This short Bill amends the law contained in the Tribunals of Inquiry (Evidence) Acts, 1921 to 1997. The purpose is to expressly provide, subject to certain conditions, for amendment of an instrument which appoints a tribunal, incorporates terms of reference of the tribunal and applies the provisions of the Tribunals of Inquiry (Evidence) Acts to the tribunal. The terms of reference of such tribunals are those which have been adopted by resolution of both Houses. Section 1 of the Act of 1921, with which the Bill is concerned, requires that prior to the making of an instrument which applies the Act, both Houses must have resolved that it is expedient that a tribunal be established for inquiring into a definite matter of urgent public importance. The importance of the provisions contained in the Acts of 1921, as amended by Acts of 1979 and 1997, is that they give to a tribunal certain powers, rights and privileges that are vested in the High Court for evidential purposes.
Tribunals of inquiry are by their nature inquisitorial and, with the powers given to them, are in a position to thoroughly and properly investigate matters of urgent public importance. The powers of a tribunal of inquiry, to which the Act of 1921 is applied, are unique in the Irish legal system. These include the power to enforce the attendance of witnesses, whom the tribunal may examine under oath, and to compel the production of documents. If any person summoned as a witness fails to attend or answer any questions or produce documents the tribunal may certify the offence to the High Court. The court may inquire into the matter and if the person concerned is found guilty he or she may be punished in the same manner as if it were contempt of court.
Since the Act of 1921 the law in relation to tribunals has been developed not only by provisions in the Acts of 1979 and 1997 but also by the courts which have explained in various decisions that the presumptions providing for fair procedures and natural and constitutional justice apply to the procedures before tribunals of inquiry. The overriding concern in relation to tribunals is to ensure that appropriate procedures apply to enable justice to be done to parties before those tribunals.
On a number of occasions in this House in recent times various views have been put forward as to whether the terms of reference of a tribunal, established pursuant to a Resolution of both Houses and to which the Tribunals of Inquiry Acts apply, can be amended. The view of Members of the Government side has been that once a tribunal is established, it should be allowed to proceed with certainty in the knowledge that its terms of reference will not be changed. If otherwise, the obvious danger is that persons who have co-operated with the tribunal on the basis of the established terms of reference may find their position prejudiced under any proposed new terms of reference. A change in terms of reference, without safeguards, could jeopardise the operation of a tribunal.
Much has been made in previous debates in the House of the words in section 1 of the Act of 1921 which provide that "the instrument by which the Tribunal is appointed or any instrument supplemental thereto may provide that this Act shall apply". The advice available to the Government is that the particular words "any instrument supplemental thereto" do not bestow a power of amendment of the original instrument and that rather what is envisaged by those words is that the original instrument may contain the terms of reference of a tribunal and the appointment of one or more members of the tribunal but the original instrument would be silent as to the application of the Act of 1921.
The purpose of a supplemental instrument apply the Act to a tribunal subsequent to its establishment. This view is supported by the reference in the first line of section 1 of the 1921 Act where it states: "Where it has been resolved (whether before or after the commencement of this Act).". This clearly envisaged the setting up of a tribunal prior to the coming into force of the Act to which the panoply of powers contained in the 1921 Act could be applied. Accordingly, if an instrument existed by which such a tribunal had been appointed, a further instrument — an instrument supplemental thereto — can further provide that the 1921 Act may apply to it. The supplementary instrument is merely a supplemental instrument to apply the 1921 Act and the powers of enforcement which that Act imports. It further contemplates the making of an instrument without reference to the 1921 Act at a future date and an instrument supplemental thereto applying the 1921 Act to a tribunal already established.
It was previously suggested in this House, in a debate on 29 January, that since the law in Australia is the same as here, the Australian book entitled Royal Commissions and Boards of Inquiry: Some Legal and Procedural Aspects by Leonard Hallett should be authority for the view contained in it that the terms of reference of a tribunal can be amended. However, the excerpt cited from the book deals with the position in the State of Victoria in Australia where the Act of 1921 is not and never has been law.
In England, a Royal Commission on Tribunals of Inquiry was set up to review the working of the Tribunals of Inquiry (Evidence) Act, 1921 — the Act which also applies here. That commission reported in 1966 but the report in question does not contemplate an amendment in the terms of reference of a tribunal.
When the Act of 1921 was framed it did not appear to envisage amendment of the terms of reference of a tribunal of inquiry or the instrument by which the tribunal is appointed. If the Act had envisaged such change it is reasonable to assume it would have expressly provided for any such amendment. It is the prudent and legislatively responsible course of action to create an express power to so amend and put the matter beyond doubt. Given the doubts surrounding the issue, surely it is prudent that the legislation should be amended to confer express power to amend.
There is an argument that tribunals are not established as such by the Act of 1921 but by a resolution of both Houses and the Act of 1921, in so far as its evidential provisions are concerned, is merely applied to such tribunals.
I am advised by the Attorney General that if the Houses were to pass a resolution with amending terms of reference, and a Minister of the Government were to make an instrument appointing a new tribunal and applying the Act of 1921 to the new terms of reference, the new instrument would not be an amending instrument but a distinct instrument with separate terms of reference, the effect of which would be the creation of another tribunal parallel to the original tribunal. In other words, the tribunals would be distinct entities, albeit with the same individual as chairperson.
This could not have been intended by section 1(1) of the Act of 1921 and would produce an absurd result, but because there is no express power of amendment of an instrument this would be the legal effect of passing new resolutions and making another instrument applying the Act of 1921. The new instrument would apply the Act to the new terms of reference only. The Bill addresses those legal or technical difficulties. The effect is not to create another tribunal but to simply allow for amendment of the instrument containing the original terms of reference.
The advice of the Attorney General, which reflects the consistent view of senior legal officers of the Attorney General's office expressed by them over the past ten years, and with which the Government agrees, is that primary legislation is necessary to properly deal with the matter by amending section 1 of the Act of 1921, expressly providing for amendment of terms of reference of an instrument appointing a tribunal and applying the Act to the tribunal. This view is supported in independent legal advices obtained by the Attorney General for the particular purpose of analysis of the request by the sole chairman of the tribunal of inquiry into certain planning matters for an amendment to the terms of reference which apply to that tribunal. Independent senior counsel opinion was not sought because the Attorney General or his advisers in the Attorney General's office had changed their minds or had doubts about the issue.
The urgency of resolving issues now, as proposed by the Bill that has been initiated, is that in the interim report of the tribunal of inquiry into certain planning matters, dated 26 February 1998, a request had been made by the sole member of the tribunal, Mr. Justice Flood, for amendment of its terms of reference. That tribunal was established following a resolution of both Houses in October 1997. The instrument establishing the tribunal provided that the Tribunals of Inquiry (Evidence) Acts shall apply to the tribunal.
The terms of reference of the tribunal include the following at paragraph A5: "In the event that the Tribunal in the course of its inquiries is made aware of any acts associated with the planning process committed on or after 20th June 1985 which may in its opinion amount to corruption, or which involve attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it shall report on such acts and should in particular make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of its inquiries".
The tribunal's interim report indicates, at paragraph 19, that a number of matters which are said to have occurred prior to 20 June 1985 have come to its attention and that it has been advised that evidence in relation to such matters is admissible if, and in so far as, it is relevant to matters which occurred after 20 June 1985. However, the tribunal considered that the fact that such a date had been specified in its terms of reference might give rise to a legal challenge which would inevitably delay proceedings. Consequently, notwithstanding its legal advice and to avoid any such legal challenge, the tribunal requested the Oireachtas to amend paragraph A5 by the deletion of the words "committed on or after the 20th June 1985".
This is the background to the Bill. I hope I have dealt sufficiently with the matter to enable the House to be informed about the complex issues involved. In the circumstances which have arisen it is the desire of the Government to clarify the position in relation to the question of amending terms of reference of tribunals to which the Acts of 1921 to 1997 apply.
I will now deal with the provisions of the Bill and explain how it is proposed that the law should operate in this area.
Section 1 inserts a new section 1A into the Tribunals of Inquiry (Evidence) Act, 1921. Subsection (1) of the new section 1A provides that an instrument to which the new section 1A applies shall be amended, pursuant to a resolution of both Houses of the Oireachtas, subject to certain conditions which are specified in paragraphs (a) and (b) of the subsection. The conditions in paragraphs (a) and (b) are that the tribunal has requested the amendment and is satisfied that such amendment would not prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its terms of reference.
Subsection (2) of new section 1A provides that, where an instrument to which the new section 1A applies is so amended, the Tribunals of Inquiry (Evidence) Act, 1921, shall apply to the instrument as amended.
Subsection (3) provides that section 1A applies, in the case of a tribunal to which the Tribunals of Inquiry (Evidence) Act, 1921, is applied under existing section 1 thereof, to the instrument by which the tribunal is appointed. Section 2 of the Bill is standard and provides for the short title and collective citation.
The proposed new section 1A of the 1921 Act is obviously the core of the Bill and gives legislative effect to a number of principles in a coherent and structured way. First, it makes clear that an instrument by which a tribunal is appointed may only be amended following a further Resolution of the Houses of the Oireachtas. Second, it provides that the instrument by which the tribunal is appointed may be amended following such further resolution even if it was made prior to the enactment of this Bill. This clearly comprehends the current situation of the request from the Flood Tribunal but also takes into account any future requests which are of a similar nature. Third, it sets out clearly the conditions which must be satisfied prior to the initiation of this process.
The first condition, that the tribunal itself must have requested the amendment, ensures that when a tribunal sets about its task of publishing its terms of reference in newspapers, asking for information, considering whether information supplied is within its terms of reference, considering requests for representation and takes evidence, it will be able to proceed with some certainty in the knowledge that a change in its terms of reference would be rare and then only on the basis of its own initiative. Where it is contemplated that any change be made to terms of reference of a tribunal, the tribunal itself is best placed, given the facts already before it, to determine the nature of any such amendment.
The second condition, that the tribunal must satisfy itself that the amendment would not prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its terms of reference, is intended to ensure that the effect of the amendment of the terms of reference of the tribunal would not result in unfairness to any person who has co-operated with or supplied information to it.
The Government is satisfied the Bill represents a clear statutory framework on the position that should obtain where a tribunal, to which the Act of 1921 is applied, requests a change in its terms of reference. Where the Houses are asked to resolve that the amendment that is sought be granted and the full panoply of powers which the 1921 Act imports shall apply, they will do so on the basis of the law that is already contained in section 1 of the Act of 1921 which requires the Houses to resolve that the matter in issue is "a definite matter of urgent public importance" and they must have regard to the provisions contained in new section 1A.
The Bill, when enacted, can be applied to a sitting tribunal whether such tribunal is established before or after the passing of the Bill. It is important that the tribunals, and parties who co-operate with tribunals now and in the future, have a statutory framework on which to base their position. The Bill provides that necessary framework.
I commend the Bill to the House.