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Irish Law Reform Commission Papers and Reports |
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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
B Public Inquiries
C Investigatory Inquiries
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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]
D Commissions of Investigation
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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]
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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) 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
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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.
"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."
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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.
(4) Costs
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]
(5) Connection with Tribunals of Inquiry
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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]
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]