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Irish Law Reform Commission Papers and Reports


You are here: BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >> Public Inquiries Including Tribunals Of Inquiry, Report on (LRC 73-2005) [2005] IELRC 73(1) (May 2005)
URL: http://www.bailii.org/ie/other/IELRC/2005/3(1).html
Cite as: [2005] IELRC 73(1)

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    CHAPTER 1 PUBLIC INQUIRIES
    A Introduction

    1.01     In this Chapter, the Commission examines the role and functions of public inquiries, in particular investigatory inquiries. The Commission discusses why this Report concentrates primarily on investigative public inquiries, in particular tribunals of inquiry and commissions of investigation. The Commission also makes some limited recommendations for reform of the Commissions of Investigation Act 2004.

    B Public Inquiries

    1.02     The term "public inquiry" has a very broad meaning, which encompasses a variety of fact-finding procedures ranging from the most formal types of investigatory inquiry, namely, tribunals of inquiry, to everyday policy inquiries such as those carried out by the Commission on State Pensions.

    C Investigatory Inquiries

    1.03     This Report is concerned with investigatory inquiries. Investigatory inquiries may be defined as inquiries whose function is to ascertain authoritatively facts and, where appropriate, to make recommendations to prevent recurrence.

    1.04     Irish law makes provision for a number of different types of investigatory inquiry. These range from special inquiries established to investigate a particular event or series of events, such as tribunals of inquiry, to other inquiries such as planning inquiries. This Report will confine itself primarily to an examination of the tribunal of inquiry and, to a limited extent, the recently established commission of investigation. By contrast, in the Consultation Paper, the Commission considered a number of other types of investigatory

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    inquiry, namely inspectors under the Companies Acts,[1] the Commission to Inquire into Child Abuse,[2] and Oireachtas inquiries.[3] The Commission decided to narrow its focus for a number of reasons.

    (1) Company Inspectors

    1.05     In relation to inspectors appointed under the Companies Acts, the Commission concluded that these should be considered alongside other specific inquiries such as those under the Transport Acts, and not in the context of inquiries established to inquire into definite matters of public concern. The Commission considered that these inquiry methods should continue to be regulated by their specific legislative frameworks.[4]

    (2) Commission to Inquire into Child Abuse

    1.06     In relation to the Commission to Inquire into Child Abuse, the Commission concluded that a reconsideration of the Commission to Inquire into Child Abuse is not now necessary, partly because the Commission did not make any recommendations in respect of the Commission to Inquire into Child Abuse in the Consultation Paper, and partly because a widespread review process has been undertaken, and amending legislation is currently under consideration by the Oireachtas.[5] In such circumstances, the Commission considers it inappropriate to deal with this form of investigatory model.

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    (3) Oireachtas Inquiries

    1.07     In relation to Oireachtas inquiries, the Commission has decided not to revisit this topic because, as was pointed out in the Consultation Paper, the decision of the Supreme Court in Maguire v Ardagh[6] prevents Oireachtas inquiries from embarking on adjudicatory inquiries into the conduct of non-office holders, such as the conduct of individual Gardaí in relation to the death of Mr John Carthy in Abbeylara,[7] and would probably require a constitutional amendment to do so.[8] The Commission does not generally make recommendations which require constitutional amendment as the Oireachtas Committee on the Constitution more appropriately deals with these.

    1.08     The Commission wishes to stress however that while the decision of the Supreme Court in Maguire v Ardagh[9] prohibits the Oireachtas from carrying out an Abbeylara type inquiry where an adjudication of some type might be made on individuals, it does not prevent the Oireachtas from carrying out inquiries into policy matters or the activities of the holders of public office.[10] The decision of the Supreme Court is confined to deciding that the Oireachtas is prohibited from conducting the types of inquiry which the Tribunals of Inquiry (Evidence) Act 1921 was, in many respects, enacted to replace.[11]

    1.09     The remainder of this Report will thus focus on tribunals of inquiry and to a limited extent, commissions of investigation.

    D Commissions of Investigation

    1.10     Before proceeding to examine the law relating to tribunals of inquiry the Commission will consider to a limited extent

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    commissions of investigation. This is because the Commissions of Investigation Act 2004 provides a framework for investigations which may act as alternatives to or, where it proves necessary to investigate a matter further, precursors to, tribunals of inquiry.

    1.11     Disenchantment with the cost and length of tribunals of inquiry led to calls for the introduction of a less expensive and speedier method of investigating matters of urgent public concern. Various possibilities were canvassed including the use of Oireachtas inquiries, leading ultimately to the enactment of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997. However, the decision of the Supreme Court in Maguire v Ardagh[12] means, in effect that Oireachtas Committees are precluded from making adjudications that affect an individual's rights, including the right to good name and reputation. In response to this a number of further options were canvassed, including a Parliamentary Inspector or the provision of a low key, preliminary inquiry.[13] Ultimately, the Commissions of Investigation Act 2004 was enacted. The Commission considers that the 2004 Act provides a useful legislative framework, in particular because it deals with issues such as establishment, terms of reference and costs which the Tribunals of Inquiry (Evidence) Acts 1921 to 2004 do not cover.

    1.12     The Commissions of Investigation Act 2004 provides for the establishment of commissions of investigation to investigate any matters of "significant public concern." These are intended to be alternatives to or, where it proves necessary to investigate a matter further precursors, to tribunals of inquiry.[14]

    1.13     The first commission of investigation was established in April 2005 to look into the Garda investigation into the Dublin and Monaghan bombings of 1974, which resulted in the death of 33 people. The commission of investigation was established in response to the recommendations of the Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights in 2004. That report

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    followed the Committee's consideration of the report on the bombings by the Independent Commission of Inquiry conducted by Mr Justice Henry Barron, a retired Supreme Court judge. The Government appointed Mr Patrick MacEntee SC as sole member of the commission of investigation. The Government requested that the commission report within 6 months of its establishment.[15]

    1.14     The Commissions of Investigation Act 2004 contains a number of significant provisions on which the Commission comments, particularly by way of comparison and contrast with the Tribunals of Inquiry (Evidence) Acts 1921 to 2004.

    (1) Establishment

    1.15     A commission of investigation may be established by the Government, based on a proposal by a Minister, with the approval of the Minister for Finance, to investigate any matter considered by the Government to be of "significant public concern."[16] This can be contrasted with the phrase "definite matter of urgent public importance" in the Tribunals of Inquiry (Evidence) Act 1921. The order establishing a commission of investigation must set out the matter that is to be investigated and the Minister responsible for overseeing the administrative matters relating to the establishment of the commission, for receiving its reports and performing any other functions accorded to the specified Minister by the Commissions of Investigation Act 2004.[17] The Houses of the Oireachtas must consent to the establishment of a commission of investigation. A draft of the proposed order and a statement of the reasons for establishing the commission of investigation must be laid before both Houses and a resolution approving the draft must be passed by each House.[18]

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    (2) Terms of Reference

    1.16     The order establishing the commission may authorise the specified Minister to set the commission's terms of reference.[19] In the absence of such an authorisation, the terms of reference may be set by the Government.[20] The 2004 Act clearly envisages that the body setting the terms of reference, be it the Government or the specified Minister, will engage in a process of consultation with interested parties insofar as it accords the body setting the terms of reference the power to do so.[21]

    1.17     The 2004 Act envisages that the terms of reference will be stated as precisely as possible.[22]The terms of reference must set out as clearly and as accurately as possible, the events, activities, circumstances, systems, practices or procedures to be investigated, together with the relevant dates, locations and individuals involved.[23] This may be contrasted with the Tribunals of Inquiry (Evidence) Act 1921, which does not deal with this issue. In addition, the Minister responsible for the operation of the commission must ensure that as soon as possible after the terms of reference are set, an accompanying statement is prepared containing an estimate of the costs of the commission and the length of time it will take. This must be published, as soon as possible after the terms of reference are set, in Iris Oifigiúil and such other publications as the Minister considers appropriate.[24]

    (3) Procedures and Private Nature

    1.18     The 2004 Act gives the commission the power to conduct its investigation in any manner it considers appropriate, subject to the Act and the commission's rules and procedures.

    1.19     The commission is under a statutory duty to seek, and to facilitate, the voluntary cooperation of persons whose evidence is

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    required by the commission. In addition, the commission is under a duty to conduct its proceedings in private unless: (a) the witness requires that his or her evidence be given in public and the commission consents to that request; or (b) the commission is satisfied that it is desirable in the interests of both the investigation and fair procedures to hear all or part of the evidence in public.

    1.20     This may be contrasted with the 1921 Act, which provides that tribunals sit in public unless compelling reasons exist for sitting in private.

    1.21     The 2004 Act also clearly sets out the rights of interested parties at private sessions. Section 11(2) of the 2004 Act states:

    "Where the evidence of a witness is heard in private—
    (a) the commission may give directions as to the persons who may be present while the evidence is heard,
    (b) legal representatives of persons other than the witness may be present only if the commission—
    1. is satisfied that their presence would be in keeping with the purposes of the investigation and would be in the interests of fair procedures, and
    2. directs that they be allowed to be present,
    (c) the witness may be cross examined by or on behalf of any person only if the commission so directs, and
    (d) any member of the commission or a person who has been appointed under section 8 and is authorised by the commission to do so may, orally or by written interrogatories, examine the witness on his or her evidence."

    1.22     Section 14 of the 2004 Act deals with the form and manner in which evidence may be given. It provides that a commission may receive evidence given orally before the commission, by affidavit, or as otherwise directed by the commission or allowed by its rules and procedures. This may include by means of a live video link, a video recording, a sound recording or any other mode of transmission.

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    Section 15 confers on commissions the power to establish their own rules and procedures in relation to evidence and submissions received.

    1.23     In addition, the commission is entitled to compel witnesses to give evidence whether under oath or by means of interrogatories. The 2004 Act also introduces "a notice to admit" procedure similar to that in Order 32 of the Rules of the Superior Courts 1986. The commission is entitled to direct in writing any person to provide the commission with a list, verified by affidavit, disclosing all documents in the person's possession or power relating to the matter under investigation, and to provide the commission with those documents, except those for which privilege is claimed. A failure to comply with this process may result in an application to the High Court to compel compliance, or the imposition of an order against the individual for the costs incurred by all other parties arising from the delay.

    (4) Costs

    1.24     Section 23 of the 2004 Act provides that the specified Minister must prepare guidelines for the payment of legal costs before commissions of investigation. Such general guidelines must be prepared in consultation with the commission and require the consent of the Minister for Finance.

    1.25     The 2004 Act states that legal costs will be regarded as being incurred where the good name, conduct or other personal or property rights of a witness is called into question by evidence received by the commission.

    1.26     Section 23 of the 2004 Act also provides that the guidelines may restrict the types of legal services or fees for which payment may be made and otherwise limit the extent to which costs may be paid. The commission is obliged to furnish a copy of these guidelines to a witness before evidence is given.

    1.27     The Commission has come to the conclusion that this restriction on costs in section 23(3) of the 2004 Act is in conflict with the decision in Re Commission to Inquire into Child Abuse.[25] In this case, the applicant, the Commission to Inquire into Child Abuse, sought to limit the right to legal representation before its investigation

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    committee to one solicitor and one counsel. The applicant took the view that such a course of action was necessitated by section 4 of the Commission to Inquire into Child Abuse Act 2000, which requires the Commission to provide an atmosphere which is as sympathetic and as understanding as possible to persons who allege that they were abused. The High Court in finding that the applicant had no jurisdiction to make the direction held that the right to legal representation before a tribunal was a constitutional one thus following the decision of the Supreme Court in In Re Haughey.[26] Therefore:

    "justice requires … that parties be free prudently and reasonably to decide on and be permitted to have present parties, at all relevant times, the solicitors and counsel of their choice in whatever number was required to prosecute or defend claims before the applicant to best effect."[27]

    1.28     Applying this reasoning to section 23 of the 2004 Act the Commission has concluded that a restriction in any general guidelines on costs as to the types of legal services or fees for which payment may be made and a limitation on the extent to which costs may be recoverable could, in effect, amount to a restriction of an individual's discretion to have present at all relevant times the legal representation of their choice. The Commission accordingly recommends that section 23(3) of the 2004 Act be repealed.

    1.29     The Commission recommends that section 23(3) of the Commissions of Investigation Act 2004, which restricts the types of legal services or fees for which payments may be made, be repealed.

    (5) Connection with Tribunals of Inquiry

    1.30     The 2004 Act also envisages that in certain circumstances it may be deemed appropriate to establish a tribunal of inquiry to inquire into a matter which was within the commission of investigation's terms of reference. In such circumstances, the specified Minister or the commission, if it has not been dissolved, shall make available to the tribunal all the commission's evidence and

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    documents.[28] This has the potential to result in a significant saving in time and cost in those situations where it is deemed necessary to establish a tribunal of inquiry because of the preparatory work carried out by the commission of investigation. This also indicates that a commission of investigation can be seen as a low key precursor to a tribunal of inquiry an approach which is consistent with the views expressed by the Commission in the Consultation Paper.[29]

    1.31     This also provides a useful link to the remainder of this Report, which focuses exclusively on the law of tribunals of inquiry. Where relevant, the Commission makes references throughout the Report to the 2004 Act, both for comparison and contrast with comparable issues that arise in the context of tribunals of inquiry.

Note 1   See the Consultation Paper, Chapter 2.    [Back]

Note 2   See the Consultation Paper, Chapter 3.    [Back]

Note 3   See the Consultation Paper, Chapter 4.    [Back]

Note 4   The Commission notes that, by contrast, the UK Inquiries Act 2005, which replaces the Tribunals of Inquiry (Evidence) Act 1921 in the United Kingdom, incorporates many of these sector-specific inquiries under a single legislative framework.     [Back]

Note 5   See Commission to Inquire into Child Abuse (Amendment) Bill 2005. The background to the Bill may be gleaned from a perusal of the following documents: Attorney General, Report to the Government on the Review of the Laffoy Commission (Made pursuant to Government Decision S180/20/10/0270B of 3 December 2002); Sean Ryan SC, Review of the Commission to Inquire into Child Abuse (2004); Investigation Committee, A Position Paper on Identifying Institutions and Persons under the Commission to Inquire into Child Abuse Act 2000 (2004); and Decision of the Investigation Committee in Relation to the Position Paper (2004).    [Back]

Note 6   [2002] 1 IR 385.    [Back]

Note 7   A tribunal of inquiry was subsequently established to inquire into the events, the Barr Tribunal.    [Back]

Note 8   See the Consultation Paper at paragraphs 4.22- 4.54.    [Back]

Note 9    [2002] 1 IR 385.    [Back]

Note 10   See the Consultation Paper at paragraphs 4.30-4.45.    [Back]

Note 11   See paragraphs 2.06ff.    [Back]

Note 12   [2002] 1 IR 385. See paragraph 1.07 above and the detailed discussion in the Consultation Paper, paragraphs 4.22-4.54.    [Back]

Note 13   The Commission recommended a low-key form of inquiry at paragraph 10.16 of the Consultation Paper.    [Back]

Note 14   Section 3(1) of the Commissions of Investigation Act 2004.    [Back]

Note 15   See the Commission of Investigation (Dublin and Monaghan Bombings) Order 2005 (SI No 222 of 2005) and available at www.taoiseach.gov.ie/index.asp?locID=docID=1954    [Back]

Note 16   Section 3(1) of the Commissions of Investigation Act 2004.    [Back]

Note 17   Section 3(3) of the Commissions of Investigation Act 2004.    [Back]

Note 18   Section 3(2) of the Commissions of Investigation Act 2004.    [Back]

Note 19   Section 4(1) of the Commissions of Investigation Act 2004    [Back]

Note 20   Section 4(2) of the Commissions of Investigation Act 2004    [Back]

Note 21   Section 4(3) of the Commissions of Investigation Act 2004    [Back]

Note 22   Section 5(1) of the Commissions of Investigation Act 2004.    [Back]

Note 23   Section 5(1) of the Commissions of Investigation Act 2004    [Back]

Note 24   Section 5(2)(b) of the Commissions of Investigation Act 2004.    [Back]

Note 25   [2002] 3 IR 459.    [Back]

Note 26   [1971] IR 217. See paragraph 5.14 below.    [Back]

Note 27    [2002] 3 IR 459, 478-479.    [Back]

Note 28   Section 45 of the Commissions of Investigation Act 2004.    [Back]

Note 29   See the Consultation Paper at paragraph 10.16.    [Back]

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