The controversy that the relatively few cases of interference in the prosecution system gives rise to, is entirely related to the fact that they are so rare.  If, as a result of the enactment of this Bill, lobbying of the prosecution services was to be made legal, it is possible that rather than deterring the practice, it would give it a legal underpinning and encourage it.  Indeed, it is not fanciful to imagine that the vast majority of Members of the Oireachtas who as things stand would never countenance making representations of the type concerned, could now be forced by competitive electoral considerations to be seen to do so, given that the fact of making the representations would be made public.  Why wouldn’t a Member of the Oireachtas make representations to An Garda Síochána or the Director of Public Prosecutions in relation to the prosecution of a case involving a constituent, if it was legal to do so.  And why would his or her constituency colleagues, contacted by the same constituent, not also do so.  The scale of potential representations is demonstrated by the fact that just under 500,000 offences were dealt with in the District Courts in Ireland in 2010.  In trying to deal with, and presumably eliminate, the relatively rare phenomenon of contact with the prosecution services, this legislation could have the unintended effect of making such representations mainstream, and on a scale that the Senator can hardly have envisaged or intended. 

But even if we take the benign view and assume that the fact of disclosure will dissuade the would-be lobbyist, is change necessary or desirable?  In my view, no more than in the case of the Judiciary, to tamper with the independence of the prosecution services is to undermine that independence.  At present, it is unlawful to make representations to An Garda Síochána or to the Director of Public Prosecutions. What is proposed here would, allowing for the need to amend the 1974 Act, make such representations lawful, once they were disclosed.  But is that what we want?  An alternative approach, if there is a problem to be addressed, and I don’t believe there is, would be to strengthen the 1974 Act to make provision for an offence of unlawfully communicating with the prosecution services, with attendant sanctions.  The route proposed in this legislation is to make what is unlawful, lawful, and to regulate it.  This is akin to the argument that if you legalise and regulate drugs, you can control the problem.  I don’t agree with the logic in the case of drugs and I don’t agree with it here.  To legalise is to legitimise.  I believe in an independent prosecution service, as do my Government colleagues.  We are not prepared to do anything that would have the perverse result of making lawful that which is currently unlawful and entirely undesirable.

Given what I have said already, I am not sure that it would serve any useful purpose for me to engage in a detailed analysis of the Bill.  The flaws are so fundamental, the outcome, if not the intent, so undermining of our democratic structures as well as our prosecution system, that there would be no point in highlighting technical or drafting deficiencies in the Bill. 

It will come as no surprise to Senator Crown or to the House, that the Government is opposing this Bill at Second Stage.  This Government has shown itself to be open to legislation emanating from the opposition benches.  We are not given to the knee-jerk rejection of ideas, on the sole grounds that they come from the "other side" or in this case from an independent member, that characterised previous administrations.  However, the Government parties would be in dereliction of their duty as legislators, if they were to stand back and permit the onward journey of a piece of legislation that strikes at the heart of the democratic institutions of this State, just because it is a Private Members’ Bill.  As countries around the globe embrace democracy and work to build up the democratic institutions that we sometimes take for granted, it would be perverse if this House was to give fair wind to a Bill, which, if enacted, could only perpetrate the gravest damage on our democracy.

I say this with the greatest respect for Senator Crown and reiterate that I welcome his initiative in bringing forward this Bill.  I would encourage him and other Members of this House to bring forward Private Members’ Bills in the future.  I can assure you that provided they address a problem or gap in the law and are constitutional, they will get a fair hearing.  Unfortunately, that is not the case with this Reporting of Lobbying in Criminal Legal Cases Bill 2011, and for that reason, the Government is opposing it at Second Stage. 

Thank you.