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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(2) (May 2005) URL: http://www.bailii.org/ie/other/IELRC/2005/3(2).html Cite as: [2005] IELRC 73(2)

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CHAPTER 2 NATURE OF AND ESTABLISHMENT OF TRIBUNALS OF INQUIRY

A Introduction

2.01     In this chapter, the Commission examines the law and practice relating to the establishment of tribunals of inquiry and makes recommendations for reform. The Commission also considers the suggestion that a Standing Inspectorate or a Central Inquiries Office should be established. The Commission also considers whether tribunals should be conferred with separate personality and the related issue of recognising their independence.

B Tribunals of Inquiry

(1) Introduction

2.02     Tribunals of Inquiry have been a regular feature of Irish life since the foundation of the State. They have been established to inquire into such matters as:

• Policy issues;

• Accidents or major disasters;

• Allegations of corruption;

• Deaths of individuals, where the State is involved.

2.03     It is important to state at the outset that tribunals of inquiry are not courts. As the Supreme Court authoritatively held in Goodman International v Hamilton,^[1] they are not involved in the administration of justice and they have no power to determine civil or criminal liability. The Supreme Court also held that tribunals should not, however, be inhibited from making recommendations or findings merely because of a potential impact on civil or criminal proceedings.

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2.04     Most tribunals established in the State have been conferred with the powers contained in the Tribunals of Inquiry (Evidence) Act 1921.^[2] This Act has been amended on 6 occasions since 1921, so that tribunals of inquiry are now governed by 7 pieces of legislation, which may be collectively cited as the Tribunals of Inquiry (Evidence) Acts 1921 to 2004^[3] The Commissions of Investigation Act 2004 is also relevant as it introduces a form of inquiry, the commission of investigation, which is expressed as an alternative to, or a precursor to, a tribunal of inquiry.^[4]

2.05     The Tribunals of Inquiry (Evidence) Act 1921 provides that tribunals of inquiry may be established to inquire into "definite matters of urgent public importance."^[5] It is therefore open to the Government to establish a tribunal of inquiry into any such matter, which may now be contrasted with the text in the Commissions of Investigation Act 2004, namely a matter of "significant public concern."^[6] The principal function of a tribunal of inquiry is to ascertain authoritatively the facts in relation to some matter of legitimate public interest which has been identified by its terms of reference and, where appropriate, to make recommendations as to how the future occurrence of the matter may be rendered less likely.

(2) History

2.06     The Tribunal of Inquiry owes its immediate origin to the Tribunals of Inquiry (Evidence) Act 1921 but its history may be traced back to the Committee of Inquiry established by the House of

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Commons in 1667, following the fall of Sir Edward Hyde, Earl of Clarendon, to inquire into the manner in which Charles II and his Ministers had spent taxes voted to them by Parliament. Parliamentary Committees were utilised as the primary method of investigating matters of urgent public concern until 1921.^[7]

2.07     In 1921 a Member of Parliament, Captain Loseby, made certain allegations against the Minister for Munitions, relating to the disposal of Ministry stocks and, as the accusations were pressed, it was decided that they warranted investigation. The ordinary procedure would have been for the House of Commons to establish a Committee of Inquiry such as had been used from 1667 onwards. However, since such Committees had no powers to examine witnesses on oath, and since this power had been sought by some of the members pushing for an inquiry into the munitions affair, the Government proposed a new procedure, which was enacted as the Tribunals of Inquiry (Evidence) Act 1921.^[8]

(a) Irish Tribunals of Inquiry

2.08     In the early years of the State the tribunals of inquiry mechanism was utilised in a number of different circumstances. They were established to inquire into policy issues such as retail prices, the ports and harbours of the State, the marketing of butter, pig production, the grading of fruit and vegetables, the law and practice relating to town tenants, the state of public transport, the supply and distribution of milk in the Dublin Area and cross channel ferry rates. In the Commission's view, such policy inquiries are more appropriately a matter for other modes of inquiry, whether Oireachtas inquiries or other non-statutory commissions.^[9]

2.09     Similarly, the tribunal of inquiry process was used to inquire into such quasi-criminal matters as the circumstances surrounding the death of Timothy Coughlan and the death of Mr Liam

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O'Mahony in Garda custody. The process was also used in the aftermath of what might be termed disasters, such as the Pearse Street Fire and the St Joseph's Orphanage Fire. It was also used for the purpose for which the legislation was initially passed, namely to inquire into allegations of political corruption, such as the inquiry into the sale of shares in the Great Southern Railway Company, the inquiry into allegations made against a Parliamentary Secretary, and the inquiry into allegations surrounding the sale of Locke's Distillery. A further corruption inquiry was instituted in 1975 when a tribunal of inquiry was established to inquire into allegations concerning the Minister for Local Government.

2.10     In recent years, tribunals have been established to inquire into the Whiddy Island Disaster, the Stardust fire, the Kerry Babies Scandal, the beef processing industry, the blood transfusion board, political corruption, planning matters, Garda conduct, and collusion with the IRA.

(3) Inquisitorial Nature of Tribunals of Inquiry

2.11     It should be noted that tribunals of inquiry are inquisitorial in nature. As Denham J put it in Boyhan v Beef Tribunal "[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."^[10] The importance of this distinction, between the inquisitorial and the adversarial, is the key to a proper understanding of the operation of tribunals of inquiry.

2.12     In inquisitorial systems the decision maker initiates the investigation, summons the witnesses and examines them in what is essentially an inquiry by the court. By contrast in adversarial systems the responsibility for collecting and presenting evidence lies generally with the party who seeks to introduce that evidence, and the decision maker stands aloof and adjudicates having heard both side.

2.13     The Irish legal system generally favours the adversarial system and has developed long-standing and effective safeguards to protect the individuals who participate in that process. However, the existence of inquisitorial tribunals of inquiry is a recognition that there are certain circumstances in which an adversarial model is not

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appropriate. The Commission agrees with the Royal Commission on Tribunals of Inquiry (the Salmon Commission) where it stated: "it is essential on the very rare occasions when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out: or if does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed. We are satisfied that this would be difficult if not impossible without public investigation by an inquisitorial tribunal."^[11]

2.14     The Commission considers that the inquisitorial nature of tribunals of inquiry should be in the minds of all of those involved in tribunals of inquiry, and that procedures developed and applicable in the adversarial process should only be extended to tribunals of inquiry when absolutely necessary. For this reason, the Commission recommends that the tribunals of inquiry legislation be amended to state explicitly that they are inquisitorial in nature.

2.15     The Commission also recommends that it would be beneficial if the legislation was amended to make explicit the views expressed by the Supreme Court in Goodman International v Hamilton,^[12] that a tribunal of inquiry has no power to determine, or rule on, any persons civil or criminal liability, but that this should not inhibit a tribunal in making findings or recommendations.

2.16     The Commission recommends that the tribunals of inquiry legislation be amended to provide that:

• Tribunals of Inquiry are inquisitorial in nature.

• Tribunals of Inquiry have no power to determine or to rule on, any person's civil or criminal liability.

• A Tribunal of Inquiry is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes.

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(4) Purposes and Functions of Tribunals of Inquiry

2.17     Tribunals of inquiry have six primary purposes or functions. These are:

• To establish what happened, especially in circumstances where the facts are disputed, or the course and causation of events is not clear;

• To learn from what happened, and so helping to prevent their recurrence by synthesising or distilling lessons, which can be used to change practice. This includes identifying shortcomings in law or regulations;

• To provide catharsis or therapeutic exposure, providing an opportunity for reconciliation and resolution, by bringing protagonists face to face with each other's perspectives and problems;

• To provide reassurance, by rebuilding public confidence after a major failure

• To establish accountability, blame, and retribution —holding people and organisations to account, and sometimes indirectly contributing to assigning blame and to mechanisms for retribution;

• For political considerations —serving a wider political agenda for government either in demonstrating that "something is being done" or in providing leverage for change.^[13]

2.18     Tribunals of inquiry may be divided into three categories, general inquiries, specific inquiries and mixed inquiries. General inquiries concentrate on the wrong or malfunction in the system rather than on the individual wrong doer. Specific inquiries investigate allegations of wrongdoing levelled against particular individuals or organisations in relation to matters of public importance. Mixed inquiries concentrate on the wrong or malfunction in the system and as part of this identify individuals who contributed to such wrongdoing.

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2.19     Because tribunals are established to inquire into what the 1921 Act refers to as matters of urgent public importance there may in many cases be a strong desire on the part of both those establishing public inquiries and the public for inquiries to establish liability and to punish individuals. This desire is particularly strong where the matter under investigation is a high profile or controversial occurrence. While this desire is understandable, it is not a legitimate function of public inquiries, which should not be used as surrogates for the criminal or civil justice processes. Tribunals are designed to investigate facts and make recommendations to prevent reoccurrence, not to establish liability or punish people.

2.20     In the Consultation Paper, the Commission considered in detail the advantages and disadvantages of establishing tribunals of inquiry, and concluded that they should only be established in the most serious cases where no other alternative means of protecting the public interest is available.^[14] The Commission sees no reason to depart from that view and would add that the enactment of the Commissions of Investigation Act 2004 provides a further alternative method of investigation.^[15]

2.21     The Commission recommends that as tribunals of inquiry are designed to investigate facts and make recommendations to prevent re-occurrence, rather than to establish liability or punish people, those charged with the power to establish such inquiries should give careful consideration to the public interest in the matter under examination before deciding to establish an inquiry.

C Should there be an Express Power to Establish Tribunals of Inquiry

2.22     The Tribunals of Inquiry (Evidence) Act 1921, as amended, does not deal with the establishment of tribunals of inquiry.^[16] It is concerned only with the powers which may be conferred on tribunals of inquiry established pursuant to a resolution of both Houses of the

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Oireachtas.^[17] Thus the power to establish tribunals of inquiry lies elsewhere and it has been authoritatively decided that the Executive has an inherent power to establish tribunals of inquiry.^[18]

2.23     Against this background, the Commission will consider, first, whether the power to establish tribunals of inquiry should be statutory in nature and, secondly, whether this power should be conferred on the Government or the Oireachtas.

2.24     The present position is that tribunals of inquiry are usually established by a combination of both the Government and the Oireachtas. The Government establishes a tribunal of inquiry to inquire into a definite matter of urgent public concern and if the 1921 Act is to apply there must be a resolution of both Houses of the Oireachtas to that effect.

(1) Consultation Paper

2.25     In the Consultation Paper, the Commission recommended that any redraft of the tribunals of inquiry legislation should confer an express power to establish tribunals of inquiry on the Oireachtas or a Minister.^[19]

(2) Discussion

(a) The Origins of the Tribunals of Inquiry (Evidence) Act 1921

2.26     In considering this question it is useful to look at the origins of the Tribunals of Inquiry (Evidence) Act 1921 and the stress placed on the importance of Oireachtas involvement in their establishment.

2.27     When the 1921 Act was first introduced, clause 1 read as follows: "1(1) Where, in pursuance of a Resolution passed by, or an undertaking given by a Minister of the Crown to, either House of Parliament, a tribunal (other than a Committee of either House, is established for inquiring into…"

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This envisaged a tribunal being established in one of two ways, the first pursuant to a resolution of either House of Parliament, and the second subject to an undertaking given by a Minister to either House of Parliament that he would establish a tribunal.

2.28     During the legislative debates on the 1921 Act, concern was expressed concerning the second method of establishing a tribunal of inquiry. It was argued that this would in practice render Parliament's role in the establishment of inquiries meaningless. It was argued that the powers of tribunals of inquiry were such that the Government should not be able to establish them of its own accord, and that the consent of Parliament should be obtained prior to their establishment. This argument was accepted and the second method of establishing a tribunal was omitted from the Bill.

2.29     A related point concerning parliamentary scrutiny was also made. It was argued first, that because of the extensive powers of tribunals of inquiry, and secondly, that because the 1921 Act was establishing a mechanism which would remove the need for separate legislation for each inquiry, it was appropriate that the consent of both Houses of Parliament should be necessary for the establishment of a tribunal of inquiry. This amendment was accepted and section 1 of the 1921 Act in its current form became law.^[20]

(b) The Commissions of Investigation Act 2004

2.30     It is useful to contrast the absence of any reference to the power to establish a tribunal with the explicit references in the more recent Commissions of Investigations Act 2004. 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."^[21] The order establishing a commission of investigation must set out the matter that is to be investigated and nominate 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 Minister by the 2004 Act.^[22] The Houses of the Oireachtas must

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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.^[23]

(c) United Kingdom

2.31     In the United Kingdom, the Tribunals of Inquiry (Evidence) Act 1921 has recently been replaced by the Inquiries Act 2005. The UK Inquiries Act 2005 provides a comprehensive statutory framework for inquiries set up by Ministers to look into matters of public concern. It gives effect to proposals contained in a Departmental of Constitutional Affairs Consultation Paper "Effective Inquiries," and takes into account the House of Commons Public Administration Select Committee (PASC) "Government by Inquiry" investigation.^[24]

(d) Canada

2.32     In Canada, provision is made for public inquiries at both federal and provincial level. Federal inquiries are governed by the Inquiries Act 1985. Section 2 states that the establishment of inquiries is a matter purely for the Executive. Similarly, the various statutes governing provincial inquiries provide that the setting up of inquiries is a matter for the Executive.^[25]

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(e) New Zealand

2.33     In New Zealand, the law relating to public inquiries is contained in the Commissions of Inquiry Act 1908. Section 2 states that the establishment of inquiries is a matter purely for the Executive.

(f) Australia

2.34     In Australia, provision is made for public inquiries at both federal and state level. Federal Inquiries are governed by the Royal Commissions Act 1902. Section 1(a) of the Act bestows an express power to establish Royal Commissions on the Governor General. It makes no mention of the need for Parliamentary approval of this action.

2.35     State inquiries are governed by state legislation. In the Australian Capital Territory,^[26] New South Wales,^[27]Queensland ^[28] and Tasmania,^[29] the legislation governing public inquiries provides that the establishment of inquiries is a matter purely for the Executive. In the Northern Territory, the Inquiries Act 1985 provides two methods for establishing inquiries. The first is by order of the Executive,^[30] and the second is pursuant to a resolution of the Legislative Assembly.^[31]

(3) Recommendation

2.36     In light of the fact that tribunals of inquiry are established to inquire into definite matters of urgent public concern, the Commission considers that the Oireachtas should have a role in the (Prince Edward Island), section 2(1) of the Public Inquiries Act, RSNL 1990 (Newfoundland & Labrador), section 2 of the Public Inquiries Act, RSY 2002 (the Yukon Territory), section 2 of the Public Inquiries Act, RSNWT 1988 (the North Western Territory and Nunavut (Nunavut was established in 1999. Prior to that it formed part of the North Western Territory)).

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establishment process. The Commission has concluded that it would be appropriate that the legislation on tribunals of inquiry expressly provide that the Government has the power to establish tribunals of inquiry a point which has been definitively decided in the courts.^[32] The Commission also recommends that this power should only be exercised on foot of a resolution passed by both Houses of the Oireachtas, as is the case under the recently enacted Commissions of Investigation Act 2004.

2.37     The Commission recommends that the tribunals of inquiry legislation be amended to confer the power to establish tribunals of inquiry on the Executive, and that this power should only be exercised on foot of a resolution of both Houses of the Oireachtas.

D Permanent Standing Inspectorate and Central Inquiries Office

2.38     Given the large number of commissions and tribunals of inquiry currently in existence, and the length of time that they have been in operation, it is not surprising that a number of suggestions have been made as to how the manner in which they operate might be improved. It has been suggested that a Permanent Standing Inspectorate be created which would, in future, carry out the functions now being carried out by the various commissions and tribunals of inquiry. It has also been suggested that a Central Inquiries Office be created which would provide support and guidance to those charged with establishing and administering commissions and tribunals of inquiry. Since these two suggestions may be said to be variations on the same theme, namely, the creation of a permanent body that would be involved directly or indirectly in the investigation of matters of public concern, they will be considered together.

(1) Permanent Standing Inspectorate

2.39     In the Consultation Paper, the Commission considered the suggestion that a permanent standing inspectorate be established which would be charged with investigating the matters which are

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currently investigated by commissions and tribunals of inquiry but recommended that such an inspectorate should not be established.^[33]

(a) Advantages

2.40     On a general level, the establishment of a standing inspectorate may be said to be more advantageous than the current tribunals in a number of respects. In relation to staff, it might be expected that since a standing inspectorate would be composed of a staff of full time investigators, their remuneration would be determined at a salaried rather than a daily rate. This would result in significant economies of scale in relation to start up costs and administration. A related point is that a standing inspectorate would also bring the knowledge and experience gained by its past investigations to future investigations. Secondly, a permanent standing inspectorate would provide a valuable mechanism for investigating matters of urgent public concern as a preliminary to, or a low key alternative to, the establishment of a full scale tribunal or commission of inquiry.

(b) Disadvantages

2.41     However, a number of arguments may be made against the establishment of a permanent standing inspectorate. First, it could be argued that there is no need to establish such a permanent inspectorate. After all, public inquiries are usually set up to inquire into matters of urgent current public concern. Although a number of public inquiries may be in existence at present, there is no guarantee that there will be a need for similar bodies in the future on an ongoing basis. Accordingly, it may be pointless to institutionalise bodies which by their very nature are creatures of their time.

2.42     Secondly, it could be argued that public inquiries by their nature are ad hoc bodies set up to investigate urgent matters of public concern and to inquire into a wide variety of allegations, and their structure and personnel should reflect this.

2.43     Thirdly, it could be argued that a standing inspectorate might not have access to personnel of the same experience and quality that an ad hoc temporary inquiry would have access to.

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2.44     Fourthly, while it may be argued that public inquiries do not possess an institutional memory, this can be remedied by, for example, the establishment of a central inquiries office. Finally, it could be argued that the enactment of the Commissions of Investigation Act 2004 removes the need to establish a permanent inspectorate in that it provides the framework for the establishment of private low key inquiries which are fast and flexible.^[34]

(c) Recommendation

2.45     Having weighed up the advantages and disadvantages of a standing inspectorate, the Commission sees no reason to depart from the conclusion it reached in the Consultation Paper and does not recommend the establishment of a permanent standing inspectorate.

2.46     The Commission does not recommend the establishment of a permanent standing inspectorate for public inquiries.

(2) Central Inquiries Office

2.47     In the Consultation Paper, the Commission considered, and recommended, the establishment of a central inquiries office, which would be charged with collecting and managing a database of records and information in respect of public inquiries.^[35] This would provide those charged with establishing and running public inquiries easy access to precedents and guidance on a wide variety of matters pertinent to their inquiry, including legislation, procedural issues, the drafting of terms of reference and administrative matters.

2.48     The establishment of a central inquiries office has much to commend it. As noted, one of the disadvantages of the ad hoc nature of inquiries is that they do not have an institutional memory. As a result those charged with responsibility for the establishment, management and operation of inquiries are forced to "re-invent the wheel" every time a different inquiry is set up. Although the Commission accepts that every inquiry will be different, it considers that there will also be a large degree of common issues, such as the location of suitable offices and staff. The advantage of a central

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inquiries office is that it provides a one-stop shop for those seeking information on inquiries, thus making the task of those charged with responsibility for the establishment, management and operation of inquiries more efficient and less time consuming.

2.49     It could be argued that a designated inquiries office is not necessary as the provision of administrative and procedural guidance could be provided by the sponsoring department but the Commission has concluded that this is unlikely to occur in a structured manner.

2.50     The Commission has accordingly concluded that the views expressed in the Consultation Paper remain sound and the Commission recommends that a central inquiries office should be established to collect and manage a database of records and information in respect of public inquiries.

2.51     The Commission recommends the establishment of a central inquiries office which would be charged with collecting and managing a database of records and information for tribunals of inquiry and public inquiries generally.

2.52     The Commission has already outlined the functions which it proposes that the Central Inquiries Office perform, namely to collect and manage a database of records and information in respect of public inquiries. In this respect, the Commission considers that it would be especially important that the Office prepare a booklet, which would set out in a clear and easy to read format a series of guidelines for those charged with establishing public inquiries, those running them and those staffing them.^[36]

2.53     The Commission recommends that the proposed Central Inquiries Office prepare a booklet, which would set out in a clear and easy to read format a series of guidelines for those charged with establishing public inquiries, those running them and those staffing them.

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2.54     The Commission now turns to discuss a number of matters concerning the administrative framework of the proposed central inquiries office, in particular whether the office should be independent, where the office should be located and who should staff it.

2.55     It could be argued that as the central inquiries office is concerned with providing information and guidance to public inquiries it should enjoy the same measure of independence that public inquiries enjoy. However, as against this it could be argued that as the office is primarily concerned with administrative matters there is no need to place it on an independent footing. After all it is the inquiry itself, not the central inquiries office, that will make the final decision on matters such as procedures.

2.56     It should be noted that the work it is envisaged the Central Inquiry Office will carry out will not require a large staff. Its primary function is to ensure that a database be maintained of relevant information and that position papers and guides be prepared on the basis of this information.

2.57     An important issue is the appropriate location for the office. A number of options arise: the Office of the Attorney General, the Department of the Taoiseach, the Department of Justice, Equality and Law Reform and the Department of Finance. The Commission does not intend to express a concluded view on this matter.

2.58     Locating the office within the Office of the Attorney General has much to commend it. The main advantages would be that it is an office accustomed to researching, collecting and maintaining legal records and advices. A related point is that it also contains a pool of highly skilled lawyers who could bring their experience to bear on public inquiries. In addition, as the Office is accustomed to acting independently of the executive in the performance of the Attorney General's role as guardian of the public interest, locating the Central Inquiries Office here would deflect any criticism of partiality.

2.59     Locating the proposed unit within the Department of Justice, Equality and Law Reform would also bring many of the advantages outlined in respect of the Office of the Attorney General, namely an office skilled in dealing with complex legal and

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administrative issues possessing an experienced pool of in house lawyers.

2.60     Locating the unit within the Department of Finance also has its advantages. The Department of Finance is after all the department of State responsible in most cases for planning and funding public inquiries. Accordingly, in light of the practical experience it has gained in this regard it would make sense to locate a unit that is responsible for providing practical advice and guidance to public inquiries in this department.

2.61     Similarly, locating the proposed office within the Department of An Taoiseach is not without its advantages. First, the Department of An Taoiseach has overall responsibility for the Office of Attorney General. As such it has a good liaison with officials in that office and this contact would be useful for a central inquiries office located in that Department in locating and collecting information. In addition, through necessity it has good links with the Department of Finance, contacts which it would be able to bring to bear if it was charged with the operation of the Central Inquiries Office. Thirdly, the Department of An Taoiseach has considerable experience in managing a variety of different bodies in that it is charged under section 1 of the Ministers and Secretaries Act 1924 with responsibility for the administrative control of and responsibility for such public services and the business, powers, duties and functions not vested in other Departments of State.

2.62     The Commission recommends that careful consideration should be given to the location of the Central Inquiries Office having regard to the points raised.

E Separate Legal Personality

2.63     In the Consultation Paper the Commission provisionally recommended conferring separate legal personality on tribunals of inquiry.^[37] The Commission considered that if tribunals had separate legal personality it would simplify their relationships with their staff as well as providing continuity to the tribunal.^[38]

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2.64     The need for such a provision is illustrated by background to the Tribunals of Inquiry (Evidence) (Amendment) Act 2004. This was enacted because of concern that arose following the resignation in June 2003 of Flood J as Chairperson and as a member of the Tribunal to Inquire into certain Planning Matters. That issue related to the determination of applications by parties for costs arising out of the findings of the Tribunal in relation to certain modules contained in the Second Interim Report of the Tribunal published in September 2002. The modules were dealt with at a time when Flood J was the sole member of the Tribunal and the Second Interim Report was accordingly prepared by him. The 2004 Act provides that the person who is the sole member of a tribunal or is the chairperson may make an order in relation to any costs that were incurred before his or her appointment and that have not already been determined. In exercising this power, the sole member or chairperson shall have regard to any report of the tribunal relating to its proceedings in the period before his or her appointment.

2.65     The Commission sees no reason to depart from its original conclusion and recommends that any amending legislation should bestow legal personality on tribunals of inquiry.

2.66     The Commission recommends that provision should be made to allow a tribunal to be conferred with separate legal personality. Such a provision (based on the model provided by the Commission to Inquire into Child Abuse Act 2000) might read as follows:

(1) An instrument to which this Act applies may provide that the tribunal shall be a body corporate with perpetual succession and the power to sue and be sued in its corporate name.

F Independence

2.67     The tribunal of inquiry legislation does not deal with the independence of the tribunals. The independence of tribunals to date has depended on the integrity and character of those asked to undertake them. It should be noted that appointing members of the judiciary as members of tribunals does not confer the judiciary's constitutionally guaranteed independence on the tribunals. Judicial independence only applies in the "exercise of their judicial functions"

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and so this independence does not apply in the discharge of extra judicial functions such as being members of tribunals of inquiry.^[39]

2.68     The Commission notes that both the Commission to Inquire into Child Abuse Act 2000 and the Commissions of Investigation Act 2004 provide expressly for the independence of those investigative bodies.^[40]

2.69     The Commission accordingly recommends that the independence of tribunals of inquiry should be placed on a statutory footing because of the role of tribunals of inquiry in investigating matters of public concern.

2.70     The Commission recommends that the tribunals of inquiry legislation be amended to provide expressly for the independence of tribunals of inquiry and their members.

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[BLANK]

Note 1   [1992] 2 IR 542. See the Consultation Paper at paragraph 1.06.    [Back]

Note 2   In the Consultation Paper, the Commission examined the history of the Tribunals of Inquiry (Evidence) Act 1921 and its operation in Ireland since the establishment of the State. See the Consultation Paper, at Chapter 5 and see Appendix A of the Consultation Paper for a list of all the tribunals of inquiry established since the foundation of the State.    [Back]

Note 3   These are the Tribunals of Inquiry (Evidence) Act 1921, Tribunals of Inquiry (Evidence) (Amendment) Act 1979, Tribunals of Inquiry (Evidence) (Amendment) Act 1997, Tribunals of Inquiry (Evidence) (Amendment) Act 1998, Tribunals of Inquiry (Evidence) (Amendment) (No 2) Act 1998, Tribunals of Inquiry (Evidence) (Amendment) Act 2002 and Tribunals of Inquiry (Evidence) (Amendment) Act 2004.    [Back]

Note 4   See paragraphs 1.10 ff, above.    [Back]

Note 5   Section 1(1) of the Tribunals of Inquiry (Evidence) Act 1921.    [Back]

Note 6   See paragraphs 1.15 ff, above.    [Back]

Note 7   See the Consultation Paper at paragraphs 5.01-5.05.    [Back]

Note 8   See the Consultation Paper, at paragraphs 5.01-5.09. See generally Keeton, Trial by Tribunal: A Study of the Development and Functioning of the Tribunal of Inquiry (Museum Press 1960), Public Administration Select Committee of the House of Commons, Government by Inquiry (HC 2005) at 10-11.    [Back]

Note 9   See paragraph 1.08, above.    [Back]

Note 10   [1993] 1 IR 210, 222 per Denham J.    [Back]

Note 11   Royal Commission on Tribunals of Inquiry (Cmnd 3132 1966) at 16.     [Back]

Note 12   [1992] 2 IR 542, see paragraph 2.03.    [Back]

Note 13   See the Consultation Paper at paragraph 1.03 and House of Commons Public Administration Select Committee, Government by Inquiry (HC 2005) at 9, 10.    [Back]

Note 14   See the Consultation Paper, at paragraphs 1.27 – 1.31.    [Back]

Note 15   See paragraph 1.15 ff, above.    [Back]

Note 16   Goodman International v Hamilton [1992] 2 IR 542, 544; Haughey v Moriarty [1999] 3 IR 1, 30.    [Back]

Note 17   See the Consultation Paper at paragraph 6.03.    [Back]

Note 18   See Goodman International v Hamilton [1992] 2 IR 542, 554; Haughey v Moriarty [1999] 3 IR 1, 30.    [Back]

Note 19   See the Consultation Paper at paragraph 6.05.    [Back]

Note 20    House of Lords, 22 March 1921, c. 758.    [Back]

Note 21   Section 3(1) of the Commissions of Investigation Act 2004.    [Back]

Note 22   Section 3(3) of the Commissions of Investigation Act 2004.    [Back]

Note 23   Section 3(2). See the Commission of Investigation (Dublin and Monaghan Bombings) Order 2005 (SI No 222 of 2005).    [Back]

Note 24   The Law Reform Commission participated in the consultation process which gave rise to the Inquiries Act 2005. In 2004, the Commission met with representatives of the Department of Constitutional Affairs to discuss its Consultation Paper, Public Inquiries Including Tribunals of Inquiry (CP 22-2003). In addition, the Commission made a written submission to the House of Commons Public Administration Select Committee, a copy of which may be found in Government by Inquiry: Written Evidence (HMSO 2004). This participation does not in any way indicate that the Commission expresses a general view on the Inquiries Act 2005.    [Back]

Note 25   See section 2 of the Public Inquiries Act, RSA 2000 (Alberta), section 1of the Inquiry Act, RSBS 1996 (British Columbia), section 1 of An Act Respecting Public Inquiry Commissions, RSQ 1981 (Quebec), section 2 of the Public Inquiries Act, RSS 1978 (Saskatchewan), section 2 of the Public Inquiries Act, RSO 1990 (Ontario), section 2 of the Public Inquiries Act, RSNS 1989 (Nova Scotia), section 2 of the Inquiries Act, RSNB 1973 (New Brunswick), section 1 of the Public Inquiries Act, PSPEI 1988     [Back]

Note 26   Section 5 of the Inquiries Act 1991.    [Back]

Note 27   Section 4 of the Special Commissions of Inquiry Act 1983.    [Back]

Note 28   Section 4 of the Commissions of Inquiry 1950.     [Back]

Note 29   Section 4 of the Commissions of Inquiry Act 1995.    [Back]

Note 30   Section 4 of the Inquiries Act 1985.     [Back]

Note 31   Section 4A of the Inquiries Act 1985.    [Back]

Note 32   See the Consultation Paper at paragraph 6.03, referring to Goodman International v Hamilton [1992] 2 IR 542 and Haughey v Moriarty [1999] 3 IR 1.    [Back]

Note 33   See the Consultation Paper at paragraph 1.13.    [Back]

Note 34    The enactment of the Commissions of Investigation Act 2004 is in line with the Commission’s recommendations in the Consultation Paper at paragraph 10.16.    [Back]

Note 35   See the Consultation Paper at paragraph 1.14.    [Back]

Note 36   The Commission notes the publication in New Zealand of such a guide book in Setting Up and Running Commissions of Inquiry: Guidelines for Officials, Commissioners and Commission Staff (Department of Internal Affairs 2001) available at www.dia.gov.nz. The Commission also notes the manner in which the Comparative Study into Parliamentary Inquiries and Tribunals of Inquiry (Pn 9796) was utilised by the DIRT Inquiry. See also the recommendation at paragraph 5.11 below concerning procedures.    [Back]

Note 37   See the Consultation Paper at paragraph 6.137.    [Back]

Note 38   See the Consultation Paper at paragraph 6.135.    [Back]

Note 39   Article 35.2 of the Constitution of 1937.     [Back]

Note 40   Section 9 of the Commissions of Investigation Act 2004 and section 3(3) of the Commission to Inquire into Child Abuse Act 2000.    [Back]