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REPORT ON PUBLIC INQUIRIES INCLUDING TRIBUNALS OF INQUIRY

(LRC 73-2005)

IRELAND

The Law Reform Commission

35-39 Shelbourne Road, Ballsbridge, Dublin 4

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© Copyright The Law Reform Commission 2005
 


First Published May 2005

ISSN 1393 – 3132

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An Taoiseach Bertie Ahern TD

Department of the Taoiseach

Government Buildings

Upper Merrion Street

Dublin 2

24 May 2005

Report on Public Inquiries Including Tribunals of Inquiry

Dear Taoiseach,

I enclose a copy of the Commission's Report on Public Inquiries Including Tribunals of Inquiry (LRC 73-2005) which will be published in

the near future. .

Yours sincerely,

________________

Catherine McGuinness

President

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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 1975 Act.

To date, the Commission has published seventy one Reports containing proposals for reform of the law; eleven Working Papers; thirty seven Consultation Papers; a number of specialised Papers for limited circulation; An Examination of the Law of Bail; and twenty five Annual Reports in accordance with section 6 of the 1975 Act. A full list of its publications is contained in the Appendix B to this Report.

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 Mrs Justice Catherine McGuinness, Supreme Court

Full-Time Commissioner Patricia T Rickard-Clarke Solicitor

Part-Time Commissioner Dr Hilary A Delany, Barrister-at-Law Senior Lecturer in Law, Head of Law School, Trinity College Dublin

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Part-time Commissioner Professor Finbarr McAuley Jean Monnet Professor of European Criminal Justice, University College Dublin

Part-time Commissioner Marian Shanley, Solicitor

Secretary John Quirke

Research Staff

Director of Research Raymond Byrne BCL, LLM, Barrister-at-Law

Legal Researchers Deirdre Ahern LLB, LLM (Cantab), Solicitor

Alan Brady LLB, LLM (Lond), Attorney-at-Law (New York)

Ronan Flanagan LLB, LLM (Cantab)

Roberta Guiry BCL, LLM (NUI)

Orla Joyce BCL, LLM (Cantab)

Sinéad Ring BCL (Law & German), LLM (NUI)

Mary Townsend BCL, LLM (NUI)

Aisling Wall BCL, LLM (Cantab)

Administration Staff

Project Manager Pearse Rayel

Executive Officer Denis McKenna

Legal Information Manager Conor Kennedy BA, H Dip LIS

Cataloguer Eithne Boland BA (Hons) H Dip Ed,

H Dip LIS

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Information Technology Officer Liam Dargan

Clerical Officers Alan Bonny Debbie Murray

Principal Legal Researchers on this Report

Darren Lehane BCL, LLM (NUI), Barrister-at-Law

Rosemary Healy-Rae AITI, Barrister-at-Law

Marcus Bourke MA, Barrister-at-Law, former Parliamentary Draftsman assisted in the drafting of the attached Bill.

Further information can be obtained from:

The Secretary

The Law Reform Commission

35-39 Shelbourne Road

Ballsbridge

Dublin 4

Telephone (01) 637 7600

Fax No (01) 637 7601

Email [email protected]

Website www.lawreform.ie 1.

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ACKNOWLEDGEMENTS

The Commission would like to thank the following for their assistance in the preparation of this Report.

The Hon Mr Justice Robert Barr

The Hon Mr Justice Declan Budd

Mr David Clarke, Solicitor

Ms Helen Collins, Solicitor

His Honour Judge Alan Mahon SC

Professor David Gwynn Morgan

The Hon Mr Justice Michael Moriarty

The Hon Mr Justice Frederick Morris

The Hon Mr Justice Francis Murphy

Ms Lia O'Hegarty, Barrister-at-Law

Mr Kevin O'Higgins, Solicitor

Ms Maria O'Sullivan, Solicitor

Mr Owen O'Sullivan, Solicitor

The Hon Mr Justice Sean Ryan

Full responsibility for this publication, however, lies with the Commission.

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CONTENTS

INTRODUCTION	1
CHAPTER 1 PUBLIC INQUIRIES	5
A Introduction	5
B Public Inquiries	5
C Investigatory Inquiries	5
(1) Company Inspectors	6
(2) Commission to Inquire into Child Abuse	6
(3) Oireachtas Inquiries	7
D Commissions of Investigation	7
(1) Establishment	9
(2) Terms of Reference	10
(3) Procedures and Private Nature	10
(4) Costs	12
(5) Connection with Tribunals of Inquiry	13
CHAPTER 2 NATURE OF AND ESTABLISHMENT OF TRIBUNALS OF INQUIRY	15
A Introduction	15
B Tribunals of Inquiry	15
(1) Introduction	15
(2) History	16
(3) Inquisitorial Nature of Tribunals of Inquiry	18
(4) Purposes and Functions of Tribunals of Inquiry	20
C Should there be an Express Power to Establish Tribunals of Inquiry	21
(1) Consultation Paper	22
(2) Discussion	22
(3) Recommendation	25
D Permanent Standing Inspectorate and Central Inquiries Office	26
(1) Permanent Standing Inspectorate	26
(2) Central Inquiries Office	28
E Separate Legal Personality	31
F Independence	32
CHAPTER 3 TERMS OF REFERENCE	35
A Introduction	35
B Drafting Terms of Reference	35
(1) Tribunals of Inquiry (Evidence) Act 1921	35
(2) Recent Practice Regarding the Drafting of Terms of Reference	36
(3) Consultation Paper Recommendation	37
(4) Discussion	38
(5) Recommendation	40
C Amending Terms of Reference	41
(1) Tribunals of Inquiry (Evidence) Act 1921, as amended	41
(2) Consultation Paper Recommendation	42
(3) Discussion	42
(4) Recommendation	44
CHAPTER 4 MEMBERSHIP	47
A Introduction	47
B Membership	47
(1) Responsibility for Appointment	47
(2) Qualifications for Appointment	50
(3) Termination of Appointment	58
(4) Effect of the Appointment of a New Tribunal Member	61
C Reserve Members	62
(1) Appointment	62
D Experts	63
(1) Experts	63
(2) Assessors	64
CHAPTER 5 PROCEDURES AND CONSTITUTIONAL JUSTICE	67
A Introduction	67
B Tribunals of Inquiry May Control their Own Procedures	68
C Code of Procedures	69
D Constitutional Justice	70
(1) In re Haughey	70
(2) The Need for A Tailored Approach to the In re Haughey Principles	72
(3) The In re Haughey Principles Apply Only to Persons Whose Rights are Risk	72
(4) Specific Rights	75
(5) The Four In Re Haughey Rights Considered	79
E Other Procedural Issues, including Publicity and Broadcasting	83
(1) Preliminary Investigations	83
(2) Publicity	88
(3) Broadcasting	91
(4) Evidence taken on Commission	96
CHAPTER 6 POWERS	99
A Introduction	99
B Substantive Powers	99
(1) The Present Law	99
(2) Consultation Paper	101
(3) Discussion	104
(4) Recommendation	106
C Enforcement Powers	107
(1) The Present Law	107
(2) Consultation Paper	110
(3) Discussion	112
(4) Recommendation	115
D Privileges	118
(1) The Present Law	118
(2) The Consultation Paper	118
(3) Recommendation	119
CHAPTER 7 COSTS	121
A Introduction	121
B Legislative Provisions	123
(1) Jurisdiction to award costs	123
(2) McBrearty v Morris	126
(3) Mahon Tribunal	127
(4) Morris Tribunal	127
(5) The Consultation Paper	128
C Role of the Tribunal in relation to Costs	129
(1) United Kingdom	129
(2) Recommendation	131
D Minimising Costs	131
(1) Complexity and Duration	131
(2) Timetables/Deadlines	132
(3) Timetabling and Sequencing	133
(4) Budget Figures	133
(5) Level of legal expertise required by the tribunal	134
E Level of legal representation allowed to parties appearing before the tribunal	134
F Basis for calculating lawyers fees	135
(1) Legal Costs – Current Position	135
(2) Criminal Legal Aid	139
(3) Recommendation	141
CHAPTER 8 JUDICIAL REVIEW AND APPLICATIONS TO THE HIGH COURT	143
A Introduction	143
B Judicial Review Proceedings	143
(1) Reducing the Time Limits for Judicial Review	143
(2) Discussion	144
(3) Recommendation	144
C Application of Tribunal of Inquiry to the High Court	144
(1) Application to the High Court	144
(2) Expedition	146
CHAPTER 9 SUSPENSION, DISSOLUTION OR TERMINATION OF A TRIBUNAL OF INQUIRY	147
A Introduction	147
B Suspension	147
C Dissolution	148
D Termination	149
(1) The Consultation Paper	149
(2) Discussion	149
(3) Recommendation	150
CHAPTER 10 REPORTS AND DOWNSTREAM PROCCEEDINGS	153
A Reports	153
(1) Present Law	153
(2) Commissions of Investigation	154
(3) Recommendation	156
B Downstream Proceedings	157
(1) The Privilege Against Self-Incrimination	157
(2) Applicability of the Current Law to Tribunals of Inquiry	160
(3) Consultation Paper Proposals	161
(4) Recommendation	162
C Adverse Pre-Trial Publicity	163
(1) The Law Relating to Adverse Pre-Trial Publicity	163
(2) Prosecutions Having the Same Subject Matter as the Inquiry	164
(3) Enforcement Proceedings	165
D The Evidential Value of Inquiry Reports in Civil Proceedings	166
CHAPTER 11 SUMMARY OF RECOMMENDATIONS	169
Chapter 1 Public Inquiries	169
Chapter 2 Nature of and Establishment of Tribunals of Inquiry	169
Chapter 3 Terms of Reference	170
Chapter 4 Membership	172
Chapter 5 Procedures and Constitutional Justice	173
Chapter 6 Powers	176
Chapter 7 Costs	177
Chapter 8 Judicial Review and Applications to the Court	178
Chapter 9 Suspension, Dissolution or Termination	179
Chapter 10 Reports and Downstream Proceedings	179
APPENDIX A DRAFT BILL	181
APPENDIX B LIST OF LAW REFORM COMMISSION PUBLICATIONS	221

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INTRODUCTION

1.     This Report, which follows a Consultation Paper published in 2003,^[1] has been prepared under the Commission's Second Programme of Law Reform.^[2]

2.     The Report examines the law relating to public inquiries including tribunals of inquiry and make recommendations for reform where appropriate.

3.     In the Consultation Paper, the Commission examined the law relating to public inquiries in some depth. While it focused on the tribunal of inquiry, it also examined other comparable models, such as Oireachtas committees and the Commission to Inquire into Child Abuse. The Consultation Paper discussed a number of issues that affect each of these, including how they are established, terms of reference, procedural fairness, publicity, costs and the impact of reports of public inquiries on court proceedings, civil and criminal. The Consultation Paper also recommended the enactment of legislation providing for a private low-key inquiry which would focus on the wrong or malfunction in the system rather than on individual wrongdoers and which would operate as a preliminary to, or in many cases an alternative to, a full scale tribunal of inquiry. The essential elements of this recommendation were implemented in the form of the commissions of investigation model of public inquiry introduced into Irish law by the Commissions of Investigation Act 2004.

4.     This Report focuses primarily on tribunals of inquiry, and to a limited extent on commissions of investigation. This is because the

1 The Law Reform Commission Consultation Paper on Public Inquiries Including Tribunals of Inquiry (LRC CP 22 – 2003) (which is referred to in this Report as "the Consultation Paper.")

2 Second programme for examination of certain branches of the law with a view to their reform 2000-2007 (PN 9459) (December 2000), heading 8 of which concerns tribunals of inquiry.

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Commissions of Investigation Act 2004 now provides a framework within which low-key preliminary investigations can take place, allowing the Commission to concentrate in this Report on the extent to which the law relating to tribunals of inquiry may be reformed.

5.     Chapter 1 describes the main focus of the Report. It explains why the Report concentrates primarily on investigative public inquiries, in particular tribunals of inquiry and commissions of investigation. It explains why the Report does not examine Oireachtas inquiries or the Commission to Inquire into Child Abuse. It also examines the Commissions of Investigation Act 2004. It is clear that the 2004 Act 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. The Commission makes some limited recommendations for reform of the 2004 Act.

6.     The remainder of the Report makes recommendations for the reform of the tribunals of inquiry legislation which is currently contained in 7 Acts beginning with the Tribunals of Inquiry (Evidence) Act 1921 and ending most recently with the Tribunals of Inquiry (Evidence) (Amendment) Act 2004. In doing so, the Commission is conscious of the enormous public benefit which has resulted from the various tribunals of inquiry which have been established in recent years. These have had the effect of transforming our understanding of events in public life which occurred in the past, and without such inquiries these difficult areas may never have come to public attention. The Commission's recommendations for reform are not intended in any way to detract from the value of such tribunals. Rather, they are intended to ensure that tribunals continue to be available as a means of investigating urgent matters of public importance, while at the same time attempting to ensure that they are focused and provide adequate procedural protections without incurring excessive public costs.

7.     Chapter 2 deals with the establishment of tribunals of inquiry and examines their inquisitorial nature, the power to establish tribunals, the question of whether there should be a standing inspectorate or a central inquiries office and the independence of tribunals.

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8.     Chapter 3 deals with the important issue of the drafting of terms of reference and makes recommendations as to how they might be made as precise as possible.

9.     In Chapter 4, the Commission examines the membership of tribunals, including their appointment, qualifications and removal as well as the issue of reserve members and experts to assist a tribunal.

10.     Chapter 5 deals with procedures and constitutional justice. It considers the application of the principles of fair procedures and constitutional justice to tribunals of inquiry. These include the right to copies of evidence taken, the right to cross-examination by a lawyer, the right to give rebutting evidence, and the right to address the tribunal through a lawyer. It also considers such matters as the information gathering stage, publicity, and broadcasting.

11.     Chapter 6 provides a general overview of the powers possessed by tribunals of inquiry and makes recommendations for reform.

12.     Chapter 7 deals with the issue of costs. It recommends that the sponsoring Department, following consultation with the Department of Finance, should set a broad budget figure at the outset of the tribunal. In addition, it recommends that the chairperson of an inquiry should have regard to the need to avoid any unnecessary cost in making any decision as to the planning, procedure or conduct of an inquiry. As regards legal and other professional representation, the Commission stresses the need to give considerable thought to what level of representation it engages for particular tasks and that flexible arrangements should be put in place in relation to the engagement and remuneration of lawyers and other personnel involved in tribunals.

13.     Chapter 8 deals with judicial review and applications to the High Court. Chapter 9 deals with the issues of suspension, dissolution and termination of a tribunal of inquiry. Chapter 10 deals with the drafting and publication of interim and final tribunal reports and the effect of tribunal reports on criminal and civil court proceedings.

14.     The Commission has appended a Draft bill incorporating its proposals for legislative reform. For convenience, the Commission has prepared a consolidated Tribunals of Inquiry Bill which

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incorporates these proposals into a single text with a view to replacing the existing Tribunals of Inquiry (Evidence) Acts 1921-2004.

Note 1    The Law Reform Commission Consultation Paper on Public Inquiries Including Tribunals of Inquiry (LRC CP 22 – 2003) (which is referred to in this Report as “the Consultation Paper.”)    [Back]

Note 2   Second programme for examination of certain branches of the law with a view to their reform 2000-2007 (PN 9459) (December 2000), heading 8 of which concerns tribunals of inquiry.    [Back]