"Private briefings" were given to Dail deputies and senators on behalf of the Government in order to avoid a public debate on intended legislation which would affect the independence of the Controller of Patents, it was claimed in the High Court yesterday. The State has undertaken not to bring in the controversial aspects of the legislation for a week.
Mr Ercus Stewart SC made the claim on behalf of Mr Sean Fitzpatrick, the Controller of Patents, Designs and Trade Marks, in proceedings in which it is alleged there has been a threat to terminate Mr Fitzpatrick's appointment.
The Controller has brought the proceedings against the Minister for Enterprise, Trade and Employment and the Government.
Mr Fitzpatrick claimed the Secretary General of the Department of Enterprise, Trade and Employment had advised him the Government was considering terminating his position on the basis that he would not go to Kilkenny.
He alleged he had not been given documentation that was before the Government and which gave rise to its "considering terminating his appointment as Controller".
Last January Mr Fitzpatrick was given High Court permission to bring judicial review proceedings and to apply for an order to prohibit any attempt to remove him from office before the year 2008.
Mr Stewart said his client had never refused to go to Kilkenny. He claimed that while Mr Fitzpatrick was applying before the High Court last June for documents, the Minister had initiated legislation which affected the future status of the Controller of Patents and also affected Mr Fitzpatrick's court claim.
Mr Stewart told Mr Justice Kelly that a Copyright (Amendment) Bill, 1998, was passed by the Dail last April. There was no controversy about that Bill, but when it reached the Seanad it was amended on June 18th last.
Mr Fitzpatrick's lawyers had not been made aware of the amendments when they were making an application before the High Court on June 22nd.
Mr Stewart alleged private briefings had been given to Dail deputies and senators so as to avoid debate. He claimed the amendments had been an attempt to determine several issues in Mr Fitzpatrick's court case.
"What concerns my client and his legal representatives is that all of this was occurring in other branches of the State and was not disclosed to the Controller, the High Court or the Controller's counsel," he said.
Mr Stewart alleged the new legislation "completely interfered with the independence of an officer of State". There were no reports of the new legislation in the media, and it was only when the Controller got the Dail and Seanad debates that he discovered what had happened.
Mr Fitzpatrick had been consulted about the original Copyright Bill which did not impinge on him, counsel said. The new legislation was passed by both Houses of the Oireachtas on July 1st last.
Mr Stewart said the new Bill would seriously affect Mr Fitzpatrick's position in pending litigation. The Bill was signed into law by the President and would come into force when the Minister chose to implement it. Counsel said Mr Fitzpatrick had since gone back to the High Court and secured an order which temporarily restrained the Minister and Government from interfering with his powers and duties or altering his terms of appointment.
The High Court also ordered the Government to discover all documents relating to the briefings given to Dail deputies and senators about the new legislation.
In court yesterday Mr Gerard Hogan SC, for the Government and Minister, said so far as he was concerned the new legislation did not impact on the earlier High Court proceedings brought by Mr Fitzpatrick.
He gave an undertaking for one week that his clients would not bring any of the controversial sections of the new legislation into force. He also agreed to the continuation of the High Court restraint order until next Monday.
Mr Hogan said that Mr Fitzpatrick had claimed in his judicial review proceedings that he had been prejudiced by being refused the documents which had been before the Government.
Mr Hogan said he had given certain advice to the Government and as a result the documents were furnished last March to Mr Fitzpatrick and his costs were paid and as far as the Government was concerned those proceedings were over.
Mr Hogan said he was "most concerned" that the court should not think there was any reflection on the counsel for the Government. So far as they were concerned this new legislation had no bearing on Mr Fitzpatrick's judicial review proceedings.
Mr Stewart said the Minister had disclosed in two public debates that there had been private debates with public representatives. None of those was secret or privileged, and his client was entitled to discovery of those briefings.
Mr Stewart said "it almost looks like" the draughtsman who drew up the amendments in the legislation had been looking at the demands being made by Mr Fitzpatrick in his judicial review proceedings and had copied them into the amending sections.