I move: "That the Bill be now read a Second Time."
I am pleased to present to the House the Commissions of Investigation Bill 2003. This Bill provides for the establishment of commissions of investigation. The function of a commission of investigation will be to investigate into and report on matters referred to it that are considered to be of significant public concern.
The House will be aware that the Bill has its historic origins in the need to provide a means for investigation into the child sex abuse scandals in the Catholic Church. It is generally accepted that the very public and sometimes adversarial nature of tribunals of inquiry does not lend itself to investigation of matters of such a sensitive and intensely personal nature. Nonetheless, such inquiry needs to have at its disposal powers which are no less vigorous and effective in the pursuit of answers to difficult questions. Separate from that instance, Government had recognised the need to devise a new form and method of inquiry in any event.
In a useful and significant way this Bill adds to the range of mechanisms available for investigations. It contains several new features that will ensure more timely and cost effective investigations, without compromising or encroaching upon the proper conduct of an investigation. In fact, the opposite will be the case as the extra features will, instead, enhance the ability of a commission of investigation to meet its objective of establishing the facts about any matter referred to it. I also believe the interests of justice and accountability will be advanced by a speedy conclusion to an investigation.
The fact that the Bill facilitates more cost-effective investigation is a not insignificant consideration. It is estimated that between 1997 and October 2003 the accumulated cost to the State of tribunals and other major inquiries was more than €100 million. That figure does not include third party costs. Many of the tribunals and inquiries are ongoing. The approximate annual cost of these ongoing tribunals and inquiries is some €47 million. The accumulated cost overhang in respect of third parties could run to hundreds of millions of euros
It is essential that the issue of costs of inquiry be addressed and this measure achieves that without in any way diluting the effectiveness or efficiency of the inquiry. Before explaining what the Bill contains and how a commission of investigation will go about its business, it is important to have a clear picture of what the Bill does not do. This legislation does not replace or amend in any way the legislation under which tribunals of inquiry are established and operated. While commissions may, as we shall see, be regarded as precursors or alternatives to tribunals, the Bill makes no changes to legislation relating to tribunals.
It is important to note that the Bill does not establish a single or permanent investigations body. It enables the establishment of commissions as and when required, and it is one of the attractions of the new legislation that several commissions may sit at one time, investigating several and varied matters. In other words, the Bill gives the State and the Oireachtas a flexible investigative mechanism.
Several of the new departures and innovative approaches to be found in the Bill are particularly important and worthy of emphasis. I will, therefore, draw the attention of the House to aspects of the Bill which relate to the terms of reference of a commission and to the guiding principles which aim to encourage co-operation. I will explain the way it will conduct its investigations and the strong powers available to a commission, as well as the provisions designed to ensure time limits are respected and costs are kept under control. I will underline the importance of the reports of commissions. Given these features, I hope Deputies will agree that the Bill introduces a timely and effective additional mechanism to ensure accountability and transparency in our public affairs.
Before addressing these aspects of the Bill, the most basic question is when and in what circumstances we envisage commissions being established. The Bill provides that a commission will be established on foot of a Government order approved by the Oireachtas. The subject matter must, in the words of the Bill, be an issue giving rise to "significant public concern". An issue giving rise to significant public concern is one that is of more than mere interest to the public; it must, instead, be an issue which has serious, including long-term, implications for public life. These implications could include the welfare and safety of a sector in society or the effective and safe operation of a significant public service.
While the Bill provides the mechanism and structure for the operation of investigations, it will remain the function of the Government of the day and the Oireachtas, as the representatives of society at large and the guardians of the public interest, to make the judgment in any particular case as to whether an issue is of such significant public concern that it requires investigation by a commission.
It has come to be recognised that having clear and well defined terms of reference which are tightly drawn is often the key to a successful investigation. The Bill addresses this issue directly in sections 4 and 5. The process leading to the establishment of a commission starts with the presentation to the Oireachtas of a reasoned statement of the need to establish a commission, with the draft establishment order. Following the approval of the order by the Oireachtas, the terms of reference are to be set by the Government or the Minister with overall responsibility for the commission in question. Consultations may take place with interested parties about the terms of reference but the terms must, in the final analysis, comply with the detailed parameters set out in section 5.
Section 5 requires that the systems or specific events, activities or circumstances to be investigated are identified and that the periods and locations or persons to which an investigation relates are specified. Deputies will agree that observance of these criteria will result in tight and well defined terms of reference. It will also be noted that section 5 requires that the terms of reference must be accompanied by statements setting out the likely duration of an investigation, as well as its cost. The terms of reference and the accompanying statements on costs and duration will be published.
Section 6 recognises that terms of reference may need to be altered on occasion, but it states that any amendment must be for clear purposes, either to clarify, extend or limit the scope of an investigation. The statements as to costs and timeframes must also be amended when the terms are altered. This will ensure that the full implications of any alteration are clear to all. It is worth noting that amendments may only be made where the commission consents and it may withhold that consent where it is satisfied that the amendment would prejudice the legal rights of any person who has co-operated with or provided information to the commission.
I am satisfied that the overall effect of these important sections is that we are, in this legislation, ensuring that all the difficult matters which have come to beset other investigations and inquiries are met and addressed at the outset. The scope for subsequent surprises should, therefore, be considerably reduced.
In keeping with the general aim of the Bill, section 7 adopts a flexible approach to determining the membership of commissions. This arises because of the variety of circumstances in which commissions may be established. Under the terms of section 7, we will be able to draw on a wide range of skills and expertise and will be able to achieve the right mix of such skills and expertise. The experience and qualifications of the members can be supplemented by experts who can be recruited under section 8 to assist and advise the members. My aim is to ensure that all investigations, irrespective of the subject matter, will be carried out by those most qualified to do so and sections 7 and 8 will ensure this will be the case.
Section 9 sets out the guiding principles by which all commissions must operate. A commission will be required to seek the voluntary co-operation of witnesses and the Bill places a responsibility on it to facilitate witnesses in that respect. It is not possible, given the multitude of circumstances in which a commission may operate, to state the manner in which a commission will meet that obligation, but one can speculate that, for example, it will be prepared to hear evidence in locations and at times that are more convenient for the witness, and that it will accept evidence, subject to certain safeguards, in forms other than in person, for example, by live or pre-recorded video links or by affidavit.
Section 10, which provides that, in general, evidence shall be given to a commission in private, complements section 9 and will support a commission in adhering to the guiding principles to which I referred. I say this because the arrangements set out in section 10 will result in a less adversarial atmosphere. This is designed to encourage witnesses who might otherwise be intimidated by, for example, the prospect of lengthy and detailed cross-examination, to come forward and assist the commission.
Section 10 provides that legal representatives of other parties will be present only if the commission is satisfied that their presence is necessary in the interests of the investigation and of fair procedures. Likewise, cross-examination by or on behalf of other parties will take place only where the commission agrees. However, the commission may question a witness on the evidence he or she has given.
While I recognise that, in certain respects, the procedures in section 10 represent a departure from current practice, the new approach is designed to assist a commission in its primary task of establishing facts while, at the same time, ensuring that the procedures are fair. Since the hearings will generally be in private, the risk of damage to the good name or reputation of another is greatly reduced, as also is the need for legal representation. Private hearings also have the advantage of avoiding circumstances in which claims are publicly made by one party, but remain unanswered for a considerable period until the person affected comes to give his or her evidence. There is a real risk in those circumstances that unfounded or inaccurate claims can appear to go unchallenged and the good name and reputation of certain persons can be gravely and unjustly damaged. The new approach should reduce that risk.
While the issues to which I have referred are important, it is also important that private hearings are not abused in a way that would allow unfounded allegations and claims to be made or go unchallenged. Section 11 addresses this concern by providing that a commission should make any person who may be the subject of such claims or allegations aware of the claims or allegations, and those persons should be given an opportunity to deal with them. While no obligation is being placed on a commission to reveal the source of any evidence given, there may be occasions when in view of the purposes of the investigation and having regard to fair procedures, those details will have to be disclosed.
Section 14 requires a commission to establish or adopt rules and procedures relating to its operation. Deputies will note that those rules may, where a commission has several members, authorise the taking of evidence by one or more of those members. It adds that the evidence given in those circumstances will be regarded as having been given to the commission. This is an important feature which could help speed up investigations and save time and cost.
I turn to the powers being given by this legislation to commissions of investigation. While commissions will do everything reasonably possible to ensure voluntary co-operation from witnesses, they will also be in a position to pursue an investigation with vigour where such co-operation is not forthcoming. The Bill provides effective powers to deal with such non-co-operation, set out, in particular, in sections 15 and 27.
Section 15 specifies powers available to a commission regarding witnesses, including powers to direct witnesses to attend, to answer questions and to produce and disclose documents. Section 27 contains powers relating to entry into premises, inspecting and securing documents, taking copies of documents and requiring persons having charge of documents or related equipment to co-operate with the commission. All witnesses appearing before a commission are to be made aware that in the absence of co-operation, the commission may have recourse to the powers available to it under these sections. Furthermore, I draw attention to section 2(2) which provides a useful clarification on the question of who has control over documents, especially in large organisations. It states that in the final analysis, the person who can reasonably be considered to have control is in fact deemed to have control unless there is evidence to the contrary. This provision closes a potential loophole that could be open to abuse.
The Bill creates several offences of failure to comply with directions, of giving false statements and of obstruction. These offences carry fines on summary conviction of up to €3,000 or to a term of imprisonment for up to 12 months, or on indictment, to fines of up to €300,000 or five years imprisonment. It includes provision under which corporate bodies may be prosecuted for offences. In the event of a person not complying with a direction to attend or produce documentation, a commission may apply to the High Court for an order-in-aid seeking compliance. Failure to comply with that order raises the issue of contempt of court.
The powers being given to a commission of investigation under this Bill are necessary for the effective functioning of commissions. However, I also recognise that the powers are significant and it is for that reason that, for example, section 26 sets out the principles governing the use of the powers of entry and search. The powers may only be used if it is felt to be reasonable and necessary to do so in the interests of the investigation. I also point out that nothing in this Bill prevents anyone who is the subject of a direction from the commission under sections 15 or 27 from seeking a review of that direction by the High Court.
I would like to draw the attention of the House to section 20 in the context of a commission's powers and operating procedures. That section sets out how a commission may deal with situations where privilege is claimed in respect of information sought by a commission. The purpose is to find an effective but proportionate way of overcoming difficulties presented by claims of privilege. Such claims, especially where there is no justification for them, can seriously frustrate and delay the work of an investigation. The mechanism proposed in section 20 ensures that genuine claims will be respected while at the same time ensuring that the necessary information is made available to the commission. The section also provides that a commission may cause a summary version of a document, which contains privileged information, to be prepared where that is possible and the interests of the investigation and fair procedures are served by so doing. A person whose claim of privilege over a document is the subject of a determination by a commission that all or part of the document should be admitted in evidence may, within ten days of the determination, bring an appeal to the High Court under section 21 against the commission's determination.
I want to turn now to the important area of costs, or more precisely, the control of costs. Starting from the beginning of any investigation, as was noted earlier, the terms of reference must be accompanied by a statement from the relevant Minister of the costs likely to be incurred by the commission. This statement is to be revised in the event of the terms being altered. The costs covered by this statement will relate to costs to be incurred by the commission, including costs of experts appointed to assist it in accordance with section 8, including barristers and solicitors, where appointed.
The Bill contains a number of provisions relating to the circumstances in which witnesses may have their costs met in whole or in part by the relevant Minister. Generally, the Bill deals only with the repayment of legal costs, which I will deal with presently, but it does make some provision for non-legal costs. Section 15(3) provides for the payment of witness expenses. The relevant Minister, in consultation with the Minister for Finance, will draw up guidelines for this purpose. Expenses in this context are likely to include items such as travel costs. Section 16 provides that where a witness is held to have failed to co-operate or obstructed the commission and the commission or other witnesses have incurred additional costs as a result, then the party who causes the delay or obstruction may be held liable for those additional costs. Liability for the costs of the commission or other witnesses may be imposed on persons in addition to being proceeded against for the offence of obstruction under this Bill. It should be understood that obstruction is likely to have serious consequences.
On legal costs, section 22 provides for guidelines to be prepared by the relevant Minister, in consultation with the Minister for Finance, in advance of the commission's hearings setting out what legal costs will be regarded as being necessarily incurred by witnesses in connection with the investigation. These are the only legal expenses a witness can expect to recoup. Legal costs will be necessarily incurred where the good name of a witness is called into question or where other personal or property rights are at risk of being jeopardised as a result of evidence received by the commission. The guidelines prepared under section 22 may restrict the types of legal services or fees to be recouped and may set limits on the level of legal costs to be paid. Each witness will be furnished with a copy of the guidelines in advance of his or her giving evidence. This ensures that witnesses who wish to do so can arrange legal representation with full knowledge of the regime under which they may seek to have those costs recouped.
A commission is obliged, in accordance with section 12(2), to advise the witness of his or her legal rights and obligations where a witness is not legally represented for whatever reason. The result is that even where the commission considers that legal representation is not necessary to the extent that it will approve the recoupment of costs and the witness does not therefore acquire legal representation, the commission will seek to ensure that the witness is fully aware of all of his or her legal rights.
While the guidelines in section 22 provide information on the types of services and levels of legal costs that may be recouped, they do not give an automatic guarantee that legal costs incurred by the witness will in fact be met. Each situation will require consideration on its own merits, having regard to the criteria set out in section 23. All applications will be subject, in particular, to the criteria in section 23(3) which sets out a non-exhaustive list of issues to be considered by the commission. These include the complexity of the evidence given by the witness, the volume of documentation supplied, whether the evidence was given in private, whether the witness was cross-examined and the potential consequences for that witness of the final report.
Having considered the application, the commission may give a direction to the relevant Minister to pay costs at a level that does not exceed the maximum set out in the guidelines. The recommended level may be lower than in the guidelines. The Minister may either pay the costs as directed by the commission or may refer the matter back to it for reconsideration. That reconsideration may be based on aspects of the guidelines in section 22 or on the criteria in section 23(3) or, in certain cases, the Minister may ask that the ability of the witness to meet the costs should be considered further. The commission may, following reconsideration of the matter, reduce the proposed level of payment or confirm its original determination. The Minister shall then pay to the witness the costs as recommended by the commission.
Section 23(5) makes a limited exception to the general regime on costs. That will occur where a witness incurs exceptional costs other than legal costs, because of the volume or location of documents, for example, documents held outside the State. In those circumstances, the commission may direct that such exceptional costs may be repaid to the witness and as in the case of legal costs, the relevant Minister may request the commission to reconsider any direction about the repayment of such costs.
I have been anxious to spell out in some detail the provisions relating to costs, in particular, legal costs. In addressing the question of legal costs, the Bill takes account of the overall structure being put in place, including the level of risk to the good name and reputation of any witness because, as I expect, private hearings will be the norm. It is reasonable to say that the lower level of risk to the good name and reputation of any witness should be reflected in a reduced need for legal representation. On the other hand, the Bill ensures that costs that are necessarily incurred — and that is the critical phrase — in the protection of a person's good name and reputation will be recouped. It sets out to achieve a balance between the wider public interest to control costs and the protection of the rights of individuals to their good name. The proposals on costs achieve that balance.
Part 5 of the Bill deals with the reports and interim reports of a commission. Section 31 addresses the core point and provides not only that a commission must prepare for the relevant Minister a written report based on the evidence received by it but also states the precise purpose of the report, namely, to set out the facts it has established on the matter referred to it. It is not the function of a commission to speculate or to make findings or to reach judgments based on the balance of the evidence. However, by virtue of having become a matter requiring the establishment of a commission of investigation, there is likely to be dispute about some or all aspects of the evidence. Again, there is a balance to be achieved. It would be unreasonable to expect a commission to merely set out the conflicting evidence and offer no comment even where certain comment would be justified by the clear weight and quality of some or all of that evidence. Such an approach would undermine the credibility of a commission as it alone would be unable to draw conclusions that would seem obvious to all other observers. Section 31(2) addresses this issue and enables a commission to indicate its opinion as to the quality or weight of evidence relating to any area where the evidence is incomplete, insufficient, inconsistent or disputed. It does not go so far as to say that a commission may favour or find that one version of the evidence is more credible than another. It does, however, permit it to point out that, for example, certain disputed facts are supported by corroboration from other sources or that the clear majority of witnesses affected by a particular event support one version as opposed to another. Statements of that nature merely summarise where the weight of the evidence lies and they are, to that extent, merely stating what will be obvious to all.
I draw attention to some aspects of the Bill as they relate to the possible identification of persons in reports compiled by a commission. There is no general restriction in the Bill on the identification of persons in reports of a commission. However, section 31(3) sets out considerations that may lead to the omission of certain details from a report identifying persons who gave evidence or any other person. The grounds include where the context in which the person was identified has not been clearly established or where disclosure might prejudice any criminal proceedings pending or in progress or where it would not be in the person's interest and the omission would not be contrary to the interests of the investigation or any subsequent inquiry.
Sections 33, 34 and 35 contain provisions providing for an opportunity to persons identified in or identifiable from a draft report to submit comments thereon to the commission on the grounds that there has been a failure to observe fair procedures or in order to protect commercially sensitive information. A commission is required to give due consideration to requests for alterations and it may either amend the report, apply to the High Court for directions or submit the report to the relevant Minister without alteration. In the alternative, a person identified in or identifiable from a draft report may bring the matter before the High Court seeking an order from the court directing that the draft be amended before submission to the relevant Minister. The court may either order the commission to submit the report without alteration or with such alterations as it may direct, or give a direction to the commission to provide an opportunity to the person to give evidence or make submissions to the commission before the report is finalised.
Either way, no one will be allowed to delay publication indefinitely as there will be time limits for making submissions to the commission or applications to the court. Giving affected persons an opportunity to comment and to have their views considered will meet the requirements of natural justice, and the commitment to fair procedures will reduce the likelihood of court challenges to a commission's work and support the objective of efficient and effective investigations.
The final decision on the publication of a report or interim report rests with the relevant Minister. He or she may seek directions from the High Court where there is a risk that anything in the report or interim report could prejudice any pending or ongoing criminal proceedings. This is a useful final check. The Bill does not contemplate any other reason for delaying or withholding publication.
Section 39 confers absolute privilege on reports and interim reports as well as on other documentation of a commission, wherever published. It is likely that, in many cases, commissions will find themselves grappling with the difficulties of disputed evidence. As a result, it may transpire that, in some instances, a commission may be unable to establish or present the full facts in respect of some or all of the matters about which it has carried out an investigation. The Bill, therefore, leaves open the possibility of a tribunal of inquiry being established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2002 for the purposes of inquiring further into the matter. It is my view that it will be the exception to have to establish a tribunal as a follow-up to a commission. Neither will the establishment of a tribunal in such circumstances represent a failure on the part of the commission. On the contrary, it will have carried out invaluable preparatory work on behalf of any subsequent tribunal, thus saving time and cost apart from the quality and volume of the evidence it will have amassed.
Section 42 provides that, in the event of a tribunal being established, all of that evidence becomes evidence of the tribunal. Care must be taken, however, to ensure that information excluded from a commission's report under section 31(3) is not made public as a result of the transfer of the evidence received to the subsequent tribunal. Section 43 provides a mechanism for dealing with such information. It provides that the affected person is to be informed of any intention to disclose details that were previously excluded and that they have a right to make observations. Ultimately, the High Court may be asked to decide on the matter.
On the wider point of what a tribunal can be expected to achieve that the commission has been unable to do, I suggest I have already answered that. A commission is required to establish facts and may comment beyond that only to the limited extent that I have referred to earlier. This limited brief is required if we are to have a mechanism that reduces the adversarial content of existing fora and places less reliance on cross-examinations and other features that add to cost and delay. A tribunal hears arguments in public and, unlike what we generally expect to be the case with commissions, permits cross-examination. It can then come to conclusions based on the balance of the evidence available to it. In other words, it is able to make judgements about the balance of evidence in a way that we do not foresee for commissions of investigation.
I want to stress to the House that it is frequently sufficient that various people's versions of a particular incident come out because one person's opinion is frequently just as good as another person's, having heard the accounts of the various parties. I think back to the proceedings before this House on one occasion when a committee of investigation did not come to any conclusions but everybody was able to hear everybody else's account of the same transaction and, at that point, everyone drew their own conclusions and had an overview of the issue.
As I have already stated, I would expect that only in the rare case will there be a need to establish a tribunal following the conclusion by a commission of its work. A decision on whether to propose the establishment of a tribunal will, in the first instance, be a decision by the Government of the day and the proposal must then be submitted to the Oireachtas for its approval. It may be that the Government would decide that, even where the commission's investigation is not as complete as would have been hoped, enough evidence will have been collected for the Government to proceed to deal with the matter in another way, for example, by legislative or administrative action, to remedy the situation which arises on the material available.
This reforming legislation provides an efficient and effective alternative to the State for the purposes of investigating matters of significant public concern. It draws on our experience to date with other methods of investigation. It is a Bill that arises from recognition of the complexities of modern government and public administration. The opportunities for systems to fail are ever greater and the consequences of such failures are often far-reaching both for individuals concerned as well as society at large. It is important that we provide ourselves with a mechanism for responding to such failures that is responsive, sensitive and fair while at the same time is effective and efficient. To meet those criteria, it must be speedy and cost-effective. In that way it will command public respect and confidence and will be seen as the ideal way of dealing with complex situations while fully respecting fair procedures and natural justice.
I believe this Bill meets those criteria and am therefore happy to commend it to the House. I look forward to a reasoned debate on the various Stages of the consideration of this legislation. I undertake that, as in everything else, I will be alert to sensible and constructive criticism offered in regard to how the Bill can be improved and hope to achieve an even better Act than the Bill I present to the House today.
