__________

 

CONSULTATION PAPER

 

ON

 

PUBLIC INQUIRIES

 

(INCLUDING TRIBUNALS OF INQUIRY)

 

__________

 

 

(LRC CP 22 - 2003)

 

 

 

 

 

 

 

 

 

IRELAND

 

The Law Reform Commission

 

IPC House, 35-39 Shelbourne Road, Ballsbridge, Dublin 4

 

 

 

 

 

 

 

 

 

© Copyright

The Law Reform Commission 2003

First Published

March 2003

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ISSN 1393 – 3140

 

THE LAW REFORM COMMISSION

 

 

 

Background

 

The Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20 October 1975, pursuant to section 3 of the Law Reform Commission Act 1975.

 

The Commission’s Second Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in December 2000. The Commission also works on matters which are referred to it on occasion by the Attorney General under the terms of the Act.

 

To date the Commission has published sixty nine Reports containing proposals for reform of the law; eleven Working Papers; twenty one Consultation Papers; a number of specialised Papers for limited circulation; An Examination of the Law of Bail; and twenty three Reports in accordance with section 6 of the 1975 Act. A full list of its publications is contained in Appendix D to this Consultation Paper.

 

 

Membership

 

The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are:

 

President The Hon Mr Justice Declan Budd

High Court

Commissioners Patricia T Rickard-Clarke

Solicitor

 

Dr Hilary A Delany, Barrister-at-Law

Senior Lecturer in Law, Trinity College

Dublin

 

Professor Finbarr McAuley

Jean Monnet Professor of European Criminal Justice, University College Dublin

 

Marian Shanley

Solicitor

 

Secretary John Quirke

 

 

 

 

 

Research Staff

 

Director of Research Professor David Gwynn Morgan LLM (Lond), PhD (NUI)

 

Legal Researchers Simon Barr LLB (Hons), BSc

Claire Morrissey BCL (Int’l), LLM (K U Leuven)

Claire Hamilton LLB (Ling Franc), Barrister-at-Law

Patricia Brazil LLB

Nessa Cahill LLB, LLM (Bruges), Barrister-at-Law

Mark O’Riordan BCL, Barrister-at-Law

Philip Perrins LLB, LLM (Cantab), of the Middle Temple, Barrister

Darren Lehane BCL, LLM (NUI)

Administration Staff

 

Project Manager Pearse Rayel

 

Legal Information

Manager Marina Greer BA, H Dip LIS

 

Cataloguer Eithne Boland BA (Hons) H Dip Ed, H Dip LIS

 

Higher Clerical Officer Denis McKenna

 

Private Secretary to the President Liam Dargan

Clerical Officers Gerry Shiel

Sharon Kineen

 

Principal Legal Researchers on this Consultation Paper

 

Philip Perrins LLB, LLM (Cantab), of the Middle Temple, Barrister

Darren Lehane BCL, LLM (NUI)

 

Contact Details

 

Further information can be obtained from:

 

The Secretary

The Law Reform Commission

IPC House

35-39 Shelbourne Road

Ballsbridge

Dublin 4

 

Telephone (01) 637 7600

Fax No (01) 637 7601

Email info@lawreform.ie

Website www.lawreform.ie

ACKNOWLEDGEMENTS

 

 

The Commission would like to thank former researchers Bairbre O’Neil and Neil Steen who contributed to the work of the Commission in the preparation of this Paper.

 

The Commission would also like to thank the following people, whom offered valuable advice and assistance in relation to this Consultation Paper:

 

ADD NAMES

 

 

Full responsibility for this Consultation Paper, however, lies with the Commission.


 

 

TABLE OF CONTENTS

INTRODUCTION 1

Chapter 1PUBLIC INQUIRES IN GENERAL 4

Part IIntroduction 4

Part IIAlternatives to Public Inquiries 6

Part IIILegislation 9

Part IVOther Reviews in this Field 11

Part VThe Advantages and Disadvantages of an Inquiry 14

Part VINon-applicability of Article 34.1 of the Constitution 17

Chapter 2COMPANY INSPECTORS MODEL 20

Part IIntroduction 20

Part IIThe Privilege Against Self-Incrimination 23

(a)Comment 26

(b)Civil Proceedings 26

Part IIIConstitutional Justice 27

Part IVForeign Authorities on Procedure 31

(a)England 31

(b)European Court of Human Rights 33

(c)Australia 34

(d)Comment 34

Part VPublicity 34

(a)Private proceedings 34

(b)Limited circulation of Inspector’s Report 36

(c)Omission of Parts of the Report 38

Chapter 3COMMISSION TO INQUIRE INTO CHILD ABUSE 40

Part IIntroduction 40

(a)Background 40

(b)The Confidential Committee 42

(c)The Investigation Committee 43

(d)Procedural Rules of the Two Committees 44

Part IIInquiry Officers 45

Part IIIDeciding Officers 49

Part IVThe Legal Representative of the Survivors’ Interest 50

Part VInvestigation Committee Procedure 52

(a)Rules and Framework of Procedures 52

(b)Phase 1 Hearings 53

(c)Phase 2 Hearings 56

Part VIAppointment of Experts 59

Chapter 4PARLIAMENTARY INQUIRIES 61

Part IInquiry by Oireachtas Committees 62

(a)From the PAC inquiry into Northern Ireland relief to the 1997 Act 62

(b)Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses)Act, 1997 63

Part IIComptroller and Auditor General and Public Accounts Committee Inquiry into DIRT: A Case Study 65

(a)CAG Inquiry 65

(b)PAC Hearings 68

Part IIIAbbeylara 68

(a)‘Adjudicatory’ – findings of facts 70

(b)Holding ‘non-office-holders’ responsible 72

Part IVAuthority to hold inquiry 74

(a)No Bias 75

(c)Permissible Oireachtas Inquiries: the Mini – CTC Signalling inquiry 77

Part VRecommendations 78

(a)Would amending legislation be unconstitutional? 78

(b)Is new legislation necessary for non-Abbeylara type inquiries? 80

Chapter 5THE TRIBUNAL OF INQUIRY 82

Part IHistory 82

Part IIShould the Chairperson Always be a Judge? 86

Part IIITribunals Comprising More Than One Member 90

Additional and reserve members 91

Part IVAssessors 95

Part VDialogue Between the Inquiry and the Political Organs to Adjust the Terms of Reference 97

Two stage process 100

Part VIInterpreting the Terms of Reference 104

Part VIIThe Impact of the Courts 106

(a)Reducing Time-Limits for Judicial Review 106

(b)Right of Tribunal of Inquiry to Apply to the High Court 108

(c)Expedition 111

Part VIIITermination of the Tribunal 111

Chapter 5POWERS OF THE TRIBUNAL 114

Part IGeneral Considerations 114

(a)Introduction 114

(b)Powers categorised 116

Part IIEnforcement Mechanisms 116

(a)Contempt of court 117

(b)Section 1(2) of the Act of 1921 119

(c)Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997 127

(b)Case study: The Flood v Lawlor saga 129

Part III Substantive Powers 138

(a)Definition of powers, rights and privileges 138

(b)Capacity to make orders 142

(c)Specific powers 148

(d)Privileges 150

(e) Discovery 152

Part IVNon-Invasive Powers 155

Chapter 6CONSTITUTIONAL JUSTICE 158

Introduction 158

Part IThe Principle that ‘No One Should be a Judge in his Own Cause’ 159

(a)Descent into the Forensic Arena 159

(b)Decisions Made in the Course of Proceedings 161

(c)The Rule Against Personal Interest 163

Part IIThe Principle that Each Side Must be Heard (audi alteram partem) 163

Part IIIRight to Representation: Haughey Casts Too Long a Shadow 165

(a)General 165

(b)Full and Limited Representation 170

(c)Inquiries in which there are ‘Identifiable Victims’ 171

(d)The Statutory Power to Authorise Representation 172

(e)Legal Representation and Costs 172

Part IVRemaining Issues of Constitutional Justice 174

(a)Allegations and Potential Criticism 175

(b)Examination and Cross-examination 176

(c)The Right to Call Evidence in Rebuttal 181

(d)Submissions 181

(e)Rules of procedure 181

(f)Other Constitutional Rights 182

Chapter 7PUBLICITY AND PRIVACY 184

Part IPolicy Arguments Concerning Public Airing 184

Part IIPublicity-Privacy in Practice 188

The Constitution 188

Part IIIRight to Confidentiality 194

Part IVRe-draft of the Publicity Provision in the 1921 Act 196

(a)Was the Evidence Taken ‘on Commission’? 197

(b)The Status of ‘Evidence’ Taken on Commission 198

(c)The Procedure Adopted to Adduce ‘Evidence’ Taken on Commission 199

Part VBroadcasting 200

Chapter 8THE INFORMATION GATHERING STAGE 208

Part IThe Distinction Between Information and Evidence 208

Part IICompany Inspections and Pre-2002 Act Tribunals of Inquiry 212

(a)Company Inspections 213

(b)Tribunals of inquiry 214

Part III2002 Act Provisions Regarding Preliminary Investigations 217

(a)The role of the investigator 219

(b)Sworn Statements Made to Investigators 220

(c)Privilege and Immunity 221

(d)Powers of Compulsion 223

Chapter 9ALTERNATIVES TO PUBLIC INQUIRIES 224

Part IForthcoming Legislation 224

(a)Minister for Justice’s proposals for a ‘Committees of Investigation’ 224

(b) The Parliamentary Inspector 225

Part IIRecommendation 225

Chapter 10DOWNSTREAM PROCEEDINGS 229

Introduction 229

Part IThe Privilege Against Self-incrimination 230

Part IILegislative Provisions Dealing with the Relationship between the Privilege and Public Inquiries 231

(a)Civil Proceedings 233

Part IIIThe Constitution 234

(a)A Common Law Privilege or a Constitutional Right? 234

(b)At What Stage does the Constitutional Privilege Operate: at the Inquiry or only Downstream? 235

Part IVAppraisal 238

Part VBad Publicity 240

Part VIFair Trial in the Context of an Earlier Public Inquiry under General Law 242

Part VIIFair Trial under the 1921 to 2002 Acts 245

Chapter 11COSTS 249

Introduction 249

Legislative Rights to ‘Expenses’ or Costs 251

Part ITribunals of Inquiry (Evidence) Act, 1921 252

Part IITribunals of Inquiry (Evidence) (Amendment) Act, 1997 257

Part IIIPolicy and Constitutionality 258

(a)Article 34.1: ‘Administration of Justice’ 258

(b)The State has set up an inquiry; therefore the State must pay the legal costs? 261

Part IVRe-draft of the Costs Provision 263

Part VMinimising Costs 264

Chapter 12SUMMARY OF RECOMMENDATIONS AND CONCLUSIONS 271

Part IChapter 2 – Company Inspectors Model 271

Part IIChapter 3 – Commission to Inquire into Child Abuse 271

Part IIIChapter 4 – Parliamentary Inquiries 272

Part IVChapter 5 – Tribunals of Inquiry 272

Part VChapter 6 – Powers of the Tribunal 274

Part VIChapter 7 – Constitutional Justice 277

Part VIIChapter 8 – Publicity and Privacy 278

Part VIIIChapter 9 – The Information Gathering Stage 279

Part IXChapter 10 – Alternatives to Public Inquiries 280

Part XChapter 11 – Downstream Proceedings 280

Part XIChapter 12 – Costs 281

APPENDIX A LIST OF INQUIRIES AND INSPECTIONS 283

APPENDIX B THE SHIPMAN INQUIRY WRITTEN PROTOCOL 287

APPENDIX C DRAFT TRIBUNALS OF INQUIRY BILL 290

APPENDIX D LIST OF LAW REFORM COMMISSION PUBLICATIONS 298

 

INTRODUCTION

1.      This is a peculiarly sprawling field, different from the compact areas in which the Commission feels that it can usually make its most useful contribution. There are several unrelated legislative codes, which provide the legal framework for different public inquiries. The subject-matter of inquiries, too, ranges very widely (as is illustrated in Appendix A) and the factual and political subject-matter makes for unexpected kaleidoscopes with conventional legal rules. Furthermore so far as the legal system is concerned, public inquiries are very much a ‘sport’, using the word in its less common sense of an abnormal or striking variation from the parent stock. Because courts deal in legal rights, they require strict rules of procedure. Does it follow that, because inquiries deal only in facts, they require no rules of procedure? The answer, which the Irish courts have returned to this question, as this Paper shows, is that they require a modified but still fairly stringent form of procedure. Starting out, as lawyers naturally do, from the concepts with which they are familiar in court procedures, the appropriate modifications have taken a while to discover. But, by now a good deal of discussion has been given to the topic and it seemed to the Commission right and timely to tackle the subject and, indeed, this had been suggested by a number of people. The present Attorney General (though before he attained his present eminence) has remarked: “With the explosion in the number of tribunals of inquiry it is timely to review where we are heading as a society and the ramifications of this legal phenomenon, in terms of the constitutional rights of the citizen.”1 There are also a number of concrete developments, among them the legislation for ‘committees of inquiry’, which the Minister for Justice, Equality and Law Reform is expected to publish in the next few weeks: see further paragraph .

2.      Since there was no way in which to divide the subject into handy segments, the only course seemed to be to publish one of the Commission’s longest papers, which yet has no claims to be comprehensive. The last point ought to be stressed. We have been able to deal with only some of the codes of legislation, dwelling largely on the ‘Rolls-Royce’ among public inquiries the Tribunal of Inquiry.

3.      Broadly speaking, there are three main sections to the Paper. After the general introductory Chapter 1, the first section, Chapters 2-6 deals with the Company Inspectors; the Commission to Inquire into Child Abuse, Parliamentary Inquiries, and Tribunals of Inquiry (which is a sufficiently voluminous subject, to take up both Chapters 5 and 6). The point here is that an inquiry may be required to investigate any number of diverse subject-areas, in very varied circumstances. This first section sets out four of the many legislature frameworks, which are available to policy-makers so that they may select whichever is appropriate for the particular investigation. Horses for courses. In addition in the context of law reform, these legislature frameworks provide models and experience from which anyone attempting to make recommendations for improvement will have to draw lessons. We have not, however, attempted to cover all of the several specialised statutory codes, (for instance the codes for railways,2 sea3 and air4 (which, in any case have been recently up-dated). There seems to us little point in our proposing specific amendments to each of these, since this can best be done by the specialists in the area, perhaps after they have considered the general observations and recommendations advanced in this Paper.

4.      In the second section, in Chapters 7 – 9, Constitutional Justice, Publicity and Privacy; and the Information Gathering Stage, we consider the issues thematically, presenting a bird’s eye view of many of the major problems. Here, although we draw on material from the different types of public inquiry, and refer to relevant comparative law, much of the situations and cases analysed in the thematic Chapters turn out to come from tribunals of inquiry. This is inevitable given that so much legislative, judicial, political, media and public attention has been focussed on tribunals. Yet it remains the case that many of the same issues which have arisen in connection with tribunal of inquiries might occur in the future, in the context of other public inquiries, depending on the circumstances. Chapter 10 – Alternatives to Public Inquiries – may be regarded as a form of conclusion to all the preceding chapters. It collects up the lessons from those chapters in order to address the basic question: consonant with fair procedures, to what extent is it possible, by altering the features of public inquiries, to reduce the entitlement to constitutional justice which creates much of the attendant expense and delay? The remaining substantive chapters deal with discrete subjects: Chapter 11 (Down-stream proceedings which deals with the implications of a public inquiry for later criminal or civil proceedings); and Chapter 12 (Costs). Then, as usual comes a Summary of Recommendations and Conclusions, to which is appended a suggested re-draft of the Tribunals of Inquiry (Evidence) Acts 1921-2002. This collects together drafting changes, some of them substantive and some of them merely consolidatory of what are at present six separate and inconvenient-to-use statutes.5 Many of these amendments could, with adjustment, be used for the parent legislation of other inquiries. Indeed, some of them are in fact inspired by the example of other inquiry laws.

Recommendations

5.      While we include a complete Summary in Chapter 13, given the diversity of the character and scale of the recommendations, it may be useful to give an impression of their flavour:

·         Proposals relating to the initial establishment, including selection of an appropriate form of inquiry, composition of the inquiry; and drafting terms of reference.

·         As mentioned, a number of the proposals for substantive legal changes are discussed throughout the paper and then collected together as amendments to the Tribunals of Inquiry (Evidence) Acts 1921-2002.

·         General principles as to the ways in which the chairpersons of inquiries might exercise their discretion in the procedural field, mainly in respect of constitutional justice.

·         Suggestions as to ways in which costs might be reduced.

6.      The Commission invariably publishes in two stages: first, the Consultation Paper and then the Report. The Paper is intended to form the basis for discussion and accordingly the recommendations, conclusions and tentative suggestions contained herein are provisional. The Commission will make its final recommendations on this topic following further consideration of the issues and consultation, including a colloquium attended we hope by a number of interested and expert people (details of the venue and date of which will be announced later). Submissions on the provisional recommendations included in this Consultation Paper are also welcome. Secondly, the Report also gives us an opportunity which is especially welcome with the present subject not only for second thoughts on areas covered in the Paper, but also to treat topics, not covered, if this comes to seem desirable. In order that the Commission’s Final Report may be made available as soon as possible, those who wish to do so are requested to make their submissions in writing to the Commission by 1 July 2003.

  1.  

1.      PUBLIC INQUIRES IN GENERAL

                               I.            Introduction

1.      A good book of historical and legal interest remains to be written about public inquiries, in the very widest sense. Given the potentially unlimited width of the subject, it would no doubt start with the Lord interrogating Adam: “Who told you that you were naked? Have you been eating of the tree I forbade you to eat?”6 Later highlights would include: the Domesday Book (William the Conqueror’s land-survey of eleventh-century England); impeachment before the (British) House of Lords;7 certain of the stages in the Dreyfus Affair;8 the Warren Commission (1963-65) investigating the murder of President Kennedy; the South African Truth and Reconciliation Commission, and the inquiry set up by the Football Association of Ireland9 to inquire into the preparations for the Irish team’s participation in the World Cup finals in June 2002; ‘the independent audit’ set up by the Catholic Church in Ireland to investigate its handling of allegations of child sex abuse.10

2.      This is not such a general work. Rather, this Paper has a particular focus. Since most of an inquiry’s deliberations will usually be held in public, and since the final report should be authoritative and will often be damaging to someone’s reputation, an inquiry is naturally required to follow a high standard of procedural fairness. This is true of most jurisdictions. In Ireland, because of the need to comply with the stringent constitutional principles which have been derived from the Constitution and explained by the judiciary, this standard is particularly high. The main focus of this Paper is the operation of public inquiries in the light of these principles of procedural fairness.

3.      The object of a public inquiry is simply to ascertain authoritatively the facts in relation to some particular matter of legitimate public interest, which has been identified by its terms of reference. In the light of those factors, it may also make a recommendation as to how the accident, mischief or evil under investigation may be rendered less likely to occur in the future. It should be emphasised that such an inquiry is usually set up when something major has gone wrong; often because someone has done wrong, acted unlawfully or failed to act. It would, of course, be possible to employ a public inquiry for a wider category of case, as is clear from the six principal inquiry functions identified by a Canadian author:

(a) they enable the government to secure information as a basis for developing or implementing policy; (b) they serve to educate the public or legislative branch; (c) they provide a means to sample public opinion; (d) they can be used to investigate the judicial or administrative (police, civil service, Crown corporation) branches; (e) they permit the public voicing of grievances; (f) they enable final action to be postponed.”11

4.      This wider conception of an inquiry has been utilised rarely in Ireland. For instance, the Working Group on a Courts Commission12 which dealt with a range of issues, including the design of the new Courts Service during the period 1996-98; or the Working Group on the Jurisdiction of the Courts, set up to inquire into the distribution of court business. However, in this Paper, the focus is on the first category of Inquiry, that is, where something has gone wrong, because this is the situation in which public inquiries have mainly been used in Ireland.

5.      Such inquiries have become common features of the constitutional landscape, especially in the past decade. They have shone a strong light into covert areas of government, business or society, and have incidentally been a central feature of Irish public life. Calls for inquiries have become very common.13 It would almost be possible to write a history of the dark side of modern Ireland by reference to public inquiries. An incomplete list of Irish public inquiries is included in the Appendix to this chapter.

6.      An elementary point, but one well worth emphasising, is that inquiries do not settle legal rights they are simply intended to make an authoritative finding of the facts in regard to a matter of high public interest, for example, as to the causes of accidents, natural disasters, or the performance of a public authority or big business.14

7.      The fact that inquiries do not settle legal rights is the most important of the distinctions between an inquiry and a number of other bodies, with which they might be confused by virtue mainly of their somewhat similar modus operandi and strict procedure. Thus, they are not ‘administering justice’15 (in the language of the Constitution) and, hence, are distinct from courts. Again an inquiry is not a tribunal, using that term in the sense of a body which settles legal rights usually in narrow specialised areas; an inquiry determines what happened.16 This point is relevant in connection with the Cayman Islands case, in which it was held that "a tribunal, such as that in question, although endowed with powers under the 1921 Act, is not a 'court or tribunal' for the purposes of s.1 (a) of the [Cayman Islands] Evidence (Proceedings in Other Jurisdictions) Act 1975".17 Therefore in order to fall within section 1 (a) of that Act a body would presumably need to be a tribunal that which adjudicates on legal rights.

                            II.            Alternatives to Public Inquiries

8.      In sketching the field, one should note that there are several bodies whose primary function is not to act as a public inquiry, but which may, on occasion, incidentally fulfil that role. Most obviously, a court case (or a coroner’s inquest) may also be the means by which information of great public interest is authoritatively established. A conventional civil action,18 for example, a medical negligence action may have the effect of publicly bringing home responsibility for a death or serious injury, as may an inquest into a death. A criminal prosecution might seem an even more likely candidate. For instance, it is worth noting that, in France, the use of contaminated blood in blood transfusions, which caused hundreds of deaths, led to the prosecution and conviction of some of the responsible officials.

9.      Briefly, in June 1991, the French government commissioned the general inspector of social affairs, Michel Lucas, to investigate the allegation made in an article written by Dr Anne-Marie Casteret19, that the Centre national de transfusion sanguine had sold lots of factor concentrates which were known to be contaminated with HIV. The Lucas Report20 was submitted to the Government in September 1991 and the following month charges were brought against four officials, three of whom were subsequently convicted.21 The trial of these four officials was not the end of "L'affaire du sang contaminé"22. During the trial it was suggested that HIV testing may have been unnecessarily delayed because of an interest in ensuring that the French test was given preference in the French market over a rival test manufactured by a foreign company. To make ministers legally accountable the National Assembly amended the Constitution in July 1993 not only to permit charges against current and former ministers but also to create a court expressly for that purpose, called the Cour de justice de la République. Charges were then laid against three ministers, including the former Prime Minister, Laurent Fabius23, for conspiracy to poison by delaying approval of the testing process. However, on the 9 March 1999, only the former Health Minister, Edmond Hervé, was found guilty of manslaughter and negligence in two cases. The court decided not to impose any punishment, saying he had endured almost 15 years of public criticism.24 The Commission is not suggesting that there should have been prosecutions on foot of the numerous infections and deaths in Ireland caused by contaminated blood.25 The Department of Health and Children has expressed the view that the circumstances were different and did not justify prosecution. Indeed Judge Alison Lindsay recommended that it was not appropriate to send the report to the Director of Public Prosecutions.26

10.  By now there are a number of institutions – most of them ‘standing’ rather than ad hoc in character – whose purpose is to investigate what happened and publicise the results, often in particular areas. Whilst such institutions are, usually not characterised as inquiries, this in effect is what they are. The longest-established example of this type is the Comptroller and Auditor-General,27 (though his investigation into the non-payment of DIRT was, in fact, grounded on specific legislation, as we shall see in paragraphs -. The Ombudsman28 is another possible resource: so, in a different field, is the Director of Consumer Affairs. Recently, too, the Freedom of Information Act 1997 has been enacted (with the Ombudsman as Information Commissioner under it) as a means by which information held by public bodies may have to be disclosed (though not necessarily published to anyone other than the applicant). There are several other champions of the public interest, whose tasks include discovering and publicising information about matters of public concern: including the Equality Authority, the Human Rights Commission, and the National Safety Council.

11.  Another way in which the public may obtain information are those statutory decisions carrying legal consequences and taken (usually by a Minister) in respect of which it is required that there should first be an inquiry into the decision.29

12.  Here we ought to make the comment that while a criminal trial (or some other adjudicative proceedings) may in a subsidiary role play the part of an inquiry; exchange in reverse may not work. In other words, if a criminal prosecution is not practicable, it is not necessarily the case that the same objective can be achieved under the guise of an inquiry, by ‘naming and shaming’ the culprit. To attempt this would be to try to fit a square peg into a round hole. At a very broad level it may said that the fear that such a process is, (whether designedly or not) occurring, even in a minority of cases, may underlie the intense application by the courts of the rules of constitutional justice to inquiries. The Commission would counsel against such substitution and urge that where criminality is suspected, a greater attempt should be made to bring criminal proceedings rather than hoping that the same objective can be achieved under the guise of an inquiry.

13.  Here, we wish to refer to the suggestion30 that there should be established a standing inspectorate. While the Commission can see the attractiveness of such an institution, we are not convinced that this is the best way to proceed. The ad hoc arrangements currently made in relation to inquiries promote a variety of approaches, according to what is needed for fact-finding. Moreover, the fact that tribunals are of limited duration allows them to retain the services of some of the best and brightest of the Bar. It seems unlikely that such individuals would be prepared to take up salaried positions within a permanent inspectorate. Although we have had a spate of inquiries in recent years, there is no particular reason to believe that this trend will continue. This might mean that, over an extended period, any permanent inspectorate would be redundant part of the time. Last but not least we already have a number of what may be regarded as, amongst other things, a form of inspectorate: see Chapter 10. Accordingly, the Commission believe that it is better to continue with the practice of having inquiries conducted by teams assembled on a case-by-case basis.

14.  At the same time the ad-hoc quality of inquiries may, however, carry a disadvantage. They do not have any institutional continuity or memory. They do not have a well established footing in the government bureaucracy. As a result the inquiry will often be established by the Department of State into whose past conduct the inquiry is investigating. While this will not create any problems in the majority of cases, there may well be cases where this will give rise to criticism, in that the body being investigated is responsible for establishing its inquisitor.

15.  The commission has not reached any firm conclusion on this question and would be especially grateful to receive informed views on it, in order possibly to formulate a proposal in the Report.

                         III.            Legislation

16.  Since inquiries do not settle legal rights, do they need to be established under any law? One answer is that, as a matter of law, they do not have to be, and are not always, established by law: in principle, anyone, for instance a graduate student, may do research on a subject of public interest and publish the results. Yet, despite the lack of legal means of support if the inquirer were an independent official personage, the proceedings could be styled a public inquiry. An example is the Report of the Chief Justice into the circumstances leading to the early release from prison of Philip Sheedy31 (This was an episode which led to the resignation of two judges and a court Registrar).32 The Chief Justice was anxious to stress, in relation to that task, that he was not exercising a statutory jurisdiction, as he had no powers of compulsion and was not in a position to test (by cross-examination, for example) the accuracy of the information given to him. He relied on the co-operation of the persons being interviewed. Likewise, Lord Denning’s Inquiry into the Profumo Affair (see paragraph ) and the Scott Inquiry into the sale of arms to the Iraqi Government were each without statutory means of support. Sir Richard Scott, VC had remarked, extra-judicially:

In England, the Tribunals of Inquiry (Evidence) 1921 Act is hardly ever used because it is thoroughly inconvenient to use it. Most inquiries, (certainly my own) are simply set up by ad hoc decision made by a Government. If there is something to be inquired into, they decide there should be an inquiry, they identify some figure to conduct the inquiry, they provide the figure with the funds necessary, and they say off you go and you decide your own procedure as you go along. The two desiderata of efficiency of the inquiry and fairness to those involved are the two critical elements in deciding on procedure.”33

1.      But equally it should be noted that most of the witnesses before the Scott Inquiry were politicians or officials, whom it might be hoped could be relied on to co-operate with it, apart from any legal imperative. Broadly speaking, a similar point could be made about the Hamilton Inquiry into the Sheedy affair, namely that the witnesses were all judges or court staff and accordingly their participation could be expected.

2.      However, circumstances differ, and it is often necessary or convenient that inquiries should have some or all of the following legal powers to facilitate their work, for example, subpoena powers,34 immunity from defamation, or the power to award costs35. Interference with their functioning (for instance, leaking information) may be made a crime. In addition, given the significance of fair procedures, the legislation may also set out specific procedural rules, rather than leaving this to the discretion of the inquiry itself.

3.      The most formal and high-powered public inquiries are those constituted under the Tribunals of Inquiry (Evidence) Acts 1921-2002, described in Chapter 5. However, an inquiry may be set up under a number of other statutes. There is, for instance, a range of specialised legislation regulating accidents involving railways, shipping36 or aeroplanes (mentioned in the introduction to this Paper), also public local inquiries. In addition, the Companies Act 1990, section 14(1) empowers the Minister for Enterprise, Trade and Employment37 to appoint an inspector to investigate a company for the purpose of determining the identity of “the true persons” who are financially interested in it, or who are able to shape its policy. Sometimes, an episode (for example, involving a possible conflict of interest), which engages the wider public interest, will also happen to come within the scope of this provision. Investigations of this type occurred in the case of Greencore and Bórd Telecom.38

                               I.            Other Reviews in this Field

1.      It is hard to know how to fit public inquiries into the categories of the conventional legal system. On the one hand, they are not courts, exercising the judicial function. On the other hand, they sit in public, and the person under investigation must be allowed strict procedural rights. In Boyhan v. Beef Tribunal39 Denham J remarked: “A Tribunal is not a court of law – either civil or criminal. It is a body – unusual in our legal system – an inquisitorial Tribunal. It has not an adversary format.”40 Most significant of all, an inquiry’s objective is to discover truth whereas the first that a law student learns is that this is not the purpose of a trial. Because of the unusual, amphibious character of an inquiry, lawyers have taken a while to balance up the various policies which are relevant, and to decide how they should be implemented. In addition, there has been substantial political, media and public disquiet over the cost of inquiries under the Tribunals of Inquiry legislation, especially the Beef Tribunal and the current generation of tribunals. The upshot is that there has already been a good deal of official, professional or scholarly thinking about the design and performance of inquiries, so that this is a good time at which to take stock.

2.      This thinking has proceeded at three levels. First, there have been a number of general surveys. Relatively early, the Dáil Public Accounts Committee ("PAC"), on 3 February 1994 requested the Comptroller and Auditor General ("CAG") “to report on comparative costs of public inquiries in the USA and the UK, with particular reference to the Scott Inquiry.” The CAG reported, and the Report and the PAC’s response to it are published together. Later, at the request of the First Report of the Parliamentary Inquiry into DIRT, 15 December, 1999,41 comparative studies were undertaken by both the Attorney General’s Office42 and the Department of Finance.43 In addition, when these reports had been made to the sub-committee the Attorney General, Mr. McDowell SC, made an Opening Statement to the sub-committee on DIRT, and then answered its questions on 28 November 2000. Thereafter the sub-committee published its own views in Inquiry into DIRT - Final Report, Chapter 5, “Parliamentary Inquiries”.44 In addition, on 12 July 1999, the Bar Council held a Conference on “Inquiries: the rights of individuals, publicity and confidentiality”. Many of the contributors focussed on this particular aspect of inquiries. The present Consultation Paper is longer and, we believe, more comprehensive than these earlier works.

3.      At a second level, when it comes to designing a particular inquiry, because of the widely differing situations which may arise, it will often happen, in a particular case, that a ‘one-size-fits-all’ solution will not avail. Consequently, it is necessary, before settling the powers and shape of the inquiry, both to undertake some preliminary investigation and to assess, in the light of this, which is the most appropriate of the existing types of inquiry, or whether a new model should be designed.45 A most striking example is the amount of original and constructive thought which went into the devising by Laffoy J of the structure and processes of the Commission to Inquire into Child Abuse,46 as is described in Chapter 3 and referred to elsewhere in this Paper.

4.      The terms of reference of the Moriarty Tribunal47 make explicit reference to the findings of the McCracken Tribunal48 and direct the inquiry to pursue matters that were outside the ambit of the earlier investigation. McCracken prepared the ground for Moriarty and provided the basis for the terms of reference for the second tribunal.49 Similarly, the Finlay Tribunal50 into the circumstances surrounding the contamination of blood and blood products was the precursor of the Lindsay Tribunal.51 Another example is that the inquiry of the Dáil Public Accounts Committee into the DIRT affair52 was preceded by a report by the Comptroller and Auditor General.53

5.      Even more recently, the preliminaries to the establishment of the tribunal of inquiry into Garda Misconduct in Donegal (chaired by the former President of the High Court, Mr Justice Morris) are of interest. First, an internal Garda inquiry reported in 2000 to the Garda Commissioner. This report was not published. Next, this report was criticised by two deputies and a further inquiry into their allegations was held. Then an independent review of all the relevant papers and the progress of the investigations into the allegations of unethical and criminal behaviour by Gardaí was conducted by Mr Shane Murphy SC for the Minister for Justice.54 In Mr Murphy's opinion a Tribunal of Inquiry was the only comprehensive method of inquiry to resolve these issues of fundamental public importance.55 This led to the establishment of the Morris Tribunal of Inquiry, in late 2002. To facilitate the work of the Morris Tribunal and subsequent downstream criminal proceedings, the Tribunals of Inquiry (Evidence (Amendment) Act, 2002, was enacted. Again, in March 2002, George Birmingham, SC, was asked to conduct a preliminary investigation into the handling of clerical sexual abuse allegations in the Diocese of Ferns, with a view to advising as to what the most appropriate type of inquiry should be used to deal with the issues. He submitted his report to the Minister for Health, Michael Martin, on 2 August 2002. Subsequently, on 22 October 2002, the Government announced their intention to establish a non-statutory inquiry into the clerical sex abuse in the diocese, under the chairmanship of Mr Justice Francis Murphy. It should be noted here that recently the Irish Catholic Church’s Independent Commission on Child Sex Abuse, chaired by Judges Gillian Hussey, has been disbanded. The Commission was set up in June 2002 to establish the truth about the extent of child sexual abuse within the Catholic Church in Ireland, and the response of church authorities to complaints of such abuse. However, in view of the impending proposals from the Department of Justice56 concerning a new procedure for inquiries and a proposed State inquiry into clerical child sex abuse, Judge Hussey advised the Church that the Hussey Commission’s work would not make sense as originally envisaged.57

6.      Thirdly, many inquiries are presently sitting, and others have recently completed their work. The chairpersons and legal staff of Tribunals have had to do a good deal of thinking in this fairly novel area, and this Paper has been enriched by the opportunity to speak to some of them. In the thoughtful world of those lawyers who staff or appear before of tribunals, there has been much discussion of the possible improvements which could be made to the present regime as well as the various pitfalls which must be avoided. The Commission is grateful to have been allowed the privilege of tapping into these deliberations and reflections.

7.      These three sources add up to an unusually high level of recent thought on the subject by people, (both from the Bar and the official side) who include many of the ablest lawyers in the jurisdiction. This concentration attests to the novelty, difficulty and importance of the subject-matter. It also means that much of what the Commission are recommending in this Paper is a codification of recent good practice, which has been “road-tested” and worked out in the hard school of experience.

                               I.            The Advantages and Disadvantages of an Inquiry

1.      This is not an academic work and furthermore, there is little controversy in principle regarding either the advantages or the disadvantages of a public inquiry. Accordingly, while the Commission think it right to make explicit the basic assumptions of this Paper by outlining our understanding of the pros and cons, this can be done as briefly as possible.

2.      Public inquiries carry the following significant and straightforward advantages:

·         When there is loss of life, abuse by those in high office or widespread waste of public resources, it is only natural that the public should wish to be informed in detail as to: what happened, why it happened, who was responsible and how such an episode or practice can be prevented from recurring. Indeed, the notion that the public should be authoritatively informed is merely one facet of an ancient idea which is presently articulated as ‘openness, accountability and transparency’.58

·         While there are exceptions, in the case of (say) accidents through natural causes, more usually public inquiries will involve misconduct or incompetence, and this will often be compounded by being covered over by some element of secrecy, even deception. It is a further question (taken up at paragraphs -) whether in order for full atonement to be made, they must not only know the conclusions as to what happened, but also see the chain of events being unearthed in public, in order to know that they are getting the full story.

·         This is especially important where State organs or processes are involved, as they usually are, in one way or another. For even where the principal culprit is a private person, an organisation or big business, there will often have been a failure of the regulatory organs of State. Among the most significant elements of civilised existence is the citizenry’s confidence that government is honest and competent: without this, the bonds of civilisation are that much weaker.

1.      But as against this, there are a number of disadvantages:

·         The legal and other financial costs of an inquiry represent a huge imposition on the public purse. This will be the subject of Chapter 12.

·         Plainly, to have one’s behaviour the subject-matter of a tribunal of inquiry, with its strong powers of subpoena and production of documents, with the public’s view of one’s private affairs and information magnified by a hundred media outlets, possibly over a period of several months or years, is a signal infringement of a citizen’s privacy, akin to being picked up and shaken by a giant.

·         The reputation59 of the persons whose conduct is principally (or even peripherally) under investigation is likely to be affected to some degree.60 In some cases, this person may well be the author of, or a contributory to, that misfeasance. However, it could happen that a persons’ reputation is damaged, even though the conclusion in the report at the end of the day is that they had done nothing wrong. Inevitably, mud will be thrown and may stick. The damage done might well be greater than that caused by allegations aired at a court hearing since the media coverage, over several months and years, is much more intense than in any but the most high-profile court case. Necessarily, too, the delay between an allegation being made at a tribunal hearing and any final exoneration in the report is much longer.61

·         Court proceedings, criminal or civil, may arise out of some of the same ground traversed and covered by an inquiry. Another consequence of the publicity that is inherent in many inquiries is that it may, or may be suggested to, prejudice any downstream proceedings. This issue, too, is the subject of chapter 11.

·         What we mean by this expression is that, in the crossfire of allegations ricocheting around a tribunal, an allegation may be made and widely reported against some person who is not or is only marginally within its terms of reference, and who is therefore probably not represented. Thus, a reputation may be damaged, perhaps because the tribunal is taken by surprise, or because the person is dead, not represented, not well informed, or not otherwise in a position to refute errors or falsehoods. It also heightens the risk of damage to reputations in that:

The ultimate report may be ineffective in dislodging people’s recollection of the allegations particularly where the ultimate vindication of the good name is only part of the detail in a lengthy report. Such detail may never be given the publicity which the original allegations were given.”62

As against this it must be emphasised that the tribunals have been very alert to this kind of danger and, for instance, Mr Dunlop, who was a significant witness before the Flood Tribunal was instructed to write down certain parts of his evidence so that reputations would not be unfairly besmirched in the media. Generally speaking, there seems not to have been very many innocent bystanders whose reputations have been hurt. Nor do we consider that this is a coincidence: an inquiry is staffed by expert lawyers, part of whose role is to prevent collateral damage. One way in which this is done is by the sift carried out during the confidential, information-gathering part of the proceedings: see Chapter 9.

29.  A point often not considered is that the establishment of an inquiry, in a State in which we already have several standing bodies to seek out information (four of them noted at paragraph ) may have the effect of incrementally undermining public confidence in these bodies and even perhaps, in the general fabric of the State. In a somewhat similar way, a surfeit of public inquiries may also tend to devalue the currency of inquiries. The point is well made that: “A Tribunal of Inquiry should be an investigation of last resort. It is one to which recourse should only be had when the other agencies of investigation – that are typical of a modern parliamentary democracy – have failed to work”.63

30.  Speaking in the abstract, the only conclusion which can safely be drawn from this summary of pros and cons is that public inquiries should only be established in the most serious cases, and only then if the circumstances of the particular subject-matter are such that the advantages outweigh the disadvantages; bearing in mind, too, any possible alternative ways (see Chapter 10) in which the public’s legitimate interests, in an open and mature democracy, can be safeguarded. Sometimes, the swift reaction which follows almost automatically from some public shock may not fully assess the disadvantages.

31.  Speaking from a historical perspective, it is perhaps worth noting that the public and political mood-swing for or against inquiries, especially tribunals of inquiry, has been quite substantial. The base line perhaps was the popular indignation at the huge cost of the Beef Tribunal and the widespread feeling that no tangible advantages had emerged from this elaborate exercise. The natural consequence was reluctance on the part of politicians to set up any more ‘formal inquiries’ of this sort. Yet circumstances continued to arise which seemed to cry out for some form of independent investigation. Three of the best known of these were the ‘non-statutory’ Hepatitis C Tribunal; the Dail Committee of Inquiry into the fall of the Fiánna Fail-Labour Government and the Dunnes Stores Inquiries, the first carried out by retired Circuit Court judge and the third by the Dail and Seanad Committees on Procedure and Privileges.64 However the first and third, at any rate, of these were regarded as yielding unsatisfactory results: and had to be superseded by the (Finlay and McCracken) Tribunals of Inquiry, which were held to be satisfactory. This paved the way for further tribunals of inquiry. However, by late 2002 public concern at the huge cost was again in the ascendancy. Part of the responses to this was the promise of new legislation to set up (private) committees of inquiry, to which we return in Chapter 10.

                         VI.            Non-applicability of Article 34.1 of the Constitution

33.  Some of the criticisms made of public inquiries may be crystallised in the statement that an inquiry has the potential to do immense damage to an individual’s reputation. One form in which this criticism has been made is to argue that an inquiry constitutes “an administration of justice”. If this were so, then Article 34.1 of the Constitution would require that it should be heard by a court of law. Presumably the underlying policy justification for this view is that it would ensure that fair procedures are followed, and minimise any unjustified damage to reputation. However, the argument that a public inquiry is administering justice has been authoritatively rejected by the Supreme Court. According to McCarthy J in Goodman International v Mr Justice Hamilton: “the critical factor [in the definition of the administration of justice] is trial and adjudication, not inquiry.”65 In Ireland, this view represents a judicial consensus, which has been confirmed by the Supreme Court in Haughey v Moriarty.66

34.  However, this line of thought has been doubted in a much-quoted Australian case. This is the judgment of Murphy J in State of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation,67 though it should be noted that Murphy J was dissenting. The majority of the Australian High Court upheld the validity of an inquiry into an alleged bribery scandal, but Murphy J held that a Royal Commissioner, inquiring into various activities concerning a trade union violated section 71 of the Commonwealth Act 1900 which is the equivalent of Article 34.1:

The authority given to the Commissioner to exercise such an important ingredient of judicial power as finding a person guilty of ordinary crimes, is in itself an undermining of the separation of powers. It is a fine point to answer that the finding is not binding and does not of itself make the person liable to punitive consequences. It is by fine points such as this that human freedom is whittled away. Many in governments throughout the world would be satisfied if they could establish commissions with prestigious names and the trappings of courts, staffed by persons selected by themselves but having no independence (in particular not having the security of tenure deemed necessary to preserve the independence of judges), assisted by government-selected counsel who largely control the evidence presented by compulsory process, overriding the traditional protections of the accused and witnesses, and authorised to investigate persons selected by the government and to find them guilty of criminal offences. The trial and finding of guilt of political opponents and dissenters in such a way is a valuable instrument in the hands of governments who have little regard for human rights. Experience in many countries shows that persons may be effectively destroyed by this process. The fact that punishment by fine or imprisonment does not automatically follow may be of no importance; indeed, a government can demonstrate its magnanimity by not proceeding to prosecute in the ordinary way.”68

1.      One should probably take the burden of this passage to be that, even apart from the formalistic concept of the “administration of justice”, damage to reputation may be so harmful69 that the individual whose reputation is at risk must be well protected. But surely, even understood in this broader sense, the picture painted in the passage is, in Ireland at any rate, the reverse of the truth. Consider the specific points made in the passage, and italicised in the quotation above. In the first place, inquires are not staffed by persons “having no independence”. In the case of tribunals of inquiry, the chairperson is by convention usually a judge or former judge (see paragraphs -); in the case of other public inquiries, the chairperson may be a judge but is more usually a successful professional person (usually a lawyer or accountant) appointed ad hoc, whose independence is accepted on all sides70. Secondly, more important than the “government-selected counsel” is the fact that the person whose reputation is in question is represented by independent and high-powered legal teams, often (depending on the inquiry) paid for by the State. Thirdly, “the traditional protections of the accused and witnesses” (to quote the words italicised) at a criminal trial do have their equivalent at a public inquiry in the amplitude of constitutional justice of which full advantage is taken by the independent lawyers representing the persons whose reputation is in question. In addition, public inquiries are subject to control by the courts by way of judicial review. In short, the dry remark with which this passage was dismissed by Hederman J in Goodman International - “this passage identifies a danger that such powers might be abused. If this were to happen, the courts would restrain it” - appears well-merited.

  1.  

2.      COMPANY INSPECTORS MODEL

                               I.            Introduction71

1.      The form of investigation described in this chapter is established by Part II of the Companies Act, 199072, which provides for the appointment of inspectors to investigate the affairs of a company, in particular situations. Broadly speaking, these are:

(a) On the application of the members of a company, the company itself or its creditors, the High Court has an unfettered discretion to appoint one or more competent inspectors to investigate the affairs of the company;73

(b) The Director of Corporate Enforcement may also petition the Court for the appointment of an Inspector (who may be an officer of the Directorate). But here, the Court’s discretion is limited to circumstances suggesting fraud or the withholding of information from members of the company;74

(c) Without recourse to the courts, the Director of Corporate Enforcement may appoint an Inspector to investigate a company for the purpose of determining the true ownership of that company. Again, this discretion cannot be exercised unless there are circumstances suggesting that it is necessary for the effective administration of company law; or for the effective discharge of Ministerial functions; or on public interest grounds.75

2.      The notion of appointing inspectors to scrutinise the affairs of a company is one of “venerable origin,”76 and can be traced to section 56 of the English Companies Act, 1862. While the facility, in one form or another, has been available to successive Ministers since the foundation of the State, prior to the 1990 Act it was little used.77 Writing extra-judicially, Keane CJ speculates about possible reasons for this disuse:

In many cases those who wished to see the company’s affairs investigated were frustrated creditors and they might have preferred to petition for the winding up of the company. But another factor was undoubtedly the reluctance of successive Ministers to make use of their powers. There were also serious limitations on the circumstances in which the Minister could order an investigation.” 78

3.      Since 1990, the position has been radically different. The company inspector has been catapulted to the forefront of Irish political life and has been the inquiry of choice in respect of several high profile scandals.79 During the period 1991-2001 authorised officers or inspectors appointed to twenty companies.80 To a large extent, this is attributable to the “sweeping changes”81 introduced by the Companies Act, 1990. The principal change is that the power to order an investigation was vested in the High Court, whereas previously it had been vested in the Minister. In tandem with this principal change, many of the limitations on the circumstances in which an investigation could be ordered were removed. The Minister, when explaining82 the new provisions postulated that the path of future investigations would run more smoothly if the inspector was under the watchful eye of the court. The thinking was that any procedural or legal difficulties could be more speedily and conclusively settled there.83

4.      To date, the most celebrated investigations by company inspectors have been those involving: the privatisation of the Irish Sugar Company, (the Greencore Affair); or the fact that Telecom Éireann had paid £9.4 million (€11.94 million) for premises (formerly owned by Johnson, Mooney and O’Brien), which had changed hands only two years earlier for £4 million (€5.08 million) (the Telecom Affair). One context in which this type of investigation has proved particularly useful has been in the aftermath of tribunals of inquiry. In practice, where a matter is touched upon, but not fully explored by a tribunal report, an Inspector may subsequently be appointed to concentrate on this particular issue. For example, following the McCracken Tribunal, company inspectors were appointed to investigate Celtic Helicopters, Ansbacher Accounts, and Garuda Limited, all of which were mentioned in the Tribunal’s Report but did not fall four-square within its terms of reference.84

5.      The fall-out of a formal investigation under the Companies Act, 1990, is potentially quite serious for the company involved, as well as the individuals behind the corporate veil. In general, it is true that the Inspector’s report merely contains findings of fact, but as Keane states:

It is thus, in essence, a fact finding exercise which does not of itself affect the legal rights and obligations of any individual concerned, although the publication of the report – and even the fact of the investigation having been ordered – may affect their reputations.” 85

1.      Moreover, there is a further feature of this type of inquiry which warrants mention. Section 12(1) of the 1990 Act provides that the Court may make any order it deems fit in relation to matters arising out of the report, including an order of its own motion for the winding up of the company. This is obviously a severe penalty for the company in question. There is a saver to the effect that the Court is not in a position to impose penalties on an individual without affording him the protection of a criminal trial. It is nonetheless clear that individuals, as the directing mind of the company, inevitably suffer if the company is wound up. These individuals will have no redress in the form of a defamation action in respect of the contents of the Report, since the publication is privileged. Section 23(3) of the 1990 Act states that “publication, in pursuance of any provision in this Part, of any report, information, book or document shall be privileged.”

2.      It is fair to say that this form of inquiry is well regarded by many commentators as being less expensive, speedier and more discreet than tribunals of inquiry. For these reasons, it is worth examining this method of investigation with a view to its possible application in a non-company context.

3.      The workings of Part II of the Companies Act, 199086 are examined below under the following headings:

·         The Privilege against Self-Incrimination

·         Constitutional Justice

·         Foreign Authorities on Procedure

·         Publicity

                            II.            The Privilege Against Self-Incrimination

9.      This topic falls to be considered fully in relation to downstream proceedings in Chapter 11 of this Paper so will only be dealt with briefly here.

10.  As a general proposition, a tension exists between effective investigatory procedures and the privilege against self-incrimination. A clear example of this tension is to be found in the Companies Act, 1990. On the one hand, a witness is placed under a statutory obligation to co-operate and disclose as much relevant information as possible. On the other hand, any such evidence may subsequently be used against him.

11.  Section 10(1) contains the mandatory co-operation provision, as follows:

It shall be the duty of all officers and agents of the company and of all officers and agents of any other body corporate whose affairs are investigated by virtue of s.9 to produce to the inspectors all books and documents of or relating to the company, or, as the case may be, the other body corporate which are in their custody or power, to attend before the inspectors when required so to do and otherwise to give to the inspectors all assistance in connection with the investigation which they are reasonably able to give …” (emphasis added).

12.  As regards later use of information gained through such assistance, section 18, contains the following provision:

(1) An answer given by a person to a question put to him in exercise of powers conferred by-

(a) section 10;

(b) section 10 as applied by sections 14 and 17; or

(c) rules made in respect of the winding up of companies whether by the court or voluntarily under section 68 of the Courts of Justice Act 1936, as extended by s.312 of the Principal Act;

may be used in evidence against him, and a statement required by section 224 of the Principal Act may be used in evidence against any individual making or concurring in making it." (Emphasis added)

The combined impact of these sections clearly places witnesses testifying before company inspectors in an invidious position, and threatens their privilege against self-incrimination.

12.  In essence in Re National Irish Bank Ltd. (No. 1),87 the High and Supreme Court applied general constitutional principles to remedy what was, in our view, a significant omission by the legislature. In brief the case concerned allegations of improper charging of interest and fees to the accounts of customers. Two joint inspectors were appointed by the High Court, on an application by the Minister.88 The employees of NIB claimed to be entitled to the full panoply of procedural safeguards, among them the right to refuse to answer questions and provide documents which may tend to incriminate them. The inspectors applied to the High Court for direction on the issue of self incrimination.89 Shanley J, in determining whether the 'right of silence' could be abridged, applied a proportionality test, i.e. whether the restriction placed on the right by statute was any greater than was necessary to enable the State to fulfil its obligation under the Constitution. It was held that the procedures proposed to be adopted by the inspectors accorded with the requirements of constitutional justice, and that the abrogation was no more than was necessary. Therefore, the employees were not entitled to refuse to answer questions put by the inspectors, nor to refuse to provide the documents required. The Supreme Court, whilst upholding the decision of Shanley J, stated that what was objectionable was compelling a person to confess and then convicting that person on the basis of his compelled confession. The crucial point in the court’s reasoning was its view that any confession of an official of the company under investigation obtained by the inspectors, would not in general be inadmissible at a subsequent criminal trial unless the trial judge was satisfied that the confession was voluntary. In substance, therefore, the Supreme Court read into the legislation the rule which would render an involuntary confession inadmissible in subsequent criminal proceedings and is somewhat analogous to the rule - a direct use immunity – which has been applied to almost all other inquiries, by the constituent legislation: see Chapters 4 and 11. However, the drawback was that a person providing self-incriminating or potentially self-incriminating information would only know whether this material will be used against him after the event, in other words, when the trial judge in subsequent criminal proceedings rules on admissibility.

13.  One should note here that at the time of enactment of the 1990 Act such immunity was felt by the legislature to be inappropriate. During the Dáil Committee stage of the Bill, which became the 1990 Act, an amendment was tabled which would not have withdrawn the privilege against self-incrimination, but would have rendered evidence given before the inspector as inadmissible in subsequent civil or criminal proceedings.90 The proposed amendment was essentially a direct use immunity, along the lines of those contained in the legislation referred to above. The Minister opposed the proposed amendment, arguing that:

"I would not see any point in effectively forcing a person to answer a question and then ruling out the admissibility of his answer in any subsequent proceedings. That would amount to saying to a person: “If you come clean and make a full confession we will forget about any consequences and absolve you fully from any sins you may have committed”. I do not think that is what we should be able to do here. It has to be remembered that the prime purpose of an investigation is to establish the facts in a particular case of concern as a part of an overall system of regulatory control under company law. If the facts lead to a conclusion that some aspect of the law ought to be changed, then so be it but if, on the other hand, the facts established suggest that criminal proceedings ought to be brought against a person I do not think we should rule them out. That, in effect, is what … [the] amendments would do." 91

15.  The Re National Irish Bank decision is sensitive to the practical difficulties implicit in applying the privilege against self-incrimination in a public inquiry system, which will be examined in more detail in Chapter 11. However, in striking a balance between the exigencies of the inquiry system and the rights of individual witnesses, it is submitted that the Supreme Court has leaned too far in favour of the needs of the former at the expense of the rights of the individual. It would now appear that legislation containing no immunity or protection whatsoever for witnesses who are compelled to incriminate themselves is constitutionally sound (or rather may be interpreted to be sound).

16.  It should be noted here that following the enactment of the Company Law Enforcement Act, 2001 section 18 (the original version of which is in paragraph , above) was amended, as follows:

(1) An answer given by an individual to a question put to him in exercise of powers conferred by-

(a) section 10;

(b) section 10 as applied by sections 14 and 17; or

(c) rules made in respect of the winding up of companies whether by the court or voluntarily under section 68 of the Courts of Justice Act 1936, as extended by section 312 of the Principal Act;

may be used in evidence against him in any proceedings whatsoever (save proceedings for an offence (other than perjury in respect of such an answer)), and;

(2) A statement required by section 224 of the Principal Act may, in any proceedings whatsoever (save proceedings for an offence (other than perjury in respect of any matter contained in the statement)), be used in evidence against any individual making or concurring in making it." (Emphasis added)

Here one ought to focus on the phase “any proceedings whatsoever (save for an offence…”. If one reads this several times, it becomes clear, although not especially clear, that the power to use answers given in evidence against the individual giving them will not extend to use in criminal proceedings against the individual (i.e. “proceedings for an offence”), that is except for a perjury prosecution, which results from such answers.92 In short, perjury apart, there is a privilege in respect of criminal proceedings.

1.      Comment

17.  The Commission is of the opinion that the provision of a direct use immunity achieves a satisfactory balance between the competing interests of witnesses and the inquiry. Whilst it is true that the judiciary, through the application of the Constitution, have to a certain extent repaired the original omission and the subsequent amendment of section 18 has sought to effect this by way of legislation; the Commission is of the view that section 18 ought to be amended further by the reframing of the direct use immunity, along the same lines as the 1921-2002 legislation, simply in the interests of clarity.

1.      Civil Proceedings

18.  Section 22 of the 1990 Act provides that the inspector’s report is to be admissible in any civil proceedings as evidence:

(1) of the facts set out therein without further proof unless the contrary is shown; and

(2) of the opinion of the inspector in relation to any matter contained in the report.

This provision was considered in Countyglen Limited v Carway.93 The plaintiff company had instigated civil proceedings against the Carway family, Anglo Irish Bank and a firm of Solicitors. The admissibility of an Inspector’s Report by Frank Clarke SC into the affairs of the plaintiff was at issue. The plaintiff company contended that it was entitled to adduce the Report in evidence, and that its production shifted the evidential burden of proof to the defendants to disprove the facts contained therein. The defendants resisted this interpretation of section 22, arguing; that the Report should only be relevant at interlocutory hearings, or alternatively that it should be evidence of “primary facts,” but not of inferences, opinions or narrative evidence. Matters were complicated further by the fact that an Appendix to the Report had been omitted from publication, but had been furnished to the Court and the plaintiff Company. The defendants sought discovery of the Appendix, or alternatively contended that facts contained therein should not be admitted as prima facie evidence.

18.  Laffoy J stated the plaintiff’s interpretation of section 22 was “the most obvious interpretation of the intention of the legislature.”94 Also, “report” meant the entire Report and hence, the Appendix was admissible even though the defendants were denied discovery of it. She stated, “it may be that in the instant actions the embargo on the disclosure of Appendix 23 will give rise to difficulties. However these difficulties will have to be addressed as they arise.”95 Finally, the word “facts” was narrowly construed, and limited to “primary or basic facts and not secondary or inferred facts.”

19.  The Australian High Court, in Testro Bros Property Ltd. v Tait,96 considered and upheld the validity of an identical legislative provision. The appellants argued that their rights could be prejudicially affected by the admissibility of the Report as prima facie evidence of the facts contained therein, and hence they were entitled to a wide range of procedural safeguards. To side-step this line of interpretation, the High Court majority artificially interpreted the legislation as referring to the facts upon which the inspector’s view was based, rather than “stand alone” facts. The Court stated: “we are of the opinion that the report of an inspector has no evidentiary value at all except where the fact of his opinion is a relevant issue in any particular proceedings.”97 Thus, in Australia, despite the plain words of the legislation, the scope of the provision has been construed restrictively and Laffoy J’s interpretation in Countyglen expressly rejected.

20.  It should be noted that the Supreme Court’s surgery in the Re National Irish Bank case was confined to admissibility in respect of criminal proceedings and therefore does not impact on section 22. The Commission is of the view that the current use of an inspectors report in subsequent civil proceedings, as interpreted by Laffoy J, supra, is an interesting feature. The issue of whether an equivalent to section 22 should be utilised in respect of an inquiry’s report is considered later at paragraph .

                         III.            Constitutional Justice

22.  In relation to company inspectors, the courts have been slow to emphasise the rules of natural and constitutional justice in order to avoid putting “those who hold inquiries into legal straitjackets.”98 Certainly, during the preliminary information-gathering stages of an inquiry, the view has been taken that the discretion of the inspector ought not to be fettered by imposing the full armoury of procedural safeguards.99 Thus, in Chestvale Properties v Glackin,100 the applicants based their argument on the first limb (‘no bias’) of constitutional justice, and argued that the inspector was disqualified on the basis that he could not be, or would not be seen to be, impartial in that the appointed inspector was a partner in a firm of solicitors which had acted professionally for both a partner of D (who was the beneficial owner of the shares in the applicant company) and also for certain companies in which D had an interest – although not for the applicant company itself.101 However, Murphy J distinguished the position of the applicants from the predicament faced by Pádraic Haughey in In re Haughey.102 The present investigation had reached “only a very preliminary and exploratory stage,” and the inspector did not yet “find it necessary to make a choice as between conflicting claims.” For the time being, the inspector was exercising an inquisitorial role only, and was not obliged to adhere to the requirements of constitutional justice. Murphy J outlined the “evolving aspect of an inspector’s statutory duties,” and predicted that the inspector might, at some stage, have to engage in a task which involved him in a quasi-judicial function. In this latter capacity, the inspector would be bound by the rules of fair procedures, but not before. Essentially, the applicant’s claim was “premature,”103 and therefore was refused.

23.  This approach was recently affirmed in Re National Irish Bank.104 The joint inspectors in that case proposed to adopt a two-stage system of work. Initially, they would engage in an information-gathering exercise. The second stage would commence once it became clear that adverse conclusions might be reached in relation to certain individuals. At this point, the individuals at risk would be entitled to attend, hear the evidence against them, cross-examine the witnesses and give evidence themselves. Employees of NIB asserted that the first stage of the proposed procedure, during which procedural protections would not be afforded, was inconsistent with the requirements of constitutional justice. It was submitted that the affidavit grounding the application to appoint the inspectors was replete with accusations of criminal behaviour, and that the employees now stood “in the public domain accused of criminality and [were] therefore in no different a position to the position of Padraic Haughey himself when he stood before the Public Accounts Committee of Dáil Éireann accused of criminal conduct.”105 Shanley J in the High Court stated:

I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the inspectors’ work. The procedures identified by the inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice, and guarantee, where appropriate, the exercise of the rights identified in the Haughey case. I therefore determine that the procedures outlined by the inspectors … are consistent with the requirements of natural and constitutional justice.” 106

In a subsequent appeal to the Supreme Court, this aspect of the decision was not challenged by the appellants.107

23.  In Dunnes Stores v Maloney,108 too, in a slightly different context, the High Court adopted a non-interventionist approach. In that case, the applicants were given just three days to disclose documentation relating to a ten-year period. They challenged the inspector’s demand on the grounds that it was excessive and unreasonable. It was further argued that the applicants ought to have been given advance notice of the demand and an opportunity to make prior representations. To support this contention, the applicants relied on the Supreme Court decision of Haughey v Moriarty.109 In that case, a series of wide-ranging orders for discovery had been quashed on the basis that:

Fair procedures require that before making such orders, particularly orders of the type made in this case, the person or persons likely to be affected thereby should be given advance notice by the Tribunal of its intention to make such order, and should be afforded the opportunity, prior to the making of such order, of making representations with regard thereto.” 110

25.  Laffoy J stated that Haughey could be distinguished from the instant case. In Haughey, the impugned orders were served on financial institutions, not on the persons directly affected by the Tribunal’s investigation, namely the Haughey family. By contrast, the orders in Dunnes Stores were served on and affected Dunnes Stores alone. No third party was affected, and the applicants were free to raise objections to the orders once they were made.

26.  So far, the case law has laid down only two fairly narrow exceptions to the general disinclination of the courts to require procedural fairness. First, it appears that it is incumbent on the Minister to give reasons for the appointment of an inspector. In Dunnes Stores Laffoy J stated:

In my view, in adopting the stance which has been adopted, the minister has, in effect, rendered her decision unreviewable … [The applicants] are entitled to have the decision reviewed … and, in my view, they are utterly stymied in the exercise of that right by reason of the refusal to give reasons for the decision … this is a case in which procedural fairness requires that the minister give reasons for her decision.” 111

27.  The second very particular instance of court intervention is to be found in Desmond v Glackin (No.2),112 which concerned a constitutional challenge to section10 (5) of the 1990 Act. The sub-section provided for the inspector to certify a witness’s refusal to co-operate to the High Court, upon which that witness could be punished “in like manner as if he had been guilt of contempt of court.” In the High Court,113 and on appeal the Supreme Court, held the contempt provisions to be unconstitutional, having regard to the provisions of Article 38 of the Constitution. Essentially, this decision was a straightforward application of the principles laid down in In Re Haughey.114 The most noteworthy aspect of the matter is that the legislature should have chosen to include section 10 (5) in the 1990 Act in the first place. The equivalent 1963 provision was replaced by the Companies (Amendment) Act, 1982, section 7, “because of concern that the provisions of the Principal Act were repugnant to the Constitution, having regard to the decision of the Supreme Court in Re Haughey.”115 In 1990, McCormack wrote, “the legislative wheel has come full circle with again the absence of any right to jury trial.”116 Keane notes that the “reversion to the dubious procedure in the Principal Act was described as ‘surprising’.”117

28.  Since 1990, it is no longer mandatory, but merely permissive to send a copy of the report to the company’s registered office.118 It seems strange that the company at the heart of the inspector’s report can be prevented from having access to its contents. This is particularly so if one considers the grave consequences which can flow from the inspector’s report. McCormack states: “a point of natural/constitutional justice arises. In view of the serious consequences, specified in section 12 that can result from an inspector’s report, it would appear that the company should be sent a copy of the report whenever there is a possibility of winding up proceedings being brought on foot of the report.”119 Following informal consultation with the Office of the Director of Corporate Enforcement it appears that both natural and legal persons who may potentially be adversely affected by an inspectors report will normally be sent a copy, even, it seems, where there is a departure from the recent practice of general publication, discussed at paragraphs - .

                         IV.            Foreign Authorities on Procedure

1.      England

29.  An even lower standard of natural justice has been set by the English courts. For example, the inspector is under no obligation to allow the cross-examination of witnesses, or to recall witnesses to rebut allegations, or to submit tentative conclusions to the accused.120 De Smith, Woolf and Jowell explain that:

The weight of judicial authority on investigations of this kind conducted under the Companies Act has laid a heavy emphasis on their non-judicial character, the importance of an expeditious conclusion and the difficulty of the investigative task.” 121

30.  The leading English case is Re Pergamon Press Ltd.122 in which the directors of the company (among them the late Robert Maxwell) were apprehensive that the inspector’s interim reports, if critical of their conduct, might be used in evidence against them in concurrent US civil litigation. For this reason, they sought undertakings from the inspector that certain procedural standards would be met and, in particular, that they would be fully informed of all allegations against them. The inspector agreed to outline the allegations in general terms, but refused the more elaborate procedures demanded by the directors. Not satisfied, the directors refused to co-operate with the investigation. The Court of Appeal held that their refusal was unjustified. Lord Denning MR began by listing the potentially far-reaching effects of an investigation under the Companies Act, 1948, stating:

They have to make a report which may have wide repercussions. They may if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions. It may bring about the winding up of the company.” 123

Notwithstanding these serious consequences, the standard of procedural fairness required was set quite low, namely:

The inspectors can obtain information in any way which they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said about him. They need not quote chapter and verse. An outline of the charges will usually suffice.” 124

31.  This limited standard of fairness was further pared down in Maxwell v Department of Trade and Industry,125 which concerned an investigation into a cluster of companies owned by the late Robert Maxwell. The plaintiff claimed that the Department of Trade and Industry (“DTI”) company inspectors had acted in breach of the rules of natural justice in that, having formulated their tentative criticisms of him, they had failed to give him an opportunity of answering about a quarter of those criticisms before publishing their report. In dismissing Mr Maxwell’s appeal, the Court of Appeal was enormously sympathetic to the difficult task faced by Inspectors. Lord Denning MR stated:

His task is burdensome and thankless enough as it is. It would be intolerable if he were liable to be pilloried afterwards for doing it. No one of standing would ever be found to undertake it. The public interest demands that so long as he acts honestly and does what is fair to the best of his ability, his report is not to be impugned in the courts of law.” 126

32.  The severity of the English cases is open to criticism. The willingness of the courts to acknowledge the drastic effects of a company investigation is at odds with their reluctance to afford adequate protection to the “targets” of such an investigation.127 In the realm of company inspectors, there is an unacceptable disparity between the impact of the investigations and the standards to be applied during the investigations. De Smith, Woolf and Jowell, comment:

The balance is still a fine one, inasmuch as the investigation…and report expose persons to a legal hazard as well as potentially damaging publicity. It has accordingly been held that the rudiments of natural justice or fairness must be observed, in so far as the inspector must, before publishing a report containing serious criticisms and allegations against a person, put to that person the substance of them and given him the opportunity of rebutting them. However, it has been held that the inspector is not required to allow the cross-examination of witnesses, nor is he required to recall the person to rebut allegations subsequently made by other witnesses, nor submit his tentative conclusions to the ‘accused’ before sending his report to the Minister” 128

Put simply, “the position of the person under investigation is unenviable.”129

1.      European Court of Human Rights

33.  The application of constitutional justice in the context of the investigation of companies has also been considered by the European Court of Human Rights ("ECtHR"). Fayed v United Kingdom130 arose out of an investigation into House of Fraser Holdings PLC (“HOFH”), a company owned by Mohammed Al Fayed and his brothers. HOFH had acquired House of Fraser PLC, following an intense public campaign by the applicants to promote their family background, wealth, business interests and resources. A competitor, Lonrho PLC, asserted that the brothers had lied about their money and themselves. Eventually, two inspectors were appointed to assess, amongst other things, whether the Fayed brothers had misled the authorities and the public. All proceedings were conducted in private and there was no cross-examination. The inspectors agreed to notify the applicants of their provisional conclusions and these conclusions were largely unfavourable to the applicants. Before the ECtHR, the applicants grounded their arguments on Article 6(1) of the Convention,131 (the equivalent of Article 34.1 of the Irish Constitution, by which: “justice must be administered…in a court…”). They submitted that Article 6(1) was violated in that the report had undermined their civil rights to honour and reputation without allowing them effective access to the courts. The Court refused to extend the scope of Article 6(1) to company inspectors because their investigations were not directly determinative of any right or obligation.132 Also, to do so “would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities.”133

34.  On a different point, the ECtHR emphasised that it was unwilling to give inspectors a licence to ignore basic minimum standards of fairness, stating that; “[t]he Inspectors are bound by the rules of natural justice; they have a duty to act fairly and to give anyone whom they propose to criticise in their report a fair opportunity to answer what is alleged against them.” 134 However, on the other hand, the Court held, consistently with English authorities in this regard, that proceedings before the inspectors are administrative, not judicial, and accordingly they are the masters of their own procedures; “Except for the duty to act fairly, Inspectors are not subject to any set rules or procedure and are free to act at their own discretion. There is no right for a person who is at risk of being criticised by Inspectors to cross-examine witnesses …”135

1.      Australia

35.  In Testro Bros Property Ltd. v Tait,136 the applicant company sought the full range of procedural rights, including liberty to cross-examine witnesses, liberty to re-examine Testro’s own witnesses, notice of all allegations critical of the company or of its administration, and a full opportunity to meet those allegations. A majority of the High Court dismissed Testro’s appeal on two grounds. Firstly, the relevant legislation placed no obligation on the inspector to conduct his investigations by a process analogous to the judicial process. Secondly, the report could not, of its own force, prejudicially affect the rights of the company. In dissenting judgments, Kitto, and Menzies JJ took a different view of the impact of the inspectors report, noting in particular the fact that it was admissible in subsequent criminal proceedings as proof of its contents (unlike the situation in Ireland). Menzies J stated: “Once legal consequences have been attached to a report it can no longer be said, as Chitty LJ accurately said in Re Grosvenor & West end Railway Terminus Hotel Co. Ltd137 that: ‘the beginning and the end of the duty of an inspector is to examine and report’.”

1.      Comment

36.  The accord among the Irish and the three foreign jurisdictions examined is striking: in each of the foreign jurisdictions, there have been a number of cases in which claims grounded on various aspects of constitutional/natural justice have failed and only a very few in which such arguments have succeeded. This is a feature to which the Commission will return in Chapter 9 and Chapter 11.

                            V.            Publicity

37.  The potential for these reports to harm the reputations of companies and the individuals behind the corporate veil is lessened by three important factors. These are: private proceedings; limited circulation of the report, and omission of parts of the report from publication.

1.      Private proceedings

38.  Since the legislation is silent on the point, it seems likely that company inspectors are perfectly entitled to conduct public sessions or not, as they see fit, if they see fit. However, as a matter of convention rather than law, company inspectors generally carry out their work behind closed doors. It may reasonably be assumed that this is attributable to the fact that should inspections be held in public then the full procedural and constitutional safeguards that such an inspection would necessarily entail.138 Therefore, carrying out inspection in private is less time consuming, less formal and puts emphasis on practical efficacy.

39.  Yet, interpreting identical statutory provisions, the English courts have arrived at quite a different position. As far back as 1932, in Hearts of Oak Assurance Company Limited v Attorney General139, the House of Lords held, by a four-to-one majority that an inspector appointed for the purpose of examining and reporting on the affairs of an industrial insurance company was not entitled to conduct the inspection in public. Lord Macmillan stressed the benefits of private proceedings in the following terms:

On the one hand it is important to secure that the efficiency of the procedure for the purpose in view is not impaired. On the other hand it is not less important to ensure that fair treatment is accorded to all concerned. I am satisfied that both these ends can best be attained by the holding of such inspections in private. I can well imagine that irreparable harm might unjustly be done to the reputation of a company and much anxiety unnecessarily occasioned to its policy-holders by giving publicity to such preliminary investigations.” 140

40.  In response, two comments can be made here. First, there may be circumstances in which the inspector might be facilitated in discharging his duty if he had the option of holding a public hearing. Indeed, the Attorney General, in Hearts of Oak stated that: “publicity might have the advantage of bringing forward witnesses who could give useful evidence.”141 Alternatively, the threat of a public hearing might help to jog the memory of an uncooperative witness. There seems to be no advantage in limiting the inspectors’ discretion to hold public sessions, however rare these may be in practice. Secondly, a literal interpretation of the relevant legislation would suggest the opposite view to that taken in Hearts of Oak. As stated by Viscount Dunedin, in a partially dissenting judgment: “the statute does not say whether it is to be in public or in private, and therefore I cannot see how a court of law can have power to say that it must be in private simply because it thinks that conditions of expediency all point that way.” 142

41.  Notwithstanding these complaints, the rule was affirmed by Sir Richard Scott V-C (as he was then), in In re an Inquiry into Mirror Group Newspapers plc.143 The case arose out of reports that Robert Maxwell had been using the Mirror Group pension fund as security against very substantial personal loans. In the course of subsequent investigation, the inspectors insisted that all witnesses give confidentiality undertakings. Mr Maxwell’s son refused. The inspectors relied on Hearts of Oak to support the proposition that company investigations are essentially private proceedings and ought to be confidential. Sir Richard Scott V-C thought that this was to read too much into the scope of the earlier decision. The Vice Chancellor re-affirmed that Hearts of Oak required mandatory private investigations, but stated that the case was not an authority for the proposition that witnesses must agree to a confidentiality agreement: “[T]he case does not impose, indeed the declaration expressly refrained from imposing, any other limitation on the way in which inspectors, sitting in private, conduct their investigation.”144

42.  It seems, in any case, that there is no Irish authority to depart from what a straightforward reading of the legislation would seem to indicate and what Irish practice seems to have assumed, namely that it is open to an Inspector to sit in private or public, as he thinks fit; and the Commission do not find the English authority, to the contrary, convincing. On the plane of policy, too, this seems to the Commission, to be appropriate: the arguments in favour of publicity adduced largely in the context of tribunals of inquiry at paragraphs -, will, depending on the circumstances usually not be as strong in the more specialised world of company investigation and where they are, then the Inspector has a discretion to sit in public. Accordingly, the Commission would recommend no change in the statutory position (silence) on this point.

1.      Limited circulation of Inspector’s Report

43.  Another source of comfort for the 'target' of an inspector’s report is that the report might not be published and disseminated amongst members of the public. Where there is no publication, or even limited circulation, the potential harm to one’s goodwill and reputation is reduced, though not eliminated.

44.  Section 11 (3)145 of the 1990 Act states that:

“…the court may, if it thinks fit -

(a) forward a copy of any report made by the inspectors to the company’s registered office,

(b) furnish a copy on request and payment of the prescribed fee to-

        i.            any member of the company or other body corporate which is the subject of the report;

      ii.            any person whose conduct is referred to in the report;

    iii.            the auditors of that company or body corporate;

    iv.            the applicants for the investigation;

      v.            any other interested person (including an employee) whose financial interests appear to the court to be affected by the matters dealt with in the report whether as a creditor of the company or body corporate or otherwise;

    vi.            the Central Bank, in any case in which the report of the inspectors relates, wholly or partly, to the affairs of the holder of a licence under section 9 of the Central Bank Act, 1971;

(ba) furnish a copy to –

        i.            an appropriate authority in relation to any of the matters referred to in section 21(1)(a) to (fb);

      ii.            a competent authority as defined in section 21(3)(a) to (i);

and

(c) cause any such report to be printed and published,”

(Emphasis added).

45.  The Companies Act 1963 conferred a similar discretion, the only differences being that the range of persons to whom the report could be furnished was slightly narrower and the discretion was vested in the Minister rather than the courts. Despite the discretion to disseminate, just one report was printed and published between 1963 and 1990.146 In 1990, McCormack wrote: “one can only speculate whether this [the 1990 Act] will make any difference to the practice of non-publication of inspector’s reports followed since the publication of an Enquiry into Irish Estates Limited, on October 23, 1963.” 147

46.  Realistically, it is probably too soon to state conclusively that the courts are more willing than successive Ministers to publish these reports. However, initial indications are that the general practice is that Reports will be published and made available to members of the public. For example, in the 1990s, the Inspectors’ Reports on Bula Holdings148, Telecom Éireann149 and Chestvale Properties150 were all widely disseminated. The High Court adopted a similar strategy in relation to Ansbacher Cayman Ltd.151, but we must wait and see whether the forthcoming Reports concerning National Irish Bank and National Irish Bank Financial Services Company Limited will also be published.

England

47.  The position in England is more settled. In practice, reports are published, subject to one broad exception. According to the Investigation Handbook,152 if criminal prosecutions are pending, or if the investigation has prompted police inquiries, the Department will defer publication until all proceedings are completed or dropped. This practice was considered by the House of Lords in Lonrho plc v Secretary of State for Trade and Industry.153 The case concerned the decision of the Secretary of State to defer publication of an inspector’s report pending completion of a separate investigation by the Serious Fraud Office. Indeed, the oral evidence of DTI witnesses was that the policy of the Department had always been to defer publication until any prosecution was completed. It was held that the Secretary of State had properly exercised his discretion on the ground that early publication might be prejudicial to the Serious Fraud Office’s investigation and to any subsequent trial.

1.      Omission of Parts of the Report

48.  Section 11 (4) of the 1990 Act provides that “[w]here the court … thinks proper it may direct that a particular part of a report made by virtue of this section be omitted from a copy forwarded or furnished under subsection (3) (a) or (b), or from the report as printed and published under subsection (3) (c).”154 There seems to be no reason to prevent this omission from being temporary, for instance, pending the completion of a criminal trial or investigation. In relation to the Ansbacher Report, prior to publication Mr Justice Finnegan ruled against arguments made by lawyers representing a large number of identified and unidentified people who wished to have changes made to the Report or who did not wish to have their identities known.155

Comment

1.      What of general interest emerges from this Chapter? The main point is the way in which the legislation leaves it to the discretion of the Inspector whether to hold the inspection in public or in private. It also confers discretion on the Court as to whether to publish in full or omit parts of the Report. Inspections have in the main been conducted in private, where the trade-off (if trade-off it be) is that the right of the person whose conduct is under investigation to constitutional justice is reduced. The significance of this is that it is one more piece of evidence supporting the broad theme, which is taken up in Chapter 9, on Information Gathering, that a good deal can be done by way of collecting information or proposed evidence, without attracting a stringent right of constitutional justice. The Companies Inspector constitutes one model as to how this may be done.

  1.  

3.      COMMISSION TO INQUIRE INTO CHILD ABUSE

                               I.            Introduction

1.      It should be noted at the outset that this Chapter is not intended to be a handbook to the workings of the Commission to Inquire into Child Abuse (“Laffoy Commission”). Our objective here is to provide an overview of this particular model of inquiry and highlight some its features that may have an application in other contexts. Three further caveats should be intimated: first, the Attorney-General is presently conducting a review of the Laffoy Commission’s mandate and is expected to report shortly after this Paper has been published and: secondly, in November 2002 the procedures before the Investigation Committee of the Laffoy Commission underwent something of an overhaul, with the Rules of Procedure being augmented by the new Framework of Procedures (see paragraph -),156 the practical result of which has not at the time of writing been fully realised:157 Finally, the Laffoy Commission has not yet reached Phase 2 (the public phase) and is not expected to do so (subject to the review of its mandate) until 2004.

2.      In succeeding Parts of this Chapter, we survey: Inquiry Officers (), Deciding Officers (), the legal representative of the survivor’s interest (), procedures adopted at Phase 1 and (envisaged at) Phase 2 hearings of the Investigation Committee () and the appointment of experts (). A further aspect that is also instructive is the way in which the Laffoy Commission (in consultation with its sponsoring Department and no doubt the Department of Finance) has unsuccessfully attempted to minimise its costs. However, discussion of this is deferred until paragraphs -.

1.      Background

3.      The establishment of the Laffoy Commission is one aspect of the societal catharsis that has been underway since revelations of the quite shocking abuse perpetrated upon vulnerable children began to surface. The broadcasting of the RTÉ documentary series, States of Fear, brought the issue of child abuse to the forefront of public consciousness and demanded a political response.

4.      On 11 May 1999, the Taoiseach announced a package of measures to address the issue, including:

“…an apology on behalf of the State to victims of child abuse; the setting up of a commission to inquire into childhood abuse; expansion nationwide of the counselling services available to assist victims of child abuse; the preparation of a White paper on the mandatory reporting of child abuse; immediate amendment of the limitation laws as they relate to civil actions based on childhood sexual abuse; referral of the question of limitation in other forms of childhood abuse to the Law Reform Commission and priority advancement of legislation to include a register of sex offenders.”158

1.      The first item in this package, the Laffoy Commission, was initially established on a non-statutory footing. This non-statutory Commission was charged by the Government with considering the broad terms of reference assigned to it, in order to determine whether these needed to be refined, and with making recommendations as to the powers and protections it would need to do its work effectively.159 The non-statutory Commission reported in September 1999, and the Government accepted its recommendations almost without reservation. The Laffoy Commission was put on a statutory footing following the enactment on 26 April 2000 of the Commission to Inquire into Child Abuse Act 2000 (“the 2000 Act”). This Act has been slightly amended.160 The idea of holding a preliminary inquiry in order to make the task of a substantive inquiry easier is not new and other instances have been noted at paragraph .

2.      The purposes of the Laffoy Commission are:

1.      to provide, for persons who have suffered abuse in childhood in institutions… an opportunity to recount the abuse, and make submissions, to a Committee,

2.      through a Committee—

                                i.            to inquire into the abuse of children in institutions…,

                              ii.            where it is satisfied that such abuse has occurred, to determine the causes, nature, circumstances and extent of such abuse, and

                            iii.            without prejudice to the generality of any the foregoing, to determine the extent to which—

       I.            the institutions themselves in which such abuse occurred,

    II.            the systems of management, administration, operation, supervision, inspection and regulation of such institutions, and

 III.            the manner in which those functions were performed by the persons or bodies in whom they were vested,

contributed to the occurrence or incidence of such abuse,

and

2.      to prepare and publish reports…”161

Thus the Laffoy Commission has at least three objectives. The first is to provide a forum in which persons who may have suffered childhood abuse can tell their stories.162 According to the Minister for Education and Science, Dr. Michael Woods, TD, who sponsored the bill, “This telling and listening function, which can be called the therapeutic function of the commission or the healing forum, is the function to which everything else should be subordinate.”163 Secondly, the Laffoy Commission has an investigative function, in that it is required by way of a committee to inquire into the abuse of children in institutions and to make various findings in relation to such abuse, which will include naming the perpetrators and the institutions in which abuse took place.164 Thirdly, in publishing its reports,165 the Laffoy Commission will also make recommendations for alleviating or otherwise addressing the effects of abuse on those who suffered it, and for the prevention (where possible) and the reduction of the incidence of abuse of children in institutions, and for the protection of children from abuse.166

6.      To meet the particular circumstances, an unusual structure has been adopted. Two committees are established, each composed of different members of the Laffoy Commission167 and responsible to it.

1.      The Confidential Committee

8.      The first committee, the Confidential Committee,168 has an “overwhelmingly therapeutic” purpose.169 It hears from victims of childhood abuse in a sympathetic and informal atmosphere and makes general findings for publication in a report to the Laffoy Commission.170 It has no investigative role and is simply a forum in which a person who claims to have suffered abuse can recount his or her tale. No findings are made against the alleged perpetrator of the abuse, who is not informed that allegations against him or her have been made. The Confidential Committee is prohibited from identifying or publishing information that could lead to the identification of: (a) persons alleged to have committed abuse, (b) institutions in which abuse is alleged to have taken place, or (c) the person alleging abuse.171 Not surprisingly the hearings of the Confidential Committee are conducted in private.172

9.      These restrictions are necessary to ensure that hearings of the Confidential Committee can proceed with the appropriate level of informality. It is understood that these hearings are very informal indeed. The Laffoy Commission has taken the view that the presence of a legal representative is unnecessary, although the witness may be accompanied by a companion if the latter gives an undertaking of confidentiality.173 Restricting disclosure of allegations of abuse to the members of the Confidential Committee means that the injury to the personal rights of those against whom allegations may be made (such as the right to good name) is minimal. This low level of interference with personal rights means that a constitutional challenge would be unlikely to succeed. In any case a constitutional challenge is unlikely because, first, a person would not ordinarily know that an allegation against him had been made, and secondly, the mere fact of bringing proceedings would be likely to expose a person to just the sort of publicity the 2000 Act seeks to avoid.

1.      The Investigation Committee

10.  The second committee is known as the Investigation Committee.174 Its remit is more far-reaching than that of the Confidential Committee. While it too has a therapeutic function in providing a forum in which the victims of abuse may tell their stories, it goes further in that it is required to inquire into the abuse with a view to producing a report that will enable the Laffoy Commission to achieve the second purpose explained at paragraph , supra; namely to make findings and name perpetrators.175 For this reason, its procedural rules and practices are much more stringent and of much more interest in the context of this Paper. They occupy the lion’s share of this Chapter, in .

1.      Procedural Rules of the Two Committees

11.  The 2000 Act provides very little guidance as to the procedures to be employed by the Committees. Under section 11(4), the Laffoy Commission is empowered to regulate the procedure and business of a Committee, but in doing so it must have regard to the obligation imposed by section 4(6) to endeavour to ensure that meetings of both Committees, at which evidence is being given, are conducted:

(a) so as to afford to persons who have suffered abuse in institutions… an opportunity to recount in full the abuse suffered by them in an atmosphere that is as sympathetic to, and as understanding of, them as is compatible with the rights of others and the requirements of justice, and

(b) as informally as possible in the circumstances.”176

12.  The procedures that the Laffoy Commission has adopted, whilst tailored to meet the specific circumstances of its tasks, are instructive and innovative. As has already been mentioned, the procedures of the Confidential Committee are extremely informal. Bearing in mind that the primary purpose of that Committee is therapeutic, it does not really constitute an inquiry at all; any evidence given before it is entirely uncontroverted and untested and hence it would be illegitimate for the Committee to make findings of fact adverse to the interests of individuals or others on the basis of such evidence.

13.  In respect of the Investigation Committee, the procedural rules have been adopted which, given its complicated structure, were necessary in order to give effect to the objectives expressed in section 4(6), as detailed at paragraph .177 The Investigation Committee’s work was originally divided into two parts: the first dealing with hearings in relation to evidence of allegations of abuse (Phase 1), and the second with public hearings in relation to institutions at which abuse has been established (Phase 2). Following the recent overhaul of the procedures for Phase 1 of the Investigation Committee, the hearing of allegations of abuse are now specific to the institutions implicated rather than the complaints or complainants themselves. In other words, all allegation of abuse in respect of an individual institution are heard on a modularised basis. Phase 2 is unaffected by the Framework of Procedures, but is the stage at which the Laffoy Commission will seek to fulfil its third purpose, as explained at paragraph ; namely, to make recommendations.

14.  In relation to the procedure to be adopted the non-statutory Commission’s report to Government, indicated that:

[E]ven where findings in individual cases are not being made, individuals to whom responsibility is likely to be ascribed must be afforded constitutional rights that include, as a minimum, being furnished with a statement of every allegation, being allowed to cross-examine the person making the allegation, give rebuttal evidence and make submissions in their own defence [sic].”178

15.  The rules of procedure that were subsequently adopted by the Laffoy Commission display sensitivity to the rights of persons against whom adverse findings might be made by the Investigation Committee. A major theme in the rules is the importance that no-one should be taken by surprise at an oral hearing. In this regard, the use of Inquiry Officers is an important mechanism.

                            II.            Inquiry Officers

16.  Section 23 of the 2000 Act gives the Laffoy Commission the power to authorise members of its staff to act as Inquiry Officers. In its opening statement of 29 June 2000, it was implied that inquiry officers would be recruited from the Civil Service, although not from any department that has or has had responsibility for children’s institutions.179 However, this proposal provoked a great deal of opposition, and in July 2000 practising barristers were retained to perform the functions of Inquiry Officers.180 It seems rather surprising that the Laffoy Commission chose barristers to perform this function, as there appears to be no reason why other members of the legal profession, such as solicitors or even a team of paralegals could just as effectively fulfil this role. Indeed, the role of an Inquiry Officer is more akin to that of a solicitor in preparing a case before briefing a barrister to present that case in court.

17.  In any case, the 2000 Act allows an Inquiry Officer, whenever requested by the Investigation Committee,181 to conduct a preliminary inquiry into an allegation of abuse.182 It appears from the Interim Report of May 2001 and the rules of procedure of the Investigation Committee183 that an Inquiry Officer will be assigned to every allegation of abuse that the Investigation Committee is asked to investigate. Despite the Investigation Committee procedures having undergone somewhat of an overhaul, as noted at paragraph , supra, an inquiry officer’s role does not appear to have been substantially affected. However, it is likely that Inquiry Officers will be assigned to conduct preliminary investigations in respect of complaints made against a particular institution or institutions, rather than assigned to random complaints.

18.  The job of an Inquiry Officer begins by obtaining a statement from a complainant, which may either be already pre-prepared in writing (if the complainant is represented), or obtained in the course of an interview with the Inquiry Officer.184 If the complainant wishes to have witnesses called in support of the allegation, the identity of the witness should be included in the statement provided to the Inquiry Officer as well as the substance of the evidence to be given by that witness.185 The statement may also include details of any direction that the complainant wishes the chairperson of the Investigation Committee to make in the exercise of her powers under section 14 of the Act to compel the attendance of witnesses and the production and discovery of documents.186 The rules of procedure require the Inquiry Officer, so far as it is possible to do so against documents in the possession of public bodies in the State to which the Investigation Committee has access,187 verify that the complainant was in the institution in which the abuse was alleged to have occurred at the relevant time and any other relevant facts capable of verification.188 (Presumably this preliminary cross-referencing with documentation, such as school records, is to ensure that fraudulent complaints are kept to a minimum.)

19.  Once this is done, the Inquiry Officer must then furnish the respondents189 with copies of the complainant’s statement and any relevant documents and request each respondent to provide a statement of the evidence he or she proposes to give to the Investigation Committee. Again, this statement may be prepared in advance by the person or taken in the course of an interview with the Inquiry Officer190 and the respondent should name any witnesses who should be called and provide a statement of the substance of the evidence to be given by those witnesses.191

20.  The Inquiry Officer may request the production of any document in the possession or control of a person that he or she considers relevant to the inquiry.192 The rules of procedure also state that the chairperson of the Investigation Committee will give such directions as she considers appropriate in the exercise of her powers under section 14193 to compel the production of documents and the attendance of witnesses to give evidence before the Committee.194 This means that where a person is behaving in an obstructive manner the Committee can take steps to obtain the evidence it needs to proceed to a full hearing.

21.  A person may decline to answer any question asked at an interview with an Inquiry Officer and may terminate it at any time.195 Presumably this provision takes account of the fact that it may be very difficult for a person who has suffered abuse to speak about it and it seems that the most likely reason that such a person would refuse to co-operate or terminate an interview would be because the memories dredged up became too painful. Moreover, if the complainant is not in a position to provide a full statement, it seems unlikely that the Investigation Committee would elect to proceed with the investigation.196 On the other hand, a respondent might be much less enthusiastic about co-operating. For this reason, the rules of procedure provide that if a respondent fails to comply with an Inquiry Officer’s request to produce a narrative statement within the time stipulated, that fact is noted in the report that is forwarded to the Investigation Committee.197 The significance of this is that the entitlement of the respondent at the hearing to address questions to the complainant or witnesses for the complainant or for that matter call witnesses in rebuttal is dependent on the provision of a written statement setting out the basis on which the evidence is contested, and is subject to such other terms (as to adjournment or otherwise) that the Investigation Committee considers appropriate in the interests of justice.198 This hard line is interesting. Restricting the respondent’s participation according to their or its corresponding co-operation or lack thereof is thought-provoking. One may question whether such an approach could have an application in other contexts, for instance where an interested party declines to co-operate with a tribunal of inquiry or its investigator.

22.  Once their inquiry is concluded, the Inquiry Officer must prepare for the Investigation Committee: a written report summarising the complainant’s and the respondent’s statements and identifying the areas of factual dispute. The report is accompanied by (a) the statement of the complainant and of each respondent, (b) any relevant documents submitted by the complainant and each respondent, (c) the verification data mentioned above at paragraph , and (d) any other relevant documentation. According to the Framework of Procedures, it appears that Inquiry Officers will now have a role in collating the evidence and information gathered into ‘Books of Documents’ for circulation to the parties involved in the hearings for use at the hearings, see paragraphs - infra. It is notable that the Act explicitly states that “the report shall not contain any determinations or findings”.199

23.  Since Inquiry Officers are prohibited from making any findings on the basis of their inquiries, it seems that their function is primarily preparatory. This is not to undervalue the peculiar skills and sensitivity that will be required when questioning people who may have been subjected to or have perpetrated abuse. But the Inquiry Officer’s main job is to get the file in order for delivery to the Investigation Committee. There is no indication in the Act (or the Framework) that the Inquiry Officers are to act as any sort of filter. They have no discretion to refuse to send forward allegations they consider to be manifestly unfounded, or in respect of which they have been unable to obtain any statements because of a decision to terminate an interview. Any such arrangement would be inconsistent, not only with the prohibition against the drawing of conclusions on the part of the inquiry officers, but also with the significant therapeutic function of the Investigation Committee. The result, therefore, is that the Investigation Committee seems to be under an obligation to consider every complaint that is made to it. However, one may speculate that if, for example, the verification documentation, referred to at paragraph , supra, did not confirm that the complainant went to the institution in question and there were no witness or others sources to verify this, then it is likely that such a complainant’s case would be short lived.

24.  An interesting question is whether Inquiry Officers ought to be given a role that makes greater use of their critical faculties. They might be given the power to present their conclusions to the inquiry proper, or even to conduct their own mini-inquiries in which they attempt to resolve conflicts of fact, with the power to compel attendance and the production of documents. However, the further one goes down this road, the more the Inquiry Officer is becoming the inquiry itself, with the result that the inquiry is going on much as it might otherwise do, only at a further remove from the body charged with its conduct. If we assume that Inquiry Officers are not likely to be in a position to arrange for the cross-examination by an accused person or institution of the accuser, it is unfair to ask for factual conflicts to be resolved. Moreover, the usefulness of simply putting the file in order should not be underestimated. If this is done assiduously, it might greatly ease the task of the Investigation Committee in making findings and also assists in allowing respondents to prepare their case properly. However, we would add one caveat: if a person acted in an obstructive manner, the Inquiry Officer might be permitted to note this fact in a report to the Laffoy Commission, which the latter could take into account in exercising its discretion to grant or withhold costs under section 20A (3) of the 2000 Act.200

25.  It is understood that the legal teams of certain tribunals of inquiry sometimes carry out functions not dissimilar to those of the Inquiry Officer under the 2000 Act, in that they conduct informal meetings with individuals whose evidence may be of relevance to the tribunal in order to ascertain whether it is worthwhile to call such individuals before a public hearing. Even prior to the Tribunals of Inquiry (Evidence)(Amendment) Act 2002, the Supreme Court has upheld the practice of holding these preliminary meetings, but ruled that the legal team must be joined at them by a member of the tribunal, because the tribunal’s lawyers themselves have no independent investigative function.201 However, following the enactment of the 2002 Act, statutory blessing has been given to this practice and it would appear that investigators are intended to fulfil this type of function: see paragraphs -.

26.  The Commission is of the view that the way in which Inquiry Officers carry out their functions is a useful precedent in deciding the scope of an investigator’s role within the context of a tribunal of inquiry, or, for that matter, within the context of other inquiries, and will return to consider this further in Chapter 9.

                         III.            Deciding Officers

27.  Section 32 of the Residential Institutions Redress Act 2002, inserted section 23A into the 2000 Act. It provides for the appointment of ‘Deciding Officers’ to assist the Investigation Committee in carrying out its functions.202 Deciding officers are to have expertise in law, medicine, psychiatry, psychology, or social work, and may be appointed subject to such conditions as the Minister for Education and Science and the Minister for Finance may determine.203 The purpose of appointing deciding officers is to assist and fill the gap in expertise when the Investigation Committee divides under section 11(6) of the 2000 Act, in order to deal with modularisation more efficaciously. In other words, where the Chairperson of a division of an Investigation Committee is a psychologist, he or she is likely to be assisted by a deciding officer who is a lawyer. Similarly, Ms Justice Laffoy, whilst sitting as Chair of a division, is likely to be assisted by a deciding officer or officers204 with expertise in medicine, psychiatry, psychology or social work. Furthermore, deciding officers are deemed to exercise the functions of a member of a division of the Investigation Committee.205

28.  What is interesting for present purposes is not only that Committees may divide – no doubt to hear the vast number of complaints made to date – but that help can be enlisted to ensure that such a division is suitably qualified to hear the complaint. This feature is peculiar to the Laffoy Commission and shows how it had to adapt in a way not envisaged when its original statute was passed. We do not immediately envisage application of this feature in other contexts (although there may be circumstances that call for this power), but deciding officers are mentioned here as a testament to the innovation of the Laffoy Commission.

                         IV.            The Legal Representative of the Survivors’ Interest

29.  Before turning to examine the procedures before the Investigation Committee, the issue of the legal representation of “survivors” (i.e. victims) of child abuse should be addressed. In the rules of procedure, the concept of “the survivors’ interest” is introduced and is defined, rather confusingly, as “the interest of survivors of abuse in an institution in which it has been established that abuse has occurred, including complainants”.206 Underlying this infelicitously-drafted provision is the notion that the survivors of abuse in an institution will consist of some people who have complained at Phase 1 and some who have not. The rules of procedure refer to “the legal representative of the survivors’ interest” as having a role in the public hearings, although this role is not clearly defined. One may assume that it is to advance the survivors’ interest, as defined, although what this rather generalised interest will amount to in individual cases is difficult to predict, and whether all survivors will share the same interests is also questionable.

30.  In her letter of 14 June 2000 to the Department of Education and Science, Ms Justice Laffoy stated:

It is felt that the requirements of the survivors would be best met if all survivors were represented before the Commission by one legal team… At the… hearings of their allegations, A, B and C would be represented by one of the barristers on the team. In the second phase, A, B and C and all the other survivors would be represented by the team.

The advantages of this approach from the survivors’ perspective are manifold. It is to be expected that a team which habitually represents survivors before the Investigation Committee will build up more expertise in relation to the issues which concern survivors than a legal representative who appears before the Investigation Committee only once or only occasionally. Each individual survivor who is represented by a member of the team at the first phase will have the knowledge and the expertise of the entire team working for him. More importantly, the team which represents the survivors’ interests at the second phase will, through its individual members, have been involved in every hearing at the first phase. I believe that the co-ordinated and coherent approach which the team, with its background knowledge of the facts and the issues, could bring to the second phase would be of more benefit to the survivors and, indeed, to the Investigation Committee than three separate legal representations [ie for A, B and C] none of which, because the first phase hearings were held in private, would know the whole picture. Indeed given the requirements of section 11(3) (a) and 13(2) (c) of the Act, it could be argued that it would go against the scheme of the Act to hold the second phase in public if every survivor coming before the Investigation Committee was allowed separate legal representation at the second phase.

From the perspective of the Investigation Committee, allowing fragmented representation of persons who were in institution X at the relevant time… would be wholly unwieldy and inefficient and, in my view, would not promote the interests of the survivors. The interests of both the Investigation Committee and the survivors would be best served by a legal team which has a comprehensive and thorough knowledge of and insight into the overall work of the Investigation Committee.”207

Ms Justice Laffoy also goes on to make the point that a legal team which had represented every complainant before the Investigation Committee would be a valuable resource in relation to the making of submissions on the subject of dealing with and alleviating the continuing effects of abuse. The suggestion was that complainants be represented by a member of the panel of barristers (chosen by an independent person such as the Chairman of the Bar Council or the President of the Law Society) who are appointed to represent the survivors’ interests as a whole. Hence, the vast number of individual complainants would not be represented by their own lawyer, but a lawyer representing a number of complainants. The advantage is self-evident. Not only would the lawyers be experienced in handling this type of case, but the submissions from a lawyer representing a group are particularly forceful.

30.  The presence of the legal representative of the survivors’ interest is certainly intended to protect the identity of complainants, who take no part in the public hearings, as to do so would jeopardise the anonymity drawn about them by the private phases. Similarly, although all managers and regulators may inspect the transcript of the (Phase 1) hearings on the basis of which the Investigation Committee concluded that abuse took place at the institution, the name of the complainants and details that would identify them are redacted.208

31.  However, the suggestion concerning legal representation of the survivors’ interest has not found favour with the complainants and their legal representatives. The Laffoy Commission, therefore, decided to permit each person before the Investigation Committee legal representation by “a solicitor and one counsel of his or her choice at the first phase hearings”.209 (But see paragraph , infra, as to the efforts to limit the number of lawyers at the Investigation Committee hearings). Interestingly, the Laffoy Commission also has the power to pay, withhold, or order the costs of such representation: a subject to which we shall return at paragraph .

32.  In relation to Phase 2 of the Investigation Committee although it was recognised that every person or body materially affected by an issue raised will be entitled to legal representation, the detail of such representation has not yet been determined, so the position is unclear.210 It may well be that the concept of a legal team representing the survivors’ interests will feature at this second phase. Leaving aside the reservation expressed at paragraph , the Commission is of the view that having one legal team to represent the interests of a number of parties who have similar or the same interests is a notion that should be considered for use in other inquiries. This is an issue that will be discussed further at paragraph on legal representation and costs.

                            V.            Investigation Committee Procedure

1.      Rules and Framework of Procedures

34.  The Laffoy Commission has drawn up Rules of Procedure in relation to the Investigation Committee. These rules were initially published as an appendix to the statement delivered by Ms Justice Laffoy at the first public sitting; but have been subject to modification since then in the light of submissions made by interested persons. The latest modification is the Investigation Committee Framework of Procedures, dated 8 November 2002,211 in relation to Phase 1 hearings, which was produced following a review of procedures in light of the experience to date of hearing allegations of abuse. However, the Framework of Procedures states that the existing rules continue to apply in so far as they are consistent with the Framework. Presumably, where the Framework is silent on a matter the rules will apply in the normal way. (Again we can only speculate as the Framework, at the time of writing, had not yet been finalised).

35.  Use of the word “rules” is, however, apt to mislead, as the Laffoy Commission clearly envisages the rules being more in the nature of guidelines. The rules themselves state:

Notwithstanding anything contained in this Appendix, the Investigation Committee shall be at liberty to adopt such procedures as it considers appropriate in relation to the conduct of its inquiry or any part of it and, subject to giving reasonable notice to any person or body thereby affected, may depart from the procedure outlined in this Appendix.”212

Moreover, the recent Framework of Procedures states that it is necessary for both the Framework and the rules to be flexible and accordingly the Laffoy Commission has reserved the right to adopt alternative procedure where appropriate (subject to reasonable notice to any person or body affected).213 With the caveat that the Committee might decide to depart from this framework, it is envisaged that the Investigation Committee will conduct its work in two phases, as highlighted at paragraph ; namely, in Phase 1 to deal with complaints against institutions and in Phase 2 to conduct full public hearings with a view to drawing upon the evidence heard to make recommendation to alleviating or otherwise addressing the effects of abuse.

1.      Phase 1 Hearings

36.  Originally in Phase 1 the Committee investigated individual complaints of abuse. That is to say, it held hearings at which the complainant made the allegation of abuse, which was answered by the person said to have committed the abuse, and any other person or body against whom an adverse finding might be made, such as the institution where the alleged abuse took place (collectively referred to as ‘the respondents’). These hearings were held in private.214 However, subject to the finalisation of the Framework of Procedures, it is now envisaged that the business of the Committee will be reorganised on a modular basis in relation to institutions under investigation. In other words, there will be one inquiry unit or module in respect of each institution and what happened in that institution. However, a module may be sub-divided if appropriate, for example by reference to the period of responsibility of a particular manager of an industrial school. The result may be that an individual complainant will be involved in more than one module. In order to conduct its business more efficaciously, the Investigation Committee will operate in four divisions and separate modules will be assigned to each division.215 (Hence the need to amend the 2000 Act to provide for Deciding Officers, referred to at paragraphs - ).

37.  The format is that at least six weeks before the date set for the evidential hearings (i.e. where the substantive complaints are heard), both the complainant and each respondent will be served with Books of Documents (A, B, C, and D) for use at the hearings, containing the report of the Inquiry Officer and the accompanying documents.216 At least three weeks in advance, a preliminary hearing will be held in order to resolve any procedural or legal issue which has arisen, such as admissibility of evidence.

38.  The procedures at the evidential hearings are stated to be at the absolute discretion of the Investigation Committee, but the rules and more recently the Framework of Procedure give an outline of what will be the normal format.217 It is envisaged that hearings will now consist of three stages which reflect the format previewed in the Books of Documents A, B, and C.218 The first stage is the opening component, which consists of setting the scene for the module, and it is envisaged to that all or part of this stage may take place in public.

39.  The second stage relates to the hearing of each complainant’s allegations of abuse and the response thereto. This will be held privately in respect of particular complainants and the respondents against whom the allegation are made. In other words, the identity of individual complainants is shared with the Committee and the respondents only. It appears the original procedural rules still apply. Thus, first the direct evidence of the complainant will be heard. Either the statement provided will be deemed to be read into the record and the complainant may elaborate on it, or oral evidence of the substance of the statement may be given. The members of the Committee may then question the complainant, after which cross-examination219 by each respondent, or legal representative of such respondent, will take place.220 As is mentioned above, the right to cross-examine is dependent on the respondent in question having provided a written statement to the Committee. Once cross-examination has concluded, the complainant’s legal representative may ask questions of the complainant, by way of re-examination.221 Secondly, the evidence of each of the respondents is taken. The statement (if provided) is deemed to be read into the record. Questions from the Committee follow; then cross-examination by the complainant or complainant’s legal representative, with re-examination by the respondent’s own legal representative. The rules provide that if a respondent has not complied with the request of an inquiry officer to furnish a statement, he or she may still be allowed to give evidence, but on such terms (as to adjournment or otherwise) as the Committee considers necessary to allow any person affected by the evidence to address it adequately.222 Thirdly, the evidence of the complainant’s witnesses is taken in the same way as that of the complainant, and fourthly, that of each respondent’s witnesses is taken in the same way as that of a respondent.223 This process, one may deduce, is then repeated in respect of each complainants’ allegation against the respondent in question. The original rules state that the fifth element is the exercise of the Investigation Committee’s (sole) discretion to call evidence itself.224 However, in light of the new Framework, this fifth element may now be more appropriate to Book C and the third stage, infra. The final element outlined in the original rules is that, at the conclusion of evidence submissions may be made by or on behalf of the complainant and each respondent.225 This is probably still allowed, although the Framework omits mention of this element.226

40.  The third, or general, stage of Phase 1 is where all other evidence relevant to the module will be adduced. And it is envisaged that all or part of this stage may be heard in public. One may surmise that the evidence adduced here will be that which was gathered through the discovery process and as a result of the advertisements (other than the evidence of complainants), such as from people like social workers or doctors, who had dealings with the institution at the time.227

41.  It is envisaged that evidence in relation to context, referred to infra at paragraph , will be heard at either the first or third stage, and that issues in relation to the type of evidence of context to be heard will be dealt with at the preliminary (procedural) hearing.228

42.  At any stage in the proceedings, the Committee is entitled to “seek the assistance of or require submissions from counsel to the Investigation Committee”.229 Counsel are not explicitly mentioned in the Act of 2000, but it appears that they have been appointed under the aegis of section 24, considered below at paragraph , which confers the power to appoint experts.230

43.  It is a significant point that the second stage of Phase 1 is held in private. This guarantees the privacy of both the complainants and the respondents, and it ensures that the latter’s good name will not be tarnished unless the Committee finds the allegations to be substantiated.231 The standard of proof will be on the balance of probabilities, as confirmed in public statements.232

44.  In relation to anonymity, the Framework requires that, so far as it is necessary, those persons who were the subject of child abuse shall be identified using pseudonyms at the public hearings and that identity and personal information will be reacted or pseudonyms used in document (including transcripts) which are circulated. With regard to the first and third stage of Phase 1, the Framework states:

In determining whether and to what extent, the first and third stages will be heard in public, the division of the Committee to which the module is assigned will have regard to the extent to which the identification in public of a respondent at a stage prior to the making of a determination or a finding in relation to the allegations against that respondent is fair.”233

1.      Phase 2 Hearings

45.  As already noted, Phase 2 of the Investigation Committee has not yet been reached and it is uncertain what form this phase will finally take. Accordingly, only the original procedure that was envisaged can be articulated here. It is envisaged at present that the hearings at Phase 2 will be public and the main aim of these hearings will be to put the Laffoy Commission in the best possible position so as to fulfil, its third main purpose (see paragraph ), namely, make recommendations for alleviating or otherwise addressing the effects of abuse on those who suffered it, and for the prevention (where possible) and the reduction of the incidence of abuse of children in institutions, and for the protection of children from abuse.

46.  The Investigation Committee will proceed to Phase 2 only if it is satisfied that abuse has indeed taken place. A finding that abuse has taken place is final and is not open to challenge in Phase 2.234 According to the Laffoy Commission Phase 2 will itself have two components:

One will involve investigating, in relation to each institution (or group of institutions under the same or connected ownership or management) the context in which the abuse occurred and why it occurred and the attribution of responsibility for it, whether institutional or regulatory. This investigation will be conducted through public hearings. Each public hearing will involve discrete issues in relation to an institution (or group of institutions). In the other component, the Investigation Committee will look at the broader picture – the legislative framework and the social and historical context in which the abuse existed and will conduct such comparative analyses as it considers appropriate. It is envisaged that this component may be partly conducted through research projects.”235

47.  In short: the Investigation Committee is in a position to determine whether abuse has taken place at a particular institution, and, if so, at whose hands. Although the Committee will not be entitled to report on individual cases, it will be able to identify abusers and the institutions at which abuse took place, and these findings may make their way into the report.236 That report, as already noted, is published directly to the public. It is clear, therefore, that the personal rights of those against whom allegations are made in the context of an Investigation Committee hearing are much more strongly affected than before the Confidential Committee: see paragraph .

48.  The substance and relationship between Phases 1 and 2 were explained at paragraph . Put briefly, if satisfied that abuse of children occurred in the institution under investigation, the Investigation Committee is entitled to proceed to public hearings in relation to that institution.237 There is another component to Phase 2 of the Investigation Committee’s work. In this second component, the Committee “will look at the broader picture – the legislative framework and the historical and social context in which the abuse existed – and will conduct comparative analyses as it considers appropriate.238 It is also envisaged that this component may be partly conducted through research projects.239 This is an interesting strategy for fulfilling its third purpose (looking to the future and making recommendations), and is a strategy that could be adopted in other contexts where an inquiry has been asked to make recommendation to alleviate or reduce the likelihood of the particular mischief from occurring in the future.240

49.  Under the main part of Phase 2, the Laffoy Commission sends, to those concerned with the management and regulation of the institution in question at the relevant time, a copy of its findings based on the hearings just described, seeking a statement setting out if, and to what extent, the person acknowledges or denies contributing to the occurrence of the abuse found by the Investigation Committee to have occurred in the institution.241 As in Phase 1 the statement should also name witnesses the person wishes to be called, provide a précis of the evidence they will give, ask for any necessary directions under section 14 to be made, and be accompanied by copies of supporting documentation on which it is intended to rely.

50.  The rules of procedure provide that all statements and supporting documentation furnished by each manager should be given to each regulator, and vice versa, and that copies of all documentation should be sent to the legal representative of the survivors’ interest (should this be the case; see ).242 That legal representative is obliged to furnish to the Committee a statement containing the names of witnesses he wishes to call with the substance of the evidence to be given by each, and requests for directions to be made pursuant to section 14 of the 2000Act.243 Any outstanding documentation must then be circulated among the interested parties in advance of hearing.244

51.  The hearing itself, which is to be publicly advertised, is to be held to deal with the matters mentioned in section 12(1)(c) and (d) of the 2000 Act, which are the same as those mentioned above, at paragraph , under headings (b)(ii) and (b)(iii). Essentially, the hearing’s purpose is to ask how and why abuse was permitted to occur at the institution in question, and to determine who (if anyone) was responsible for allowing it to continue.

52.  The procedure at the hearing is quite different from that in the Phase 1 hearings. The most significant change is that the hearing is “run” by counsel for the Investigation Committee. He or she makes an opening statement, calls all witnesses, may re-examine them after they have been cross-examined by or on behalf of each manager, regulator and the legal representative of the survivors’ interest (should this be the case, supra), and make the final submissions to the Committee.245 In other words, he or she enjoys the first and last word.

53.  The rules of procedure provide for cross-examination of witnesses by all interested parties and for the making of submissions to the Committee, which are each aspects of the rule that both sides must be heard.246 Certainly, the managers and regulators stand more or less in the shoes of the accused person. It is therefore unsurprising that counsel to the Investigation Committee take a back seat in the Phase 1 hearings into allegations of abuse, addressing the Committee only when requested to do so. By contrast, however, they effectively run the Phase 2 hearings. Perhaps this is justified on the grounds that, at this stage, the proceedings do not resemble a normal lis inter partes so much as they do at the Phase 1 hearings, where there is a complainant and a respondent.247 Since the anonymity of complainants is guaranteed, it is impossible to ask complainants, at public hearings, to go on and make the case against the management and regulators of the institution where they suffered abuse. And in any event, even if a complainant were willing to forego the shield of anonymity, this might not be the best way to go about things.

54.  At Phase 2, the complaint of abuse has already been substantiated, and all that remains is for the Committee to decide how and why that abuse was allowed to happen and look towards making recommendations. This is not to say that the Committee does not have the power to make findings adverse to the interests of individuals and other persons: it does. The Committee may decide that “the manner in which … functions were performed by the persons or bodies, in whom they were vested, contributed to the occurrence or incidence of… abuse”.248 By any reckoning, such a decision has the potential to harm the reputation. But the proceedings still differ from those at Phase 1. Whether and, if so, how the systems of management and regulation failed a victim of abuse is not something of which that victim could ordinarily be expected to have first-hand knowledge.

                         VI.            Appointment of Experts

55.  Section 24 of the Act of 2000 allows for the appointment of advisers having expertise in an area or areas in which the Laffoy Commission or a Committee considers that it requires advice, guidance or assistance, as follows:

24(1) If the Commission considers that it, or a Committee, in the performance of its functions requires the advice, guidance or assistance of experts in respect of any matter, it may, upon such terms and conditions as it may determine, appoint such and so many advisers having expertise in relation to that matter as it may determine to provide it or the Committee, as the case may be, with such advice, guidance or assistance.

(2) The Commission may, for the purpose of the performance of its functions, conduct, or commission the conduct of, research.”249

1.      The terms of reference provided by the Government to the non-statutory Commission made reference to the appointment of “specialist advisors to supply information or elucidate areas of complexity, to conduct investigations, hold hearings, both private and public”, and also allowed the Laffoy Commission “to conduct or commission research for the purposes [of] carrying out these Terms of Reference”.250 It is understood that an expert in the field of social history has been appointed in order to help it to place the events the subject of its work (many of which happened thirty, forty or even fifty years ago) in their social context, for example the attitude of Irish society at the time of the events under examination was more tolerant of violence towards children. Since the Committees are not courts of law and are not bound by the rules of evidence, not every matter requires proof.251 It therefore makes good sense to obtain expert assistance on matters such as this, which are not likely to be particularly contentious.

Comment

2.      There are a number of lessons of general interest that can be learnt from the innovative way in which the Laffoy Commission has sought to conduct its proceedings, some of which we have mentioned in outline, supra, and others will be considered in the context of later Chapters.

  1.  

4.      PARLIAMENTARY INQUIRIES

1.      Before going any further we ought to note that it cannot be said that parliamentary inquiries offer an inexpensive route to formality free inquiries. Indeed the seminal case on constitutional justice before inquiries, arguably the patriarch of Irish administrative law, In re Haughey which commands several pages of our attention, at paragraph -, was a case brought against the Dáil Public Accounts Committee. And while the CAG-PAC Inquiry into DIRT was certainly a success, its success flowed not from the fact that it was parliamentary but from certain other aspects, which have certainly much to teach us (). Most recently the Abbeylara case () confirmed that Leinster House was not a constitutional justice-free zone (though this was not its main message).

2.      In the present context, only a brief sketch of the position of the Oireachtas and its committees in the general constitutional scheme is necessary. The Oireachtas is the legislative organ.252 In addition, the Dáil is the organ to which the Government is responsible, and which has the power to remove and even to replace the Government.253 It is because of this second aspect that we enjoy what is called responsible government. One should also note that this is the constitutional position: in the political field, it is reversed in respect of both the legislative and the responsibility function, by the fact that, in normal times, the Government controls both Dáil and Seanad, by way of its control of the majority party in each House.254 As a result of this political reality, the objective of the Oireachtas may be captured in the notion of the ‘Grand Inquest of the Nation’.255 What this means is that the legislature does not take decisions; yet it investigates, appraises, publicises and even dramatises the Government’s decisions, and highlights the alternatives. Whichever view one takes of the functions of the Oireachtas, an elementary point remains true: relevant and comprehensive information is essential to its performance, whether in the field of law-making or controlling the Government. There are numerous channels by which the Houses of the Oireachtas secure this information. Among these are: statements by Ministers; debates on legislation; adjournment debates; (in the case of the Dáil, not the Seanad) Questions to Ministers;256 Committees to hear the third stage of Bills, or to keep under surveillance a broad area, often covering the field of a Department of State, such as Foreign Affairs. In the present chapter, we are concerned with one specific way in which information may be obtained, namely the ad hoc investigatory committee which inquires into a discrete subject.

                               I.            Inquiry by Oireachtas Committees257

1.      From the PAC inquiry into Northern Ireland relief to the 1997 Act

3.      It is most useful, given the continuous line of evolution from that inquiry, to take the baseline for the development of Oireachtas inquiries as being the 1970 (Dáil) Public Accounts Committee investigation into the fate of the grant-in-aid for Northern Ireland. These monies had been voted for Red Cross relief; but, it was suspected, had found their way into the hands of the resurgent IRA. To sustain the PAC’s inquiry, the Committee on Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970 was enacted. Despite this legislation, the Committee’s questioning of Mr Pádraic Haughey ran into difficulties. These ended up in a court challenge, In Re Haughey,258 whose two aspects – the first dealing with Mr Haughey’s procedural rights and the other with whether the Committee could punish him for refusal to answer its questions – are each of sufficient general interest to be considered elsewhere in this Paper.259 This case effectively brought an end to the Committee’s inquiry. The fact that the quest for a comprehensive statute, providing for parliamentary inquiries, took the next quarter of a century, (involving various abortive attempts,) attests to its legal, constitutional and political difficulties. Eventually, the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 (“Committees of the Houses…Act, 1997”) dragged its weary way to the statute book.

4.      Between the inquiry into Northern Ireland relief and the 1997 Act, there was only one Oireachtas inquiry, namely that into the fall of the 1992-94 Fiánna Fáil-Labour Coalition Government. The Dáil ordered the Select Committee on Legislation and Security to investigate the events leading up to the fall of this government. However, within a day of commencing its inquiry, the Committee’s efforts had to be suspended because of the refusal of an important witness to appear before it, in the absence of appropriate privileges and immunities. At that time insufficient progress had been made on the general legislation to provide the machinery to meet this objection. Accordingly another piece of ad hoc legislation, in the form of the Select Committee on Legislation and Security of Dáil Éireann (Privilege and Immunity) Act, 1994, dragged its weary way onto the statute book.260

1.      Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses)Act, 1997

5.      This chapter is not a general essay on Oireachtas inquiries. Accordingly, this is not an analysis of constitutional aspects like: parliamentary privileges; the limited exclusion of certain constitutional personages (Attorney General and the Director of Public Prosecutions and their staff); or Government or Government committee confidentiality. 261 (In line with the lapidary style of drafting which was then the convention, there is no mention of this sort of exemption in the 1921 Act, though it is likely that they could be invoked, where appropriate.)262 Our focus here is with the points of interest which parliamentary inquiries share with other inquiries – subpoena, privilege, constitutional justice – since the subject of this Paper is the general problems of inquiries. In this context of this focus, the following features are of interest.

6.      A general issue, to which we shall return at paragraphs -, is the question of how disputes arising out of the inquiry’s operation are resolved ultimately by the courts. Reflecting the special constitutional status of the Oireachtas, the 1997 Act is especially rich in variations in this area. Leaving aside conventional judicial review, no fewer than three methods are used. In the first place, special machinery is created for determining whether, by virtue of these High Court “privileges or immunities”, a person may disobey a direction in a particular case: section 6(2) (a) states that: “the committee shall apply to the High Court in a summary manner for the determination of the question whether the person [sc. the witness] is entitled to [the privilege].”263

7.      Next, Section 4 (1), “a committee may not direct a person to give evidence…that is not relevant to the proceedings of the committee.” Now such a rule undoubtedly exists in relation to a tribunal of inquiry, though only by very necessary implication. However, its enforcement would, in the final analysis, be by way of judicial review. The 1997 Act modifies this route, presumably out of (limited) deference to the right of each of the Houses of the Oireachtas to regulate their own procedure. Instead, the question of relevance is to be determined by the Ceann Comhairle, in the case of a direction given by a Dáil committee; or by the Cathaoirleach of the Seanad, in the case of a direction given by a Seanad committee; or by both such chairpersons, in the case of a direction given by a Joint Oireachtas Committee. If the evidence is found to be irrelevant, the direction must be withdrawn. Alternatively, if it is relevant, then the witness must either comply or, within the specified 21 days, appeal this determination to the High Court.

8.      There is a substantive rule that evidence should not be given where it relates to: state security, international relations or law enforcement264. Section 7 provides that the way in which any dispute as regards a claim in this area, it is to be settled by a determination of the Secretary to the Government. However, presumably out of deference to Article 34.3.1˚ of the Constitution by which ultimately the High Court must always have jurisdiction to settle any question of “fact or law…”265, it is not provided that the Secretary’s declaration is to be “final”. Instead, the person is allowed at least 30 days to comply with the request, thus allowing time to seek judicial review.

9.      The 1997 Act is unusual in that section 10(1) spells out the rights embraced by the audi alteram partem (‘hear the other side’) precept of constitutional justice. More interestingly, sub-section (2) states the situations in which these rights are attracted. They are said to spring up:

“…for the purpose of -

(i) correcting any mistake of fact or misstatement relating to or affecting the person made in the proceedings,

(ii) defending the person in relation to any allegation or charge, or defamatory or untrue statement, made in the proceedings, or

(iii) protecting and vindicating the personal and other rights of the person.”

Sub-section (3) muddies the water slightly by qualifying the right to constitutional justice bestowed by sub-section (1). It states that: “A committee shall comply with a request under … sub-section (1)…if it considers that, in the interests of justice, it is necessary or expedient to do so for any of the purposes specified in that subsection”.

9.      Section 11(1), gives a witness who gives oral and/or documentary evidence to a Committee “the same privileges and immunities as if the person were a witness before the High Court” - in other words, it embraces, for instance, the privilege against self-incrimination or the privilege of a legal adviser. However, the existence of these privileges and immunities depends on whether the person is giving evidence “pursuant to a directive”. In other words, there is no protection for those who voluntarily give evidence. Also, section 11(2) says that if the witness “is directed to cease giving such evidence”, the witness is entitled to only “qualified privilege” against defamation, in respect of evidence given after such a direction. Despite Opposition pressure (on the basis that committee chairpersons do not have legal training), the Minister refused to withdraw this limitation, which was designed to deal with witnesses who might seek to abuse privilege in order to settle a score. Evidence given to committees is rendered non-admissible in later criminal proceedings. But this immunity does not apply where a person voluntarily sends information to a committee.266

10.  By Section 15, a witness who is a civil servant or member of the Garda or the Defence Forces is barred from commenting “on the merits of any policy of the Government”. This was said to be necessary in order to protect “the traditional neutrality of those in the public service in providing objective advice to Ministers”.267 Nothing is said in the Act as to how any dispute as to (say) the interpretation of ‘policy’ in any particular case would be settled. Accordingly, any such dispute would presumably be resolved by conventional judicial review.

11.  Section 13(3) states simply: “Proceedings of a committee may be heard otherwise than in public.” Thus, the matter of sitting in private is left to the committee and there is no other form of words, as there is in the 1921 Act,268 to restrict its discretion. Section 13 allows the sub-committee established to oversee the exercise of the powers of the Committee of Procedure and Privileges269 to make rules and issue guidance as to conduct and “in so far as is reasonably practical, conduct its proceedings and perform its functions in accordance with any rules and guidelines laid down in subsection (1)”. Such rules had been made for the Abbeylara Committee, and breach of them was one of the bases on which the Committee’s inquiry was terminated by the High Court.270

                            II.            Comptroller and Auditor General and Public Accounts Committee Inquiry into DIRT: A Case Study

13.  A lot of government comes down in the end to money, either the levying of taxation or the expenditure of public funds. Indeed, the establishment and rapid development of the Dáil’s precursor in Britain – the House of Commons – goes back to the King’s need, in the Thirteenth Century to tax the merchant classes and, in quick response, the House of Commons’ desire to control the Royal expenditure. In modern times, the final stage in the cycle of the Dáil’s control over taxation and public expenditure is the audit of public expenditure by the Public Accounts Committee (“PAC”), assisted by the Comptroller and Auditor General (“CAG”). We are concerned here with an exceptional instance of the work of the CAG and the PAC, namely an investigation into the evasion of Deposit Interest Retention Tax (“DIRT”), which falls within the broad category of ‘public inquiries’. Not only was the inquiry’s subject-matter significant, but this was, by common consent, regarded as a successful inquiry, it is worth discussing in detail, as a case study, and then, by way of conclusion, drawing out certain general themes of significance to this Paper.

1.      CAG Inquiry

14.  Before the Committees of the Houses…Act, 1997 could be used for its first inquiry, it had to be amended by the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998 (hereafter, ‘the 1998 Act’). The significance of this is that it illustrates one of the major themes of this Paper: that specific legislation (and hard thought preceding it) is often necessary for a particular inquiry, simply because the subject-matter is so variable. The occasion for the first inquiry under the 1997 Act was that, in 1998, there were reports in the print media concerning the use, by the financial institutions, of bogus non-resident accounts, in order to evade the payment of DIRT. The PAC requested the Chairman of the Revenue Commissioners to attend a PAC meeting on 13 October 1998. The Chairman stated first that the Revenue Commissioners were unaware of the alleged scale of bogus non-resident accounts until the media disclosures in early 1998, and secondly, that the Commissioners had done no deal with AIB in respect of unpaid DIRT. Eventually the PAC passed a resolution, recommending that the CAG should investigate the operation of DIRT by the Revenue Commissioners and the financial institutions, during 1986-98. In addition, the Oireachtas enacted the ad hoc 1998 Act. This gave the CAG or the purpose of this particular investigation special power to compel people to give evidence under oath and to discover documents.

15.  The CAG investigation was carried out under a significant time constraint in that the PAC sub-committee hearings were slated to be held in September-October 1999. This was at a time when the Dáil itself was not sitting, and all the other committees had been stood down, to allow deputies and staff to work on a special sub-committee of the PAC to focus on the CAG’s report. The net result was that the PAC had to complete its investigations, within the period January to July 1999.

16.  The initial step taken by the CAG was to request each of the financial institutions which, it was thought, were involved in the non-payment of DIRT, to furnish, on an informal basis, information under an identical set of headings. A written summary of this information was then sent back to each institution for confirmation. At the same time, discussions were held with, and files obtained from: the Central Bank, the Department of Finance and the Revenue Commissioners. Once this preliminary information had been obtained, the investigation proceeded in three complementary directions. First, the financial institutions were directed to make discovery on oath of relevant documents, for example: the minutes of the Board; its sub-committees or audit committee; reports to senior management, including internal audit reports; and correspondence with external auditors. Secondly, section 2(1)(c) of the 1998 Act gave the CAG power to appoint an auditor to go into the financial institutions and examine the accounts and documents of private individuals, in order to establish the extent to which DIRT had been paid. A significant constitutional point here is that it was thought necessary that the power to examine individual accounts should be vested in an independent auditor271, rather than in the CAG directly. The reason for this was that Article 33.1 of the Constitution specifies the CAG’s role as being “…to audit all accounts of monies administered by or under the authority of the Oireachtas.”272

17.  The third tool of investigation was that, during 26 April to 21 June 1999, the CAG himself held 59 hearings, taking evidence on oath from 76 witnesses, mainly chief executives, or internal auditors of the financial institutions under investigation. The evidence was taken in private in the presence of a stenographer and the transcripts were made available to each witness. While some of the witnesses brought their in-house lawyers, all the examination was done by the CAG. The lack of opportunity, for persons or financial institutions, whose conduct was in question in the investigation, to cross-examine other witnesses was justified273 on the basis that the CAG, was engaged in gathering relevant information rather than ‘taking evidence’: on which distinction, see further Chapter 9. Further consequences which followed from the fact that the CAG was only gathering information were that there was no need to give a ‘Haughey v Moriarty-style’ exegesis on the scope of his investigation to interested parties; and, secondly, that the atmosphere was more conducive to co-operation by the witnesses.274

18.  One limitation which followed from the fact that the CAG was ‘gathering information’ was that, where there were contradictory views on the facts, the CAG’s Report summarises the arguments on each side, but without drawing any conclusions275 leaving this to the PAC itself.276 Thus, for instance, the CAG’s Report reaches no conclusion as to whether there was a ‘deal’ or not between the Revenue Commissioners and AIB, regarding unpaid DIRT. Another consequence of the same practice concerns the inclusion in the CAG’s Report of the first draft of a long-form Report (“LFR”) produced for ACC Bank as part of the process by which the Bank would be privatised. The LFR naturally includes a description of key business risks, among them a potential liability to DIRT of the order of €21 (IR£17) million. Later drafts of the LFR made fundamental alterations. Because of this ACC claimed, that is was unfair of the CAG to include the first draft. Nevertheless, the first draft was published, but the Report also includes an affidavit from the ACC’s solicitor which indicated why the ACC considered the inclusion of the first draft to be unfair.277 In order to remain within the field of information-gathering and not stray across the border into the terrain of evidence-taking, the CAG considered it necessary to include this affidavit.

19.  Admittedly, the inquiry was at an advantage compared to many other inquiries in that most of the information it sought was on some kind of permanent record and, secondly, the institutions whose conduct was under investigation appear to have taken the view that it was in their interest to co-operate. Complementing this was the fact that the CAG’s normal focus, which was also followed on this occasion, is not to try to allocate blame to a particular individual, but to try to establish whether institutional machinery has failed to work satisfactorily. In the present instance, section 2(6) of the 1998 Act forbade the identification of account-holders. Moreover, the Report often omits names which would identify other individuals.278

1.      PAC Hearings

20.  Once the CAG’s Report had been published, the baton passed, in the usual way, to the Public Accounts Committee of the Dáil, which set up a sub-committee to hold oral hearings, at 26 sessions between 31 August and 12 October, 1999.279 The sub-committee consisted of six280 members, evenly balanced as between the Government and the Opposition: three Fiánna Fáil; two Fine Gael (including the Chairperson), and one Labour.

21.  As a preliminary, the sub-committee secured the documents which had been before the PAC. First, as regards the financial institutions’ own documents in respect of which discovery had been made to the CAG, permission was given for these to be transferred to the PAC. Secondly, as to the information as regards customer accounts though only in the aggregate which had been collected by the independent auditor, described in paragraph : section 2(3), the relevant section, allowed the CAG to transfer this to the PAC. In addition to the same witnesses who had already appeared before the PAC, the sub-committee called the external auditors of the financial institutions involved, and also the Ministers for Finance, for the periods during which DIRT had not been collected. Significantly, all the questioning emanated from the Deputies on the sub-committee. The only situation in which the institutions whose conduct was under investigation exercised their right to cross-examine, was where counsel for the AIB cross-examined the Revenue Commissioners as to whether a deal had been struck between the Bank and the Revenue Commissioners as regards the payment of DIRT Counsel for the Revenue Commissioners cross-examined the AIB witnesses on the same issue. In addition, all the questioning of the Ministers for Finance, as regards the deal, was done by the sub-committee’s legal team, rather than the deputies, lest it be thought that the deputies were unduly lenient on the politicians.

                         III.            Abbeylara

22.  Apart from the special case of the non-payment of DIRT, two other attempts281 have been made to use the Committees of the Houses…..Act, 1997. We now turn to these attempts: One is the CIÉ signalling costs overrun inquiry, which is considered briefly at paragraph . The other, and the one to which we must devote significant space, is the Joint Committee on Justice, Equality, Defence and Womens’ Rights Sub-Committee on the Abbeylara Incident (“Abbeylara Inquiry”).

23.  In April 2000, an incident occurred at Abbeylara, County Longford which led to a man being shot dead by the Garda. A Chief Superintendent was appointed by the Garda Commissioner to investigate the circumstances surrounding the death. After he had submitted his report, the Commissioner in turn reported to the Minister for Justice, Equality and Law Reform. In order to attract parliamentary privilege against legal action, the Report was then published as an appendix to a formal report by the Oireachtas Joint Committee on Justice, Equality, Defence and Womens’ Rights. In view of criticism of ‘the politicians’, it bears emphasis that it was the public reaction to this Report which made the Committee feel obliged to establish, in March 2001, a sub-committee under the 1997 Act, to further investigate the incident.

24.  In a case popularly known as Abbeylara,282 the Gardaí, whose conduct was under investigation, successfully sought judicial review to prevent the inquiry from going ahead. Essentially, they took four points:

(i) Given the terms of the 1997 Act, the procedure followed by the Sub-Committee was flawed in a number of respects;283

(ii) The sub-committee had failed to observe the second rule of constitutional justice (audi alteram partem); 284

(iii) The sub-committee had no legal authority to mount such an investigation;

(iv) The sub-committee had failed to follow the first rule of constitutional justice (the ‘no bias’ rule);

Items (i) and (ii) are matters which could, in future inquires, be put right by proper observance of procedural requirements. Thus (iii) and (iv) are more significant questions, which rightly, we believe, received the lion’s share of attention in the Courts, especially the Supreme Court. From the perspective of any future reforms, they are of the greater significance and, accordingly, we concentrate upon them in the following account.

24.  In the Supreme Court, the case was decided in favour of the applicant by a five-to-two majority, upholding a unanimous Divisional Court. Because the decision appears unlikely to be reversed in the foreseeable future, in trying to discern the future course of the law, we focus on the majority judgments in the Supreme Court. There was a good level of consensus among the majority judges. In the first place, there were two linked285 aspects of the inquiry which the majority judges regarded as unlawful. The first is that the Committee’s conclusions would be “adjudicatory”.286 The second, which will be covered at paragraphs -, is that the targets of the investigation were not Ministers or holders of any other constitutional office.

1.      Adjudicatory’ – findings of facts

26.  The notion of the ‘adjudicatory’ conclusion was a novel legal concept which was used in the applicant’s argument and in the majority judgments. It appeared to mean that the Committee was empowered to reach a finding which, while not an administration of justice, still made an impact on an individual’s right to his good name. It should be emphasised that the argument was not that there was an “administration of Justice”, (Article 34.1) by a body which was not a court of law. Given the absence of this argument, then might it not have been thought that there was nothing untoward? Hardiman J responded to this line of thought by emphasising the use of the phrase “findings of fact or conclusion”287 in both the formal rules and guidelines adopted by the sub-Committees on Compatibility of the Dáil and Seanad Committees on Procedure and Privileges, and in the Committee of Inquiry’s own terms of reference. Hardiman J stated:

When it is recalled that the hypothetical finding of fact in this case might involve a finding as serious as “unlawful killing”, made by a parliamentary sub-Committee acting under the authority of both Houses, I believe that it is quite fanciful to consider that a reasonable man or woman in the street would not regard a report so phrased as a solemn finding of demonstrated wrongdoing.288

27.  But the question then persists: if there is no ‘administration of justice’, why should the issue not be vested in an Oireachtas Committee in the same way as other public inquiries which are required by their terms of reference to reach a conclusion as to whether the course of conduct which they are set to investigate amounts to a crime? Are all such inquiries in danger of being struck down? 289 This question was not expressly addressed by the entire Abbeylara majority (since it was not directly in point; although it is naturally central to the present Paper). However, Hardiman responds to this argument as follows: “It was not argued by the applicants in the present case that the proposed activities of the Committee would be an administration of justice. The quite different point is made that the proposed activities of the Committee are simply without legal authority”.290 This supports the view that what distinguishes an Oireachtas Committee from another type of inquiry in the present context, might lie in the question of authority (see ).

28.  There is another point which will be especially important, when we come to consider drafting. This is the issue of whether the area, which the judgment held to be excluded from the remit of an Oireachtas Committee, included the taking of a definite view on the facts of a possibly controversial issue, as a basis for policy-making. For this is something which the Oireachtas (or indeed many other public or private persons) often need to do. To put this another way: where does the boundary run between an inquiry into policy, as distinct from culpability? The judges were obviously aware that their judgment would give rise to this question, and appeared to signal that the sort of traditional parliamentary inquiry would not be affected by the judgment. McGuinness J remarked apparently approvingly:

[There have been] the Joint Oireachtas Committee on Marriage Breakdown 1987, the Sub-committee on Health and Smoking and the All-Party Oireachtas Committee on the Constitution. These Committees have relied on voluntary submissions and willing witnesses but there is in fact no reason why such enquiries should not use the powers of the 1997 Compellability Act to obtain necessary evidence and information”.291

29.  Moreover, significantly, other members of the majority went further, and accepted that a thorough investigation of this type might – incidentally - have go into questions of individual culpability. Geoghegan J remarked: “An Oireachtas committee… may necessarily have to probe into management structures and there may consequentially be read into the report implied criticism of persons in existing management roles”.292

1.      Holding ‘non-office-holders’ responsible

30.  The second and inter-related aspect of the inquiry which concerned the majority judges was that the inquiry amounted to the assertion of a power to hold ordinary individuals responsible. Here, the majority met and rejected the argument that the inquiry could be regarded as authorised by Article 28. 4. 2˚ of the Constitution, by which the Government is responsible to the Dáil.293 Hardiman J referred disapprovingly to: “a new form of direct personal accountability to politicians of ordinary citizens or at least such of them as are public servants”.294 He also noted that a member of the Garda is not “directly and individually, responsible to the Oireachtas at common law or by statute”.295 It seems, thus, that for Hardiman J, only the activities of Ministers (or possibly other members of the Oireachtas) could be made the subject of direct scrutiny. This proposition was directed at the particular situation before the Court. However, Murray J took a more expansive view of the permitted scope of an Oireachtas Committee:

I did not see any reason why the Oireachtas cannot conduct inquiries of the nature which they have, for practical purposes, traditionally done including inquiries into matters concerning the competency and efficiency in departmental or public administration as well as such matters as those concerning the proper or effective implementation of policy, and to make findings accordingly. Also if a particular office-holder, such as the chief executive of a semi-state body, is by virtue of his appointment, whether by statute or contract, answerable to the Houses of the Oireachtas different considerations arise and I do not consider that the order proposed to be made by this Court affects such a situation.”296

31.  The difference in the formulations of Hardiman J and Murray J makes it difficult to determine how far this second limitation goes. However, on a general level, it may be possible to say that the majority did not exclude the possibility of an Oireachtas inquiry into the conduct of Ministers (who are made responsible by the Constitution) or other entities which are made responsible by statute, contact or otherwise. Secondly, it may be permissible, in appraising the performance of Ministers or other principals, to bring in their staff who are operating under their direction. In summary, what was banned by the majority in the Abbeylara case lies in the Abbeylara committee’s direct focus on the conduct of the staff.

32.  One ought to add that, far from being novel, the two related restrictions, considered under headings (i) and (ii) are in fact traditional and appear to have operated satisfactorily, both in principle and in practice. It is commonplace that public servants are not named in parliamentary or other official reports. For instance, following a long-established convention that civil servants should not be named, the Report of the Select Committee which reported on the fall of the Fiánna Fáil-Labour Coalition was enlivened by references to Civil Servants A, B and C. This flows from the individual ministerial responsibility which still297 remains one of the leading principles shaping Government accountability.

33.  It is useful, at this point, to draw a contrast with one of the (unsuccessful) submissions made in Haughey v Moriarty.298 This was the argument that, since the Tribunal of Inquiry was set up following Oireachtas resolutions, consequently the scope of its field of investigation must be in aid of the legislative process (eg to reform the political system as to the making of payments to politicians or political parties) and could not, as the actual terms of reference did, focus on the private finances of Mr Haughey and Mr Lowry, albeit that these were or had been public figures. This argument which failed in Moriarty had a significant aspect in common with the argument which succeeded in Abbeylara. In each case, there was an equal want of explicit authorisation to hold an inquiry, in the governing legislation. Why then the difference in the outcome of the two cases? The only possible answer is that the forum in Abbeylara was an Oireachtas Sub-Committee; whereas, in Moriarty, it was a tribunal of inquiry chaired by a judge. Put shortly, the conclusion which seems to emerge from this contrast is that, irrespective of the legislation, the Supreme Court would be very reluctant to rule that an investigation of the type upheld in Moriarty was valid, if it were vested in an Oireachtas committee. If, irrespective of the legislation, a Court would be likely to rule that an investigation of this type was invalid, this would mean that vesting an investigation of this type in an Oireachtas committee would be unconstitutional. This is a point to which we shall return to in .

                         IV.            Authority to hold inquiry

34.  There was a great deal of discussion as to where the Oireachtas might find its authority to hold an inquiry of this type. This took the form of reference to: history, foreign legislature-assembles; and even to tribunals of inquiry. Each line of argument led, according to a majority, to a negative conclusion. But the logically antecedent question was whether the Oireachtas needs to be able to point to any specific power to collect facts. Surely a private individual would not need such authority, but could do so as an aspect of his personality? Is the Oireachtas different? Murray J addressed this point in the following passage:

The capacity of such Committee to conduct an inquiry does not have to be received from any express or inherent power conferred by the Constitution. It is simply something which they are not prohibited from doing… . The fact that the Houses of the Oireachtas may conduct or initiate inquiries to obtain information or ascertain facts does not derive from an inherent power peculiar to its role and function as a representative democratic parliament. But once an inquiry is conducted within the law and the Constitution it seems to me it is axiomatic that the National Parliament, like many other even private bodies, may conduct an inquiry for their own purposes. It is not restricted from doing so.

When the Oireachtas exercises its authority in a manner which may affect the rights of others, it acts with the aura and authority of a constitutional organ of State. To adjudicate, in the sense that the term is used here, on the culpability of citizens in their conduct cannot in my view be equated with the everyday search for knowledge of facts or expert opinions. That is a governmental power which it seems to me can only be exercised by virtue of power conferred by the Constitution. Accordingly, different considerations must arise when the Houses of the Oireachtas assert a constitutional power to embark upon an adjudicative process…”299

35.  What appears to emerge from this passage is that, where an Oireachtas committee is confined to fact-finding, there is no need for it to be justified by any specific authority (whether express or inherent). By contrast, (as indicated in the words italicised), where the power is ‘adjudicatory’ it is necessary for there to be some specific authority. This distinction is important when it comes to considering the majority's treatment of the Committees of the House of the Oireachtas Act, 1997. Drawing on this same distinction, Geoghegan J stated:

It is not in dispute that it [sc. the 1997 Act] is a procedural Act only and it does not confer any powers of inquiry on either House of the Oireachtas. Whilst effectively that Act may be used for some forms of legitimate inquiry, it cannot be availed of as a basis of proof of the existence of the inherent power contended for in this case.”300

36.  This view seems to have very much coloured the majority’s interpretation of the 1997 Act. For it might have been thought that the strong powers of compellability of witnesses bestowed by this Act imply the power to inquire; just so that there is some purpose for which the specific powers of compellability may be used. One might invoke here an analogy with a Tribunal of Inquiry. For in Goodman International v Mr Justice Hamilton301 it was held by the High Court, (in a passage which the Supreme Court approved) that the Tribunals of Inquiry (Evidence) Acts, 1921 do not endow the Oireachtas with competence to establish a Tribunal, but merely assume that they already have this power. Surely one could at least say that likewise the Committees of the Houses of the Oireachtas… Act assumes that the Oireachtas has competence to set up an inquiry, by way of sub-committee? Not so, according to the majority.

37.  What emerges from the contrast drawn in the previous two paragraphs is that the courts would be very loath to interpret any statute as giving, to an Oireachtas Committee, authority to hold an Abbeylara-type inquiry. Admittedly, the wording in the 1997 Act is not the most explicit or clearest: but then, neither is the wording of the Tribunal of Inquiry (Evidence) Acts. It seems quite likely, therefore, that no legislation could give authority of this width to an Oireachtas Committee. In short, a constitutional amendment would be required. To this issue we return in paragraph .

1.      No Bias

38.  The rule against bias (nemo iudex in causa sua) is one of the two major principles of constitutional justice. While most of the members of the Supreme Court in the Abbeylara case did not decide the case on the basis of this principle, and so did not need to go into it fully, it was accepted - even by the two minority judges - that this rule would apply to an Oireachtas inquiry. One point of uncertainty in this area concerned a refinement on the broad ‘no bias’ principle, namely ‘structural bias’. This expression refers to the notion that, even irrespective of the circumstances of a particular case, a particular body might, of its nature, be inherently biased. Thus, here, the applicants submitted that the inquiry was invalidated by:

the underlying fact that as public representatives they each have an ever-present interest, from one perspective or another, in the political issues of the day including the ever-present one of the standing or otherwise of the Government in office and its Ministers”.302

Most of the judges either rejected this argument, or declined to rule upon it. However, Geoghegan J did remark:

It would only be in rare circumstances that a body composed in that way would be perceived by reasonable members of the public as capable of independent arbitration”.303

39.  However, even assuming that structural bias does not apply, that still leaves the less extreme form of the rule, namely ‘objective bias’. And, as to this, Denham J stated:

A committee member in such an inquiry as is in issue may not sit if in all the circumstances a reasonable person would have a reasonable apprehension of bias, and apprehension that the committee member might not bring an impartial and unprejudiced mind to the hearing. This would refer to considerations relating to matters prior to the establishment of the committee and during the hearings of the committee. Thus, indications of a view being held by a committee member whilst the hearing is proceeding would be contrary to the concept of fairness”.304

40.  In the same vein, Mc Guinness J stated:

If they are to carry out such a proper inquiry, the members of such an inquiry committee would have to accept a self-denying ordinance which would, for example, prevent them from carrying out any media appearances or interviews dealing with the subject-matter of the inquiry both before and during its currency”.305

It is clear from this, at the very least, that if an Oireachtas inquiry were to satisfy this rule, its members would have to be at pains to behave in a way which is very different from the norm; a norm which is, moreover, often expected or demanded of Oireachtas members by the media and public. It bears stating, too, that probably an infringement by even one member of a twelve or fifteen member committee would be regarded as tainting the entire inquiry with bias.

1.      Permissible Oireachtas Inquiries: the Mini – CTC Signalling inquiry

41.  Here, we might make explicit a crucial point which was left hanging yet was implicit (see paragraph ) in the majority judgments. It is that while the Oireachtas may lack the capacity to carry out an inquiry with the deleterious characteristics (identified at paragraphs ) of the Abbeylara inquiry; it probably does have the capacity to carry out other inquiries. This means that inquires such as: Dail Inquiry into the fall of the Fiánna Fáil – Labour Government;306 the PAC-CAG DIRT inquiry and the CIE Signalling over-run inquiry would almost certainly be held to be within the capacity of the Oireachtas.

42.  At this point, we shall elaborate on the CIE Signalling over-run Inquiry. This inquiry was conducted by the Joint Committee on Public Enterprise and Transport Sub-Committee on the Mini – CTC Signalling Project. This was a sworn inquiry using the powers conferred by the Committees of the Houses (Compellability, Privileges and Immunities of Witnesses) Act 1997 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act 1998. The Sub-Committee’s terms of reference required that:

The circumstances surrounding the entering into and the performance of the Iarnród Éireann mini-CTC and Knockcroghery signalling projects and the Esat/CIÉ cabling and telecommunications and related matters be inquired into and reported on…”

43.  On 18 July 2001 the Sub-Committee held its preliminary hearing at which the Chairman made a detailed statement outlining the membership of the Sub-Committee, the purpose and framework of the Inquiry. The Sub-Committee commenced the evidence gathering phase of the inquiry in public on 10 September 2001. However on 27 November 2001 in the closing stages of the Sub-Committee, in response to the decision of the High Court in the Abbeylara case concluded that it must adjourn sine die as the procedures of the Sub-Committee closely followed those adopted by the Abbeylara Sub-Committee. At this point, the Sub-Committee had reached the closing stages of the evidence-gathering phase of its work and was on the point of preparing its Report, including findings and recommendations as appropriate.

44.  As things happened, the true position as to the validity of mini-CTC inquiry was obscured by two coincidental factors. First, the family of the late Mr McDonald, the former group chief executive of CIE, had earlier brought unsuccessful legal proceedings against the Sub-Committee,307 which yielded an interim injunction to stay the proceedings. By the time the injunction had been lifted, the Abbeylara proceedings were under way308. If the inquiry had recommenced at this stage, no doubt an attempt would have made to stop it, especially if the action had been taken, after the High Court judgment in Abbeylara, which is less nuanced than the Supreme Court judgments, and offered less ground for the sort of distinction drawn in paragraph . Furthermore, the Supreme Court indicated that it would reach a decision rather earlier than eventually proved possible. By the time the dust had settled after the Supreme Court judgment in Abbeylara, (April 2002) and the fairly restricted sweep of the ruling had been appreciated, the Oireachtas was entering the final straight before the General Election (17 May 2002). As a result of these two factors, the Committee’s swansong took the form of an impassioned ‘Interim Report’309 which merely lamented that it had been prevented from completing its report.

45.  It might have been thought possible to reconvene the inquiry, in the post-election Houses, to complete the report. The major difficulties lay in the fact that it was assumed the inquiry would have to retain the same membership throughout. This was not possible because a number of the Committee’s members were not members of the new Houses. And, secondly, because the balance of political parties in the Houses was affected by the respective elections, there would have been a political requirement that the balance in the Committee be altered to reflect this.

                            V.            Recommendations

46.  Two questions naturally arise from the Abbeylara case, for consideration before we deal with any possible recommendation.

1.      Would amending legislation be unconstitutional?

47.  The question of whether it is appropriate for the Oireachtas to set up an inquiry of the type which bit the dust in the Abbeylara case is a matter of high policy. As such, it is naturally a matter to be determined by the House of the Oireachtas themselves. But it may be useful if the Commission makes a comment, however tentatively, on the purely legal aspects of the issue. In the first place, (since there is no virtue in advising a law change which will likely turn out to be unconstitutional) we need to take a view on the preliminary legal question of whether it would be unconstitutional for legislation to be enacted which would bestow on the Oireachtas a power to set up an Abbeylara-type inquiry. In respect of this question, we can start by summarising the relevant features of our account of the majority judgments by characterising an Abbeylara-type inquiry as one in which there is (i) an ‘adjudicatory’ finding upon the conduct of (ii) a person who was not a Minister or holder of other constitutional office.

48.  Understandably, none of the judges wished to express a view on this controversial question of constitutionality, which was anyway not before the Court. Geoghegan J said of this question:310

This is irrelevant now. If such law were enacted it would attract the presumption of constitutionality. It might well be for instance that there would be considerable opposition to such a Bill if introduced or more to the point that even if it was thought to be perfectly constitutional, it might be perceived in practice to be very difficult to operate in any controversial circumstances such as the Abbeylara incident because of the problems of bias….

[A]lthough in theory…. the Oireachtas could legislate to give itself the powers which it now claims to be inherent, the exercise of those powers might prove legally difficult because… all the normal rules of natural and constitutional justice involving fair procedures and absence of bias whether subjective or objective would apply…”

1.      In considering the question of unconstitutionality, at least two lines of argument seem to point in the same direction. The first is the question of bias: while it was not necessary in the instant case, for the majority to rely on the ‘no bias’ rule of constitutional justice, the view of Geoghegan, just quoted, is clear. Equally, the silence of most of the majority on this point was plainly pregnant with forebodings, which might well be articulated in an appropriate case. Violation of the principle that adjudications should be free of prejudice or bias could well attract the taint of unconstitutionality, either on a free-standing basis or especially when associated with the violation of a citizen’s good name (see Article 40.3.2º of the Constitution).

2.      Secondly, take some of the points of distinction which have been drawn earlier in this account. First, we noted in the comparison between Abbeylara and Moriarty at paragraph , that, in each there was an investigation into the possibly criminal conduct of a private citizen, and in each the investigation was based on similarly lapidary legislation. Yet in Abbeylara, the inquiry was condemned, and in Moriarty this aspect of the inquiry was upheld. It is reasonable to conclude that the difference in outcome lay in the fact that the Abbeylara investigation was being carried out by a committee of the Oireachtas, and thus that any legislation involving the Oireachtas would be likely to be held unconstitutional. The same lesson could be deduced from the contrast between Abbeylara and Goodman, drawn at paragraph . In Goodman too, there was an inquiry into misconduct allegedly committed by a ‘private individual’ (in the sense in which that phrase was understood in Abbeylara). Yet in Goodman, the inquiry was upheld. The message from Hardiman J’s judgment, too, suggests that there is something inherent in the nature of the Oireachtas (possibly structural bias: see paragraph ) which would render an investigation of the character stigmatised in Abbeylara (involving as it does an authoritative ‘adjudication’ on that constitutionally-protected value, the citizen’s good name) invalid, irrespective of the legislation which authorised it.

3.      In summary, it seems that the character of the Oireachtas cannot be altered by a re-drafting of the 1997 Act, however pellucid. Based on the decision of the Supreme Court in the Abbeylara case, there seems quite a danger that any such re-drafting would be unconstitutional. Therefore, it seems to the Commission that it would be unwise to recommend legislation which would purport to authorise the Oireachtas to constitute a committee which is to carry out an Abbeylara-type inquiry, unless of course such legislation is to take the form of a constitutional amendment. On this last possibility – a constitutional amendment – it is not for us to comment.

1.      Is new legislation necessary for non-Abbeylara type inquiries?

1.      The other question which must be addressed is what area of investigation remains open to an Oireachtas committee? In this respect the Supreme Court seemed to go out of its way to make it clear that, under the existing law, a great deal of terrain is left, within which an Oireachtas committee may legally and constitutionally operate.311 That leaves open the issue of whether authority to undertake an investigation into what one may call the ‘non-Abbeylara’ area already exists, under the present legislation - the Committees of the Houses of the Oireachtas Act, 1997 - or whether further legislation is required. On this question, it is, we believe, impossible to be certain. However, there are quite a few suggestive remarks. For instance, Geoghegan J remarked, in the passage quoted at paragraph , “[the 1997] Act may be used for some forms of legitimate inquiry.” Again, Murray J stated in the passage quoted at paragraph , “the National Parliament, like many other even private bodies, may conduct an inquiry for their own purposes.”312

2.      This reasoning is naturally somewhat tentative: for it attempts to infer what the Court would have said, if the facts before it been different. However, Abbeylara was a major constitutional case in which the Supreme Court was concerned to set out a dividing line, and it would be unrealistic to dismiss its views on the matter as being merely obiter. Thus there seems to be no need for an amendment to be made to the 1997 Act in order to put it beyond doubt that the Oireachtas can endow its committees with the authority to investigate in appropriate areas. Moreover defining the areas would, of course, pose a substantial drafting difficulty.

3.      It seems clear enough (from the points made in paragraphs - ) that either the existing 1997 Act or some inherent power, akin to that which applies to ordinary persons, already authorises the Oireachtas as to hold inquires, apart from those which are of the type excluded in Abbeylara. On balance, the Commission considers that an amendment to the 1997 Act of this type is not necessary or expedient.

  1.  

5.      THE TRIBUNAL OF INQUIRY

                               I.            History

55.  The discipline imposed by the Irish Constitution, which is such a significant part of the landscape against which our inquiries operate, had no equivalent in Britain313. Accordingly, we must be wary in this Paper about using British parallels. However, we should briefly mention the origins of the 1921 Act because of its continuing significance here, and also the place of the Royal Commission chaired by Salmon LJ,314 which reviewed the operation of the 1921 legislation. The Salmon Commission remarks:

From the middle of the 17th century until 1921, the usual method of investigating events giving rise to public disquiet about the alleged misconduct of ministers or other public servants was by a Select Parliamentary Committee or Commission of Inquiry.”315

56.  According to Professor G.W. Keeton, investigation by way of Committee of Inquiry originated in 1667 when a Committee of Inquiry was appointed to investigate how the King and his Ministers had spent taxes voted by Parliament.316 However, the first Committee of Inquiry appointed to investigate allegations of misconduct on the part of public officials was appointed in 1678 to inquire into miscarriages in the Navy.317 This was a blatantly partisan affair designed to reduce the influence of James, Duke of York, the former Lord High Admiral and to destroy the career of supporter and Secretary Samuel Pepys. Thus, as Professor G.W. Keeton notes:

The Committee of Inquiry, therefore, appears in its first use as a tribunal of investigation after the Restoration as a party instrument making no claim to impartiality. This defect remained a feature of it throughout its history.”318

57.  The development of the modern party system and with it strict party political discipline in the 1870s, naturally had an impact on the already suspect impartiality of Select Committees, particularly when issues with a political flavour were under investigation. As a result, there had been “since the mid-Nineteenth Century…a drift towards independent commissions, sometimes consisting wholly of judges, sometimes a judge and two members of Parliament, one from each side and sometimes of a single judge”.319 The shortcomings of the Select Parliamentary Committee were inadvertently recognised by 1888, when serious allegations were made against the leader of the Irish Parliamentary Party, Charles Stewart Parnell. Parnell requested the establishment of a Parliamentary Select Committee. Instead, the Government320 established a statutory committee of inquiry: the matter was referred for investigation to a Special Commission set up ad hoc by the Special Commission Act, 1888.321 In retrospect the motivation of the Government was suspect but the outcome was very different from what either side had envisaged, namely the vindication of Parnell and the suicide of Richard Pigott. While interesting from a historical perspective, what is important from our point of view is that “this tribunal had been set a vast and unenviable task which they had discharged conscientiously and with conspicuous ability”.322

58.  Next, early in the Twentieth Century there occurred what became known as the Marconi Scandal. In 1912 the Postmaster General in a Liberal Government accepted a tender by the (British) Marconi Company for the construction of a chain of state-owned wireless telegraph stations throughout the British Empire. There followed widespread rumours that the Government had corruptly favoured the Marconi Company because certain prominent members of the Government, who had purchased shares in the (US) Marconi Company, had intended to profit by the transaction. The majority report by the Liberal members of the Select Committee appointed to investigate these rumours exonerated the members of the Government concerned, whereas a minority report by the Conservative members of the Committee found that these members of the Government had been guilty of gross impropriety. When the reports came to be debated in the House of Commons, the House divided on strictly party lines, and exonerated the Ministers from all blame.323 This is the only British twentieth century instance of a matter of this kind being investigated by a Select Committee of Inquiry of Parliament.

59.  Although the 1921 Act was enacted at Westminster, its pedigree is, to some degree, Irish. For in 1921, when grave allegations of war-time profiteering were made against officials in the Ministry of Munitions, the unpleasant flavour left behind by the Marconi Committee of Inquiry, as well as the favourable impression created by the Parnell Commission were recalled. Consequently, it was felt that new machinery based on the Parnell Commission should be created.324 The widely-differing nature of the circumstances in which the statute would be invoked in the future could not all be foreseen and, as a matter of necessity, the passage of the Bill through Parliament was somewhat hurried. Indeed Professor G.W. Keeton stated that “the entire procedure embodied in the Act has something of an improvised air.”325 As a result, there are certain omissions and shortcomings in the 1921 Act, some of which are dealt with at various parts of this Paper. To the inquiry which it established, the Act gave the ponderous title ‘tribunal of inquiry’. But it is worth noting that the term tribunal is often used in a different sense in the context of administrative tribunals.326

60.  The only major review of the 1921 Act is contained in the Salmon Commission Report327. The train of events leading to the Report commenced with the Profumo Affair which arose when the British Secretary of State for War shared a mistress, Christine Keeler, with the Russian Military Attaché, giving rise to both salacious rumours and legitimate worries for the security implications of the liaison. To investigate the Profumo Affair, the Government chose not to set up a Tribunal, under the 1921 Act. Instead, as Salmon remarks:

“…they appointed Lord Denning, the Master of the Rolls, to hold this inquiry. This task he performed with conspicuous success, despite the difficulties inherent in the procedure which he followed. The inquiry was conducted behind closed doors. None of the witnesses heard any of the evidence given against him by others or had any opportunity of testing such evidence. The transcript of the evidence was never published. Lord Denning had, in effect, to act as detective, solicitor, counsel and judge. In spite of the many serious defects in this procedure, Lord Denning’s Report was generally accepted by the public. But this was only because of Lord Denning’s rare qualities and high reputation. Even so, the public acceptance of the Report may be regarded as a brilliant exception to what would normally occur when an inquiry is carried out under such conditions.” 328

61.  It was the kind of concerns alluded to in this rather notable and possibly disingenuous, paragraph which led to the establishment of the Salmon Commission. Because of the different courses taken by constitutional development here and in Britain, not all of the recommendations of this excellent and concise Report are of interest here, those which are relevant which will be mentioned at appropriate points in this Paper. For the moment, we need note only that, after due deliberation:

In 1973 the government published its comments on the various recommendations [of the Salmon Report], accepting the greater part of them but rejecting the committee’s proposals for amendment of the 1921 Act in the matter of contempt. It said that legislation would be brought forward to make other amendments which would be necessary.” 329

62.  But matters rested so, and to this day, the 1921 Act remains unamended in the land of its birth. Possibly this has something to do with the view expressed in the bleak remark of the former Prime Minister Sir. Edward Heath, “[t]he plain fact is that we have never succeeded in finding the perfect form of inquiry”.330 In setting up the Salmon Commission, the Prime Minister, Harold Wilson said: “I do not think that we have yet found the right answer” and he hoped that the Salmon Commission would devise satisfactory alternatives so that recourse to tribunals may be a rare as possible.331 In fact during the 1921-97 period, 21 British inquiries were set up under the Act.332

63.  In of this Chapter we ask whether or not the chairperson, as has been the convention in this country, should always be a judge. In - deal with the issues of single or multi-member tribunals, in conjunction with the related issue of assessors). makes a proposal to provide for a dialogue between the tribunal and the political organs in drafting its terms of reference. deals with interpreting the terms of reference. considers the various methods by which the legal challenge of inquiry decisions can be either obviated or expedited. Finally, considers a proposal to provide for the termination of a tribunal which is plainly outlived its purpose and usefulness. Should the chairperson always be a judge?

                            II.            Should the Chairperson Always be a Judge?

64.  Attention ought to be drawn to a simple point of the most fundamental importance: it is a crucial condition of the success of an inquiry that the chairperson – and, scarcely less important, the staff of a tribunal - should be persons of high calibre. For various reasons to do with the open texture of a tribunal of inquiry, this quality of personnel is even more important in regard to an inquiry than in respect of a court, which has a substantive law to administer. We highlight this point simply in order to state the full picture. It is not, however, something which can be much affected by any law or change of law, being mainly an issue about which great care should be taken by those who bear the responsibility of selecting the chairperson. As well as ensuring that the staff of a tribunal are competent and reliable, it is essential that an appropriate and properly equipped set of rooms are made available.

65.  We turn now to consider the qualifications of the chairperson. The Salmon Commission, writing in 1966, observed that: “The 1921 Act lays down no requirements as to the composition of the Tribunal. Since 1948, however, it has been the practice for tribunals to consist of members of the judiciary and eminent leading counsel.”333 In this country it has been the invariable practice that a judge, or former judge, has chaired all inquiries under the 1921 legislation; though this is certainly not true of other inquiries.334

66.  Two questions arise: must the chairperson be a lawyer and, if so, must he or she also be a judge? As to the earlier question, first of all one should eliminate any suggestion that the chairperson has to be a lawyer on the assumption that this could be necessary in order to possess the very particular skill of cross-examination: for the fact of the matter is that chairpersons do not and indeed, as a matter of constitutional justice (paragraphs -) generally must not cross-examine: they have a tribunal legal team to do this for them. The next relevant point is that in other types of inquiry the chairperson (or whatever the title) is often not a lawyer. For instance: Company Inspectors are often accountants; accident investigators (under the various transport statutes: on which see Introduction, paragraph ) are usually technical experts; also neither the Comptroller and Auditor General nor most of the members of the Public Accounts Committee, which investigated the non-payment of DIRT were lawyers. In all these cases, cross-examination was carried out by the lay investigator.335

67.  It is, however, inappropriate to compare tribunals of inquiry with other public inquiries, for at least three reasons. In the first place, the subject matter before a tribunal of inquiry is generally much more voluminous and diverse. Secondly, the tribunal is more likely to sit in public. Finally, the parties affected will almost invariably be represented by the ablest counsel in the jurisdiction. The net result of all this is that, while in principle constitutional justice applies in some form to all public inquiries, it is much more common for a tribunal chairman to be called on to give sophisticated procedural rulings. In Haughey v. Moriarty336 the Supreme Court, in rejecting an argument that the terms of reference of the Moriarty Tribunal were excessively vague, held that the Tribunal was obliged to give its own interpretation of them, and that this would clarify the issues. Having regard to the latitude shown by the courts to decisions of tribunals in a variety of areas, as noted at paragraphs -, it may reasonably be supposed that this interpretation could have significant legal consequences, in terms of opening up or closing down various avenues of inquiry. Often the work of the tribunal will be so important that some party will think it worthwhile to test the correctness of a ruling by way of judicial review. It seems clear not least from the outcome of such cases that that the High Court extends wide latitude to such rulings just because they are usually in substance, though not in form, the ruling of a High Court judge. It would not suffice, we believe, if there where a lay-chairperson (albeit experienced in the field of government and business), advised by a team of expert lawyers. Thus the legal confines on the work of an inquiry are such that it is preferable that the chairperson should be an experienced lawyer.

68.  In summary we take the view that, with the plethora of legal issues which can arise before a tribunal and where the good name and reputation of persons may be at stake, it is prudent to appoint a judge or other eminent lawyer as chairperson of the inquiry.

69.  If a lawyer, must he or she be a judge? One argument against a judge, rather than another lawyer, being a chairperson of an inquiry which has been raised is that such an extra-curial activity may be damaging to the position of the judge, or of the judiciary generally.337 This argument focuses on the danger that the judges may be regarded as less independent or impartial by virtue of the involvement in such policy-laden work of even one of their number. Consider Lord Devlin’s dry remark: “The reputation for independence and integrity [of the judges] is a national asset of such richness that one government after another tries to plunder it”.338 The point being made in this remark is that the non-participation of the judiciary in public life outside the court is at the root of the institution’s reputation for fairness and impartiality. This reputation can be relied upon to gain widespread acceptance of the report of a tribunal, particularly into a politically charged subject; but, on the downside, this participation runs the risk of debasing the reputation which justified the appointment in the first place.

70.  On the other hand, it is almost certainly not unconstitutional for a judge to chair a tribunal339 although such an argument was made successfully in the Australian case of Attorney General for Australia v R., ex parte Boilermakers’ Society of Australia340, where it was held by the Privy Council that an arbitral function. In the field of industrial relations, a non-judicial function, could not be conferred on a court, on the basis that powers wholly alien to the judicial cannot be vested in a court, lest they undermine the integrity of the judicial branch. (The difference between an arbitral commission and a tribunal of inquiry is not important in the present context.)341

71.  A second, straightforward disadvantage of the appointment of a serving judge is that is reduces the number of judges available for the important work of sitting on the High (or some other) Court. For instance, as of February, 2003, there were two High Court (Ms Justice Mary Laffoy, Mr Justice Michael Moriarty) and three Circuit Court judges (Judge Mary Faherty, Judge Alan Mahon, Mr Gerald Keys) sitting on tribunals. In addition a number of retired judges (former President of the High Court, Mr Justice Frederick Morris and Mr Justice Feargus Flood) have been appointed, as chair of tribunals.342

72.  As against this, we think it is beyond argument that the public does have confidence in the judiciary’s integrity and competence. Much of the reason for holding a tribunal of inquiry in the first place is to ensure that the public may be reassured that serious ills, affecting some vital public or commercial function, have been thoroughly and impartially investigated. The basic question is whether the public is more likely to have this confidence if the tribunal is chaired by a member of that much-respected group, known as judges, rather than another lawyer. Within the profession the other lawyer may be infinitely respected; he or she may indeed be on the verge of becoming a judge or may not wish to be a judge. But, in the eyes of the public, that person would usually not have the same cachet as the member, or former member, of the judiciary.

73.  There is another point. An inquiry can often be a very political instrument. Immense, if unseen, pressure343 may rest upon it to get results of one sort or another, and quickly. In resisting such pressure, where necessary, the status of the judge is a useful bulwark. In addition, the chairperson is in a very influential position and, consequently, he must be a person who is accustomed to reaching decisions, confidently but also cautiously, and in a demonstrably reasoned and measured way. Judges have experience in reaching such decisions, and are also used to distilling complex and conflicting facts into the coherent form of a judgment or report.

74.  We note the way in which the principle as to the chairperson’s qualifications, is formulated by the Salmon Commission: as quoted in paragraph , tribunals and members should be “members of the judiciary or eminent senior counsel”. Certainly, here one can think of particular senior counsel or solicitors who would enjoy a sufficient reputation with the lay-public to discharge such a role. But in the nature of things, this would be fairly rare.

75.  The Commission’s conclusion, therefore, is that subject to these exceptional cases and the point made in paragraph , it will usually be best for the chairperson to be a (serving or retired) judge.

76.  The next issue is the status of the rule: at present, the requirement that a judge be the chairperson is a strong convention only, not a matter of law.344 The advantage of this being a convention is that it may be honoured in the spirit, though not necessarily in the letter. An example of this is the appointment of a retired judge. Such a person would of course have all the wisdom and authority of the sitting judge, and we do not consider that his or her retired status is likely to diminish the esteem in which he or she is held by the public at large. The chairmanship of the inquiry into the Blood Transfusion Services Board345 by former Chief Justice, Thomas Finlay, was a notable success. While the chairperson is often a High Court judge, on occasion, judges of the Circuit Court and of the District Court have presided over inquiries. An example of this is the recent Tribunal to Inquiry into the HIV and Hepatitis C of persons with haemophilia and related matters, which was chaired by Her Hon. Judge Lindsay of the Circuit Court.

77.  Of course, the disadvantage of a convention is that, as it is not legally-binding, it can be broken without legal consequences, though there may be political consequences; its significant advantage is its flexibility: “the letter killeth while the spirit giveth life”.346 For instance, there seems to be no difficulty in appointing retired judges. Perhaps consideration might also be given, where appropriate, to the appointment of foreign judges.347 Successive Irish Governments have not shown any inclination to flout the spirit of the convention. Accordingly, we believe that the advantages of flexibility in retaining the rule in the form of a convention, rather than a law, outweigh any possible disadvantages.

78.  The Commission therefore recommends that there is no need for legislation requiring the chairperson to be a judge, but that the convention that the chairperson should usually be a (serving or retired) judge ought to continue to be respected.

                         III.            Tribunals Comprising More Than One Member

79.  Circumstances may arise in which it is deemed appropriate to appoint a tribunal consisting of more than one member. This is of course a different situation from a tribunal sitting with assessors (paragraph - ); since that term suggests that the appointee (usually an individual with expertise outside the law) is not a member of the inquiry with a vote. An example of a multi-member tribunal is the inquiry under the chairmanship of Lord Saville of Newdigate into the events of Bloody Sunday, which (as recounted in paragraph infra) comprises three members, all of whom are judges or former judges. We may surmise that the political sensitivity of this inquiry – particularly in the wake of the much criticised Widgery Inquiry, the findings of which failed to gain widespread acceptance in the nationalist community – was such that it would not have been acceptable to have it carried out by a single judge from one of the United Kingdom jurisdictions. The power to constitute such a tribunal is akin to the power to convene a Divisional Court. It is a useful, although ad hoc response to a situation which is perceived, for some particular reason, to require even more weight than normal. In the case of a multi-member tribunal, one or more of the members, other than the chairperson may, for particular reasons be a non-judge, a point to which we shall return in paragraph .

80.  It is clear that the 1921 Act (implicitly at least) recognised the possibility of there being multi-member tribunals, by referring in section 1(1) to “a summons signed by one or more of the members of the tribunal”. Such tribunals are quite common even in the United Kingdom, where the 1921 legislation has not been amended.348 In Ireland, moreover, such tribunals have been expressly authorised, by amendment.349

81.  The Commission does not recommend any change in the law. Against the rare occasion when it will be considered necessary, a tribunal should be capable of being set up with as many members, from as many different fields, as are considered appropriate to the matters under investigation.

Additional and reserve members

82.  Another issue which arises is the appointment, after its commencement, of new members to tribunals of inquiry, whether in addition to existing members or as replacements.350 The Tribunals of Inquiry (Evidence) (Amendment) Act 2002 addressed this issue. Section 4 of the Act allows “one or more persons may be appointed to be a member or members of a tribunal at any time after the tribunal is appointed…” Such an appointee may come in from ‘outside’ as it were. Alternatively, there are some advantages in the appointee having been a reserve member, a position which is created by section 5 of the 2002 Act which provides:

1) One or more persons may be appointed to be a reserve member or members of a tribunal…

(2) A reserve member of a tribunal may—

(a) sit with the member or members of the tribunal during its proceedings and consider any oral evidence given, and examine any documents or things that are produced or sent in evidence, to the tribunal, and

(b) be present at the deliberations of the tribunal,

but may not otherwise participate in those proceedings or deliberations and may not seek to influence the tribunal in its decisions or determinations.

(3) If a member of a tribunal is for any reason unable to continue to act as such member, whether temporarily or for the remainder of the tribunal’s inquiry, a reserve member of the tribunal may be appointed to be a member of it.

(4) An appointment under subsection (3) shall be deemed, other than for the purposes of subsection (5), to be operative from the date on which the person concerned was appointed to be a reserve member of the tribunal concerned or such later date as may be specified in the amendment under subsection (6) of the instrument by which the tribunal concerned was appointed giving effect to the appointment.

(5) An appointment under subsection (3) shall not affect decisions, determinations or inquiries made or other actions taken by the tribunal concerned before such appointment.”

83.  These provisions may be said to constitute a direct response of the Government to a request made by Mr Justice Flood, the Chairman of the Tribunal of Inquiry into Certain Planning Matters and Payments. On the 13th June 2001 the Chairman wrote to the Ceann Comhairle seeking the appointment of two further judges to the tribunal to assist him with his enormous workload.351 He also sought the appointment of a further person to sit with the tribunal to hear evidence “with a view to that person being available to replace any member of the tribunal who, for any reason, is unable to continue to act as a member of the tribunal”, i.e. a reserve member.

84.  It may be that Mr. Justice Flood was influenced by the contemporaneous Bloody Sunday Inquiry. As already touched upon, supra at paragraph , that inquiry was constituted with three members, the others being Mr. William Hoyt and Sir Edward Somers. Sir Edward resigned in late July 2000 and was replaced in early September by Mr. John Toohey. In November the same year, a reserve member, Mr. William Esson, was appointed, although he too was forced to resign, on account of ill-health, in August 2001. Mr. Esson has not been replaced. Interestingly, this was all carried out under the original unamended 1921 Act.

85.  Section 4 of the 2002 Act adds certain sub-sections to section 2 of the 1979 Act, which itself made express provision for multiple member tribunals.352 Section 4 is directed primarily at allowing the appointment of further members to a tribunal after it has been established, and lays down the mechanics for this to take place.353 Essentially, a new member is appointed by way of amendment of the terms of reference of the tribunal, pursuant to section 1A of the 1921 Act.354 It also provides that a decision to be taken by a multiple member tribunal is to be taken by the majority, with the Chairman enjoying a casting vote in the case of an equal division.355 There is provision made for the inability of the Chairperson to continue in that role;356 for a member who is temporarily incapacitated being deemed, for the duration of that incapacity, not to be a member;357 and for the tribunal continuing to act, notwithstanding a vacancy in its membership.

86.  There is a difficulty here which, the Commission believes is not adequately addressed in the existing legislation. One of the reasons for conducting oral hearings is to allow the tribunal members to observe the demeanour and manner of witnesses, in order to allow greater scrutiny of their truthfulness. Clearly a member who misses these opportunities is not in as good a position as one who has been present. Certainly in a judicial forum there would be grave, and probably insurmountable difficulties, with a judge entering upon the hearing of a case which was already part heard by another judge. However, it has repeatedly been held that tribunals of inquiry are not in quite the same position as courts of law, and so it may be possible for substitution of members’ en courant. Nevertheless the elementary principle of constitutional justice means that in general ‘he who decides must hear’. This precept has usually been met tribunals by dividing its subject matter into ‘modules or phases’ and only allowing an incoming member to make factual decisions as to the module which he or she has heard. And there appears to be no operational difficulty with this.

87.  However the present legislation’s attempt to meet this sort of difficulty leaves a certain amount to be desired. The closest it comes to dealing with the difficulty is section 4 (7) which reads as follows:

(7) An appointment under subsection (3), or a designation under subsection (5), of this section shall not affect decisions, determinations or inquiries made or other actions taken by the tribunal concerned before such appointment or designation.”

88.  The curious fact is that subsection (7) only catches the case of a person who is appointed before the actual “decisions, determinations or inquiries or other actions taken … before such appointment …” Problems may arise where a new member is appointed after some or all of the evidence is heard but nevertheless participates in the “decisions”, which are made after his appointment (leaving aside the question of whether “decisions” is an accurate description of what a tribunal does). This difficulty is no small matter, since the most elementary understanding of constitutional justice is that the adjudicator must have heard the evidence on the basis of which he reaches his conclusion. As a result it is submitted that it is better if the matter was settled expressly in the governing legislation. One way in which this might be done is suggested by section 4(9), which reads as follows:

(9) A tribunal may act or continue to act notwithstanding one or more vacancies among its members if it is satisfied that the legal rights of any person affected by the proceedings of the tribunal would not be thereby unduly prejudiced.”

89.  At present this provision is directed to the situation in which a vacancy appears rather than the present situation where a new member is added to the tribunal. However, it is the situation outlined above which would be more likely to cause prejudice and the Commission is of the view that it can and should be catered for by a form of words modelled on subsection (9).

90.  The key words in section 4(9) are that “the legal rights of any person affected by the proceedings of the tribunal would not be thereby unduly prejudiced”. It must be said that the phrase “the legal rights” is infelicitous. The reinforcing of the noun “right” with the adjective “legal” suggest a precise and well-established concept rather than a constitutional interest, like ‘good name’. Yet as explained at paragraphs and - it is of the essence of an inquiry that it ascertains facts and does not affect rights. The formulation might be more accurately worded: “subject to the tribunal being satisfied that any person affected by the proceedings of the tribunal would not be unduly prejudiced thereby”.

91.  Accordingly, the Commission proposes that section 4(7) should be amended as follows:

(7) An appointment under subsection (3), or a designation under subsection (5), of this section:

(a) shall not affect decisions, determinations or inquiries made or other actions taken by the tribunal concerned before such appointment or designation, and

(b) shall not be made unless the tribunal is satisfied that no person affected by the proceedings of the tribunal would be unduly prejudiced thereby.”

92.  Of course the difficulty under consideration would be largely dissolved if the new member was already a ‘reserve’ member of the tribunal who under the definition given in section 5(2), quoted in the following paragraph, will have been sitting with the tribunal and following all the evidence. It is hard to see, therefore, how, in such a situation, any question of prejudice could arise.

93.  Section 5 provides for the appointment of reserve members, who may be appointed either by the instrument appointing the tribunal itself, or subsequently, by means of amendment of that instrument. According to the explanatory memorandum accompanying the Bill (which became the 2002 Act): “The principle on which this provision is based is that the reserve member, though not a member of the tribunal, will be fully au fait with its work and will be in a position to replace a full member if that becomes necessary.” According to section 5(2) a reserve member may:

(a) sit with the member or members of the tribunal during its proceedings and consider any oral evidence given, and examine any documents or things that are produced or sent in evidence, to the tribunal, and

(b) be present at the deliberations of the tribunal,

but may not otherwise participate in those proceedings or deliberations and may not seek to influence the tribunal in its decisions or determinations”.

94.  This description looks similar to the role of the reserve judge at the Bloody Sunday Inquiry, as expressed by a press notice released by that inquiry. It said of Mr. Justice William Esson that:

[H]e will sit in the hearing chamber and observe all proceedings; he will review all written evidence; he will not contribute to Tribunal decisions or seek to influence those decisions in any way; [and] he will attend Tribunal discussions as an observer only.”358

95.  Where a full member of the tribunal is unable to continue, it is provided that a reserve member may be appointed to the tribunal proper,359 and such an appointment is deemed to be operative from the date of appointment as a reserve member (or a later date if specified).360 Any such appointment to the full tribunal is without prejudice to its earlier decisions.361 A recent example of this is the appointment of Judge Keys as a reserve member of the Flood Tribunal; he will become a full member if any full member is unable to act because of sickness or other reasons.

96.  The Commission’s view on these developments is that, having regard to the great length of many modern tribunals, there is good sense in providing for a safety net in the event that, due to death, illness or other unforeseen circumstance, a member is unable to continue.

97.  The experience of the Bloody Sunday Inquiry might seem to give pause for thought. Here is a tribunal established under the same basic legislation, which experiences no difficulty in: (a) appointing multiple members at the outset; (b) replacing one of those members with a new member; and (c) appointing a reserve member. If this was possible under the 1921 Act, are the provisions of the 2002 Act necessary? On balance, it seems that the amendments, outlined at paragraphs - do little, if any, harm and for the sake of clarity and certainty they have much to commend them.

                         IV.            Assessors

98.  Although we accept that the chairperson of a tribunal should be a lawyer (usually a judge), it is easy to perceive situations in which the involvement of a person with expertise in the tribunal’s subject matter could be useful. This is an age of early retirement and recently-retired, if not practising, surgeons, head-teachers, master mariners, builders and professional of all kinds will be readily available to assist tribunals, should they be called upon to do so. The question is whether such an expert ought to be cast as a “member of the tribunal” or as an assessor. (The Commission to Inquire into Child Abuse includes what is in essence a third way of achieving the same objective, namely the appointment of expert advisers to the Commission: see paragraphs -.)

99.  The Tribunals of Inquiry Act 1921 did not provide for tribunals of inquiry to sit with assessors. This was expressly authorised by an amendment, in section 2 of the 1979 Act, which provides:

(1) A tribunal may …sit with or without an assessor or assessors appointed by the instrument appointing the tribunal or any instrument supplemental thereto.

(2) An assessor appointed under this section shall not be a member of the tribunal in relation to which he is so appointed.”

100.                      In relation to assessors, subsection (2) makes it clear that such persons are not members of the tribunal.362 Section 2 was designed to facilitate, and was used for the first time by the Whiddy Inquiry: four assessors were appointed to assist Costello J. in his capacity as sole member of the Tribunal: a scientific consultant, a master mariner, a chief engineer and a naval architect.363 For the Stardust Inquiry, three assessors were appointed: a professor of fire safety engineering, Denmark’s Chief Inspector of Fire Services, and the Head of the Construction Division of An Foras Forbartha.364

101.                      The role of an assessor is not defined in the 1979 Act (or anywhere else), and we consider that it is reasonable that this should be left to be determined, in the actual circumstances of a tribunal, by the tribunal itself, though with the ultimate possibility of judicial review if there is a dispute.

102.                      The significance of the 1979 amendment arises from the general principle365 that, if a function is vested in a person, then it must be exercised by that person, and without influence from other quarters, save in so far as the contrary is provided by statute. The precedents, mentioned at paragraph , suggest that an assessor will generally be a person with a special expertise, who is presumably appointed in order to give advice and assistance to the tribunal, which is comprised of a layman from the perspective of the technical matters involved. It can thus be assumed that the assessor influences the chairperson. Strictly speaking, on a very literal construction, there might have been a violation of the general principle mentioned earlier, unless the existence of an assessor had been expressly provided for in the legislation.

103.                      The question is whether such experts ought to be appointed as assessors, rather than as members of the tribunal proper. The situations in which assessors have so far been appointed suggest that it will often be necessary to obtain assistance in relation to a variety of different fields. The virtue of having the chairperson-judge as the sole decision-maker is that he or she is likely to be accustomed to weighing and considering the advice of several experts (usually in the form of expert evidence), whereas the lay-experts themselves may not be so at ease in fields other than their own. From time to time, however, it may be thought appropriate to allow experts to play a fuller role in the decision-making process, and where this is so then it would seem to be preferable to appoint them as members of the tribunal.366 This might be the case where the subject-matter of the tribunal is very specialised, relating to one narrow field of interest. However, as with so much in this area it is difficult to be prescriptive. The resolution of whether an expert should be a tribunal-member or simply an assessor is a practical decision to be taken in the light of the particular circumstances. The law allows either option.

104.                      The Commission recommends no substantive change to the 1921-2002 legislation since it already allows for the appointment of assessors and multi-member tribunals. In relation to assessors, the Commission recommends that a similar provision to that contained in section 2(2) of the 1979 Act ought to be included in other statutes providing for public inquiries, where this has not already been done.

                            V.            Dialogue Between the Inquiry and the Political Organs to Adjust the Terms of Reference

105.                      The Attorney General’s Office ‘Comparative Study’ gives the following helpful account of the preliminary legal work involved in establishing a Tribunal of Inquiry: 367

The procedure adopted by which terms of reference are formulated in this jurisdiction in at least the last five Tribunals is generally as follows:

                                i.            Initial draft or heads of draft of terms of reference prepared by the sponsoring Government Department. The sponsoring Department is generally the Government Department of the Minister who will be executing the instrument pursuant to Section 1 (1) of the 1921 Act establishing the Tribunal;

                              ii.            Examination of the proposed terms of reference or heads of terms of reference by the Office of the Attorney General;

                            iii.            Further consideration by the sponsoring Department and Office of the Attorney General;

                            iv.            Consideration of the terms of reference by the Chief Whips;

                              v.            In certain cases, consultation about the terms of reference with certain interest groups (eg as in the Hepatitis C Tribunal);

                            vi.            Further consideration by the sponsoring Department and legal clearance by the Office of the Attorney General;

                          vii.            Government decision on the terms of reference;

                        viii.            Resolutions containing terms of reference put to both Houses of the Oireachtas where they may be subject to amendment;

                            ix.            Passing of the resolutions containing the terms of reference by both Houses of the Oireachtas;”

106.                      The Comparative Study goes on to make the following comment:368

The experience has been that there is a tendency for the terms of reference to become wider as each step is taken. This may militate against the subject-matter of the terms of reference being a “definite matter”. However, given the judgement of the Supreme Court in the case of Redmond v Flood [[1999] 3 IR 79 at 89-94: see paragraph ] in relation to paragraph A5 of the terms of reference of the Flood Tribunal, it is recognised that terms of reference cannot be too narrowly drawn.”

107.                      Plainly, the drafting of the terms of reference is a matter of great importance. A question which is relevant here is suggested by the CAG’s achievements in the DIRT investigation, considered in -. This general approach is naturally inspired by the profession of auditor or accountant, from which he and most of his senior staff come. Standard practice in those professions is to explore a representative sample of the facts and figures in the field being surveyed, which sample is, in his educated opinion, sufficient to indicate whether the system or institution under investigation is performing satisfactorily; or, if not, in what ways it is falling down. For his concern is to learn what lessons may be important in order to prevent the evil from recurring in the future. By contrast, the chairperson of an inquiry and his senior staff are overwhelmingly lawyers, usually trial lawyers, and their approach, too, has also naturally been formed by this professional background. As a result, their instinct is to explore the territory under investigation exhaustively. This, of course, may not be the result in all cases, but our feeling is that this is the assumption from which they start. This approach carries advantages and disadvantages. Which of these weighs most heavily depends on what one takes to be the objective of a public inquiry. For example, is it, as far as possible, to get to the bottom of all episodes about which there is public disquiet, which fall within the terms of reference, and, where possible, to point the finger of blame? Or is it to find out whether the malfunction or misconduct alleged existed in a significant number of episodes, with a view to making improvements to prevent a recurrence? The short answer is that it will depend on the circumstances. We have just mentioned a situation – the DIRT inquiry – in which the representative sample option was selected, rightly, we believe. By contrast, in the (British) Shipman Inquiry, into deaths perpetrated, by a medical practitioner, this was seen and (we think, correctly in the circumstances) the exhaustive option was selected. The following explanation was given:

Having considered the matter carefully and discussed it with the legal team, I decided on the latter course. My reasons for doing so were these:

There were hundreds of people who were in a state of uncertainty and distress, not knowing whether their relatives had died a natural death or been killed by Shipman; there was a strong feeling that it was only by knowing the truth that they would be able to begin to come to terms with their shock and grief.

Whilst it was anticipated that some of the deaths would be the subject of coroner’s inquests in the future, not all those deaths had been fully investigated by the police, and, if the Inquiry did not undertake further investigations, the evidence elating to those deaths would remain incomplete. Also, it was unlikely that inquests would be held into all the deaths which the Inquiry would investigate.

It seemed to me essential that, before I went on to consider whether, and, if so, in what respects, there had been failures in systems or on the part of individuals or statutory or other bodies, which had allowed Shipman to commit murder unchecked, I had to be able to form an accurate and authoritative view as to the number of people he had killed and the period over which – and the circumstances in which – the killings were perpetrated. Only by making decisions about Shipman’s responsibility for individual deaths would I be able to form such a view.”369

108.                      Later, however the Report goes on to describe its modus operandi and to indicate not all of the deaths were the subject of oral testimony.

It would clearly have been impracticable for me to hear oral evidence relating to every one of the 494 cases in respect of which I have had to make a decision as to Shipman’s guilt. It was, therefore, decided that I should hear oral evidence in a representative sample of cases, where it seemed that the evidence required clarification or where there was some other particular feature (for example, a link with another death) which made an oral hearing desirable….In each case where there was no oral hearing of the evidence, Counsel to the Inquiry prepared a detailed summary of the evidence relating to the death, together with submissions as to the appropriate finding. The case summary and submissions were put into the public domain by placing them on the Inquiry website. Where the evidence was heard orally, brief written submissions as to the appropriate finding were prepared by Counsel to the Inquiry and made public in the same way. In most cases where family members of the deceased were legally represented, written submissions on the evidence were also made by their Counsel. In considering the evidence in each case, I took careful account of the submissions made by Counsel, but the final decision was, of course, mine alone.”370

Thus here, the Shipman Inquiry took into account the conflicting desiderata and sought to balance them, in a sensible way.

108.                      We cannot offer definite answers to the question posed above - exhaustive or representative - since the answer will vary, depending on the circumstances of the particular inquiry. However, we think that this is a significant question, and at the very least, policy-makers in this area - that is, the Houses of the Oireachtas, the responsible Minister, and the Chairperson of a Tribunal of Inquiry - ought to keep it well in mind. It should be remembered that an inquiry does not, in most cases, result in the punishment of anyone or the compensation of anyone else. Its purpose is to see whether the system has broken down, if so, why, and how to repair it. Where this assumption is correct, as it usually will be371, the conclusion would be that it is appropriate for the inquiry to probe a sufficient number of typical instances of the flaw or misconduct.

109.                      The Commission recommends, therefore, that (unless this is impossible to determine in advance) the terms of reference of an inquiry should make it clear whether the inquiry should be exhaustive or whether, as will usually be the case, a sufficient number of representative cases or instances should be examined.

Two stage process

111.                      The substantial practical difficulties attending the initial stage of an inquiry should not be overlooked. Typically, inquiries are set up in a blaze of genuine public anger and media frenzy, with an uncertain reaction from politicians who are operating often in an unprecedented situation, apprehensive of the long-term repercussions and unsure how long the public’s mood will last.372 They may be hampered by differences within the (usually coalition) Government, coupled often with a desire to put forward a proposal which is supported by the Opposition. (The practice has developed in respect of the 1990s generation of tribunals that there should be agreement between the Government and opposition parties as to the setting up of a tribunal of inquiry, so that there can be confidence that a tribunal is not being used for party political ends.) This is an especially difficult atmosphere in which to resolve difficult technical, legal issues, balancing up the need for a thorough investigation with fairness to the individuals who may be affected.

112.                      Against this background (and bearing in mind, too, the requirement, explained at paragraphs infra, that the tribunal itself must explain its terms of reference), it seems that there is a lot to be gained and little to be lost, from a two-stage approach. The Commission’s proposal which is detailed at paragraph is that at the first stage, the decision to set up an inquiry in principle is taken and the broad terms of reference are fixed, by the political organs. This will substantially allay public disquiet. At the second stage, during the next few weeks, the tribunal of inquiry should have time for deliberation and contemplation, in order to fine-tune the terms of reference and also the forms and powers by which it should operate.

113.                      The tribunal is, in substance, the expert who will have to actually carry out the job on the ground, over many painstaking months or years, and it is likely that, the tribunal especially may be able to anticipate difficulties and suggest a more suitable alternative method373. Often, the changes which a tribunal would recommend would be designed to meet drafting difficulties. This type of difficulty is well illustrated in Haughey v Moriarty.374 Here, there was discussion regarding the drafting infelicities in the terms of reference of the Moriarty Tribunal, by which the phrases “public office” and “ministerial office” were used in different paragraphs. This gives rise to various uncertainties, for instance, whether time as a deputy, but not as a minister, was included.

114.                      There is nothing very radical in this proposal. Indeed, a form of it already exists. Originally, under the (unamended) 1921 Act, the only bodies formally involved in the establishment of a tribunal were the responsible Minister and the two Houses of the Oireachtas. Then, the 1921 Act was amended by Section 1(1) of the Tribunals of Inquiry (Evidence) (Amendments) (No. 2) 1998 Act, which inserted the following as section 1A of the 1921 Act:

(1) An instrument to which this section applies (whether made before or after the passing of the 1998 Act) shall be amended, pursuant to a Resolution of both Houses of the Oireachtas, by a Minster of the Government where –

1.      the tribunal has consented to the proposed amendment, following consultation between the tribunal and the Attorney General on behalf of the Minister, or

2.      the tribunal has requested the amendment.

(2) Without prejudice to the generality of subsection (1), the tribunal shall not consent to or request an amendment to an instrument to which this section applies where it is satisfied that such amendment would prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its terms of reference.

(3) Where an instrument to which this section applies is so amended this Act shall apply.

(4) This section applies, in the case of a tribunal to which this Act is applied under section 1 of this Act, to the instrument by which the tribunal is appointed.”375

115.                      As a preliminary, we should note that subsection (2) of this provision is too restrictive, by virtue of the words … “who has cooperated with or provided information to the tribunal …” What if some person is prejudiced who has not been asked or, perhaps more likely, has defied the tribunal? We take the policy view that even in these circumstances persons should not be prejudiced. Although the Commission equally believe that any prejudice should be more than merely negligible. We recommend, therefore that the phrase “who has cooperated with or provided information to the tribunal under its terms of reference” should be substituted by the wider phrase “affected by the proceedings of the tribunal”. However, in the opposite direction and in line with section 4(7) of the 2002 Act (see paragraph , above) the word “unduly” should be inserted before prejudice: this is what is done in our draft Bill at Appendix C.

116.                      The immediate cause of this change was the need to vary the terms of the Flood Tribunal.376 The effect of this change is that the instrument setting up a tribunal may be varied only with the agreement of both the tribunal and the political organs: the Oireachtas and Minister, and on the other hand, the tribunal, each has a veto on an amendment by the other. Section 1(2) is designed to prevent the power contained in section 1(1) from being used where to do so “would prejudice the legal rights of any person.”377 The Commission agrees that this proviso is plainly necessary.

117.                      The Commissions proposal would go beyond the existing law by imposing an obligation, in every case, for a tribunal of inquiry, to consider positively whether it ought to request an amendment.378 This would ease the path of any tribunal which wished to make such a proposal, by virtue of the fact that the tribunal is positively enjoined to consider whether it should request such an amendment. The Commission proposes that the Tribunal should be required to attend to this positive duty during the first four weeks of its establishment. In a sense, even this is substantially part of the existing regime. For example, the terms of the resolution establishing the Finlay Tribunal required the tribunal to report on an interim basis to the responsible Minister, not later than the 20th day of any oral hearings, on a number of matters379 including:

"…(d) any other matter that the Tribunal considers should be drawn to the attention of the Houses of Oireachtas at the time of the report (including any matters relating to its terms of reference)"380 (Our emphasis)

118.                      The Commission also wishes to emphasise that, because of the way the proposed provision is drafted (in particular, the phrase “without prejudice to the generality of sub-Section (1) (b); see next paragraph) - as a graft onto the existing sub-Section - the tribunal would retain its present power to return to propose an amendment at any time (subject to the existing sub-section 1A (2)). The change the Commission would propose is that during the four-week period the tribunal is positively obliged to think about seeking an amendment and that this obligation would be a permanent feature of the legislation, instead of being left to be included with the terms of reference for each tribunal. The Commission is of the view that its importance warrants this additional step. Our proposal is that this duty should be discharged in private so that the tribunal is not subject to pressure from any quarter.381

119.                      One other issue which the Commission did consider is whether the amendments emanating from the tribunal ought to be confined to technical rather than the policy, category. On balance, we consider that a tribunal will, where appropriate, observe this distinction itself, and trying to find a form of words to articulate it would lead to complication and restriction.

120.                      The amendment which we propose would be to add on at the end of the present subsection 1 (A) (1), the following form of words: “…Provided that without prejudice to the generality of subsection (1) (b), the Tribunal shall consider, otherwise than in public, within four weeks of commencing its work, whether to exercise its power to make a request under subsection (1) (b)”.

                         VI.            Interpreting the Terms of Reference

121.                      Persons whose conduct is under examination will sometimes make a fundamental attack on the terms of reference of a tribunal. A number of grounds have been alleged. For instance, it has been claimed that particular terms of reference involve an attack on privacy, a point considered at paragraphs -. In Haughey v Moriarty,382 a number of complaints were also made regarding the subject-matter of the inquiry. It was said that the inquiry was: “not in aid of the legislative process”; and not a matter of “urgent public importance”. In addition, it was submitted that a tribunal of inquiry should only be used as a last resort, and instead there should have been a select committee. Each of these arguments was rejected fairly briefly.383 The contention that the terms of reference were “vague” also failed384, on the grounds that, even if they were vague, the Tribunal itself would clarify matters when it gave its interpretation (on which see the following paragraph).

122.                      However, on one point of this type, the applicant succeeded. One of his complaints arose from the fact that, at one stage, the Tribunal’s chairperson had declined to give to the applicants his interpretation of the terms of reference. Hamilton CJ, citing the Salmon Report385 as authority, stated:

The Tribunal should take an early opportunity of explaining in public its interpretation of its terms of reference and the extent to which the inquiry is likely to be pursued. As the inquiry proceeds, it may be necessary for the Tribunal to explain any further interpretation it may have placed on the terms of reference in the light of the facts that have emerged.”386

123.                      The High Court (Geoghegan J) had responded to this complaint387 by itself interpreting the terms of reference. The Supreme Court, however, reversed Geoghegan J’s approach, remarking that “[i]t is not the function of the High Court or this Court to interpret the terms of reference of the tribunal at this stage. The interpretation of the terms of reference is, at this stage, entirely a matter for the Tribunal itself.”388

124.                      It is legitimate to infer from the term “opportunity” used in the quotation, supra, that the tribunal must do this only when it is opportune, that is when the tribunal is in a position to do so. This is a view based on practicality, which is probably beyond dispute. At this point, one ought to refer to the “information-gathering stage”. As we explain in Chapter 9, in many cases the tribunal will embark on its work with a clean slate so far as concerns any reliable information about the area into which it is inquiring. Its first task, which may take many months, must be to collect such information. It is only after this has been done that it is in any better position than anyone else to comprehend and interpret its terms of reference. Until such time, any interpretation is simply a matter of reading and understanding the words used. Accordingly, while there is an obligation on the tribunal to explain (in open session), its understanding of its terms of reference, it may not be practicable to do this until a substantial amount of information-gathering has been done. It is suggested that the obligation would not arise until that point.

125.                      The remaining question is whether, once a tribunal’s interpretation has been given, a court would be prepared to review it. In principle, there appears no reason why not. In Redmond v Flood,389 the applicant sought inter alia an order that the Flood Tribunals’ interpretation of paragraph A5 of its terms of reference had been incorrect. Hamilton CJ did entertain the possibility that the tribunal’s interpretation may have been incorrect but he concluded that given that the words of the paragraph were clear and unambiguous: “…it is hard to see what alternative interpretation can be placed on [them]. The words of that paragraph are clear and admit only of the interpretation placed thereon by the Tribunal.”390 In practice, as has been noted at paragraph in other areas courts have allowed a lot of latitude to tribunal decisions.

                      VII.            The Impact of the Courts

126.                      Undoubtedly, it may be in the interests of some parties (or other persons) to delay or thwart the smooth running of a public inquiry, or to create a cloud of doubt as to its legitimacy. One way in which to achieve these objectives is to drag the public inquiry before the courts, by way of judicial review. However, there are signs, of a fairly strong line, of judicial impatience with such attempts.391 But even if victory is rare, delay and public doubt or confusion are valuable consolation prizes. On this point, it seems clear that the appropriate policy to follow is that, since inquiries are of national importance (and, if they are not, then they should not be held), in and since they are chaired by judges, then the scope for intervention by the courts should be reduced as far as possible consistent with respect for the constitutional right to judicial review. At the outset, it should be emphasised that the Commission rejects the counter-argument that establishing a fast track system for tribunals of inquiry would reduce the speed of the fast track to that on the main road: for there will never be sufficient traffic on this particular fast track to have such an effect. We will now proceed to consider three possible methods of fast tracking judicial review proceedings in the context of tribunals of inquiry.

1.      Reducing Time-Limits for Judicial Review

127.                      As regards confining the judicial review of an inquiry, the first point which should be made is that the imposition of specific time-limits for the institution of proceedings for judicial review is nothing new: it already exists in relation to a number of statutory schemes, most notably planning and immigration.392 Section 50(4) (a) of the Planning and Development Act 2000 and Section 5(2) (a) of the Illegal Immigrants (Trafficking) Bill 2000 provide for the imposition of a time-limit of eight weeks and fourteen days, respectively, on the institution of judicial review proceedings. It should be emphasised that these time-limits are not cast in stone; the High Court has a discretion to extend these periods where it considers that there is “a good and sufficient reason” (a formula used in section 50(4) (a) (iii) of the Planning and Development Act 2000 and section 5(2) (a) of the Act of the Illegal Immigrants (Trafficking) Act 2000) for doing so.

128.                      The Irish Courts have considered the constitutionality of these statutory time-limits on a number of occasions. In Brady v Donegal County Council,393 Costello J, as he then was, outlined the rationale for the imposition of statutory time-limits as follows:

The public interest in (a) the establishment at an early date of certainty in the development decisions of planning authorities and (b) the avoidance of unnecessary costs and wasteful appeals procedures is obviously a very real one and could well justify the imposition of stringent time-limits for the institution of court proceedings.”394

129.                      More recently, in In re Article 26 and sections 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999395 the Supreme Court considered the constitutionality of the imposition of a 14-day time-limit on the institution of judicial review proceedings, in relation to immigration matters. The Court, per Keane CJ, held that the imposition of the 14 day time-limit was not unconstitutional. He was of the view that it served a legitimate public policy objective, in that it was designed to bring about, at an early stage, legal certainty as regards administrative decisions. In addition, Keane CJ felt that the discretion afforded to extend the time-period where there was, in the opinion of the High Court, a good and sufficient reason for doing so, meant that the 14-day time-limit could not operate as an unreasonable and unjustifiable restriction on the plaintiff’s constitutional rights.

130.                      The Commission is of the view that, as interested parties are likely to be represented before the inquiry, they are likely to be aware of decisions which affect them as soon as they are made, and, therefore, they are likely to know, at a very early stage, whether or not they want to challenge these decisions. The Commission therefore recommends that a statutory time-limit of 28 days should be placed on the institution of judicial review proceedings in the context of public inquiries. In case of any possible constitutional infirmity to this, the Commission recommends that the High Court should be afforded discretion to extend this time-period where it considers that there is a “good and sufficient reason for doing so”.

1.      Right of Tribunal of Inquiry to Apply to the High Court

131.                      A different device with an essentially similar objective would be to allow the inquiry itself to make an application to the High Court for directions in relation to the performance of any of its functions: a type of ‘case stated’ procedure. The Commission is of the view that such a ‘case stated’ type procedure could be a useful tool in ensuring the secure operation of tribunals of inquiry, by enabling an inquiry to seek confirmation from the High Court as to the legality of its decisions. One example of how the power would be used would be if a dispute arose over a tribunal’s interpretation of its own terms of reference. At present, if one of the interested parties expresses dissatisfaction with the decision but fails to initiate judicial review proceedings in respect of that decision, the tribunal, being unable to initiate judicial review proceedings itself is forced to proceed at risk that its proceedings could later be halted. An example of the difficulties that can arise from such a decision may be seen in the aftermath of the decision of the Supreme Court in Haughey v Moriarty396. In this case the Supreme Court quashed a number of orders for discovery made by the Moriarty Tribunal against various members of the Haughey Family. As McGrath397, notes, this decision had serious ramifications for the work of the Tribunal, as it meant that the documentation obtained under the orders could not be used. As a result, the Tribunal had to proceed as if it had never seen the documents, and had to discontinue any lines of investigation which were based upon the documents until the documents were obtained in a constitutional manner. We suggest that had the Tribunal been able to refer the matter to the High Court once the controversy over the legality of the orders had arisen, a lot of time and expense could have been saved.

132.                      A close example of this ‘case stated’ procedure may be found in Section 25 (1) of the Commission to Inquire into Child Abuse Act 2000, already in the law, which provides:

The Commission may, whenever it considers it appropriate to do so, apply in a summary manner to the High Court sitting otherwise than in public for direction in relation to the performance of any the functions of the Commission or a Committee or for its approval of an act or omission proposed to be done or made by the Commission or a Committee for the purposes of such performance.”

This power is also somewhat akin to that of an Inspector appointed under the Companies Act 1990398 or a liquidator399 to apply to the High Court in order to seek judicial approval for actions done or not done in discharging the functions of those offices.

1.      One feature of the provision from the 2000 Act, just quoted, is that the matter be dealt with by the High Court “sitting otherwise than in public”. This stems from the nature of the Laffoy Commission’s subject matter, and the fact that much of the Commission’s own proceedings must be heard in private. Indeed in the case of Commission to Inquire into Child Abuse Act 2000 v Notice Party A and others,400 outlined at paragraph , the fact that High Court proceedings under section 25 were held in camera was of particular advantage given the subject matter of the inquiry. While in a more general context, we can conceive of situations in which an in camera hearing might be appropriate (for example, if it concerned a question such as the admissibility of evidence), we can also conceive of situations in which the ordinary rule that justice should be administered in public (Article 34.1) should apply. The Commission considers that in the context of a public inquiry it could be an anomaly to have the procedural hearings held in public; but the High Court applications held in camera. Accordingly in the Commission’s recommendation detailed at paragraph the court has been afforded a wide discretion to hear the application in public or private.

2.      In relation to procedure, all that is stated in the 2000 Act (beyond the fact that the application is “summary”) is that the Superior Court Rules Committee is permitted, with the concurrence of the Minister for Justice, Equality and Law Reform, to make rules to facilitate the obligation imposed on the High Court to expedite the hearing of such applications.401 The legislation is silent as to the question of who is to be represented before the High Court. However, if the decision of the Court could operate to the prejudice of an individual who is appearing before the Investigation Committee by clothing an action of the Committee with judicial authority, it is plainly a matter of constitutional justice that such a person should be entitled to make submissions to the Court before any such decision is made. Finally, there is no mention of any appeal. However, since nothing to the contrary is stated, an appeal to the Supreme Court would in effect be read in, by virtue of Article 34.4 of the Constitution.

3.      What powers may the High Court exercise on a section 25 type application? The provision states that, on an application by the Laffoy Commission, the High Court may:

1.      give such directions as it considers appropriate (including a direction that the Commission or a Committee should make a report and, if that Court considers it appropriate, an interim report, to it at or before such times as it may specify in relation to the matter the subject of the application or any related matter),

2.      make any order that it considers appropriate, [or]

3.      refuse to approve of an act or omission [proposed to be done or made for the purpose of the performance of the functions of the Commission or either Committee]”.

136.                      To date, only one application has been made to the High Court for directions in relation to the performance of the Laffoy Commission or its committees’ but this serves as a useful illustration of the way in which the provision might be used. In Commission to Inquire into Child Abuse Act 2000 v Notice Party A and others,402 the Court’s approval was sought in respect of the determination that all parties entitled to appear before the Investigation Committee at the evidential stage should have their legal representation physically in attendance limited to one solicitor and one counsel each. Not surprisingly this proved to be a very controversial ruling among those appearing before the Laffoy Commission. Ultimately, Mr Justice Kelly took the view that the Laffoy Commission either: (1) did not have jurisdiction to limit the number of solicitors and counsel who are in attendance at evidential hearings; or (2) if there was such jurisdiction, it was not exercised in a manner that was compatible with the rights of others and the requirements of justice.403 Although the High Court held that the Laffoy Commission was unable for the reasons outlined above to make the challenged order, the ability of the Laffoy Commission to utilise the section 25 ‘case stated’ procedure meant that the legality or otherwise of the order was determined quickly. This contrasts sharply with the uncertainty, delay and expense which would have arisen had the Laffoy Commission been forced to wait for an interested party to take judicial review in respect of its decision.

137.                      In light of the above, the Commission recommends that the case stated procedure contained in Section 25 of the Commission to Inquire into Child Abuse Act 2000 be inserted into the Tribunals of Inquiry Acts 1921-2002. The only change that the Commission would recommend in respect of Section 25 is that the Court should be afforded discretion to hear the application in public, rather than in private, as is currently the case. The new section would provide as follows:

(1) The tribunal may, whenever it considers appropriate to do so, apply in a summary manner to the High Court for directions in relation to the performance of any of the functions of the tribunal for its approval of an act or omission proposed to be done or made by the tribunal for the purposes of such performance.

(2) On an application to the High Court for the purposes of sub-section (1), that Court may—

(a) give such directions as it considers appropriate (including a direction that the tribunal should make a report and, if that Court considers it appropriate, an interim report, to it at or before such times as it may specify in relation to the matter the subject of the application or any related matter),

(b) make any order that it considers appropriate,

(c) refuse to approve of an act or omission referred to in subsection (1).

(3) The tribunal shall comply with a direction or order of the High Court under this section and shall not do any such act as aforesaid or make any such omission as aforesaid if the High Court has refused to approve of it.

(4) The High Court shall give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that Court under this Act.

(5) The Superior Court Rules Committee may, with the concurrence of the Minister for Justice, Equality and Law Reform, make rules to facilitate the giving of effect to subsection (4).

1.      Expedition

138.                      The two proposals made so far deal with getting the proceedings into the High Court. But the remaining part of the picture is to have the case brought on for hearing. Section 25(4) of the Act of 2000 imposes an obligation on the High Court to deal with the application as swiftly as possible having regard to the circumstances of the case. It provides that:

The High Court shall give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that Court under this Act.”

139.                      It is true that even without such a provision, the High Court would, follow its usual practice accord priority to such cases.

140.                      However despite this, the Commission is of the view that it is best to state the provision expressly. Accordingly, the Commission recommends that a similar provision should be inserted into the Tribunals of Inquiry Acts 1921-2002. This provision would replicate section 25(4).

                   VIII.            Termination of the Tribunal

141.                      If there is one fact which is beyond dispute about tribunals of inquiry, it is that they may take a long time, almost invariably a good deal longer than is anticipated when they are being set up. There is no cause to be censorious about this phenomenon: it is inevitable, given that the inquiry is investigating the unknown. Nevertheless, this fact should be taken into account when devising good law for this area.

142.                      One relatively moderate solution that has been adopted to meet this difficulty is to include in the resolution constituting the tribunal and laying down in its terms of reference a clause whose purpose is to concentrate the mind of the tribunal on the need to complete its task as expeditiously as possible. The method adopted is to require the tribunal to report on an interim basis by a specified time, outlining any progress made, and the likely duration of the entire tribunal proceedings. The earliest example of such a clause was in the terms of reference of the Finlay Tribunal in 1996, the first to be set up after the wave of popular indignation at the huge cost, engendered by the Beef Tribunal, had abated somewhat. By now, the form of words has settled down into a conventional pattern, though the time allowed may vary depending on the particular tribunal. We may quote the Morris Tribunal as a recent example:

(I) the Tribunal shall report to the Minister for Justice, Equality and Law Reform on an interim basis not later than four months from the date of establishment of the Tribunal and also as soon as may be after the tenth day of any oral hearings of the Tribunal on the following matters:

1.      the number of parties then represented before the Tribunal,

2.      the progress which will then have been made in the hearings and work of the Tribunal,

3.      the likely duration (so far as that may then be capable of being estimated) of the proceedings of the Tribunal,

4.      any other matters that the Tribunal considers should be drawn to the attention of the Houses of the Oireachtas at the time of the report (including any matters relating to its terms of reference)”.404

143.                      In practice, there is no sanction to enforce a commitment given in the interim report. Probably, judicial review would not be available, and the only sanction would be “public opinion”. Yet surely reliance on this would be improper, if it amounts to an attempt to “overawe” the inquiry? In the previous paragraph, we summarised precautionary measures, taken in advance of a tribunal’s commencement. But, to go a step further, what if, after a tribunal has been sitting for some time, it became clear that like the Rump Parliament, it has “sat too long for any good [it had] been doing”405. A definite form of control has been suggested to meet this difficulty, as follows:

The legislature should assume to itself a power to direct that a tribunal cease its inquiry. This is a power that should be exercised only where the legislature considers that it is in the public interest to do so. This could arise, by way of illustration, because the cost involved in the investigation would be disproportionate to the benefit to be extracted by society in continuing to exercise control over the extent of investigation being carried out by the tribunal…In order to control the ambit of inquisitorial powers of tribunal, the legislature must assume the overriding right of intervention. It is no longer adequate to leave issues of the proper limits of the territory of tribunals of inquiry to the niceties of the law and the uncertainties of our constitutional jurisprudence.”406

1.      Before considering this proposal, the Commission would like to suggest varying it in one minor respect: tribunals of inquiry are set up both by resolutions of the Dáil and Seanad and by order of the appropriate minister. For this reason and also because of the significant position of the Government, being in some form, often the subject matter of the tribunal’s investigation, the Commission assumes that any power to direct a tribunal to cease operations should be vested in the Houses and in the Minister acting together. Another caveat is that the power suggested ought to be taken as only to be used in extreme circumstances.

2.      Read in that light it seems to the Commission that the proposal contained in the quotation has a number of merits. In the first place, the Houses of the Oireachtas are the assemblies of the nation, formally responsible for ranking the various claims on public expenditure and it is appropriate that they should have the power not only to set up a tribunal but also, in extreme cases, to terminate it. Secondly, such a decision should naturally be taken openly so that the legislature would have to take responsibility for its action. Finally, it might be objected that such a power would be open to abuse, most obviously if a member of the Government party were under investigation. Our response to this objection is that the public obloquy engendered by such an action would make such a possibility most unlikely. Besides, if a Government were motivated by such a consideration, it would be unlikely to have set up the tribunal in the first place. However, bearing this slight possibility in mind and also the more general need to ensure that such a power were only used where a tribunal was plainly straggling and unlikely to bear fruit, we recommend that the legislation implementing this proposal would require ‘stated reasons’ to be given, where a tribunal is to be terminated.

3.      The Commission recommends that the 1921-2002 Acts be amended to allow for the termination of a tribunal. We suggest the following form of words: “Where at any time it has been resolved, for stated reasons, by each Houses of the Oireachtas that it is necessary to terminate the work of the tribunal, the relevant Minister or the Government may by order dissolve the tribunal”.

  1.  

5.      POWERS OF THE TRIBUNAL

                               I.            General Considerations

1.      Introduction

1.      The issue of the powers conferred upon tribunals of inquiry is an important one, for several reasons. First, there is a public interest, stemming from the general principle of a society founded on the Rule of Law, in the powers of such an important instrument of State policy being clearly delimited and defined. Secondly, tribunals have the potential to impinge quite seriously on the rights of the individual, and those who are at the sharp end of their inquiries have a legitimate interest in knowing just how far those inquiries may go, and in what manner they ought to be conducted. Thirdly, and this is a point that is easily overlooked, those who are appointed to conduct tribunals must find that onerous task easier if the powers to be wielded by them are clearly set out and understood. Litigation arising out of recent tribunals suggests that there may be some uncertainty in this regard, although there is certainly nothing in the relatively few cases on the issue to suggest that this uncertainty is endemic.

2.      The chief source of powers for a tribunal of inquiry is the Tribunals of Inquiry (Evidence) Act 1921, and its amending legislation. The title of the Act of 1921 suggests its rather limited ambition, which is primarily to lay down the means by which a tribunal may take evidence. The Act is by no means a comprehensive statement of the powers that have, as a matter of historical fact, been exercised by tribunals both in this jurisdiction and in the United Kingdom. For example, the power (which has never been doubted) of a tribunal to retain counsel to assist it in the conduct of its inquiries is nowhere stated in legislation.407 It seems to be considered that this is an inherent power enjoyed by a tribunal by virtue of its very existence, which need not be expressed in positive law: see further paragraphs - .

3.      Notably, these Acts of 1921 to 2002 do not actually provide for the establishment of a tribunal of inquiry. What section 1(1) of the Act of 1921 states is that “[w]here it has been resolved… by both Houses of Parliament that it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance, and in pursuance of the Resolution a tribunal is appointed for the purpose either by His Majesty or a Secretary of State,408 the instrument by which the tribunal is appointed or any instrument supplemental thereto may provide that this Act shall apply”.409 Where the Act applies the tribunal may exercise the powers it confers. In a modern Irish context, section 1(1) has been interpreted by the Supreme Court to mean that the powers conferred by the Act may be exercised by a tribunal appointed by the Government, or by any Government minister (including the Taoiseach), pursuant to resolutions of both Houses of the Oireachtas.410 The provision therefore envisages the Houses of the Oireachtas calling on the executive branch to establish a tribunal, but goes no further than to assume the competence of the executive in this regard; it is not the source of the executive power to appoint a tribunal. In Goodman International v Mr Justice Hamilton, Costello J, in a passage subsequently approved by the Supreme Court, stated:

The Government or any Minister can inquire into matters of public interest as part of the exercise of its executive powers, but if this is done without reference to parliament then the inquiry will not have statutory powers which are to be found in the Tribunals of Inquiry (Evidence) Act, 1921, and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979.”411

1.      The extent to which a tribunal enjoys powers deriving from its status as a creature of the executive is, however, unclear, and in this Chapter the focus is directed more to the powers bestowed by statute. The reason for this is straightforward: it is beyond our remit to recommend (and possibly beyond the power of the Oireachtas to implement) changes to the inherent powers of the Executive. Furthermore, since any inherent powers of a tribunal are of their nature somewhat murky, this alone provides a good justification for attempting to spell out at least the more significant powers in legislation, and if this entails a measure of duplication, that does not seem to be a very great evil.

2.      The Commission therefore recommends that any re-draft of the Tribunals of Inquiry legislation bestows express power to establish a tribunal.

1.      Powers categorised

1.      As a framework for analysis we propose to deal with the subject-matter of this Chapter under three broad headings in the next three Parts. First, in Part II we address the enforcement mechanisms available to a tribunal of inquiry in order to ensure that its orders are obeyed. Secondly, in Part III we deal with what may be termed the “substantive powers” of a tribunal of inquiry. These powers are relevant to various aspects of an inquiry’s task in respect of which it can make orders, for instance the summoning of witnesses. Thirdly, in Part IV we examine the less drastic powers, which we describe as “non-invasive powers”. Although these powers are just as substantive as those under the second heading, such as the power to publish a report, they differ from those powers because they do not entail the tribunal ordering any person to do anything (possibly against their will). On account of this distinguishing factor, we believe that certain different considerations may be appropriate, meriting the separate treatment of the second and third categories.

                               I.            Enforcement Mechanisms

1.      It is obvious that inquiries will not always receive the full co-operation of those who appear before them. The sense of civic duty is not always enough to guarantee that the proceedings of an inquiry will not be obstructed or interfered with, and that the orders of the inquiry will be obeyed. On the contrary, since the report of an inquiry which imputes serious wrongdoing may have extremely grave consequences for those implicated, an incentive for obstruction clearly exists. The sensible step is therefore to set up a framework within which the inquiry can operate which provides for even weightier disincentives. The Acts of 1921 to 2002 have attempted to achieve this by creating two alternative and overlapping mechanisms, whereby obstruction and disobedience can be dealt with.

        i.            Under section 1(2) of the Act of 1921 (as amended), such behaviour constitutes an offence, punishable by imprisonment and or fine: see paragraphs to .

      ii.            Where one of its orders has not been complied with, section 4 of the Act of 1997 allows a tribunal to apply to the High Court for a supportive order and for ancillary relief: see paragraphs to .

8.      The advantages and disadvantages of each mechanism will be considered presently, but before doing so it is necessary to say a few words about the jurisdiction known as “contempt of court” upon which each is, to a greater or lesser extent, dependent. In doing so, we draw heavily on significant earlier Commission publications in the area, in particular the Consultation Paper and Report on Contempt of Court, which included substantial chapters dealing with contempt in the context of tribunals of inquiry. 412

1.      Contempt of court

9.      The jurisdiction of the courts to punish for contempt is one of the oldest in the common law, having been described by one judge writing in 1765 as standing upon “immemorial usage”.413 It is a jurisdiction which lies behind almost everything that the courts do in the performance of their functions. As the late Professor J.M. Kelly used to observe, no matter how humble or innocuous the procedure is, it is connected by a number of steps (however long) to the prospect of a man or woman rattling the keys of a prison.414

10.  In broad terms, the Irish courts have respected a division between two categories of contempt: civil and criminal. Stated very briefly, civil contempt generally comprises non-compliance with an order of a court, such as continuing to trespass on lands, in the face of an injunction restraining such acts. The contempt is usually brought to the attention of that court by the party who is prejudiced by the non-compliance,415 in the example given, the person entitled to possession of the land. It has sometimes been said that attachment for civil contempt is, effectively, a means of execution open to a successful litigant, where other approaches have failed.416 The purpose of imprisonment in civil contempt cases is said to be coercive, rather than punitive, in that the court is not so much expressing its displeasure at the non-compliance with its order, as giving the contemnor a stern incentive to reconsider his recalcitrance. Once the party in question repents of his ways and agrees to comply with the order, he thereby ‘purges’ his contempt and is said to be entitled to be released from prison ex debito justitiae, or as a matter of course. (For this reason a fine is not usually considered an appropriate sanction for civil contempt.) The religious overtones of the language employed are not wholly inappropriate, since the doctrine of civil contempt grew out of the practice of the Court of Chancery, an institution that had ecclesiastical roots and was often referred to as a “court of conscience”.

11.  Criminal contempt, on the other hand, comprises distinct categories of behaviour: (i) contempt in the face of the court (or in facie curiae), which comprises disruptive behaviour in or in the precincts of the court; (ii) scandalising the court, that is the holding of courts or judges up to public ridicule or obloquy in a manner calculated to interfere with the administration of justice; and (iii) other interference with the administration of justice, such as an accused person attempting to intimidate or suborn a juror, a newspaper printing a report of a trial in breach of the in camera rule, or a story which prejudices the right of an accused person to a fair trial. This last category is sometimes referred to as a breach of the sub judice rule.

12.  The purpose of criminal contempt remains something of a live issue, but it seems fair to say that the dominant purposes are related to upholding respect for the courts and the administration of justice generally, rather than simply ensuring compliance with particular orders. (Of course, a distinction along these lines is difficult to maintain rigidly, since the flouting of court orders might be considered one way in which the administration of justice could be undermined.) The other notable feature of criminal contempt is that sanctions imposed by the courts are generally characterised as punitive, rather than coercive, which has the consequence that there is no equivalent process to purging one’s contempt: only a determinate sentence can be imposed, and once imposed the contemnor cannot shorten it by thinking better of his actions. To put it another way, as with a normal criminal trial, upon handing down sentence the judge becomes functus officio.

13.  In procedural terms, the courts have long exercised a summary jurisdiction in respect of criminal contempt.417 In The State (Director of Public Prosecutions) v Walsh418 O’Higgins CJ said: “Prior to the foundation of the Irish Free State, the Courts in Ireland exercised a summary jurisdiction in respect of all forms of criminal contempt.” The court has an inherent power to commence proceedings itself in respect of a criminal contempt of court. This will be the normal course where the contempt is committed in facie curiae.419 In relation to other contempts, committed outside the immediate purview of the court, the position is more complicated. There seems to be a tradition in the Irish courts of the parties to litigation commencing criminal contempt proceedings.420 However, the English courts have expressed doubt as to whether it is appropriate for such proceedings to be commenced by any person other than one of the Law Officers of the State.421

14.  The Irish courts have, historically, tended to insist upon a fairly strict division between civil and criminal contempt,422 for reasons which are not directly relevant to the issues under consideration, but as shall be shown, this orthodoxy has been challenged by developments in relation to tribunals of inquiry.

15.  All forms of contempt have a hortatory function; that is to say they have a deterrent effect in relation to possible future contempts.423 To this extent, the jurisdiction is universally forward-looking. However, leaving aside this general observation, it may fairly be said that the hallmark of criminal contempt is that it looks backward, imposing punishment in respect of an act done, whereas civil contempt looks mainly to the future, imprisoning a person only as a means to the end of getting him to obey the court’s order.

16.  It should be said, however, that the division between civil and criminal contempt can produce some odd results, when viewed from a utilitarian perspective. Take the case of a person who, in the course of a hearing before a court refuses to answer a question. This is analysed as contempt in the face of the court, of the criminal species and therefore punishable only by a determinate sentence. Yet in most instances what the court really wants is to have the question answered. Coercion rather than punishment would seem to be appropriate, but it is not (traditionally at least) available. Similarly, if a person disobeys an order not to destroy a document there is little that can be done by way of coercion since the document cannot be recreated, but some form of punitive sanction might seem merited. However, as this is a civil contempt, the orthodox view is that no definite sentence can be imposed.

17.  With this brief synopsis of the law relating to contempt in mind, it is now appropriate to consider the enforcement mechanisms that apply in the context of tribunals of inquiry. Our treatment observes the distinction, drawn in paragraph between Section 1(2) of the Act of 1921 under which obstruction and disobedience constitutes an offence, punishable by imprisonment and or a fine; and Section 4 of the Act of 1997 which allows a tribunal, where one of its orders has not been complied with, to apply to the High Court for a supportive order and ancillary relief.

1.      Section 1(2) of the Act of 1921

18.  Section 1(2) of the Act of 1921, as originally enacted, armed tribunals of inquiry with fairly wide powers to deal with those who obstructed them in any way, coming close to conferring (albeit that it probably did not quite reach) a power to convict of an offence. That provision stated:

(2) If any person—

1.      on being duly summoned as a witness before a tribunal makes default in attending; or

2.      being in attendance as a witness refuses to take an oath legally required by the tribunal to be taken, or to produce any document…or to answer any question…; or

3.      does any other thing which would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court;

the chairman of the tribunal may certify the offence of that person under his hand to the High Court… and the court may thereupon inquire into the alleged offence and after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court.”424

19.  A similar provision fell to be considered by the Supreme Court in In re Haughey.425 The facts were that Mr Pádraic Haughey refused to answer certain questions put to him by the Committee of Public Accounts in the course of an investigation it was conducting. Under section 4(3) of the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act 1970 where any person refused to answer any question to which the committee could legally require an answer, then:

the committee may certify the offence of that person under the hand of the chairman of the committee to the High Court and the High Court may, after such inquiry as it thinks proper to make, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the High Court.”

20.  A divisional High Court sentenced Mr Haughey to six months’ imprisonment, from which decision he appealed to the Supreme Court, contending inter alia that section 4(3) was invalid having regard to the provisions of the Constitution. In the course of argument, three possible constructions of this provision were suggested, and were summarised by Ó Dálaigh CJ (who delivered the judgment of the Court in relation to the constitutional challenge) as follows:

(i) that the sub-section purports to authorise the Committee to try and convict, and thereupon to send the offender forward to the High Court for punishment;

(ii) in the alternative, that the sub-section merely authorises the Committee to complain to the High Court and, thereupon, it is for that court to try summarily and, if it should convict, to punish the offender;

(iii) in the further alternative, that the sub-section - as in (ii) - merely authorises the Committee to complain to the High Court and, thereupon, that it is for the court either summarily, or upon indictment (i.e., by jury), to try and, if it should convict, to punish the offender.”426

21.  Ó Dálaigh CJ noted the differences between the formula of words used in section 4(3) and that utilised by the Act of 1921. He attached significance to the fact that in the Act of 1921 there was reference made to “the alleged offence”, “the person charged with the offence” and “any statement that may be offered in defence”, all of which indicated that the High Court was entitled to exercise an independent judgment as to whether or not an offence had indeed been committed. By contrast, the Act of 1970 contained no such concessions. These considerations suggested that, on a straightforward interpretation of the subsection, (i) was the correct construction, as contended for by Mr Haughey. This would have been manifestly unconstitutional, because it would represent a usurpation of what was an exclusively judicial function: the administration of justice by trying and convicting an individual of an offence. However, the Court declined, having regard to the presumption of constitutionality,427 to interpret section 4(3) in this way.

22.  It was the second interpretation428 which commended itself to the Supreme Court. Mr Haughey’s argument on this point was that, because the potential penalty which may be imposed in respect of a contempt of court is unlimited, the subsection created a non-minor offence, which could not therefore be tried summarily. In response to this, the Attorney General submitted, relying on two earlier decisions,429 that summary trial was constitutionally permissible because the case was one of contempt of court, in respect of which such trials had been upheld. Ó Dálaigh CJ rejected this submission, in the following terms:

It is enough for this Court now to say that these two cases cannot assist the Attorney General’s submission. The High Court in the present case was not dealing with a charge of contempt of court. The impugned sub-section does not purport to make the offence here in question ‘contempt of court’; it does no more than direct that the offence, which is an ordinary criminal offence, shall be punished in like manner as if the offender had been guilty of contempt of court, that is to say, it defines the punishment for the offence by reference to the punishment for contempt of court. Moreover, it would not be competent for the Oireachtas to declare contempt of a committee of the Oireachtas to be contempt of the High Court. This is an equation that could not be made under the tripartite separation of the powers of government. The reasoning in O’Kelly’s Case and in Connolly’s Case does not support the Attorney General’s submission but, on the contrary, is inimical to it. The exception which the High Court (under Article 72 of the Constitution of the Irish Free State) in O’Kelly’s Case and (under Article 38 of the Constitution of Ireland) in Connolly’s Case engrafted on the injunction for trial by jury430 is based on the inherent jurisdiction of the High Court to ensure the administration of justice without obstruction. That is to say, the exception finds its source and justification in…Article 34. Neither O’Kelly’s Case nor Connolly’s Case makes any exception in respect of the trial of ordinary criminal offences which are not minor offences.”431

23.  Thus with the Attorney General’s defensive argument grounded on contempt of court rejected, Mr Haughey’s submission prevailed. Ó Dálaigh CJ went on to hold that the High Court could not legally hold a summary trial in respect of a criminal offence, as it was not a court of summary jurisdiction within the meaning of Article 38.2 of the Constitution. Hence a criminal trial in the High Court could not be held otherwise than with a jury. The Court further held that the terms of section 4 of the Act of 1970 could not be stretched, even having regard to the presumption of constitutionality, to allow of an interpretation whereby the “inquiry” in the High Court could be conducted with a jury.432

24.  The decision in In re Haughey almost certainly prompted the amendment to section 1(2) of the Act of 1921, brought about by the Act of 1979. Presumably amendment was not considered urgent until it became apparent that a tribunal would have to be set up to investigate a disastrous explosion and fire at Whiddy Island, County Cork. Having regard to the broad manner in which the Supreme Court’s reasons were stated, and notwithstanding that section 1(2) of the Act of 1921 was compared favourably with section 4(3) of the Act of 1970, this was a necessary step. Section 1(2) was clearly affected by the same infirmity: that of permitting the summary trial of a non-minor offence. Section 3 of the Act of 1979 replaced it with the following provision.

(2) If a person—

1.      on being duly summoned as a witness before a tribunal, without just cause or excuse disobeys the summons, or

2.      being in attendance as a witness refuses to take an oath or to make an affirmation when legally required by the tribunal to do so, or to produce any documents (which word shall be construed in this subsection and in subsection (1) of this section as including things) in his power or control legally required by the tribunal to be produced by him, or to answer any question to which the tribunal may legally require an answer, or

3.      wilfully gives evidence to a tribunal which is material to the inquiry to which the tribunal relates and which he knows to be false or does not believe to be true, or

4.      by act or omission, obstructs or hinders the tribunal in the performance of its functions, or

5.      fails, neglects or refuses to comply with the provisions of an order made by the tribunal, or

6.      does or omits to do any other thing and if such doing or omission would, if the tribunal had been the High Court, have been contempt of that Court,

the person shall be guilty of an offence.”

25.  The new provision accords quite closely with section 82(7) (b) (iv) of the Local Government (Planning and Development) Act 1963, which has been described by Ó Dálaigh CJ in In re Haughey as a “wholly unobjectionable formula”.433 The tribunal is given no power to “certify” an offence, and for a conviction to be obtained the constituent elements of the offence must be proved, to the criminal standard, in the normal way. It is a significant practical point that, under sub-section (2A), newly introduced by the Act of 1979, provision is made whereby the offence may be tried either on indictment or summarily (by the District Court), provided that: (i) the District Judge is of opinion that the facts proved or alleged against the defendant constitute a minor offence fit to be tried summarily, (ii) the Director of Public Prosecutions consents, and (iii) the defendant (on being informed by the Judge of his right to be tried by a jury) does not object to being tried summarily. It is therefore clear that the accused person may insist on trial by jury. However, this issue is addressed more fully in Chapter 11, at paragraph - , where we recommend a fundamental change on this point under the Tribunals of Inquiry legislation.

1.      Particular Amendments of section 1(2) of the 1921 Act (as amended)

26.  The Commission will consider here whether any changes are necessary to the offences created by the present version of section 1(2) quoted at paragraph . In the first place, we have nothing to say about paragraphs (a)-(c), except that they seem to us to be necessary and appropriately drafted.

27.  In its Report on Contempt of Court,434 the Commission recommended the repeal of section 1(2) (d) and its replacement with a new provision, making it an offence to disrupt a tribunal in the course of its proceedings. The Commission was of the view that section 1(2) (d) was too broad in its ambit, was an unwarranted interference with freedom of expression on matters of serious public concern and rendered criminal conduct which should be permitted. The Commission also recommended that there should be created a number of specific offences dealing with interference (otherwise than by way of publication) with the administration of a tribunal.435 Although the present Commission agrees that the performance of any of these acts should undoubtedly be punishable by criminal sanction, we are not so confident that the appropriate way in which to accomplish this is to attempt to identify each and every one of the various ways in which the work of the tribunal may be culpably be interfered with.436

28.  Moreover, the current Commission is of the opinion that it would be appropriate to afford some measure of protection to tribunals of inquiry in relation to matters published concerning them, and that this can be best accomplished by means of a provision such as section 1(2)(d). The primary argument against criminalising “scandalous” publications and other breaches of the sub judice rule is from freedom of expression. However, in the marketplace of ideas, the judge’s ability to answer criticism is non-existent, being hide-bound by centuries of judicial convention. That, the Commission is quite satisfied, is just as it should be. In these circumstances, it is appropriate that the capacity of others to criticise the judge should be somewhat limited, and it seems to us that a prohibition on scandalising accomplishes this. Having regard to the wording of section 1(2) (d), it is clear that the criticism would need to be extremely vitriolic and damaging for the offence to be committed, since only conduct which actually obstructs or hinders the tribunal in the performance of its functions qualifies. But that said, the Commission is of the view that the case for intervention to prevent such conduct (whether by publication or otherwise) is just as strong as in relation to the courts: after all, tribunals of inquiry may have to offend powerful interest groups; money talks and when it is hurt, it has powerful lungs, not least through the media. The fact that the Commission previously recommended the creation of the specific offences, quoted in footnote Error: Reference source not found, is implicit recognition of a similar view.

29.  A further point of difference concerns the fact that the earlier Commission was influenced by the view that if sections 1(2) (d) and (e) were to be retained they should be amended so as to include an express mens rea requirement (ie intentionally or recklessly…). But, the current Commission takes a different view on the issue of mens rea. Our view is that the mental element is implicit in the provisions and there is no necessity to state it expressly in the provisions.

30.  Accordingly, since the current Commission does not share the opinion that the sweeping nature of section 1(2) (d) to catch acts of publication is problematic. Rather, we see it as a definite advantage, and, since the same provision would clearly encompass the specific offences recommended by the Commission in its Report on Contempt of Court, the Commission thinks that the best course of action would be to retain section 1(2)(d).

31.  Also in its Report on Contempt of Court437 the Commission recommended the repeal of section 1(2) (e) partly because they felt the mens rea requirement was not sufficiently clear. However in light of the current Commission’s view of the mens rea requirement, which has been discussed at paragraph , there is no good reason why the failure or refusal to obey a lawful order of a tribunal of inquiry should not constitute an offence.

32.  Accordingly, the Commission recommends that section 1(2) (e) of the Act of 1921 should be retained.

33.  Further, in its Report on Contempt of Court438 the Commission recommended that it should be an offence to disrupt a tribunal in the course of its proceedings. However, in view of our comments in relation to the retention of sections 1(2) (d) and (e), above, the Commission is now of the view that the creation of such an offence is superfluous

34.  The decision in In re Haughey indicates clearly that in the context of obstruction of an inquiry it is not possible to invoke the summary procedure used by the High Court in the exercise of its contempt jurisdiction. According to Ó Dálaigh CJ, the only reason this procedure is appropriate, even in relation to contempt, is to allow the High Court to ensure the administration of justice without obstruction. The same considerations do not apply to a tribunal of inquiry which, although it is charged with an important task, has been held not to be involved in the administration of justice.439

35.  However, a further question seems to arise. If a tribunal of inquiry does not administer justice it must be open to question whether it is appropriate to define an offence committed in relation to a tribunal by analogy with contempt of court. It has been frequently stated that the gist of a criminal contempt is its tendency to damage the administration of justice. As an English judge has commented: “The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented.”440 The offence under paragraph (f) of section 1(2) can be committed by act or omission which would, if the tribunal were the High Court, constitute contempt of court. The issue has already been considered by the Commission, in its study of the law relating to contempt of court. 441

36.  In answering these arguments, it might be said that although a tribunal of inquiry does serve a different function from that entrusted to the courts, its function is nevertheless of considerable importance, and it is right that tribunals in general should be respected and that citizens should co-operate with them.

37.  However, the original view of the Commission seems to us to remain sound: the uncertainty that surrounds the law of contempt, even in its home territory of the administration of justice, is such that it seems to us to be inappropriate to attempt to transpose it to other areas of the law. The case law, and in particular the large number of successful appeals, suggests that contempt is not like the proverbial elephant; one does not always know it when one sees it. The contempt jurisdiction is the result of public policy, rather than the application of pre-announced legal principles and as one judge has shrewdly pointed out, “public policy is generally the result of strong feelings, commonly held, rather than of cold argument”.442 Defining criminal conduct by reference to “strong feelings” which are peculiar to the context in which they are felt seems to us to be an excessively uncertain way in which to develop the law. We therefore see no reason to depart from the Commission’s earlier recommendation.

38.  Accordingly, the Commission recommends the repeal of section 1(2) (f) of the Act of 1921 (as amended).

1.      Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997443

39.  At paragraph , we noted that there are two alternative mechanisms by which disobedience may be dealt with. The first which we have just reviewed is to the enforcement mechanism contained within Section 1(2) of the Act of 1921. The other to which we now turn is section 4 of the Act of 1997. This gives the tribunal the power to apply to the High Court, to back up one of its own orders with an order of the court. Section 4 provides as follows:

Where a person fails or refuses to comply with or disobeys an order of a tribunal, the High Court may, on application to it in a summary manner in that behalf by the tribunal, order the person to comply with the order and make such other order as it considers necessary and just to enable the order to have full effect.”

40.  The primary order which the section envisages the court making is one simply directing the person who has not complied with the tribunal’s order to do so. Provision is also made for ancillary orders, but only to the extent necessary to enable this primary order to have effect. At the second stage of the Bill’s passage through the Dáil, the sponsoring Minister, Mr. O'Donoghue stated:

Section 4 is intended to strengthen the position of tribunals of inquiry so as to ensure that its [sic] orders can be enforced… The provisions in the Constitution in relation to trial of offences are such that a tribunal cannot have the same powers as the High Court has to commit a person for failure to obey orders. However, in framing section 4 of the Bill I have taken into account section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997, which provides that where a person disobeys a direction of a committee the committee may seek an order of the High Court to have the direction complied with. Section 4 of the Bill is similar to the provisions in the 1997 Act and is intended to provide an effective method of enforcement of a tribunal’s orders.”444

41.  This provision has been described by the Supreme Court as one of a number of measures taken by the Oireachtas “to strengthen the powers available to… tribunals to ensure that the evidence which they require to bring their investigations to a comprehensive and speedy conclusion, whether it takes the form of oral testimony or documentary evidence, is made available to them as expeditiously as is practicable”.445 This purpose is achieved by a process of legal alchemy, whereby section 4 allows an order made by a tribunal of inquiry to be transformed into an order of the High Court, with all that that this entails, including the possibility of attachment and committal for contempt. In effect, the tribunal’s order becomes subsumed into the order of the court and, where that order is breached, the summary contempt jurisdiction is available to coerce the recalcitrant.446

42.  The perceived need for section 4 can perhaps be illustrated by reference to comments made by two Supreme Court judges, one in his capacity as chairman of a tribunal of inquiry, and the other in her judicial role. In his capacity as chairman of the “Kerry Babies Tribunal”, Lynch J addressed himself to a situation in which protests had taken place outside the premises in which the tribunal was sitting. He said:

[A]s a Judge of the High Court I have extremely wide powers to preserve the integrity of any proceedings over which I am presiding and I not only intend, but it is my duty, to exercise those powers where necessary, to ensure that this Tribunal will proceed in an orderly, free and open manner.”447

43.  And a little later:

As I have said, apart altogether from the offences created by Section 3 of the 1979 Act which would be matters for the Director of Public Prosecutions to bring before the Courts, I have the powers of a High Court Judge to commit to prison any person who threatens the integrity of this Tribunal… [I]f any person shall breach any of these prohibitions they shall be committed to prison by me.”448

44.  In the more reflective surroundings of the Supreme Court, Denham J has made comments quite at odds with these statements. In Lawlor v Flood, the learned judge said:

The powers of a tribunal are those conferred by legislation. The fact that the respondent is a judge of the High Court is not relevant to the determination of his jurisdiction as sole member of the Tribunal of Inquiry.”449

45.  With respect to the views of Lynch J, which it should be said were delivered in a tense and highly-charged atmosphere, Denham J is surely correct. A High Court judge sitting in this capacity as such has powers to commit an individual to prison only. This, however, does not apply when a High Court judge is acting as chairman of a tribunal of inquiry.450 Section 4 of the 1997 Act is an attempt to remedy what was clearly perceived as a deficiency in this regard, by allowing a tribunal to tap into the contempt powers of the High Court.

46.  Next, let us comment on the technique employed in section 4, and how it has been operated. Read literally, it might have been thought that a tribunal, drawing on its power to “make such orders as it considers necessary…” and, to do so, exercising “all such powers, rights and privileges as are vested in the High Court…” would itself make the necessary order. Then, if the person to whom the order is addressed fails to obey, it would be for the High Court straightaway to consider whether the order had been broken and, if so, to enforce it, including the possibility of attachment. Almost certainly, such an arrangement would be constitutional on the basis that, in making such an order, the tribunal would not be administering justice.451 Rather, the administration of justice does not occur until the stage at which the question of whether there has been a breach of the order is adjudicated upon, and this is always left to the High Court.

47.  Nevertheless, the Commission can see that there are policy reasons why it might be thought a good thing for the High Court also to be involved at the initial, but important stage of making the order. This is what is now provided for by section 4 of the 1997 Act. This provision presupposes the existence of a tribunal order (whether under section 1(1) of the 1921 Act, or s.4 of the 1979 Act), and then, itself, goes on to state that if the tribunal order is flouted, the High Court may make its own order, which will necessarily usually be at least similar to the tribunal order.

1.      Case study: The Flood v Lawlor saga

48.  At the time of writing, section 4 has been extensively (although, as we shall see, not quite comprehensively) tested. Its operation in practice can be illustrated by reference to the saga involving Mr Liam Lawlor TD and the Flood Tribunal, which, despite its prominence in the news media has not, we believe, been thoroughly analysed anywhere else. Due to the number of occasions upon which the matter has been before the High and Supreme Courts, this episode gives some insight into the courts’ approach to the provision. The decisions also shed light on the manner in which the courts will approach their own contempt jurisdiction, when it is invoked in support of the work of tribunals of inquiry.

49.  The story dates back to the spring of 1999. In April of that year, the Flood Tribunal made certain orders against Mr Lawlor, one of which required him to make discovery of certain documents. Mr Lawlor applied by way of judicial review to have these orders quashed and, on the 2 July 1999, was successful at first instance in respect of several orders, but not the one directing him to make discovery.452 That determination was not appealed to the Supreme Court.453 The decision of the Supreme Court in relation to the other orders (those quashed by the High Court) was delivered on the 8 October 1999, and