EMBARGO UNTIL: 2pm MONDAY 31 MARCH 2003
Law Reform Commission issues Consultation Paper on Public Inquiries Including Tribunals of Inquiry
The Law Reform Commission launches its Consultation Paper on Public Inquiries Including Tribunals of Inquiry on 31 March 2003. At present, there are several legislative codes which provide the legal framework for different types of public inquiry. This Paper deals with a number of these, among them: Company Inspectors; the Commission to Inquire into Child Abuse, Parliamentary Inquiries, and the 'Rolls Royce' among public inquiries, the Tribunal of Inquiry. It also considers five themes which are significant to all forms of inquiry: constitutional justice; publicity and privacy; the preliminary information-gathering stage; costs, and the difficulties arising in a subsequent criminal trial, where this covers the same ground as an inquiry. While these issues are dealt with mainly in the context of tribunals of inquiry, the comments and proposals made in respect of them will usually, with slight adjustment, be relevant to other types of public inquiry.
This Consultation Paper makes the observation that a very extravagant measure of constitutional justice has been granted sometimes in circumstances where it was not legally or constitutionally required. For instance, though it may have been considered appropriate for other reasons, it was not constitutionally required that the victims, for instance, of child abuse or of error at the BTSB should be separately represented, since the questions put on their behalf could have been asked by counsel for the tribunal. Likewise, those who make allegations against a person whose conduct is under investigation, such as the deputies before the Beef Tribunal who had relayed their constituents' allegations against Goodman International, need not be separately represented any more than the witness in a court case. It bears saying, too, that the amplitude of constitutional justice granted may have something to do with the fact that inquiries have sometimes been designed to go beyond what the Commission considers should be their primary task of discovering what happened and why, and venturing into the role of assigning blame, which may best be left to a criminal trial.
This Consultation Paper addresses the basic question of how far, consistent with fair procedures, it is 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 best way of doing this is to ensure that the inquiry has one or more of the following characteristics:
- It would be held in private, though, at the same time, the report emanating from the inquiry may be published. The obvious advantage of this is that accusations against a person, made by possibly prejudiced witnesses and often amplified by the mass media, are not bruited forth to the world immediately. At most, if the inquiry finds the accusations to be substantiated, a version of them will appear in the final report, together with the inquiry's measured judgment;
- The inquiry report would emphasise the flaw or malfunctioning of the institution, big business or profession involved, rather than the sins of an individual wrongdoer;
- As well as the conclusions, where a point is disputed, the Report would include comments on or even disagreement with those conclusions by any person whose good name or conduct is called into question. Thus, each side of the argument is recorded.
Based on this analysis, the Commission recommends that legislation be enacted providing for a private, low-key inquiry which concentrates on the wrong or malfunction in the system and not the wrong-doer. The Department of Justice's proposed legislation in relation to committees of investigation sounds to the Commission as if it would be a useful move in this direction. It should be stressed that an inquiry of this type will not meet all requirements. Because of the limitations just mentioned and depending on the circumstances, it will not always be what is required.
The Commission also wishes to emphasise that, even under the existing law, the State is not legally or constitutionally required to pay the costs of all parties represented before a tribunal. Costs were not paid to every party, for instance, in the Whiddy or Stardust Tribunals of Inquiry, and this only came to be regarded as the common practice in the Beef Tribunal. The Commission proposes a draft that would make this even clearer than it is in the existing law.
As regards the separate question of how to minimise the amount of costs, the Commission emphasises that the inquiry itself should give considerable thought to what level of representation it engages and allows for particular tasks. There is some scope for a closer match between the difficulty of the work and the ability and experience (and therefore cost) of the lawyer retained to do it; for instance, not paying a senior counsel to do work which could be done as well by a junior counsel. Secondly, the arrangements regarding the division of subject-matter and the sequence in which topics are taken, which have been adopted in recent tribunals, should be followed, so as to minimise wasted time. Thirdly, the Commission suggests that a means of calculating legal costs and expenses be devised, which is more appropriate to pay for guaranteed employment for several months or years, rather than the present system of a daily rate, which was originally designed for a trial which lasts several days or, at most, weeks. (Such a formula would naturally take it into account that a barrister who has been employed full-time by a tribunal for some time, cannot immediately resume private practice at the same level, because the solicitors who sent work will have briefed other barristers.) However, it must be said that, if leading practitioners are to continue to be attracted to this work, the change in the way payment is calculated will not necessarily mean a significant reduction in the total cost. Fourthly, it is also suggested that a 'scheme' whereby a barrister is remunerated for work done rather than simply on a daily basis be put in place where it is appropriate. Finally, where possible, legal representation should be pooled, where parties may have interests in common.
The legal code presently governing Tribunals of Inquiry is made up of six separate and inconvenient-to-use statutes. To meet this difficulty, the Commission includes in its Paper a comprehensive draft Bill which not only consolidates the existing legislation but incorporates a number of substantive changes. Among these is a requirement that a tribunal of inquiry should be under a legal obligation to comment on its terms of reference within four weeks of beginning its work. In addition, various methods are proposed for fast-tracking judicial review proceedings taken in respect of decisions of tribunals of inquiry. The Commission also considers that an express power should be given to the relevant minister or the Government, acting on foot of a resolution of both Houses of the Oireachtas, to terminate a tribunal of inquiry where it has been sitting for some time and seems unlikely to bear fruit. The Commission also considers whether or not tribunal proceedings should be broadcast. It specifies certain circumstances in which broadcasting should be permitted, and includes a draft section that sets out guidance to those chairing inquiries in deciding whether to allow broadcasting. In the Appendix to the Consultation Paper, there is a written protocol, dealing with such questions as: camera angle, editing or copyright, which is presently being used in relation to the broadcasting of the Dr Shipman Inquiry in Britain.
The Consultation Paper is intended to form the basis for discussion, and its recommendations are provisional only. The Commission will make its final recommendations in a Report which will be prepared following consultation with interested parties. To that end, those who wish to make submissions are requested to do so in writing to the Commission by 1 July 2003.