I welcome the Minister of State, Deputy Collins, to the House. He is most welcome to Seanad Éireann.

Amendment No. 1 has been ruled out of order. Does Senator Clonan wish to speak to the section?

I thank the Minister of State and his officials for being here this evening. I spoke at length with the Minister, Deputy O'Callaghan, about this issue last week. I made the point that this is a vocational House where we bring life and industrial experience to bear on legislation as it progresses through the Houses. Having been an Army officer serving on the command stand-to on the day of the Omagh bombing and having been a staff officer at the time to the Chief of Staff, who attended the monthly intelligence briefings, I am very aware of the security environment that pertained post the Good Friday Agreement and in the few weeks after the signing of that historic document. We were aware that certain groups continued to monitor, surveil and shadow very prominent members of society for assassination or abduction. Notwithstanding the ceasefires, a lot of activity continued.

In relation to the desire for the people of Omagh to know what happened to their loved ones, there is an emphasis in the Omagh Bombing Inquiry on what the UK authorities or British security services knew. I know from direct first-hand experience, not from hearsay, that the Irish authorities knew a great deal about this bomb. Last week, I raised the fact that the vehicle used was carefully selected in Carrickmacross and stolen on 13 August. Even though it had a southern registration plate, it was an import from Northern Ireland - it was a Vauxhall Cavalier and not an Opel Vectra. A Northern Irish registration plate was then put on it. It was then transported somewhere else within the Republic and 140 kg or thereabouts of fertiliser-based explosives were placed in it, along with a time-powered unit and a detonator. It is my understanding that this vehicle was shadowed and surveilled up to the point at which it crossed the Border and entered Northern Ireland.

If members of An Garda Síochána or the Defence Forces are unwilling to come forward to give evidence or do not offer themselves willingly and with consent, in the interests of truth and reconciliation, they should be compelled to do so. I am also aware that very senior members of our security services actively engaged - I do not want to use the word "colluded" - with all of the British security services, including the then RUC Special Branch, the force research unit, British military intelligence, MI5 and MI6. I outlined a number of clear examples of this. There has been little interest in these disclosures, which I find curious to say the least. That was the purpose behind the amendment I proposed.

It is also worth noting that another car bomb, which was very similar in design and construction to the one that detonated in Omagh killing so many people, was intercepted by An Garda Síochána on its way to a roll-on roll-off ferry in Dublin. It was apparently bound for Cheltenham, to be detonated when members of the royal family were there. Similar to the bomb used in Omagh that went off prematurely, if this other car bomb had gone off prematurely on board a car ferry going across the Irish Sea, the loss of life and catastrophic consequences do not bear thinking about. However, is it not interesting that the one that was intercepted south of the Border was intercepted prior to detonation whereas the one bound for Omagh in Northern Ireland was allowed to continue on its way across the Border?

We need to be ethical and upfront. As I said last week, we have a narrow window of opportunity to talk to senior members of An Garda Síochána, many of whom are still alive and might be persuaded to give an account of what actually happened during the Troubles and the role the Irish State and Irish security services played in that dirty war. We cannot stand on any supposed moral platform if we are not prepared to be upfront. Given the prospect of an all-island settlement, this is an issue of such importance that if those individuals or officeholders, for example, members of the Defence Forces who were directors of intelligence, are unwilling to come forward, speak about what actually happened and give an honest and frank account, they should be compelled to do so. They took an oath of allegiance that requires them to uphold the Constitution, Bunreacht na hÉireann. We all did. It would be interesting to see them discharge their responsibilities and duties under that oath and not to usurp the authority of the State, the aspirations set out in our Constitution and the will of the Irish people.

Of course, Irish people want to know what happened on the day of the Dublin and Monaghan bombings. As a staff officer to the Chief of Staff, I was approached by a senior ordnance officer at the rank of commandant who told me that he was on the scene of the bombing in Dublin and found components of that improvised explosive device that were standard British army issue. He believed that the British security services had assisted in, facilitated and supported that bomb attack. Two nights later, having filled in his ordnance forensic report, he was approached and asked to redact it by a senior member of An Garda Síochána and a member of a British intelligence agency who was based in the British Embassy in Dublin. He refused to do so. That matter should be pursued. Where is that document now?

Has it been destroyed? If so, by whom - by which director of intelligence or other authorised officer in the Defence Forces - and why? That is the spirit in which I address this, because in the same way we would like to know what happened to our families in Dublin and Monaghan in the 1970s, so too the people of Omagh want to know. The Republic was the centre of gravity in the logistics and supply chain effort of the Troubles and we should be ethically and politically obliged to tell the truth and step up to the plate.

I thank the Minister of State and Senator Clonan. While the Senator's amendment on the issue of compulsion and the ability to compel witnesses was ruled out of order, I want to talk around that issue and then on to section 2.

I refer to the rationale for consent provision and the legal constraints. The Minister stated on Second Stage that he strongly expects those people whom the inquiry wants to call to give evidence will co-operate and come forward. However, that still rests on the basis and expectation that people will do that. While the amendment was ruled out of order, what concrete assurances are there within this Bill that we can give victims' families regarding the truth and accountability they so deserve?

In the wider context of traditional justice and legacy issues relating to the Troubles, many victims feel they have been let down by successive Irish governments. We heard that in January this year when victims campaigner Raymond McCord came to the Good Friday Agreement implementation committee and described the lack of confidence in the Irish Government to deliver truth, justice and transparency and to give some families some potential closure. At 28 years post the Good Friday Agreement, we cannot allow this to continue. Again, there is a call for assurances that we can provide to the families of the Omagh bombings, as well as that piece around the provision of oral evidence and how that can be assured.

In reply to Senator Clonan, who has been somewhat careful in his language, it has been implied here that the Irish authorities knew a lot more about the bomb in advance of its detonation on 15 August, and that members of An Garda Síochána may have had knowledge of the bomb until its passage. The position is that would be an unsubstantiated allegation. If it is true, the allegation is of the utmost seriousness and the Senator should refer any information he has to An Garda Síochána for full investigation, or to the Omagh bombing Inquiry established by the UK Government to investigate whether the bombing could have been prevented.

It is certainly true that An Garda Síochána continued relentlessly to invest substantial resources in preventing and detecting dissident activity in this jurisdiction following the signing of the Good Friday Agreement, working in close co-operation with the RUC and, subsequently, the PSNI. It is an unfortunate reality that this continues today, and that the recent attacks on police stations in Lurgan and Dunmurry remind us that the threat from paramilitary groups persists, and that they are willing to act with total disregard for the harm they may inflict on communities. That is as much as I have to add.

Amendments Nos. 2 to 7, inclusive, and 11 to 18, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 6, to delete lines 18 to 24 and substitute the following:

“(2) A request for assistance under this section shall specify—

(a) the topics, areas of inquiry, or matters on which the Chairman requests that evidence be taken in accordance with this Part,

(b) any documents, records, or categories of documents relevant to those topics or areas of inquiry,

(c) the purpose for which the evidence is requested, and

(d) where the Chairman so wishes, any office holder or former office holder of whom the Chairman requests that evidence be taken in relation to a particular topic or

area of inquiry specified in accordance with paragraph (a).”

This is an extremely important and sensitive topic for this Chamber to debate and, of course, it is legislation that needs to be treated with great caution, and it needs to be correct. Families have campaigned for over 27 years for an inquiry and they deserve full transparency and full disclosure about the events that led up to the killing of their loved ones, and we support them in that. In order for the fullest possible co-operation with the Omagh inquiry and to allow it to get on with its work, it is important this legislation is facilitated in getting through the Oireachtas in a timely manner, which we support. That is why our colleague on the justice committee, Deputy Carthy, as Chair, agreed to wave pre-legislative scrutiny, but the legislation must also be got right. The key concern has been a lack of meaningful engagement with families. They were not shown draft legislation before publication and have not managed to secure a meeting with the Minister, despite earlier commitments to place their needs at the heart of the process. That has left some feeling sidelined in a process that should be trauma-centred and centred on their experience.

Several amendments here reflect the concerns of representatives of victims and survivors, and we can get into the detail of them, but as a general point, the provision of sworn evidence to the inquiry is to be done on a voluntary basis, which leads to some concerns that have been outlined by the previous speakers. Concerns have also been raised that national security limits could restrict disclosure because governments, particularly that of our nearest neighbours, often protect intelligence services and their operations. Under the terms of this Bill, as it stands, officials may decline to provide evidence and broad security claims could be used to justify withholding sensitive or potentially embarrassing information. Far too often, we have seen that in the past, particularly north of the Border.

We have to be clear that national security cannot be used to conceal failures or wrongdoing. Of course, every jurisdiction has lawful national security issues, and we recognise that, but the question is how wide or narrow these are and how they are defined in law. We have seen those clauses continue to be used in a vague and undefined concept by the British Government to effectively veto the release of information that it does not want to release. The way the concept is applied here is of paramount importance. Several amendments deal with this matter.

The families and survivors of Omagh have also genuine concerns that the current draft may give rise to difficulties that could undermine its intended purposes, and these concerns need to be addressed. The tabled amendments will decidedly strengthen the Bill and ensure the concerns of the families and survivors that have been brought to our attention are addressed as far as possible. I hope the Minister of State will engage with this in a constructive spirit, recognising these amendments are intended to be helpful, and that he gives genuine consideration to accepting them.

I listened to the Second Stage debate on the Bill last week. I was not able to attend, but I listened to it. In the context I have outlined, which is that this is a critical and very sensitive piece of work we are doing here, it is of the utmost importance that it is got right. It is also of the utmost importance that the priority in all of our thinking are the victims, survivors and families who lost loved ones in the Omagh bombing. I was very disappointed to hear Senator Blaney's contribution last week, when he made baseless and unsupported allegations in relation to members of Sinn Féin, although he did not specify. He then went on quite bizarrely to talk about constituency offices and rental arrangements. That does a great disservice to the work we are here to do over the course of these weeks to try to get this legislation right and to try to get it done in the interests of those who have campaigned long and hard for it. In the first instance, if Senator Blaney has information, the place to address that is in the inquiry. I look forward to him making a contribution to the inquiry when it is set up, as he claims he has information pertinent to the matters around the Omagh bombing. Second, regarding the issue of constituency offices, as I said, I have no idea why he went on to raise that issue, but this does a disservice because the families here are expecting us to deliver legislation, to treat it seriously, consider it with due diligence and ensure the concerns and issues they have campaigned for are reflected in it. To see it dragged into some kind of party political point-scoring exercise does a disservice not just to them, but to the work we are trying to do here. I hope that Member reflects on this matter in future debates.

Specifically on amendment No. 2, and the amendments that follow which are consequential to that amendment, it is a matter that has been raised by legal representatives of the Omagh families. It replaces the requirement to pre-specify exact questions with a requirement to outline topics, areas of questioning and relevant documents. It preserves a fair notice for witnesses by preventing rehearsed, scripted answers. It also aligns the legislation with the inquiry's own rule 10 protocol, ensuring consistency and effective evidence-gathering. The Omagh inquiry's rule 10 protocol sets out who can question witnesses, when others can request permission and how this keeps proceedings fair, focused and non-adversarial.

This amendment clarifies that any request for assistance must outline the specific topics, documents and purposes and, where relevant, the officeholders from whom evidence is sought. It replaces the reference to "questions" with "topics" and "areas of inquiry". A number of subsequent amendments that substitute “topics, areas of inquiry, or matters” for "questions" are consequential on this amendment. I hope that the Minister of State will accept this grouping of amendments.

I thank Senator Murphy for his amendments, which seek to substitute section 5(2)of the Bill and, in doing so, to provide that the chairman of the inquiry would, instead of specifying the questions that he wished to have asked of an officeholder or former officeholder, specify “the topics, areas of inquiry, or matters on which the Chairman requests that evidence be taken”. I note that the Senator has not put down a similar amendment to section 6, which deals with requests for assistance from former holders of ministerial office. This would create drafting and technical difficulties with many of his other amendments to later sections of the Bill.

Leaving aside that issue, the effect of this amendment would be to fundamentally alter the nature of the bespoke legal mechanism that is provided for in this Bill to assist the Omagh bombing inquiry. It would do so in two respects: first, by weakening the in-built safeguards designed to enable the taking of oral evidence for the purposes of an inquiry established in another jurisdiction; and second, by altering the role of the nominated judge of the High Court who is to act only as the conduit for the oral evidence.

When considering this amendment, it is necessary to recall why a bespoke legal mechanism is required to assist the inquiry in the first place and why this legislation is required. As the Minister outlined on Second Stage, there are legal complexities that must be navigated in the relationship between Ireland, as a sovereign State, and an inquiry established under the laws of another sovereign state. While the Government is fully committed to assisting the inquiry we must ensure that we do so in a manner that is consistent with our sovereignty, our laws and our obligations to protect the safety and security of the State and the rights of citizens.

Following extensive engagement with the Office of the Attorney General on how these two goals could be navigated, what is provided for in the Bill is a robust legal mechanism akin to that legislated for in 2019 to assist UK Troubles-related inquests. The mechanism enables the taking of the oral testimony in a manner that protects the rights of witnesses while also providing for the possibility of protecting sovereignty, national security and other essential interests of the State and meeting obligations to, inter alia, investigate crime, protect life and comply with data protection obligations. The Bill does this by requiring that the questions to be answered by the witness must be approved in advance by the head of the State body concerned. The proposed amendment, by only requiring the chairman to specify "topics, areas of inquiry, or matters”, is not compatible with an obligation on the head of the State body concerned under section 5(4) to refuse to accede to a request on the basis of any of the grounds listed in that subsection. The head would not have sufficiently detailed information to do so. Were the head to accede to broad topics, witnesses would be put in the invidious position at a later stage of the process of having to decide whether answering a specific question would give rise to a risk of prejudice to the security of the State and so forth. I do not believe this is a workable proposition.

There is, as I have said, a second fundamental problem with the proposed amendment, and this becomes clearer when the later proposed amendment to section 9 is considered, that being, amendment No. 21. It appears that it would be for the nominated judge of the High Court to examine the witness on the “topics, areas of inquiry or matters" and decide what questions to pose. This would involve the judge putting him or herself in the place of the chairman to the inquiry but without the factual knowledge of all the material available to the chairman through the disclosure process or the chairman’s lines of investigation. This would be to greatly alter the intended role of the nominated judge, who is to act only as a conduit for the evidence. The nominated judge is not acting judicially or involved in the administration of justice. In addition, assigning the judge a decision-making role would likely raise the issue of whether the judge’s decisions could be challenged or appealed. As the Senator will be aware, Article 34.5.4° of the Constitution gives the Supreme Court appellate jurisdiction from a decision of the High Court. There is no intention to create such an avenue and doing so would certainly risk prolonging the process. I prefer our approach, as set out in Bill. It has been carefully designed to maximise the evidence available to the inquiry in a manner that is consistent with our sovereignty, our laws and our obligations to protect the safety and security of the State and the rights of citizens. We are unable to accept the amendments.

I move amendment No. 3:

In page 6, line 27, to delete “questions” and substitute “topics, area of inquiry or matters”.

I move amendment No. 4:

In page 6, line 29, to delete “questions” and substitute “topics, area of inquiry or matters”.

I move amendment No. 5:

In page 6, line 31, to delete “any such question” and substitute “regarding any such topics, area of inquiry or matters”.

I move amendment No. 6:

In page 6, line 36, to delete “questions” and substitute “topics, area of inquiry or matters”.

I move amendment No. 7:

In page 6, line 38, to delete “questions” and substitute “topics, area of inquiry or matters”.

Amendments Nos. 8 and 9 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 8:

In page 7, to delete lines 1 and 2 and substitute the following:

“(i) be likely to cause a specific, identifiable and substantial risk of prejudice to the sovereignty or security of the State, and only where such risk cannot reasonably be mitigated through redaction, protective measures, or partial disclosure,”.

Specifically on amendment No. 8, we have repeatedly highlighted how national security has frequently been cited in Britain to restrict disclosure in legacy investigations, often leaving families without full access to information about past events. This amendment reinforces that such an approach cannot apply here. It ensures that co-operation with the Omagh inquiry is not undermined by broad or undefined national security claims and that designated individuals can be questioned in a structured and transparent process. The purpose of this amendment is to support truth recovery, to provide clarity for those affected, and to guarantee that legitimate security considerations cannot be used to prevent the inquiry from receiving relevant evidence.

Amendment No. 9 is designed to ensure no misuse of national security as a rationale for not providing information to the inquiry. The amendment ensures that refusals of co-operation cannot rely on vague or speculative claims of security risk. It requires officials to set out clearly the specific harm they allege and to explain why less restrictive options would not suffice, strengthening transparency and accountability within the inquiry process.

I want to lend my support to these amendments. For too long, families, victims and survivors of the Troubles have not received answers and have not received transparency around what happened to their loved ones, and this has often been under the guise of security reasons. We are so many years on now from these awful tragedies. Remaining family members, especially those fathers and mothers who lost children and are in their twilight years, deserve accountability and they deserve justice while they are still alive. We cannot keep harking back to the days of old where vague obfuscation was provided for why justice and answers could not brought to the victims.

I am replying to amendments Nos. 8 and 9 as they are grouped. I thank both Senators for their amendments and comments. As I understand it, the intent of the amendments to section 5(4) of the Bill is to seek to narrow the circumstances in which the head of the State body is required to refuse to accede to a request for assistance for reasons linked to the sovereignty or security of the State, or other essential interests of the State.

We do not believe that the amendments achieve this, rather, they would seem to have the effect of lowering the threshold for refusal. The test, as set out in section 5(4)(b)(i), requires the head of the State body, be that the Garda Commissioner, the Chief of Staff of the Defence Forces or the Secretary General of a Department, to be of the opinion that acceding to a request would be likely to prejudice the fundamental concerns of the State. The language mirrors that used in the Criminal Justice (International Co-operation) Act 2019 that provides for co-operation with UK Troubles-related inquests and which has been used successfully. The test as set out is, in my view, a higher threshold for the head to overcome than that proposed by the Senator. The Senator's proposed threshold as set out in amendment No. 8 simply requires that the head be of the opinion that acceding would be likely to cause a risk of prejudice to these fundamental concerns of the State.

I note that the Senator's amendment seeks to qualify the risk of prejudice that would be required by stating that it must be a "specific, identifiable and substantial risk" and that it should only be used as a ground for refusal where risk mitigations, such as redactions or partial disclosures, would not afford sufficient protection. We do not believe that these qualifications overcome the ultimate effect, which would be to lower the threshold.

Amendment No. 9 picks up a similar theme and seeks to provide that a refusal may not be based on a "general, speculative or unparticularised assertion of harm". We do no believe that this amendment is necessary or adds anything when the totality of section 5 is considered.

In the first instance, it is clear from section 5(3) that the head of a body may refuse a request for assistance in full or in part. This option is essential. It is our firm view and that of the Government that we must do everything possible to ensure that the chairman of the inquiry has access to the information that he needs to carry out his work and answer the questions of the families. This position has informed all of the actions that we have taken to support and facilitate the work of the inquiry, including putting in place a memorandum of understanding, MOU, in relation to the disclosure of materials, implementing measures to support the disclosure of sensitive personal data and bringing forward this Bill. It will inform our consideration of any request from the head of a body to refuse to accede to a request on any of the grounds set out in section 5(4).

Second, the decision to refuse rests with the most senior officers in our State bodies. They are bound to act lawfully and with integrity and to make decisions on an objective, reasonable and rational basis in the public interest.

Third, as we have alluded to, where the head of the body is of the opinion that acceding to a request would be likely to prejudice the sovereignty or security of the State, the head must consult with the line Minister, and where the Minister for justice is not the line Minister, also the Minister for justice. This is an important safeguard in the process. It will, of necessity, require the head of the State body to set out in writing the basis of their opinion including the nature of the prejudice that is likely to occur and why it cannot be mitigated, for example, by partial disclosure or the provision of a gist of the evidence, or the use of codes to anonymise certain persons.

Fourth, I draw the Senator's attention to the requirement in section 5(6) that where a decision has been taken to refuse a request in respect of a particular question, that decision and the reason for the refusal must be set out in writing to the chairman of the inquiry.

Taking the section as a whole, I am satisfied that it has been designed in a manner that ensures that any decision to refuse will be taken only after very careful consideration and be well-founded on an assessment that prejudice is likely to occur. The Senator has referred to a concern that national security grounds must not be misused to prevent the disclosure of information that might be embarrassing to services or to conceal wrongdoing or failures. We are entirely at one on that point and I am satisfied that the test as set out in section 5(4) and the layered approach adopted, which requires consultation with the Minister or, in some instances, two Ministers, safeguards against this risk. For these reasons we are not accepting the amendments.

I move amendment No. 9:

In page 7, between lines 4 and 5, to insert the following:

“(iii) for the purposes of paragraph (i), a refusal may not be based on a general, speculative, or unparticularised assertion of harm to State security or essential interests. The relevant head shall record in writing the precise nature of the risk relied upon and the reasons why less restrictive measures would not adequately protect that interest,”

Amendments Nos. 10 and 20 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 10:

In page 7, to delete lines 7 to 11 and substitute the following:

“(5) A relevant head to whom a request for assistance is made shall notify the former office holder of the request. The consent in writing of the former office holder shall be required only where the former office holder demonstrates that answering the specified question would give rise to a substantial and objectively reasonable risk of prejudice to their legal rights or to the performance of functions lawfully exercised during their tenure. A refusal to consent shall—

(a) be provided in writing,

(b) set out the specific grounds relied upon, and

(c) be subject to review by the Chairman for adequacy and reasonableness.”.

I will speak subsequently to amendment No. 20. Amendment No. 10 is about ensuring the process delivers truth for families. It clarifies that a former officeholder may withhold consent only where they can show substantial and objectively reasonable risk to their legal rights for past lawful functions. Any refusal must be written, specify the grounds relied on and can be reviewed by the inquiry chair for adequacy and reasonableness. This safeguard is important because it limits refusals to genuine demonstrable risks, requires written justification and ensures the inquiry chair can review decisions, strengthening transparency and preventing unjustified barriers to the provision of evidence.

Amendment No. 20 again seeks to strengthen the effectiveness of legislation in helping the families of victims and survivors of the Omagh bomb in getting to the truth. It provides that a former Minister's consent is only required where they can show substantial objectively reasonable risk to their legal rights or past lawful functions. Any refusal must be written, set out the specific grounds and may be reviewed by the inquiry chair for adequacy and reasonableness.

As we understand it, in the Senator's proposed amendment to section 5(5) and its equivalent in section 6(5), he is seeking to introduce a form of compulsion for former officeholders, be they past members of An Garda Síochána, the Defence Forces, civil servants or former ministerial officeholders, to give evidence before the High Court. This would be subject to the person concerned having the right to demonstrate that answering the questions would give rise to a risk of prejudice to their legal rights or to the performance of functions lawfully exercised during their tenure. The risk of prejudice would need to reach the level of "a substantial and objectively reasonable risk of prejudice". In such cases their consent would be required.

Leaving aside some confusion in the wording of the amendment, which refers to consent being required in the first part and to a refusal to consent in the second part, the proposal is fundamentally flawed. It seeks to assign to the chairman of the inquiry the role of reviewing the case set out by the person for refusing to consent "for adequacy and reasonableness". In effect, the amendment appears to assign to the chairman the role of deciding whether the person has the right to refuse to consent to provide oral testimony before the nominated Irish High Court judge.

In considering this proposal, it is necessary to recall that the inquiry is established under the law of another sovereign state. The chairman of the inquiry is necessarily limited to applying the law of the United Kingdom and were he to be assigned a role in determining the adequacy and reasonableness of the case put forward by the person concerned, he could only do so by applying UK law.

I respectfully say this is not a tenable proposition. It is also the case that the chairman's powers do not extend beyond the United Kingdom, and any view he might take on the case made could have no validity under Irish law. The amendment raises many other issues, such as whether the outcome of the chairman’s review would be subject to appeal before the courts, here or in the UK, thereby introducing delay into the process, or whether a person suffering ill health would have any means of declining a request to assist. These are secondary to the fundamental problem with the proposal.

An important consideration when developing this Bill was how provision might be made for past office holders to assist. Like everyone, we are very conscious that the inquiry will likely wish to seek to hear from those with first-hand information of the events prior to the bombing. We are also very conscious that due to the passage of time, most if not all of those persons will be well into their retirement. While such persons can of their own volition decide to attend before the inquiry in the UK if they choose to do so, they would remain subject to certain residual obligations in respect of sensitive information acquired during their service but without the benefit of the privileges and immunities which they are entitled to under Irish law. In effect, they would be putting themselves at risk of being held criminally liable for failure to comply with orders of the chairman.

It is these considerations that resulted in the scope of the Bill before us going beyond what was provided for in 2019 in respect of the provision of assistance to UK Troubles-related inquests. While what is provided for is voluntary assistance in recognition that past officers or private citizens cannot be compelled to provide assistance to a foreign inquiry, as I stated before in the House at Second Stage, we expect co-operation from all concerned who are requested to provide assistance. It is clear from that my remarks that we are not accepting the amendments.

I move amendment No. 11:

In page 7, line 9, to delete “question” and substitute “topic, area of inquiry or matter”.

I move amendment No. 12:

In page 7, line 17, to delete “questions” and substitute “topics, area of inquiry or matters”.

I move amendment No. 13:

In page 7, line 19, to delete “questions” and substitute “topics, area of inquiry or matters”.

I move amendment No. 14:

In page 7, line 22, to delete “question” and substitute “topic, area of inquiry or matter”.

I move amendment No. 15:

In page 7, line 29, to delete “questions” and substitute “topics, area of inquiry or matters”.

I move amendment No. 16:

In page 7, line 34, to delete “question” and substitute “topic, area of inquiry or matter”.

I move amendment No. 17:

In page 7, line 38, to delete “questions” and substitute “topics, area of inquiry or matters”.

I move amendment No. 18:

In page 7, line 39, to delete “questions” and substitute “topics, area of inquiry or matters”.

I move amendment No. 19:

In page 8, between lines 9 and 10, to insert the following:

“Written statements from office holders and former office holders

6.(1) This section applies where a relevant head has, under section 5, acceded in whole or in part to a request for assistance for the taking of evidence from an office holder or former office holder of a designated State body.

(2) Before any oral evidence is taken in accordance with sections 9, 10 and 11, the relevant head shall ensure that the office holder or former office holder concerned provides to the designated persons a written statement addressing—

(a) the topics, areas of inquiry or matters specified in the request for assistance,

(b) any documents, records or categories of documents identified as relevant under section 5(2)(b), and

(c) any additional matters on which the designated persons consider that a written account is reasonably required for the purposes of the Inquiry.

(3) A written statement provided under subsection (2) shall—

(a) be signed by the office holder or former office holder,

(b) contain a declaration that it is true to the best of his or her knowledge and belief,

and

(c) be furnished within such period as the relevant head may specify, having regard to the efficient conduct of the Inquiry.

(4) Upon receipt of a written statement under this section, the designated persons shall provide it to the Chairman as soon as practicable, subject to the condition referred to in section 11(8).

(5) Where the Chairman, having considered a written statement provided under this section, is satisfied that the statement adequately addresses the matters for which evidence was sought, the Chairman may notify the relevant head in writing that oral evidence from the office holder or former office holder is not required.

(6) Where the Chairman determines that oral evidence remains necessary, the written statement shall form the baseline account for the purposes of any subsequent examination, and the oral evidence shall be confined, insofar as is practicable, to—

(a) clarification of matters contained in the written statement,

(b) examination of inconsistencies or omissions, and

(c) any further matters reasonably arising from the written statement or relevant documents.

(7) Nothing in this section shall prejudice the power of the Chairman to request further written information or clarification from an office holder or former office holder where necessary for the purposes of the Inquiry.”.

I will say a few words to amendment No. 19. This amendment introduces a requirement for witnesses to provide a signed and truthful written statement before giving any oral evidence. It establishes a clear baseline account and ensures that key issues and documents are addressed in advance. It allows the chair to dispense with oral testimony where written material is sufficient. Where oral evidence is still needed, questioning can focus on clarifying gaps, inconsistences or outstanding matters. The inquiry and the draft memorandum of understanding both support this approach, which strengthens the clarity and overall effectiveness of the co-operation process.

I thank Senator Murphy for this amendment. The Senator is seeking to insert a new section after section 5, providing for the taking of written witness statements from office holders and former office holders. The statements would be provided to the designated person who would, in turn, provide them to the chairman of the inquiry. If the chairman is satisfied with the contents, he may decide that he does not require the person concerned to give oral evidence. I note that no provision is made in respect of former ministerial office holders, which presents technical and drafting issues with the Senator’s proposed amendments to later sections of the Bill.

While there is some confusion in the drafting of the amendment itself, for example, the office holder or former office holder may well be the designated person who is to give the oral evidence before the nominated judge of the High Court, what is proposed is at odds with the mechanism provided for in the Bill and does not take account of how the State is working with the inquiry. The mechanism provided for in the Bill is, out of necessity, given that the inquiry is established under the laws of another foreign state, premised on the chairman of the inquiry specifying the questions he wishes to be asked and the answers to those questions, insofar as they are acceded to, being put into evidence under oath before a nominated judge of the High Court. The questions specified by the chairman will arise from his consideration of the materials that the inquiry has gathered in the course of its work, including witness statements.

As the Senator will be aware, there is a memorandum of understanding in place with the inquiry in relation to the disclosure of Irish State materials. A substantial volume of material has been disclosed to date - over 30,000 pages - and that process is ongoing. The inquiry is examining those materials and materials disclosed by UK state authorities, including the PSNI and the intelligence services. The legal representatives of the core participants to the inquiry, principally family members, are also examining the materials shared with them by the inquiry and drawing any potential lines of questioning to the attention of the inquiry team. Through this process, the inquiry is identifying persons from whom it wishes to take written statements. My Department, as the central point of contact for the inquiry, has already received requests for assistance in relation to the taking of witness statements from a number of persons and is engaging with An Garda Síochána in relation to the processing of those requests.

In so far as they may be former office holders, it will, of course, be a matter for them as private citizens to decide whether they wish to provide witness statements as they cannot be compelled to provide assistance to a foreign inquiry. It is not the case, as proposed in the Senator’s amendment, that the head of the State body can ensure that the former office holders provides a written statement. The head of a State body has no power to direct a former official and has no sanction available to them to impose in the case of non-compliance. However, as I stated before the Seanad on Second Stage, we expect co-operation from all concerned who are requested to provide assistance. We anticipate that more requests for witness statements may be received and our Department is giving consideration to formally setting out an agreed process for the handling of such requests. This would be in the interests of transparency and ease of the inquiry.

As I understand how the inquiry is approaching its work, following its examination of a written witness statement, it may decide there are matters remaining that necessitate the taking of oral evidence or that there are no outstanding matters and it does not require the person to provide oral evidence.

This applies in the case of UK witnesses as it does in the case of Irish State witnesses. We are satisfied from our consultations with the Office of the Attorney General that there is no need for legislation to support the provision of assistance in relation to the gathering of such written statements. It can be done administratively.

Finally, I do have to say that I am doubtful as to the logic of creating a mechanism whereby the inquiry makes a request for assistance in the form of oral evidence under section 5 even though it may not be established that the oral evidence is actually required until after the preparation of witness statements under the Senator’s proposed amendment. This seems a somewhat back-to-front approach, if I may say so, and we prefer the logic of the mechanism in the Bill, which is based on the chairman only making a request for assistance where he has established that the taking of oral evidence is required. For those reasons we will not accept the amendment.

I move amendment No. 20:

In page 8, to delete lines 31 to 33 and substitute the following:

“(5) The Minister shall notify the former holder of ministerial office of the request. The consent in writing of the former holder of ministerial office shall be required only where that person demonstrates that acceding to the request would give rise to a substantial and objectively reasonable risk of prejudice to their legal rights or to the lawful performance of functions exercised during their tenure. Any refusal to consent shall—

(a) be provided in writing,

(b) set out the specific grounds relied upon, and

(c) be subject to review by the Chairman for adequacy and reasonableness.”.

Amendments Nos. 21 and 22 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 21:

In page 10, between lines 20 and 21, to insert the following:

“Questioning of designated person by nominated judge

9.(1) For the purpose of taking the evidence specified in a decision under section 5(3) to which subsection (6)(c)(i) of that section applies, or specified in a decision under section 6(3) to which subsection (6)(c)(i) of that section applies—

(a) no person other than the nominated judge shall ask questions of the designated person, and

(b) the nominated judge shall examine the designated person on the topics, areas of inquiry or matters specified in the relevant decision, and may, for that purpose—

(i) put to the designated person any document, record or information relevant to those topics or areas of inquiry,

(ii) ask any questions that arise reasonably from the designated person’s answers, from any written statement provided under section 5(5)(a), or from any relevant document, and

(iii) pursue such supplementary or follow-up questions as the nominated judge considers necessary and appropriate for the effective and fair examination of the designated person.

(2) Nothing in this section shall require the nominated judge to confine the examination to any predetermined or pre-approved list of questions, provided that the examination remains within the scope of the topics, areas of inquiry or matters specified in the relevant decision under section 5 or 6.

(3) The nominated judge shall conduct the examination in such manner as he or she considers necessary to ensure that the evidence taken is full, accurate and capable of assisting the Inquiry in the performance of its functions.”.

As it stands, this section tightly restricts questioning to the exact questions authorised in advance. It creates a narrow predetermined scope that limits flexibility and prevents broader or exploratory lines of inquiry needed to get to the truth. This amendment ensures examinations are fair, thorough and are not restricted to pre-set questions, allowing the judge to pursue relevant documents, follow-up queries and full evidence for the inquiry’s work. The amendment gives a nominated judge the explicit authority to present relevant documents and pursue follow-up questions within defined topics. The purpose of this amendment is to enable effective and responsible examination, which is something representatives of the families in particular want to see.

Amendment No. 22 allows the chair or counsel on their behalf to question a witness after the judge’s examination probing any matters arising from the evidence. It permits follow-up questions, use of documents and exploration of inconsistencies while keeping all questioning within the defined scope of the inquiry’s authorised topics.

I have already touched on the difficulties with this amendment, No. 21, in my remarks on amendment No. 2. As it is linked to the change proposed by the Senator to section 5(2) which has not been accepted, we cannot accept this amendment. This also applies in the case of amendment No. 22. The Senator’s amendment to substitute section 9 would have the effect of fundamentally altering the bespoke legal mechanism that is being provided for in the Bill which, as I have said, is designed to enable the taking of oral evidence in a manner that protects the essential interests of the State and the rights of witnesses. It is for this reason that it is founded on the questions to be asked of the designated persons by the nominated High Court judge being only those approved in advance. Under section 9, the role of the High Court judge is solely to act as a conduit for the evidence to be given by the designated person in response to approved questions. The judge dealing with the matter is in effect carrying out a commission on oath-type role. It is not a hearing per se. The judge does not have a judicial role in relation to the content of the questions to be asked or the content of the answers or of the clarifying guestions that may be asked under section 10.

The Senator's amendment seeks to turn the process into a hearing and would see the judge take on the role of examiner, deciding what lines of inquiry to pursue and questions to be asked of the designated person. This is not, as I have said, the intended role of the judge nor is it a role that he or she would be equipped to undertake as he or she would not have the factual knowledge to do so. The judge would in effect be putting him or herself in the place of the chairman to the inquiry but without the factual knowledge of the extensive materials available to the inquiry. In addition, as I referred to earlier, assigning the judge a decision-making role would likely raise the issue of whether the judge’s decisions could be challenged or appealed. This is not the intention and would certainly risk prolonging the process.

Turning to amendment No. 22 which seeks to replace section 10 of the Bill, this would see the chairman of the inquiry, or counsel to the inquiry on his behalf, having a similar role to that proposed for the nominated judge under section 9. While the chairman or his representative would have all the factual knowledge available to him to examine the designated person and pursue any lines of inquiry, such a role is simply incompatible with the rationale underpinning the need for the bespoke mechanism provided for in the Bill. Section 10 as it stands in the Bill goes as far as possible. It has been drafted in ease of the inquiry so that in the event of minor points arising that could be clarified on the day, the chairman will have an opportunity to ask questions to seek to clarify the answers given.

I would note that there are also drafting and technical difficulties with these amendments. They purport to refer to section 6, which concerns requests for assistance from former ministerial office holders, but no equivalent amendments as proposed to section 5 were proposed to section 6. We cannot accept these amendments.

I move amendment No. 22:

In page 10, after line 36, to insert the following:

“Questioning of designated person by or on behalf of Chairman

10. (1) Upon completion of the examination of a designated person by the nominated judge ask questions of the designated person.

(2) The Chairman, or counsel to the Inquiry on his or her behalf, may ask questions for the purpose of examining the designated person on any matters arising from the evidence, including—

(a) matters arising from answers given to the nominated judge,

(b) matters arising from any written statement provided under section 5(5)(a),

(c) matters arising from any document, record or information relevant to the topics, areas of inquiry or matters specified in the relevant decision under section 5 or section 6, and

(d) any inconsistencies, omissions or issues reasonably requiring further exploration for the purposes of the Inquiry.

(3) For the purposes of subsection (2), the Chairman, or counsel to the Inquiry on his or her behalf, may—

(a) put documents or records to the designated person,

(b) pursue supplementary or follow-up questions, and

(c) probe any matter that reasonably arises from the evidence, provided that the examination remains within the scope of the topics, areas of inquiry or matters specified in the relevant decision under section 5 or 6.

(4) Nothing in this section shall require the Chairman, or counsel to the Inquiry on his or her behalf, to confine questioning to clarification of answers given under section 9.”.

I move amendment No. 23:

In page 12, between lines 4 and 5, to insert the following:

“(5) A person referred to in subsection (3)(f), (g) or (h) may—

(a) propose to the Chairman, to counsel to the Inquiry, or to the nominated judge any questions or topics that the person considers relevant to the evidence being taken under section 9 or 10,

(b) make submissions or representations to the Chairman, to counsel to the Inquiry, or to the nominated judge in relation to the evidence being taken, and

(c) apply to the nominated judge for permission to put questions directly to the designated person giving evidence, and the Chairman, counsel to the Inquiry, or the nominated judge, as the case may be, shall consider any such proposal,submission, representation or application.”.

This amendment strengthens participation rights by allowing certain affected parties to propose questions or topics, make submissions on the evidence and even apply to put questions directly to a witness. It ensures that their concerns are formally considered by the chair, counsel or the judge, enhancing fairness and transparency in how the evidence is tested.

The Senator is seeking to insert a new subsection in section 11 after subsection (4) dealing with the rights of core participants to the inquiry. The core participants are largely family members and have a formal status before the inquiry with rights to receive documents and make submissions to the chairman. There are 62 core participants, of whom 58 comprise families or groups of families, represented by a range of legal firms. The Bill makes provision for them to attend and hear at first hand the evidence given before the nominated judge of the High Court. This is an important new feature compared with the 2019 Act and I am pleased that it was possible to make such provision in the Bill, notwithstanding that the process is to be conducted otherwise than in public.

Amendment No. 23 is linked to the Senator’s earlier amendments to section 5 which sought to dispense with the requirement for the chairman to specify the questions that he wished to have answered and instead submit a more open request identifying topics, areas and matters. That amendment has not been accepted and I cannot accept this amendment. In considering amendment No. 23, I would recall that the inquiry is established under the law of the United Kingdom and operates in accordance with the rules and procedures applicable to such inquiries in that jurisdiction. Those rules govern the right of core participants to make submissions and suggest lines of questioning to the chairman and, indeed, to ask questions of witnesses themselves with the permission of the chairman. It is entirely a matter for the chairman of the inquiry to decide if, or how, core participants may make submissions to him in relation to the matters on which he may seek assistance from Irish State authorities under section 5 of the Bill. It is not a matter that is appropriate to the Bill.

Other elements of the Senator’s amendment seeking to have the core participants make submissions to the nominated judge as to lines of questioning and seeking the permission of the nominated judge to directly question the designated person are wholly incompatible with the bespoke mechanism provided for in the Bill and the rationale underpinning the need for such a bespoke mechanism. Apart from these fundamental problems with the amendment, in seeking to give the chairman, counsel to the inquiry and the nominated judge decision-making roles, it would likely bring legal challenges or appeals into play. In the case of the chairman or his counsel, it is unclear if such challenges would be determined under Irish law or UK law.

As will be clear from my remarks, we are satisfied that the mechanism in the Bill is both legally necessary and legally sound, and is capable of operating reasonably efficiently so as to ensure that requests for assistance are responded to as comprehensively as possible and without undue delay. I cannot accept this amendment.

I move amendment No. 24:

In page 12, between lines 4 and 5, to insert the following:

“(5) Without prejudice to subsection (4), the Chairman and counsel to the Inquiry shall be entitled to make submissions or representations to the nominated judge concerning the scope, relevance and permissible extent of questioning under section 9 or 10.”.

This amendment confirms that the chairman and counsel may make submissions to the nominated judge on the scope and relevance of questioning. It reinforces judicial oversight while ensuring the inquiry's leadership can guide how evidence is tested, and help to maintain fairness, focus and consistency during examinations conducted under sections 9 and 10.

The Senator is seeking to insert a new subsection after section 11(4) dealing with the right of the chairman and counsel to the inquiry to make submissions or representations to the nominated judge concerning the scope, relevance and permissible extent of questioning under sections 9 and 10.

It appears to extend to the questions that might be put by the nominated judge, core participants or their legal representatives or the nominated judge, himself or herself. In any event, it is linked to the Senator’s amendment to section 5(2), which has not been accepted as it would change the whole basis of the bespoke mechanism that has been carefully designed to enable the provision of assistance to an inquiry established in another jurisdiction while ensuring that necessary safeguards are in place. I cannot accept the amendment.

I move amendment No. 25:

In page 12, to delete lines 5 to 10 and substitute the following:

“(5) For the purpose of giving evidence—

(a) under section 9, a designated person shall not be compelled to give any evidence which he or she could not be compelled to give in criminal proceedings in the State,

(b) under section 10, a designated person may refuse to answer a question only where answering would give rise to a substantial and objectively reasonable risk of prejudice to a legal right or privilege recognised in criminal proceedings in the State. Any refusal shall—

(i) be provided in writing or on the record,

(ii) set out the specific legal basis for the refusal, and

(iii) be subject to review by the Chairman for adequacy and reasonableness,

and

(c) subject to paragraph (b), a designated person giving evidence under section 10 shall answer all questions put to him or her, including supplementary or follow-up questions arising from—

(i) answers given under section 9 or 10,

(ii) any written statement provided under section 5(5)(a), or

(iii) any document, record or information relevant to the topics, areas of inquiry or matters specified in the relevant decision under section 5 or 6.”.

This amendment clarifies the limits on compellability when evidence is taken. It preserves the same protections as a person would have in criminal proceedings but requires that any refusal to answer under section 10 be specific, justified in writing and reviewable. Subject to those safeguards, witnesses must answer all relevant follow-up questions arising from their evidence or documents.

The amendment seeks to limit the grounds on which a designated person may refuse to answer a question asked by or on behalf of the chairman of the inquiry under section 10. The amendment is drafted on the basis that many of the Senator’s earlier amendments would have been accepted. As they have not been accepted, this amendment is not amenable to being accepted for that reason.

I thank the Minister of State for his responses to date. Clearly, we have not agreed on all the matters we have brought forward but they were brought forward with good intent. We will study his responses very carefully and go through the observations he has made on the amendments on the conduct of the inquiry and the assurances he has given in relation to the Government's approach to the conduct of the inquiry and the passage of this legislation. We will obviously continue to discuss this in due course.

When is it proposed to take the next Stage?

Next Tuesday.

Is that agreed? Agreed.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.

Is that agreed? Agreed.