I move: "That the Bill be now read a Second Time." This short but important technical Bill amends the law contained in the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979. Its purpose is threefold: first, to give additional powers to tribunals of inquiry in relation to costs that may be ordered to be paid by a tribunal; second, to allow orders generally of a tribunal to be enforced; and third, to provide for immunity from suit of persons who supply written statements or documents to a tribunal.
In the tribunal of inquiry under the chairmanship of Mr. Justice McCracken, on 28 October 1997, two issues arose in relation to the matter of costs. The first was whether the tribunal had power to order, of its own motion, costs to be paid to persons before it by any other person. The second related to whether the tribunal had power to award costs to itself against any person where the tribunal had incurred costs because of the non-cooperation of a person before it.
Subsection (1) of section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 gives a tribunal of inquiry power to order that the whole or part of the costs of any person appearing before it be paid to that person by any other person named in the order, including the Minister for Finance. The tribunal must be of the opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons rendering it equitable to make such order. The costs which may be ordered are those as taxed by the Master of the High Court.
Judge McCracken indicated that, on the basis of the provisions of section 6 of the 1979 Act, he was satisfied that the only persons who can get costs are those persons who have been given representation and are represented by solicitor or counsel before the tribunal. He concluded that he had no power under the Act of 1979 to order a person to pay the cost of the tribunal's expenses as such.
The solicitor on behalf of the public interest had sought counsel's opinion on the matter and on the basis of the advice given, decided not to proceed with an application to have any person pay some or all of the costs of the tribunal. Judge McCracken indicated his agreement to the approach that was adopted by the solicitor.
It was also established in the McCracken tribunal that costs could only be awarded by the tribunal on the application of a person appearing before the tribunal and that in the absence of such an application the tribunal had no power of its own motion to award costs to any person.
In view of those developments it is important that the law in relation to tribunals of inquiry be strengthened. The need to do so quickly is evident because two important tribunals, one under the chairmanship of Mr. Justice Moriarty and the other under Mr. Justice Flood, have recently been established under resolution of both Houses. The orders governing the work of both these tribunals includes reference to the fact that it is the desire of the Oireachtas that "all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the inquiry should, as far as is consistent with the interests of justice, be borne by those individuals".
I now turn to the main provisions in the Bill. These are section 2 which deals with certain immunities, section 3 which deals with the matters in relation to costs and section 4 in relation to the matter of enforcement generally of orders made by a tribunal.
Under the law as it stands in subsection (3) of section 1 of the Tribunals of Inquiry (Evidence) Act, 1921, a witness before a tribunal is entitled to the same immunities and privileges as if he or she were a witness before the High Court. However, the Act makes no reference to the position of persons who produce or send documents to a tribunal pursuant to an order of the tribunal. I am, therefore, proposing in section 2 to amend section 1 of the Act of 1921 by the insertion of a new subsection (4) which provides that a person who produces or sends a document to a tribunal pursuant to an order of that tribunal shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.
I mentioned earlier section 6(1) of the Amendment Act, 1979, which empowers a tribunal to order the costs of any person appearing before a tribunal to be paid by any person named in the order but does not, as we now know from the McCracken tribunal, empower a tribunal to order that costs which are incurred by the tribunal be paid in favour of itself, and, ultimately, the State, through the Minister for Finance.
Section 3 of the Bill substitutes a new subsection (1) in that section 6 of the Act of 1979. The new subsection repeats the substance of the existing subsection (1) in the Act of 1979 but, in addition, allows a tribunal to recover its own expenses where they have, in effect, been incurred by the non-co-operation of any party before it. I have provided in the new subsection (1) that the tribunal may of its own motion order that the costs of any person coming before it be paid by any other person named in the order. Section 3 of the Bill also provides that the new subsection (1) in the Act of 1979 shall apply to costs incurred after the Bill comes into effect. The section 3 provisions in the Bill will, therefore, apply to both the Moriarty and Flood tribunals.
I take this opportunity to mention that on the Order of Business in the Dáil on 18 November 1997, the Taoiseach indicated in response to a question from Deputy Quinn, that the Government intended to amend the Act of 1979 so that a tribunal would have the power to award costs to itself against any person where the person's actions had incurred costs for the tribunal. Deputy Quinn subsequently furnished the text of an amending Bill and I would like to thank him for that and to say that it has been taken fully into account in the Government's Bill. His Bill was confined solely to the matter of allowing a tribunal to award costs to itself. The Government's Bill goes that bit further by allowing a tribunal to award costs of its own motion. Section 4 is also new and is additional to that contained in Deputy Quinn's proposal.
Section 4 is intended to strengthen the position of tribunals of inquiry so as to ensure that its orders can be enforced. The section provides that where a person fails, refuses to comply with, or disobeys an order of a tribunal of inquiry, the High Court may, on application to it in a summary manner in that behalf by the tribunal, order the person to comply with the order and to make such other order as it considers necessary and just to enable the order to have full effect.
The provisions in the Constitution in relation to trial of offences are such that a tribunal cannot have the same powers as the High Court has to commit a person for failure to obey orders. However, in framing section 4 of the Bill I have taken into account section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997, which provides that where a person disobeys a direction of a committee the committee may seek an order of the High Court to have the direction complied with. Section 4 of the Bill is similar to the provisions in the 1997 Act and is intended to provide an effective method of enforcement of a tribunal's orders.
Those are the main provisions in the Bill. The changes provided for are important and timely. I commend the Bill to the House.